Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Donaghy v Council of the Law Society of NSW (No 3) [2014] NSWCATOD 32 Decision date: 09 April 2014 Jurisdiction: Occupational Division Before: G Mullane - Senior Member M Riordan - Senior Member J Butlin -General Member Decision: 1. The Decision of the Respondent of 1 September 2011 to reprimand the Applicant is set aside. 2. The matter is remitted to the Council of the Law Society of New South Wales for reconsideration of possible disciplinary proceedings. Catchwords: Solicitor -Review of reprimand under S.540 Legal Profession Act 2004 - tribunal not satisfied solicitor is "generally competent and diligent" - reprimand set aside. Matter remitted to decision maker for reconsideration of possible disciplinary proceedings. Legislation Cited: Legal Profession Act 2004 Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Cases Cited: Donaghy v The Legal Services Commissioner [2013] NSWCA 154; Re: Robb (1996) 134 FLR 294; Council of the Law Society of NSW v Beazley [2012] NSWADT153; Law Society of NSW v McCarthy (2003) NSWADT 58; Law Society of NSW v Davidson [2007] NSWADT 264; Donaghy v Legal Services Commissioner [2013] NSWADT 261; Donaghy v Legal Services Commissioner (No.2) [2014] NSWCATOD 1; Texts Cited: Riley's Solicitors Manual Category: Principal judgment Parties: Geoffrey James Donaghy (Applicant) Council of the Law Society of NSW (Respondent) Representation: Counsel C Webster, S.C, (for the Respondent) G Donaghy (Applicant in person by telephone) File Number(s): 132011 reasons for decision INTRODUCTION 1This was a review under Section 63 of the Administrative Decisions Tribunal Act, 1997 ("the ADT Act") of a decision by the Council under s.540 of the Legal Profession Act 2004 ("the LP Act") to reprimand the Applicant solicitor in respect of complaints based on which the Council decided there was a reasonable likelihood that the Applicant would be found by the Administrative Decisions Tribunal to have engaged in unsatisfactory professional conduct being failure to pay a barrister and failure to communicate with the barrister regarding her fees. 2The complaints are particularised by the Council in its letter dated 2 September 2011, notifying the Applicant of the reprimand and the particulars are: (1)"Ms Graycar issued a fee disclosure and costs agreement on 24 June 2009 to Mr Donaghy. The agreement records that Ms Graycar received instructions on 23 June 2009 for the hearing in the Court of Appeal on 15 July 2009. On 17 July 2009, Ms Graycar issued her fee note to Mr Donaghy in the sum of $11,687.50. Ms Graycar's fees were not paid until on or about 24 June 2011, following an Application for Assessment being made by the complainant as a result of which her fees were allowed in full. A subsequent Application for Review was lodged by the solicitor and withdrawn by him when the parties reached a negotiated settlement and the complainant accepted payment of an agreed sum. (2)Mr Donaghy failed to communicate with Ms Graycar concerning her fees, the amount of which fell within her estimate. He is not entitled to rely on his associate's discussion with Ms Graycar's clerk, Ms Wyles, concerning which Ms Wyles said "there was never any suggestion that there was any problem with payment." TRANSITIONAL PROCEEDINGS 3These are "transitional proceedings" in that they were commenced in September 2011, heard by this panel of the Administrative Decisions Tribunal on 29 November 2013, and subject to submissions received by the panel in January 2014 after the commencement on 1 January 2014 of the Civil and Administrative Tribunal Act 2013 (the "NCAT Act"), and the NSW Civil and Administrative Tribunal ("NCAT"). 4Clause 6(1) of Schedule 1 of the NCAT Act provides that "part heard proceedings" means "proceedings where the Court or existing Tribunal in which the proceedings were instituted or commenced had begun to hear (but had not determined) the proceedings before" 1 January 2014. 5There are provisions in the Act and Schedules for the Administrative Decisions Tribunal to cease to deal with proceedings and for the Occupational Division of NCAT to assume conduct of proceedings. That includes review proceedings such as these proceedings. 6Clause 7 of Schedule 1 to the NCAT Act provides that part heard proceedings are to continue from 1 January 2014 to be heard by the same panel, sitting as NCAT, and the panel members are taken to have been duly appointed as members of NCAT. Subclause 7(3) of Schedule 1 of the NCAT Act provides that for those purposes: (a)"NCAT has and may exercise all the functions that the relevant existing Tribunal had immediately before its abolition; and, (b)The provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Act not been enacted continue to apply." Accordingly, the Review of the decision by the Council under sec 540 of the LP Act still falls to be determined according to what were the provisions of s.63 of the ADT Act. 7The provisions of s.63 of the Administrative Decisions Tribunal Act, 1997, were at all relevant times prior to 1 January 2014 as follows: 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. THE EVIDENCE 8The Applicant filed his Application on 26 September 2011, and attached a copy of the letter of 2 September 2011 notifying him of the decision of the Council of the Law Society. 9The matter was listed for hearing on 29 November 2013. On 26 October 2011, the Respondent filed and served copies of the material the Respondent was required to lodge pursuant to s.58(1) of the ADT Act, which provides: 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (4) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a)a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a)(i) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b)a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. 10The Applicant filed no evidence in relation to his Application and the Respondent filed no other evidence than the material filed pursuant to sec 58. 11The evidence therefore before the Tribunal comprises: 02.09.11 Letter informing Applicant of decision of Professional Conduct Committee. 29.08.11 Letter from Applicant to Society. 15.08.11 Letter from Applicant to Society. 15.08.11 Letter from Society to Applicant. 08.08.11 Documents from complainant's Clerk. 16.03.11 Letter from Applicant to Society. 24.02.11 Letter from Society to Applicant. 23.02.11 Letter from Applicant to Society. 09.02.11 Letter from Society to Applicant. 02.02.11 File notes of conversations between Mrs Barnes of the Society and the Applicant. 06.07.10 Letter from Society to Applicant [without enclosure]. 31.05.10 Letter from complainant to Society. 09.05.10 Letter from Applicant to Society. 06.05.10 Letter from Society to Applicant. 09.04.10 Letter from Society to Applicant [without enclosure]. 06.04.10 Letter from complainant to Society. 22.03.10 Letter from Society to Legal Services Commissioner 20.03.10 Letter from Applicant to Society. 02.03.10 Letter from Society to Applicant. 27.01.10 Letter from Society to Applicant. 27.01.10 Letter from Applicant to Society. 