Donaghy v Council of the Law Society of New South Wales (No 1) [2012] NSWADT 185

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Donaghy v Council of the Law Society of New South Wales (No 1) [2012] NSWADT 185 Hearing dates: 10 February 2012 Decision date: 02 March 2012 Jurisdiction: Legal Services Division Before: Fairlie D Judicial member Decision: The Summons to Produce documents dated 20 December 2011, addressed to the Law Society, be set aside Catchwords: Non-compellable witnesses to produce documents - procedural fairness - waiver Legislation Cited: Legal Profession Act 2004 Legal Profession Act 1987 Administrative Decisions Tribunal Act 1997 Cases Cited: Attorney General for the Northern Territory v Maurice (1986) 161 CLR 475 Council of the Bar Association of New South Wales v Archer [2008] NSWCA 164 Council of the Bar Association of New South Wales v Archer No 9 [2007] NSW ADT 214 Law Society of New South Wales v Graham [2007] NSW ADT 67 Murray v Legal Services Commissioner [1999] NSWCA 70 Category: Interlocutory applications Parties: Geoffrey James Donaghy - Applicant Council of the Law Society of New South Wales - Respondent Representation: Counsel Respondent - Ms C Webster Solicitors Applicant - In person Respondent - Mr L Pierotti File Number(s): 112029

REASONS FOR DECISION 1On 1 September 2011, the Professional Conduct Committee, as the delegate of the Council of the Law Society of New South Wales, (the Law Society"), resolved to reprimand Geoffrey James Donaghy (the Solicitor") pursuant to its summary powers under s.540 of the Legal Profession Act 2004 ("the LP Act"). The reasons given by the Law Society for the decision, were that the Solicitor had failed to pay counsel briefed by him and had failed to communicate with counsel in relation to the fees. 2S.540(5) of the LP Act entitled the Solicitor to apply to this Tribunal to have that decision reviewed. On 26 September 2011, the Solicitor lodged an Application for Review, and the matter was listed for hearing on 10 February 2012. 3Chapter 5 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), sets out the steps to be followed by the parties and the Tribunal in the review process. S.58(1) requires the Law Society to lodge with the Tribunal "a copy of every document that it considers to be relevant to the determination of the application by the Tribunal". The Law Society lodged its bundle of documents in conformity with this section, on 30 October 2011. 4On 4 November 2011, the Solicitor wrote to the Law Society asserting that the bundle was incomplete. He said that a report from a Law Society officer to the Professional Conduct Committee in relation to the matter, which had been referred to in the correspondence which had been produced, had not been included. He asked for this report to be included in the bundle, as well as any other relevant reports by Law Society officials. 5On 11 November 2011, the Law Society replied, drawing the Solicitor's attention to s.602 of the LP Act. The letter said that, as a consequence, the Law Society was not compelled to produce such reports and declined to do so. The letter also made the point, that under s.63(1) of the ADT Act, the Tribunal's function when hearing the Review was "to decide what the correct and preferable decision is, having regard to the material then before it" and that it would not be conducting an appeal against the Committee's decision. 6The Solicitor then made an Application to the Tribunal for a Summons to Produce Documents ("Summons"), to be served on the Law Society. The Summons was issued on 20 December 2011 and made returnable on 17 January 2012. The Summons was in broader terms than the Solicitor's letter of 4 November 2011, and required the Proper Officer of the Law Society to produce the Summons and: "2. All correspondence, reports, meeting minutes, memoranda, handwritten file notes, typed file notes, files, records and all other documents in relation to the complaint made by Ms Reg Graycar against Mr Geoffrey James Donaghy; 3. Including specifically, but not limited to:- (a)Copies of all reports to the Professional Conduct Committee prepared by Ms Elizabeth Tomlinson; (b)Copies of all correspondence between Ms Elizabeth Tomlinson and the Professional Conduct Committee; (c)Copies of all reports to the Professional Conduct Department prepared by Ms Elizabeth Barnes; (d)Copies of all correspondence between Ms Elizabeth Barnes and the Professional Conduct Committee." 7On 12 January 2012, the Law Society wrote to the Solicitor repeating that it had produced all the documents that it intended to in its bundle of documents and that it could not be compelled to produce any further documents. No further documents were produced on 17 January 2012. 8The Solicitor then wrote to the Tribunal on 27 January 2012 indicating that he wished the Tribunal to rule on this issue before his Application for Review was heard. In accordance with paragraph 16 of the Tribunal's Practice Note No 21, this issue was referred to me for decision. As there were no days available to hear argument on the preliminary issue before 10 February, the hearing date was vacated and the hearing of the preliminary issue was listed in its place on that day. The Solicitor appeared in person, and Ms Webster appeared for the Law Society. Written submissions were also filed by each party prior to the hearing.