Donaghy v Council of the Law Society of NSW (No 2) [2013] NSWADT 245

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Donaghy v Council of the Law Society of NSW (No 2) [2013] NSWADT 245 Hearing dates: Decision on the papers - Submissions by Applicant dated 13 November 2012 and 30 August 2013. Submissions from Respondent received 23 September 2013 Decision date: 31 October 2013 Jurisdiction: Legal Services Division Before: G Mullane, Judicial Member Decision: (1) The interlocutory application of the Applicant contained in his letter of 30 August 2013 addressed to the Registrar of the Tribunal is refused and dismissed. (2)The costs of the application are reserved. Catchwords: Solicitor- review (s 63 of Administrative Decisions Tribunal Act 1997) of summary disciplinary decision of Council ( s 540 of Legal Profession Act 2004).criticisms of procedure by Council irrelevant. Tribunal cannot compel Council to identify or produce documents relating to disciplinary decision- Secs 601 & 602 of Legal Profession Act Legislation Cited: Legal Profession Act 2004 Administrative Decisions Tribunal Act 1997 Cases Cited: Council of the NSW Bar Association v Archer [2008] NSWCA 164; Category: Interlocutory applications Parties: Geoffrey James Donaghy (Applicant) The Council of the Law Society NSW (Respondent) File Number(s): 132011

reasons for decision

INTRODUCTION 1The proceedings between the parties are an application by the Applicant for review of a disciplinary decision of the Respondent made under its summary powers under section 540 of the Legal Profession Act 2004 ("The Act"). By his letter to the Registrar of the Tribunal of 30 August 2013 the Applicant made application for the following interlocutory orders:- 1. "That the Respondent within seven days identify the documents in these proceedings over which it claims immunity from production under section 602 of the Legal Profession Act 2004 2. The Respondent provide the reasons why it says that each document is protected by the section 602 immunity 3. (a) The Respondent identifies (sic) the persons who comprise the Professional Conduct Committee of the Respondent who made the decision on 1 September 2011 in relation to the Applicant; (b) the Respondent identify the persons who comprises the Professional Conduct Committee of the Respondent who made the decision of 15 September 2011 ( (c) the Respondent identify the persons who comprise the Professional Conduct Committee of the Respondent who made the decision of 3 February 2011 4. The Tribunal orders that the decision of Donaghy v Council of the Law Society NSW No. 2 2012 NSWADT 185 be removed from the Administrative Decisions Tribunal Website or in the alternative the decision be marked overturned on appeal." 2Chapter 5 of the Administrative Decisions Tribunal Act 1997 ("The ADT Act") sets out steps to be followed by the parties and the Tribunal in the review process. Section 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". 3Section 63 of the Administrative Decisions Tribunal Act 1997 provides: 63. Determination of review by Tribunal 1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: a) Any relevant factual material b) Any applicable written or unwritten law. 2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. 3) In determining an application for the review of a reviewable decision, the Tribunal may decide: a) To affirm the reviewable decision, or b) To vary the reviewable decision, or c) To set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or d) To set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 4By his letter of 13 November 2012 addressed to the Litigation Manager, Professional Standards of this Respondent, the Applicant asked the Respondent to advise him of: a)"The members who constituted the Professional Conduct Committee on 1 September 2011; b)The members who constituted the Professional Conduct Committee on 3 February 2011; c)Which member of the Professional Conduct Committee who signed the resolution of the Committee on 1 September 2011; d)Who signed the resolution of 3 February 2011; e)On whose authority Ms Barnes, who I note is referred to as a solicitor in Professional Standards, sent the letter of 2 September 2011."