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." ORDER 4 OF THE ORDERS SOUGHT 5This is an order sought by the Applicant for removal of Donaghy v Council of the Law Society NSW No. 2 [2012] NSWADT 185 "from the Administrative Decisions Tribunal Website ADTW or in the alternative that the decision be marked overturned on appeal." 6In his letter of 30 August 2013 the Applicant makes the following submissions in support of this order he seeks:- The Applicant submits that these Orders sought are on the basis of procedural fairness. The Appellant submits in relation to Order 4 that the excess of the jurisdiction by the Tribunal namely Order 2 that "Geoffrey James Donaghy be reprimanded" is of such a nature that it is only fair to the Appellant that that decision be removed from the public arena. There was no basis for the Tribunal to reprimand the Appellant and by allowing the decision to remain published it suggests that the Tribunal indeed reprimanded the Appellant. Further and in the alternative it is submitted that the decision should be marked in an appropriate manner reflecting the Orders made by the Court of Appeal on 6 June 2013. The Court of Appeal quashed the Orders of the Tribunal of 17 August 2013 in effect wiping them from the record. The decision should reflect that finding. 7The role of the Tribunal in these proceedings is to decide "what the correct and preferable decision is" and this power depends upon section 540 of the Act, which is the section under which the decision of the Respondent was made. The Tribunal's role is not to decide whether the decision of the Law Society is unfair or otherwise defective, because section 540 gives the applicant a new hearing by the Tribunal as of right. 8Section 540 provides:- 540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions 4) This section applies if: a) Either: i) The Commissioner or a Council completes an investigation of a complaint against an Australian legal practitioner, or ii)The report of an independent investigator is given to the Commissioner, and b) The Commissioner or Council (as the case requires): i) Is satisfied that there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct), and ii) Is satisfied that the practitioner is generally competent and diligent, and iii) Is satisfied that the taking of action under this section is justified having regard to all the circumstances of the case (including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the practitioner. 5) The Commissioner or Council may do any or all of the following: a) Caution the practitioner, b) Reprimand the practitioner, c) Make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint, d) Determine that a specified condition be imposed on the practitioner's practising certificate. 6) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct. 7) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. 8) If the Commissioner or Council decides to reprimand or make a compensation order against an Australian legal practitioner under this section, or that a condition be imposed on an Australian legal practitioner's practising certificate under this section, the practitioner may apply to the Tribunal for a review of the decision. Note: Reviews are carried out under Chapter 5 of the Administrative Decisions Tribunal Act 1997. Section 729A modified the operation of that Act. An appeal lies to the Supreme Court under section 729A against a decision of the Administrative Decisions Tribunal. 9) If the Commissioner determines that a specified condition be imposed on a practising certificate, the appropriate Council is required to impose and maintain the condition. The condition may be amended, suspended, reinstated or revoked with the concurrence of the Commissioner. 9In exercising its powers under section 540, it is clear the section does not enable the Tribunal to make an order of the type sought in para 4 of the orders sought, nor does section 63 of the ADT Act. Nor does any other provision in chapter 3 of the ADT Act, which sets out the role of the Tribunal. 10The conclusion therefore is that para 4 of the orders sought is not an order that the Tribunal in these proceedings has power to make. PARA 3 OF THE ORDERS SOUGHT 11These orders said to compel the Respondent to identify the persons comprising the Professional Conduct Committee of the Respondent that made various decisions in relation to the Applicant. Such information is not relevant and is of no assistance to the Tribunal in performing its role in this review. The application for an order in terms of para 3 should therefore be refused. 12In his letter of 30 August 2013 the Applicant makes the following submissions in support of this order he seeks:- It is a denial of procedural fairness that the Respondent would not identify those person or persons who sat in judgement upon the Appellant. How can the Appellant be assured that the proper procedures of the Respondent were followed in reaching its determination and/or that the members of the committee involved were impartial when he does not know who they were. The Appellant has sought this information previously and been rebuffed by the Respondent see Annexure A and B copies of correspondence between the parties. ORDERS 1 & 2 OF THE ORDERS SOUGHT 13The law society has relied upon sections 601 and 602 of the Act and submits that because of such provisions cannot be compelled to produce or identify such documents and it declines to do so. 14In his letter of 30 August 2013 the Applicant makes the following submissions in support of the orders he seeks:- It is submitted that the Respondent by refusing to identify the documents on which it claims a Section 602 immunity and refusing to produce them is denying the Appellant a fair hearing upon his application before the Tribunal. It is submitted the Tribunal is in the position of having to review the decision of 1 September 2010 and determine if it was the correct and preferable decision without having all the Respondent's material before it. The Applicant submits that these Orders sought are on the basis of procedural fairness. 