05.01.10 Letter from Society to Applicant [without enclosure] 18.12.09 Letter from Legal Services Commissioner with complaint only 17.8.2009 Judgment in Ilvary Pty Ltd trading as Craftsman Homes Northern Rivers v Moss & Ors [2009] NSWCA 207 21.9.2011 Application for Review filed 26 September 2011 17.8. 2012 decision of Tribunal: Donaghy v Council of Law Society of NSW (no.2) [2012] NSWADT 170 6.6.2013 Judgment of Court of Appeal in Donaghy v Council of the Law Society of NSW [2013] NSWCA 154 12The Tribunal also considered the following: (1)Written submissions of Mr Donaghy dated 20 December 2013; and (2)Written submissions from the Respondent filed on 17 January 2014. SECTION 540 OF THE LEGAL PROFESSION ACT 2004 13Section 540 of the LP Act, the provision pursuant to which the decision of the Council was made, provides: 540 Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions (1) 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. (2) 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. (3) Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct. (4) If action is taken under subsection (2), no further action is to be taken under this Chapter with respect to the complaint. (5) 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 an administrative review under the Administrative Decisions Review Act 1997 of the decision. (6) 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. OTHER APPLICABLE LEGISLATIVE PROVISIONS 14Sections 496, 467 and 498 of the Legal Profession Act 2004, are relevant because of the definition of unsatisfactory professional conduct and professional misconduct, and they provide as follows: "496 Unsatisfactory professional conduct For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 497 Professional misconduct (1) For the purposes of this Act: "professional misconduct" includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention." GROUND 1 FAILURE TO PAY THE FEES OF Ms REG GRAYCAR 15On 24 June 2009, the barrister wrote to the Applicant solicitor confirming receipt of the Applicant's instructions to advise and appear in an appeal in the Court of Appeal set down for hearing on 15 July 2009. The letter included a fee disclosure and costs agreement. Counsel estimated her total fees to be between $8,800.00 and $13,200.00 inclusive of GST. 16She set out the basis of her charges, being $250.00 plus GST per hour: "for preparation, drafting, opinions and conferences, including telephone conferences and travel and waiting time, and for short court appearances, including directions hearing". She said: "I will charge in 15 minute units", and, "For any appearance in court I will charge for a minimum of 1 hour". 17She said that for the final the hearing she would charge $2,200.00 (including GST) for a day and also for days in which she spent 8 hours or more in preparation for the hearing or in preparation of advice/opinion work. There were various other statements as to the basis of her fees. 18She also stated in the letter: "Acceptance of this offer to enter a cost agreement in terms of this letter may be written or by your conduct in requesting that I undertake work in this matter by giving me further instructions in this matter subsequent to your receipt of this letter." 19The Applicant continued to instruct Ms Graycar in the matter as Junior Counsel to Mr S Bell of counsel and thereby entered into a costs agreement with Ms Graycar (LP Act s.322(3) & (4)). 20Rule 32 of the Revised Professional Conduct Rules, 1995 of the Law Society of NSW, is relevant to the Complaint regarding non-payment of Counsel's fees. It applied and provided at all relevant times: "32. Contracting for services "A practitioner who deals with a third party on behalf of a client for the purpose of obtaining some service in respect of the client's business, must inform the third party when the service is requested, that the practitioner will accept personal liability for payment of the fees to be charged for the service or, if the practitioner is not to accept personal liability, the practitioner must inform the third party of the arrangements intended to be made for payment of the fees." 21At no time prior to receipt of Ms Graycar's bill did the Applicant inform her that he would not be personally responsible for her fees or inform her of some other arrangement for her fees to be paid. 22The appeal was heard on 15 July 2009. 23Ms Graycar advised the Law Society by letter of 6 April 2010 that (among other matters) the day after the hearing the Applicant telephoned her and discussed the matter and asked her to provide him with copies of cases of abuse of process which she had researched at his request and which she had discussed with him in conference the day before the hearing. She said: "At no time in that telephone conversation of 16 July 2009 did he convey any sense of dissatisfaction in my work. I have not heard from him nor had any message from him (conveyed via my clerk) since 16 July 2009." 24The Applicant does not dispute that. 25On 17 July 2009 Ms Graycar rendered her itemised bill for a total of $11,687.50 to the Applicant. By 24 September 2009 no part of the bill had been paid and Ms Graycar had received no communication from the Applicant. She therefore rendered a copy of the bill headed, "Tax Invoice Reminder" to the Applicant. 26The Applicant did not pay any part of the bill. The limitation period for any application by the Applicant for Ms Graycar's costs to be assessed is 60 days after the bill is given (LP Act S 351(3)). The Applicant made no application for assessment of the costs. 27On 30 November 2009 Ms Graycar wrote to the Applicant and stated in her letter: "FINAL PAYMENT NOTICE: INVOICE NO 155 After months of futile attempts at contacting you, this letter will serve as formal notice to you that you are in default of your obligation to pay me the sum of $11,687.3O which has been due since 17 July 2009 and overdue since 16 August 2009. This matter involved extensive use of my time for both court and conferences. I undertook research, reviewed authorities and generally assisted in the preparation for hearing of the matter, all subject to a clear costs agreement dated 24 June 2009. It seems quite extraordinary that you would ignore my requests for payment and indeed all my attempts to discuss the matter with you. I am disappointed in the extreme to be writing in this fashion. I remind you that I sent you invoices dated 17July 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 call. I consider your conduct to be not only discourteous but unprofessional and it is for this reason that while I consider it regrettable to do so, I have no alternative but to contact the Office of the Legal Services Commissioner in connection with this matter and inform that office of your failure to honour the agreement we made and your failure to respond to repeated attempts to discuss the matter with you. I will therefore expect full and final settlement of this account within 7 days of the date of this letter (by no later than close of business on Monday 7 December) or I will have no alternative available to me but to report your conduct to the OLSC. Please contact my clerk Sarah Wyles on 8226 2301 for direct deposit bank details." 