Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Donaghy v Legal Services Commissioner (No 2) [2014] NSWCATOD 1 Hearing dates: 6 September 2013 Decision date: 21 January 2014 Jurisdiction: Occupational Division Before: Hon G Mullane, Senior Member M Riordan, Senior Member J Butlin, General Member Decision: (1)The decision of the Legal Services Commissioner of 4 December 2012 to reprimand the solicitor Geoffrey James Donaghy is set aside. (2) Geoffrey James Donaghy is reprimanded. (3) The following condition is imposed on the Local Practising Certificate of Geoffrey James Donaghy: Geoffrey James Donaghy must by 30 June 2014 successfully complete a course of ethics education that covers the duties and obligations of a solicitor to the courts such course to be nominated or approved by the Legal Services Commissioner. Catchwords: Solicitor- duty and obligations to Courts -failure to appear Legislation Cited: Legal Profession Act 2004; Administrative Decisions Tribunal Act 1997 Cases Cited: NSW Bar Association v Donnelly [2003] NSWADT 3 Donaghy v Legal Services Commissioner [2013] NSWADT 260(1) Category: Principal judgment Parties: Geoffrey James Donaghy (Applicant) Legal Services Commissioner (Respondent) Representation: Counsel: C A Webster SC (Respondent) Solicitors: G Donaghy (Applicant in person) Lynda Muston (Respondent) File Number(s): 122025 reasons for decision INTRODUCTION 1This matter was heard on 6 September 2013 and is a review of the decision of the Legal Services Commissioner to reprimand Mr Donaghy. 2At the hearing on 6 September 2013, the Presiding Member informed the parties that the Tribunal might be considering whether the correct and preferable decision would be to impose a reprimand and also imposition of a condition on Mr Donaghy's Practising Certificate requiring him to undertake an ethics course that includes his duties and responsibilities to the courts. 3We asked Ms Webster, for the Commissioner, to address that issue and others at the end of the submissions by Mr Donaghy. Ms Webster informed the Tribunal that she was not instructed to seek any such order for imposition of a condition on Mr Donaghy's Practising Certificate. She conceded, however, that the Tribunal had power to make such an order. 4On 8 November 2013, the Tribunal made the following Order: 5The Tribunal is considering whether the "correct and preferable decision" should include the imposition of a condition on the Practising Certificate of the Applicant requiring him to complete a course approved or nominated by the Legal Services Commissioner in ethics that includes education in the duties and obligations of lawyers to the courts and therefore requires the Applicant to file and serve within 14 days any evidence or submission he seeks to rely upon on that issue. 6The Registrar subsequently received a letter from Mr Donaghy in which he acknowledged receipt of notice of the order and expressed an intention that he would not make any submissions unless the Tribunal published reasons that indicated why it was seeking to consider the possible imposition of such a condition. 7The Tribunal on 20 November 2013 published reasons setting out the findings to that stage of the proceedings (Donaghy -v- Legal Services Commissioner [2013] NSWADT 260(1)). It is now more than 5 weeks since the order of 8 November 2013, requiring Mr Donaghy to provide any evidence or submissions he wanted to rely upon. Even if the Tribunal's requirement for Mr Donaghy to provide any evidence or submissions "within 14 days" were treated as running from provision of those reasons on 20 November, the time expired on 5 December. Mr Donaghy has not provided any such evidence or submissions. SHOULD SUCH A CONDITION BE IMPOSED? 8As set out in the Tribunal's Reasons of 20 November 2013, Mr Donaghy has displayed a continuing ignorance of his obligation to attend the Children's Court for a matter that was listed as a part-heard matter for a further 2 days of hearing, and then on the same day failing to attend the Court when ordered to do so by the Magistrate. 9That ignorance appears to have persisted for 2 years after the date of the conduct which was the subject of the proceedings. 10The facts in this matter have some similarity in that regard with the facts in NSW Bar Association -v- Donnelly [2003] NSWADT 3 discussed in our earlier reasons, where the Tribunal ordered the Barrister to attend 30 hours of ethics education over the next 2 calendar years. 11The Tribunal concludes that in order to protect the public it is necessary to impose the reprimand and also impose a condition on Mr Donaghy's Practising Certificate requiring him to successfully complete an ethics course which includes education as to the ethical duties and obligations of a solicitor to the courts. That is the correct and preferable decision. ORDERS 12The Orders are: 1) The decision of the Legal Services Commissioner of 4 December 2012 to reprimand the solicitor Geoffrey James Donaghy is set aside. 2) Geoffrey James Donaghy is reprimanded. 3) The following condition is imposed on the Local Practising Certificate of Geoffrey James Donaghy: Geoffrey James Donaghy must by 30 June 2014 successfully complete a course of ethics education that covers the duties and obligations of a solicitor to the courts such course to be nominated or approved by the Legal Services Commissioner. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 21 January 2014