15The Applicant 's submissions suggest that the role of the Tribunal in this review includes deciding whether the decision of the Council was "the correct and preferable decision", but that is incorrect. That is not part of the Tribunal's role. The role of the Tribunal is to decide on the evidence before it what "the correct and preferable decision" is. 16In his submissions before this tribunal, the Applicant has not identified the relevance to the issues before this Tribunal of any document that would be the subject of any compliance with orders in the form of paragraphs 1 & 2 of the orders sought. However, section 602 of the act provides: 602 Non-compellability of certain witnesses 1. A person referred to in section 601 (Protection from liability) is not compellable in any legal proceedings (including proceedings before the Tribunal) to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this chapter. 2. This section does not apply to: a) Proceedings under Part 3 of the Royal Commissions Act 1923, or b) Proceedings before the Independent Commission Against Corruption, or c) Proceedings under Part 3 of the Special Commissions of Inquiry Act 1983, d) An inquiry under the Ombudsman Act 1974 17In subsection 601 (1) persons listed include the Law Society or the council of the Law Society or any member of the council. The role of the Tribunal is to decide on the material before it what is the correct and preferable decision. It is not a situation where the Tribunal is to focus on the decision of the law society and scrutinise it for errors. This is a situation where the decision making is done by the Tribunal. The Applicant will be aware of all the material relied upon by the Respondent, and the Applicant has an opportunity to provide any evidence in response to the material relied upon by the Respondent. 18In that context, it is for the Tribunal to ensure that it does not deny either party procedural fairness. It can, where it becomes aware that other documents may be relevant to the determination of the application, cause a notice in writing to be served on the Council directing the Council to lodge with the Tribunal a copy of each of those other documents that is in the possession or under the control of the Council." (subsection 58 (4) of the Act). In Council of the NSW Bar Association v Archer [2008] NSWCA 164 the Court of Appeal held that considerations of fairness were not sufficient to restrict the operation of section 171R of the Legal Profession Act 1987, which in relevant provisions was identical to the current section 602 of the act. 19Accordingly, the Respondent is not compellable in proceedings before the Tribunal to give evidence or produce documents "in respect of any matter in which the person was involved in the course of the administration of this chapter". The chapter is chapter 4 "Complaints and Discipline" and includes section 540. 20Accordingly, the Tribunal is prohibited from making the orders requested in paragraphs 1 & 2 of the orders sought.. 21There is also a previous decision of judicial member Fairlie of 2 March 2012 (Donaghy v Council of the Law Society of NSW (No. 1 ) [2012] NSWADT 185) in which the Tribunal in relation to alleged non-compliance by the Law Society with a summons addressed to the proper officer of the law society requiring production of the following documents: 1.All correspondence reports, meeting minutes, memoranda, hand written 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; including 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. 2.The law society had written to the solicitor informing him that it had produced all the documents that it had intended to provide in its bundle of documents and that it could not be compelled to produce any further documents. 3.The Applicant in those proceedings argued "general principals of fairness" required that the documents should be produced to sub section 58 (4) of the ADT Act gave the Tribunal the ultimate say as to which documents should be produced by the law society; 4.The Law Society had waived its entitlement to section 602 of the Act; 5.The law society could not simply make "a blanket claim for immunity" and had an obligation to identify the reasons why it did not produce each document, and it had not done so; 6.The law society had an obligation to list individually each of the documents which it said "it was not compelled to produce and it had not done so." 22The Tribunal in its decision rejected each of these submissions by the Applicant and set aside the summons. To some extent, the arguments raised in this hearing were a repeat of arguments raised in the earlier proceedings in 2012. ORDERS The orders therefore are: 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. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2013