28The Applicant did not respond to that letter or the issues raised. On 14 December 2009 Ms Graycar made a complaint to the Legal Services Commissioner regarding the Applicant's failure to pay any part of her bill. 29On 18 December 2009, the Legal Services Commissioner referred the papers to the Law Society of NSW for its attention. The Law Society on 5 January 2010 sent the Applicant a copy of the Complaint of 14 December 2009 by Counsel to the Legal Services Commissioner and asked the Applicant to provide a written response within 14 days. The Applicant did not reply to the letter until he wrote on 27 January 2010 in the following terms: "I refer to your letter to me of 5 January 2010. Please be advised that I have just returned to work today after the Australia Day weekend and your letter has come to my attention. I note you were seeking a response within 14 days of your letter which I cannot now meet. Correspondence from the Professional Standards Department of the Law Society is treated with the utmost seriousness by this office. I seek an extension of a further 14 days to enable me to place before you my considered response in this matter." 30The letter of 27 January was sent by facsimile and the Law Society responded by facsimile that day allowing an extension of time till Friday, 12 February 2010 for the Applicant's response. But by 2 March 2010 the Applicant had not responded. 31The Law Society then wrote to the Applicant and in the course of that letter said: "Absent your formal written response being received by the Law Society within 14 days of the date of this letter, providing a detailed response to the outstanding issues, this matter will be upgraded to the status of a formal complaint for investigation, pursuant to the provisions of Chapter 4 of the Legal Profession Act 2004." 32The Applicant did not respond to the Law Society within 14 days of the letter of 2 March 2010. He responded by letter dated 20 March 2010 and sent by facsimile. In that letter he admitted he had briefed Ms Graycar in June 2009, that her fee agreement was forwarded to him on 29 June 2009, and that her bill was issued on 17 July 2009. He did not deny that he had paid none of her fees. 33He said, however: "It is incorrect to say that this firm has not responded to Ms Graycar's telephone calls or letters", because, "as Ms Graycar concedes in her correspondence there have been repeated telephone conversations between her clerk and this firm through my associate Ms Hodgson." There is no evidence from his associate as to the content of any such telephone conversations. He attached a copy of the decision of the Court of Appeal in the proceedings in which Ms Graycar appeared with Mr S Bell. That document establishes that the appeal was dismissed on the basis that it sought to raise a new point of law that was not a question of law decided by the Tribunal from which the appeal arose. The Appeal was dismissed with costs. 34He raised in his letter that at a conference on 7 July 2009, 8 days before the hearing, Mr Bell and Ms Graycar both advised that: "the Appeal was hopeless". He said he had not paid the fees of Mr Bell and Ms Graycar because he considered that they had been "lax" and "I did not consider them to be fair and reasonable for the work performed". It appears that that related to what he considered to be an approach of seeking to have the Respondent to the Appeal agree to a set of agreed facts "which would have enabled a proper basis for the Appeal to be conducted". He relied upon paras 23-25 of the Judgment in that regard, but that does not appear to suggest that the Appeal could have succeeded at all, even with agreed facts, because the legal issue raised by the appeal was one that was not determined by the Tribunal. 35He also said: "If Ms Graycar wishes to pursue her fees then she would be well aware of her options to bring proceedings if she was confident of success however [sic] I do advise that I would vigorously contest such proceedings on the grounds of breach of contract and professional negligence." 36He indicated that he would be prepared to meet with Ms Graycar informally at his office (in Lismore) "to endeavour to reach satisfactory resolution to this matter." Ms Graycar's chambers are in Sydney. 37The Applicant in his letter to the Law Society of 20 March 2010, alleged: "It has been conveyed to Ms Graycar and Mr Bell that I would not be paying their tax invoices and that in the circumstances I did not consider them to be fair and reasonable for the work performed." 38Mr Graycar in her letter to the Law Society of 6 April 2010, denied that she had been told that she would not be paid. She also produced copies of e-mails from her to Mr Bell, and from him to her in reply. When asked whether the Applicant had ever told Mr Bell he was not happy with the work that Mr Bell had performed, or had ever told Mr Bell that he would not pay his bill, Mr Bell's reply was: "No & No. He did not reply either to calls or e-mails." 39On 9 April 2010 the Law Society wrote to the Applicant and told him that the matter had been up-graded to a formal complaint for investigation. It advised: "The conduct issues that appear to arise from the Complaint are as follows: 1) failure to pay the Complainant's fees; 2) failure to communicate. Please advise if wish your response of 20 March 2010 to be treated as your formal written response to the Complaint." 40By 6 May 2010 the Applicant had not replied to that letter. He had not provided any further submissions. The Law Society Professional Standards Solicitor wrote to him on 6 May 2010, noting that he had not replied. It advised him: "Absent your formal written response within fourteen (14) days of the date of this letter, appropriately answering the matters set out in the letter of 9 April 2010, a Notice pursuant to the provisions of s.660 of the Legal Profession Act, 2004, will issue against you without further notice. Your attention is directed to the provisions of Section 660(3) of the Legal Profession Act, 2004, ("the Act") which provides you must comply with the provisions of the Notice. (Maximum penalty: 50 penalty units). Your attention is directed to the provisions of Section 676(4) of the Act which provides that an Australian lawyer you (pursuant to s676(3)), without reasonable excuse, falls to comply with a requirement under section 660 or who (pursuant to s676(2) misleads an Investigator or the Law Society Council Is guilty of professional misconduct. Your attention Is also directed to Section 672(5) of the Act which provides that the Law Society Council may suspend your practising certificate while a failure to comply with the requirements of a s660 Notice continues." 41The response of the Applicant is dated 9 May. He said in that letter he wished his response of 20 March 2010 to be treated as his formal written Response in this matter. He also in that letter raised: "Ms Graycar's failure to respond" to points he had raised in his letter of 20 March, and said: "I make it quite clear at point 14 of my abovementioned correspondence that the basis for my dissatisfaction with her work performance was her failure to properly discharge her duties as evidenced by the Court of Appeal's comments in their decision." 