Years of to-and-fro between tribunal and appeal court over failure to pay barrister’s fee and other complaints against a NSW solicitor … John Basten takes control and six years after the law society issued a summary reprimand, that decision is upheld … Kate Lilly on the case 

A solicitor’s three-year battle to dodge a reprimand from the Council of the NSW Law Society has come to nothing. 

Geoffrey Donaghy managed to avoid paying a barrister’s fee for 23 months and in 2009 was referred to the council for investigation.  

This month Justice John Basten and NSW appeals reinstated the reprimand, ending a nightmarish game of ping pong between the Administrative Decisions Tribunal and the appeal court.  

The court expressed disappointment that the saga had been “characterised by errors committed by successive tribunals and by significant delays”. 

In June 2009, barrister Regina Graycar accepted instructions from Donaghy to appear in a case set down for the following month. Unfortunately, she has had a spot of bother securing her fee.  After the hearing rolled around, Graycar sent a bill for $11,687.50. Months later, she still hadn’t been paid and she hadn’t heard from a peep from Donaghy.  

On November 30, she wrote to the Lismore based solicitor: 

“I remind you that I sent you invoices dated 17 July 2009 and 24 September 2009 and my clerk spoke to your associate Tracey Hodgson on an almost daily basis for several weeks asking you to contact her in relation to the account. I should further add that Ms Hodgson repeatedly assured my clerk that she had informed you of her calls and apprised you of the situation. Yet, at no time did you do her the courtesy of returning her calls.”

In response … crickets.  

On December 14, Reg Graycar made a complaint to the Legal Service Commissioner, who referred the matter to the council of the law society for investigation. In November 2010, Graycar sought to have the costs assessed. Donaghy filed to have the costs reduced to $3,625 – and still wasn’t coughing up.    

In September 2011, Donaghy received a reprimand from the council under s.540 of the (former) NSW Legal Profession Act. Section 540 allowed the summary conclusion of certain complaints. The council was empowered to issue a reprimand if there was a “reasonable likelihood” that a tribunal would find a practitioner had engaged in unsatisfactory professional conduct, but was also “generally competent and diligent”.  

The council didn’t pursue any further disciplinary action. Nevertheless, Donaghy sought a review of the decision by the ADT.      

Donaghy’s appeal bounced between the ADT and the Court of Appeal for years: 

August 2012 – the ADT dismissed Donaghy’s application for review and upheld the reprimand under s.540. It agreed that Donaghy’s failure to pay amounted to “unsatisfactory professional conduct”. 

June 2013 – the Court of Appeal set aside the tribunal’s decision on the grounds of procedural fairness. The matter is remitted to the ADT for round two.    

November 2013 – a directions hearing took place. Donaghy sought an adjournment because the Legal Services Commissioner was finalising a separate decision in relation to a different complaint against him. In that other matter, the ADT found Donaghy “intentionally did not attend the Children’s Court” on the day set by a magistrate, without a reasonable explanation. The ADT concluded this was “not, in all the circumstances, careful conduct of his client’s case or careful protection of her interests”. Donaghy raised the possibility of bias, because his next hearing was to come before the same ADT panel. His application was dismissed.  

April 2014 – the ADT considered Donaghy’s conduct alongside the Children’s Court complaint and decided that he wasn’t “generally competent and diligent”. As a result, the summary procedures under s.540 were unavailable. The tribunal remitted the fee complaint to the law society council for formal disciplinary proceedings. Donaghy appeals.

By that time, the law society council wasn’t seeking to maintain the orders issued by the ADT – the subject of the appeal. This was because a new court of appeal decision had effectively dislodged the tribunal’s reasoning.  

Basten explained: 

“The source of the concession made was to be found in the judgment of this court given on 19 December 2014 setting aside orders made by the tribunal in relation to the children’s court complaints. The consequence was that the basis for the finding with respect to the fees complaints as to whether the practitioner was ‘generally competent and diligent’ had been set aside. That being so, the respondent conceded that error infected the orders with respect to the fees complaint.” 

As a result, Donaghy sought to have the whole complaint dismissed while the council wanted to drag the matter back to the ADT for further consideration. 

Basten was not amenable to either of these options. He observed, “in circumstances where the court is well able to dispose of the matter on the merits without remittal, that should be the proper course”.  As such, a final decision could be made “on the papers”. 

Basten went on:

“In a matter involving the discipline of a legal practitioner, the parties should not approach the court on the basis that the court will simply rubber stamp an accommodation reached between the parties in relation to the appeal. Disciplinary proceedings are not, and never have been, ordinary litigation between adversaries. The court has an interest in determining whether the conduct of a practitioner admitted by the court has fallen short of the required standards or deserves a sanction.” 

Basten noted that the basis for the tribunal’s earlier finding (that Donaghy was not “generally competent and diligent”) had been undermined. This put the s.540 measures back on the table. Considering the facts afresh, HH concluded that the council’s original decision to reprimand Donaghy “was the correct and preferable decision”.  

He held:

Because the tribunal might well consider it a lengthy delay and one for which no reasonable justification had been provided, the council was correct in concluding that the non-payment of fees, in those circumstances, fell within the terms of s 540(a)(b)(i).

A similar analysis should be accepted with respect to the failure to communicate. The substance of the practitioner’s response, as presented to the council, was that it was ‘incorrect to say that this firm has not responded to Ms Graycar’s telephone calls or letters’, asserting that there had been ‘repeated telephone conversations between her clerk and this firm through my associate Ms Hodgson’ … In the context of non-payment of fees, it was well arguable that having one’s agent or associate accept inquiries without providing a response involved a failure to communicate with counsel to whom the fees were owed. It was reasonably likely that the tribunal would so characterise the undisputed circumstances. It was also reasonably likely that the tribunal would treat such conduct as unsatisfactory professional conduct …  

In the absence of material before the council to suggest that the practitioner was other than generally competent and diligent, the council was justified in taking action under s.540.

Justices Fabian Gleeson and Ronald Sackville agreed with Basten’s analysis. Sackville had just a few words to add: 

“It is unfortunate that this matter has been characterised by errors committed by successive tribunals and by significant delays, for which the errors have been partly responsible.

It is also unfortunate that the tribunal which conducted the second review of the council’s decision was the same tribunal as made findings adverse to the practitioner on the Children’s Court complaints. The practitioner’s contention in this court that the decision of the second tribunal was affected by a reasonable apprehension of bias was not clearly formulated until well into the hearing in this court. However, subject to the question of waiver, there is considerable force in that contention.” 

Donaghy was ordered to pay 50 percent of the law society’s costs.