42In that letter the Respondent also said: "I note that the Law Society is forwarding correspondence to my street address. Please note that correspondence should be forwarded to my PO box as Australia Post has the unfortunate habit of placing mail addressed to my street address on the stairs at the front of the building whereby I am reliant upon persons entering the building to deliver mail to my office and as such the reliability of receiving mail addressed in this fashion is questionable. "I did not receive your letter addressed to me dated 2 March 2010 referred to in your chronology advising that if no response was received by me to your letter dated 27 January 2010, that this matter would be up-graded to the status of a formal Complaint for investigation." 43Assuming that it is correct that he did not receive the letter of 2 March 2010, he was aware by the letter of 27 January that he had an extension of time to 12 February to respond to the Complaint, but he did not respond until 20 March 2010. 44The Professional Conduct Committee of the Law Society considered the complaints at a meeting on 3 February 2011 and recommended that the Applicant be informed of the issues involved in the complaints and the opinion of the Committee, subject to any submissions, was that it should resolve that it is satisfied there is a reasonable likelihood that the legal practitioner would be found by the Tribunal "to have engaged in professional misconduct and unsatisfactory professional conduct", and that proceedings be instituted in the Tribunal with respect to the Complaint pursuant to sec 537(2) of the Legal Profession Act 2004. It also advised that the Committee's opinion was that, subject to any submissions, appropriate orders to be sought would be: (1)public reprimand; (2)a fine of $1,000.00; and (3)the legal practitioner to pay the costs of and incidental to the proceedings before the Tribunal. 45The resolution provided for the Applicant to be notified that consideration of the Complaint would be placed on the agenda of the Professional Conduct Committee as soon as possible after the expiration of 14 days from the date of the letter notifying the Applicant. 46The letter was dated 9 February 2011. The Applicant did not respond to the Committee's proposals. Fourteen days after the Law Society letter the Applicant wrote to the Law Society and said: "So that I can prepare detailed submissions to be placed before the Committee, I'd be grateful if you would provide me with copies of the material the Committee relied upon in making its finding." 47On 24 November 2010 Ms Graycar had lodged an Application with the Supreme Court for the costs in her bill to be assessed. Nineteen months had passed since the Applicant had received Ms Graycar's bill, but despite his alleged objections to her costs he had made no application for assessment of her costs. 48In the costs assessment the Applicant did not file his "Notice of Objections" until at least 28 February 2011. It raised 8 separate objections to the bill. He sought to have the costs reduced from $11,687.50 to $3,625.00. He did not pay $3,625 or any other amount. 49The Applicant wrote again to the Professional Standards Department of the Law Society on 16 March 2011 with various more detailed objections to Ms Graycar's bill, and requested that the Professional Standards Committee not refer the matter to the Administrative Decisions Tribunal. That letter was sent by facsimile on 16 March 2011. The Professional Standards Department replied on 21 March that the matter came before the Professional Conduct Committee on 17 March and the Committee resolved that consideration of the matter await finalisation of the costs assessment process. 50The costs assessor completed the assessment of Ms Graycar's costs on 9 May 2011 and that day he signed a Certificate of Determination of Costs assessing the costs at the full amount claimed by Ms Graycar and a Certificate of Determination of the Costs of the Costs Assessment requiring the Applicant solicitor to pay the Supreme Court $732.88 for the filing fees paid on the application by Ms Graycar and the costs of the assessor. 51According to the requirements of the LP Act (ss 368 & 369), those certificates would have been sent with the assessor's reasons to the Manager, Costs Assessment, who would then send copies to the parties. 52The total amount payable by the Applicant, Mr Donaghy, in the Certificates issued by the Costs Assessor on 9 May 2011 was $12,420.38. In addition, if the Certificate of Determination of Costs had already been registered with a court, interest would be payable under the court rules. 53Ms Graycar provided the Law Society with a copy of the Certificates from the Costs Assessor. Six weeks after the decision of the costs assessor, on 20 June 2011 the Applicant filed an Application for Review of the decision of the costs assessor and the reasons. The time limit for such an application is 30 days after the Certificates are sent to the parties (LP Act s373(1)). It appears the Application for Review was probably filed out of time. 54The Applicant told the Law Society that his Application for Review of the determination of the costs assessor was withdrawn on 24 June 2011 after the parties had reached agreement "on terms not to be disclosed". It appears that the Applicant made a payment to Ms Graycar, in all likelihood in the period 21-24 June 2011, 23 months after he received her bill and not until more than 6 weeks after her costs were assessed. 55As the Application for the Review was withdrawn, the applicant remained liable for the costs of the assessment. There is no evidence that the costs assessment was set aside, or that Ms Graycar compromised her entitlement under the costs assessment, or that the amount he paid to Ms Graycar was not the full amount of her costs, which the Applicant was liable to pay under the costs assessment. 56The Law Society wrote again to the Applicant on 15 August 2011 enclosing a copy of the Certificate of Determination of Costs of 9 May 2011 and inviting any comments he wished to make on that within 14 days. The letter also advised that the Professional Conduct Committee was likely to further consider the matter at its meeting on 1 September 2011. It stated: "If I do not hear from you I will contact you again when the result of the Committee's deliberations are known." 57The same day the Applicant wrote to the Law Society advising that "the matter was settled between ourselves on terms not to be disclosed" and that his Application for Review was withdrawn. 58On 29 August (14 days after the Law Society letter of 15 August) the Respondent replied to that letter. He sent his reply by facsimile. He made criticisms of the reasons given by the Costs Assessor. 59By letter dated 2 September 2011 the Law Society notified the Applicant of its decision to reprimand the Applicant under s.540 of the LP Act for failure to pay a third party and failure to communicate, which the Professional Conduct Committee was satisfied: "There is a reasonable likelihood Geoffrey James Donaghy ("the legal practitioner") would be found by the Tribunal to have engaged in unsatisfactory professional conduct." 60The Applicant has not provided any evidence or submission that his client did not provide him with the funds to pay Ms Graycar's fees or that the client delayed in providing those funds, or that the client instructed him not to pay Ms Graycar's fees. 61The costs agreement created a contractual obligation of the Applicant to pay Ms Graycar's fees. In addition it is well established that he had a professional obligation to pay those fees (e.g. Re: Robb (1996) 134FLR 294; and Council of the Law Society of NSW v Beazley [2012] NSWADT153 at para 69). 62It has also been established that "wilful or persistent refusal to pay Counsel's fees can amount to professional misconduct on the part of a solicitor" (Re: Robb (1996) 134FLR294 at page 310; Law Society v McCarthy (2003) NSWADT 58 at para 43; and Council of the Law Society of NSW v Beazley [2012] NSWADT 153). 63However, our research does not reveal any decision where a single failure to pay counsel, even where the funds were provided by the client and misappropriated by the solicitor, has been held of itself to constitute professional misconduct, although together with misappropriation, it clearly would be professional misconduct. 64In Law Society of NSW v Davidson [2007] NSWADT 264, the solicitor delayed for periods of 1 - 4 months the payment of barrister's fees and consultant's fees for a total of 6 different people. The Tribunal found that the delays were: "Not a mere matter of oversight or misapprehension as to the solicitor's obligation to pay those disbursements". It found that the delays were deliberate. It found that he: "Failed to pay third parties within a reasonable time". It held: "... persistent delay in the payment of moneys due to third parties constitutes professional misconduct". It held that the solicitor was guilty of professional misconduct in relation to the delayed payment of each of the 6 persons. 65In Council of the Law Society of NSW v Beazley [2012] NSWADT153, in the particular circumstances of the failure of Mr Beazley to pay barrister's fees, the Tribunal held that his conduct was neither professional misconduct nor unsatisfactory professional misconduct. The solicitor there had not signed the costs agreement for an appeal. He had sent it to the client for signing. 66In this case, the period between the rendering of the bill to the solicitor and the payment of the bill is more than 23 months. That is quite an extraordinary delay. It was also in the context where he was receiving frequent reminders from the barrister or her clerk for nearly 4 months after the bill was rendered. There was even a delay of some weeks after he had the result of the assessment. The whole of the delay was deliberate. 67However, the Tribunal is not satisfied that if the non payment of Ms Graycar's fees alleged was proved in disciplinary proceedings in the Tribunal, there is a reasonable likelihood that the failure to pay Ms Graycar would of itself be held to constitute professional misconduct. This Tribunal is satisfied that there is a reasonable likelihood that the failure to pay Ms Graycar would be found by the Tribunal in such proceedings to be in unsatisfactory professional conduct. GROUND 2 - FAILURE TO COMMUNICATE WITH MS GRAYCAR 68From his receipt of Ms Graycar's bill on about 24 July 2009 he sent her a copy of his letter of 20 March 2010 to the Law Society, the Applicant did not inform Ms Graycar that he intended to not pay her bill. That was a period of 8 months. He did not inform her of any reasonable detail of what objections he had to the costs claimed in the bill until the objections to the bill filed and served in the costs assessment proceedings in March 2011, about 20 months after he received the bill. 69He did not reply to Ms Graycar's bill of 17 July 2009, the reminder of 24 September 2009, or her letter of 30 November 2009. Her clerk telephoned his office on numerous occasions, but he was not available to speak to her about Ms Graycar's costs. The clerk left messages with his "Associate", Ms Tracey Hodgson, for him to return the clerk's call. The Applicant did not return any such call. 70Ms Graycar says that Mr Donaghy did not return any of the phone calls. She said in her letter of 30 November 2009 to the Applicant, "... 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 call." 71Telephone records provided to the Law Society by Ms Graycar or her clerk show the following 10 calls from her telephone to the Applicant's office telephone after the bill was sent: September 18, 21, 23 and 29 October 1, 7, 9, and 13 November 2 and 24 72The Applicant responded to the Law Society letter of 27 January 2010 by the letter dated 20 March 2010 and sent by facsimile. In that letter he admitted he had briefed Ms Graycar in June 2009, that her fee agreement was forwarded to him on 29 June 2009, and that she had also sent her bill on 17 July 2009. He did not deny that none of her fees had been paid. He said that he "considered Mr Bell and Ms Graycar to have been lax". He also said "it has been conveyed to Ms Graycar and Mr Bell that I would not be paying their tax invoices and that in the circumstances I do not consider them to be fair and reasonable for the work performed". Ms Graycar and Mr Bell both deny receiving any such communication from the Applicant. The applicant has not provided the Law Society or the tribunal with a copy of any such communication in writing or details of any such communication by any means. 73In 1 April 2010, the clerk to Ms Graycar's chambers, 11th floor, St James Hall Chambers, sent an e-mail to Ms Graycar confirming that she made numerous calls to Mr Donaghy's offices and sent several invoices. She said: "At no time was there any call, e-mail, fax, or letter from Mr Donaghy and there was never any suggestion that there was any problem with payment." 74The Applicant said, however: "It is incorrect to say that this firm has not responded to Ms Graycar's telephone calls or letters", because, "as Ms Graycar concedes in her correspondence there have been repeated telephone conversations between her clerk and this firm through my associate Ms Hodgson." However, he did not provide evidence to refute the evidence that such conversations did not raise any dissatisfaction with Ms Graycar's work or include any indication that the Applicant had decided to not pay her fees. 75The failure to communicate with Ms Graycar or her clerk in response to their communications occurred from the receipt of the bill on about 24 July 2009 until Ms Graycar was given a copy of the letter of 20 March 2010, which the Applicant sent to the Law Society. Even then, he did not provide reasonable details of what complaints he had about the work the subject of the bill. Clearly there was a period then of 8 months where the Applicant refused to respond to communications with Ms Graycar or her clerk. That was discourteous, unreasonable, disrespectful and arrogant conduct. 76For the whole of the period between the rendering of the bill and the payment nearly 2 years later, the Revised Professional Conduct and Practice Rules 1995 applied. Rules 25 to 31A comprise the section headed "Relations with other Practitioners". A statement of principles for those Rules is: "In all of their dealings with other practitioners, practitioners should act with honesty, fairness and courtesy, and adhere faithfully to their undertakings, in order to transact lawfully and competently the business which they undertake for their clients in a manner that is consistent with the public interest". 77Rule 25 provides: "A practitioner in all of the practitioner's dealings with other practitioners must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner's communications are courteous and that the practitioner avoids offensive or provocative language or conduct. 78The conduct of the Applicant in relation to the communications by Ms Graycar and her clerk was not honest or courteous, nor was it competent conduct of his business. Indeed, his conduct was offensive and provocative. 79By that conduct, he did not take reasonable care to maintain the integrity and reputation of the profession. It was damaging to the integrity and reputation of the profession. Nor was his conduct consistent with the public interest. 80The Applicant breached the requirements of the Rules regarding relations with other practitioners. 81Riley's Solicitors Manual at para [28,010.5] headed "Importance of Courtesy as Part of Broader Professional Duty" says: "Rule 25 of the Revised Professional Conduct and Practice Rules 1995 (NSW), requires lawyers in all their dealings with other lawyers, to take all reasonable care to maintain the integrity and reputation of the legal professional by ensuring that their communications are courteous and do not involve offensive or provocative language or conduct. Such a duty cannot be viewed in isolation, for its fulfilment represents an important aspect of the lawyer's duty to the administration of justice and can also be seen as part of the duty to the client." 82Most lawyers experience criticisms and pressures and sometimes bad behaviour by other lawyers, but the obligation is to respond in a manner that complies with the Rules, which involves courtesy and dignity and extends respect to the other lawyer. 83The Tribunal is comfortably satisfied that the conduct of the practitioner under Ground 2 is conduct that in disciplinary proceedings in the Tribunal is reasonably likely to be found to fall short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and therefore reasonably likely to be found to be unsatisfactory professional conduct. 84The Tribunal, however, is not satisfied that the conduct under Ground 2 standing alone is reasonably likely to be held to involve "a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence", or reasonably likely to be held by the tribunal to be conduct "that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice". 85The Tribunal is comfortably satisfied under Sec. 540 of the Legal Profession Act 2004 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) in relation to Ground 2 standing alone. IS THERE A REASONABLE LIKELIHOOD THAT IN DISCIPLINARY PROCEEDINGS IF THE TRIBUNAL ACCEPTED GROUNDS 1 & 2 IT WOULD FIND THAT THE GROUNDS TOGETHER CONSTITUTE PROFESSIONAL MISCONDUCT? 86The Tribunal has formed the view that if these 2 grounds had been raised in disciplinary proceedings, there is a reasonable likelihood that the Applicant would be found to have engaged in unsatisfactory professional conduct; but not professional misconduct. In our view, these 2 grounds do not together involve: "a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence." IS THE APPLICANT "GENERALLY COMPETENT AND DILIGENT?" 87These proceedings occur in the context of previous proceedings between the Applicant and the Legal Services Commissioner by way of a Review of a decision of the Legal Services Commissioner under section 540 of the LP Act to reprimand the Applicant. 88The Tribunal in its decision Donaghy v Legal Services Commissioner [2013] NSWADT 261, made findings about the conduct of Mr Donaghy in those proceedings. And then in Donaghy v LSC (No.2) [2014] NSWCATOD 1 (21 January 2014) the Tribunal concluded that the correct and preferred outcome was a reprimand and imposition of a condition on the Applicant's Practising Certificate requiring him to complete a course in Legal Ethics that covered the topic of the obligations of lawyers to the courts. . (The Applicant has lodged an Appeal against that determination in the NSW Court of Appeal.) 89The reasons in Donaghy v Legal Services Commissioner [2013] NSWADT 261 include findings of substantiated complaints against the Applicant in respect of conduct in November 2011. One substantiated complaint was that the Applicant failed to appear at the second hearing day of a part heard hearing in the Children's Court where he represented one of the parties. The findings include the circumstances of that conduct. The other Complaint that was substantiated was that he failed to attend the Children's Court later that morning after he was notified that the Magistrate in his absence that morning made an order for him to attend. The findings in that matter are relevant to the requirement for this Tribunal to decide for purposes of s.540(1)(b)(ii), whether it is satisfied that the Applicant is "generally competent and diligent". 90On 6 June 2013, in Donaghy v The Council of the Law Society of NSW [2013] NSWCA 154, the Court of Appeal referred to submissions by the same Applicant in an earlier hearing in the Tribunal reviewing the same decision of the Council that this panel is reviewing, of errors by the Law Society in making the decision under s.540 of the LPAct. The Court of appeal stated (at para 8): "That submission misconceived the nature of the Review undertaken by the Tribunal and was not pressed in oral argument before this Court. Section 63(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) requires that when determining 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". That material includes, "any relevant factual material". The nature of that Review does not require that the Tribunal address whether the relevant Administrator's decision involved error or manifestly unsupportable. It is a Review on the merits to be determined on the material before the Tribunal." 91On 6 September 2013, in the hearing before the Tribunal of Donaghy v the Legal Services Commissioner [2013] NSWADT 261, the Appellant similarly misconceived the nature of the Review proceedings under s.63, by focusing his application and submissions on alleged errors of the Respondent Commissioner, rather than submissions as to what was the correct and preferable decision. This continued at the hearing, despite numerous statements by Members of the Tribunal that such an approach was not appropriate (e.g. at paras 81-89, and 102-105). 92In these proceedings the Applicant continued such conduct, despite the dicta of the Court of Appeal and the statements by the Tribunal during the hearing on 6 September 2013, and in the Tribunal's reasons of 20 November 2013 in Donaghy v Legal Services Commissioner [2013] NSWADT 261. 93The Application in these proceedings filed 26 September 2011, set out 6 Grounds for the Review, all of which were alleged errors by the Law Society, but no other Grounds. His written submissions on 20 December 2013 continued that approach. It annexed a new set of Grounds: "1 The Respondent erred in finding that there was a likelihood that I would be found by the Tribunal to have engaged in unsatisfactory professional conduct. 2 The Respondent erred in finding that the conduct complained of amounted to unsatisfactory conduct. 3 The Respondent erred in relying upon the decision of the Law Society of NSW v Graham [2007] NSWADT 67. 4 The Respondent denied the Applicant procedural fairness by taking into account irrelevant considerations in reaching its determination, such irrelevant consideration being the determination of Costs Assessor Mr Lancken dated 9 May. 5 The Respondent erred in its determination in failing to take into account relevant considerations, such relevant consideration being the Applicant's preparedness to mediate the dispute. 6 The Respondent erred in determining that reprimanding the Applicant was the appropriate penalty in the circumstances." 94 He also annexed an article in support of a submission that a reprimand was too severe an outcome. 95Another aspect that is relevant is that in these proceedings the Applicant did not rely on any evidence about the conduct complained of and made no submission about the conduct that was the subject of the complaints. He did not offer any evidence. He did not concede that the subject conduct was less than that which members of the public are entitled to expect from a solicitor. He did not express any regret or remorse. 96Donaghy v Legal Services Commissioner [2013] NSWADT 261, the Tribunal made findings to the effect that throughout the history of that matter (from November 2011 to November 2013) the Applicant had not acknowledged that there was anything wrong with his failure to attend Court or to comply with the Magistrate's order for him to attend and he did not express any regret or remorse (e.g. at paras 49, 57, 61, 70 and 76). 97In Donaghy v Legal Services Commissioner [2013] NSWADT 261, the Tribunal found at paras 161-167: IS MR DONAGHY "GENERALLY COMPETENT AND DILIGENT" (s.540(1)(b)(ii)) (159) The Oxford English Dictionary defines "competent" (so far as relevant here) as "sufficiency of qualification; capacity to deal adequately with a subject". The Australian Concise Oxford Dictionary defines "competent" as "....adequately qualified or capable, authorised to deal with a matter... having legal capacity and qualification". The Macquarie Concise Dictionary says "properly qualified, capable... fitting, suitable, or sufficient for the purpose, adequate." 160. The Revised Professional Conduct Rules require that a lawyer must act "with competence and diligence in the service of a client" (rule 1.1). There is a duty of the lawyer to maintain competence in the areas in which he practises (see Riley, Solicitors Manual [29.160- 29,190.15). Hutley JA in Law Society of New South Wales v Maultan [1981] 2 NSWLR 736 at 751 said: "The minimum standards include... basic legal knowledge and application to keep abreast of law in his field of practice... It would seem to follow that a solicitor fit to remain on the roll must make reasonable steps to keep up with current developments in his field of practice..." 161. For a litigation lawyer, the law in his field of practice includes the laws of practice and procedure in the court(s) in which he practises and the ethical requirements of litigation lawyers, including their duties to the courts. 162. The Tribunal is concerned that although the evidence discloses that Mr Donaghy practised in the Children's Court and the Federal Magistrate's Court, he did not know the following (and he has still not conceded some of these): -The existence of provisions in the Children's Court Practice Note 5 setting out procedures and requirements to apply for a hearing date to be vacated; -In the absence of the Court vacating the listing for hearing on 22 November 2011 previously, he had a duly to the court, and was required by the Children's Court Practice Note 5, to attend personally at 9.30am on 22 November 2011 when his part heard hearing was to resume, or to arrange independent, competent and properly informed legal representation for his client; -The Children's Court Magistrate had power under the Children's Court Act 1987 to order Mr Donaghy to attend, as the Magistrate did; -He was required by the Children's Court, and by his duty to the Court, to attend the personally on 22 November, as the Magistrate required him to do; -It was not compliance with the Magistrate's order to send an agent; -The Children's Court Rule 2000 gives the Court power to issue subpoenas; 163. In addition, Mr Donaghy's responses to the complaints about his conduct from his appearance before the Magistrate on 23 November 2011, until his appearance before the Tribunal nearly two years later in September 2013, has involved Mr Donaghy persistently raising a whole spectre of irrelevant arguments and submissions. That concerns the Tribunal because it is essential for a competent litigation lawyer to have reasonable skills in reading and understanding legislation and to recognise whether a matter is relevant or not. 164. The Tribunal considers that the matters raised in the preceding 2 paragraphs indicate inadequacies in competence. 165. "Diligent" is defined by the Oxford English Dictionary as including "constant and earnest effort to accomplish what is undertaken; persistent application and endeavour." The Australian Concise Oxford Dictionary says "careful and steady in application to one's work or duties" and "showing care and effort". The Macquarie Concise Dictionary says "constant and persistent in an effort to accomplish something" and "pursued with persevering attention, painstaking". 166. In this regard the Tribunal finds that Mr Donaghy's conduct in not attending the Children's Court on 22 November 2011, was not, in all the circumstances, careful conduct of his client's case or careful protection of her interests. 167. Mr Donaghy was informed on 23 November 2011 and in May 2012, of the reasons the Magistrate disapproved of his conduct on 22 November 20II. Later he was of made aware of the reasons the Legal Services Commissioner disapproved of that conduct. Also Mr Donaghy has had the experience of disciplinary proceedings regarding that conduct and nearly 2 years to consider his position and better inform himself of his obligations to the Court. But Mr Donaghy still does not concede that his failure to attend for the hearing and failure to comply with the Magistrate's order are likely to be viewed by the Tribunal as unsatisfactory professional conduct. It is arguable that these matters suggest he is not "careful" about his professional conduct and he has not applied any "'persevering attention" and "care and effort" to research whether there is anything unsatisfactory about his conduct, whether ethically of otherwise. These matters reflect adversely on him on the issue of whether he is "generally diligent". 98In these proceedings in addition to the applicant's failure to communicate with Ms Graycar and failure to pay her fees, there are other matters that reflect adversely on his competence and/or diligence. One is his persistence in misconceiving the role of the Tribunal in reviewing a decision under Section 63 of the Administrative Decisions Tribunal Act 1997. That reflects adversely on his competence and his diligence. 99Another is his lack of care and diligence in dealing with the Law Society in relation to the complaints. They were serious matters that required his care and attention. 100The Society's letter of 5 January 2010, asked him to provide his response by 19 January, but he did not reply till 27 January. He said he had been on leave and had only returned that day. He asked for a further 14 days. Then he did not reply to the letter of 5 January till 20 March, 52 days after his letter of 27 January. 101Even then, his letter of 20 March came only after the Law Society wrote again to him on 2 March threatening that if he did not by 16 March provide a response to the letter of 5 January the complaint would be "upgraded to the status of a formal complaint". Even then his response of 20 March came 18 days after the Law Society's letter of 2 March. 102The law Society letter of 9 April referred to delay by the Applicant in responding to letters from the Law Society. It asked the Applicant to advise whether he wanted his letter of 20 March treated as his formal response to the complaint. Twenty seven days later the Applicant had not replied. 103On 6 May the law Society wrote again to the Applicant threatening that if he did not reply by 20 May a notice would be served on him under section 660 of the LP Act requiring his response. He responded the same day saying he wanted his letter of 20 March treated as his formal response to the complaints. He offered no explanation for his delay in providing that response. 104When the Law Society wrote to the Applicant on 9 February 2011 advising him of the proposals of the Professional Conduct Committee and asking him to provide any submissions by 23 February, the respondent did not reply till 23 February. He said that he needed copies of the material relied upon by the Professional Conduct Committee before he could provide detailed submissions. There was in the letter and in this hearing, no explanation why he did not make that request until the last day for his submissions. 105On 21 June 2011 the Law Society wrote to the Applicant and in that letter advised that the Professional Conduct Committee had decided to defer further consideration of the complaints until the result of the costs assessment. It asked "Would you kindly keep me informed as to the progress of Ms Graycar's Application for Assessment and advise me of the determination when it has been made." The Assessment was completed on 9 May. The Applicant did not inform the Law Society of that or the result. The Applicant filed a Review Application on 20 June. He did not inform the Law Society. He withdrew his Review Application on 24 June and settled with Ms Graycar. He failed to inform the Law Society. 106The Law Society wrote to him on 2 August 2011 asking that he advise what had happened with the costs assessment. He did not reply. 107On 8 August the Law Society received from Ms Graycar copies of the costs assessment certificates and advice that she and the Applicant had settled the costs dispute. It was not until 15 August that the Applicant replied to the letter of 2 August and informed the Law Society of the result of the assessment (9 May), his filing of a Review Application (20 June) and his settlement with Ms Graycar and withdrawal of that Application on 24 June. 108Even in a situation where the Professional Conduct Committee was considering complaints against him including a complaint of not communicating, the Applicant, in regard to communicating with the Law Society, was not careful or diligent. Given such behaviour when his own interests were threatened, one would have to be concerned as to the level of care and diligence the Applicant would apply when the interests of a client were at stake but not his own. IS THE TRIBUNAL SATISFIED THAT MR DONAGHY IS "GENERALLY COMPETENT"? 109 Matters that place doubt on his competence are: * his failure to accept the views expressed by the Court of Appeal and the Tribunal as to the role of the Tribunal under section 63 and his persistence in raising irrelevant grounds of perceived errors by the original decision maker; * the findings of inadequacies in his knowledge as a litigation lawyer practising in the Children's Court quoted above as para 162 of our first decision Donaghy v Legal Services Commissioner [2013] NSWADT 261; * his failure in both matters to acknowledge that his conduct complained of was below the standard the public are entitled to expect from a solicitor; * His failure to express any apology or remorse in either matter; * his submissions in this matter (his letter of 16 March 2011 to the Law Society) submitting that his conduct in relation to communications was not unsatisfactory professional conduct. 110The Applicant has been a solicitor since April 2002 and we know only of 2 matters in almost 12 years, so far as disciplinary matters are concerned. The Respondent has offered no evidence on the issue of his competence. The Tribunal is not satisfied on the balance of probabilities that he is generally competent. IS THE TRIBUNAL SATISFIED THAT Mr DONAGHY IS "GENERALLY DILIGENT"? 111The Respondent has not offered evidence on this issue. The following matters indicate a lack of care or diligence; * his failure to communicate with Ms Graycar; * his failure for nearly 2 years to pay any part of Ms Graycar's fees; * his inadequate and careless communications with the Law Society in this matter; * his failure to exercise care to attend the Children's Court for the part heard matter; * his failure to comply with the Magistrate's order to attend court; and * his failure to update his knowledge and understanding of the Role of the Tribunal under section 63 of the ADT Act; 112The Tribunal is not satisfied on the available evidence that on the balance of probabilities the Respondent is "generally diligent". CONCLUSIONS 113Subpara 540(1)(b)(ii) has not been satisfied. Accordingly s.540 of the LP Act Does not apply and the decision of the Law Society purportedly made under the section should be set aside and the matter remitted to the Law Society for reconsideration of possible disciplinary proceedings. ORDERS 114The orders of the Tribunal are: (1)The Decision of the Respondent of 1 September 2011 to reprimand the Applicant is set aside. (2)The matter is remitted to the Council of the Law Society of New South Wales for reconsideration of possible disciplinary proceedings. 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 Amendments 19 May 2014 - typographical error, Commissioner of Legal Services should be Law Society Amended paragraphs: Paragraph 113 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: 19 May 2014