Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Donaghy v Legal Services Commissioner (No3) [2014] NSWCATOD 33 Hearing dates: 24 March 2014 (written submissions) Decision date: 10 April 2014 Jurisdiction: Occupational Division Before: G Mullane - Senior Member M Riordon - Senior Member J Butlin - General Member Decision: (1) The Applicant must pay the Respondent's costs of and incidental to these proceedings (with the exception of any costs of the Respondent in connection with the submissions on costs made in the Commissioner's letters to the Tribunal dated 29 January 2014 and 11 February 2014) such costs to be as agreed or as assessed. (2) The Applicant's application for costs is refused and dismissed. Catchwords: Costs Application by Legal Services Commissioner- proceedings under s. 540 of the Legal Profession Act 2004 Legislation Cited: Legal Profession Act 2004 Cases Cited: Donaghy v Legal Services Commissioner [2013] NSWADT 261; Donaghy v Legal Services Commissioner (No. 2) [2014] NSWCATOD 1; Category: Principal judgment Parties: Geoffrey James Donaghy (Applicant) Legal Services Commissioner (Respondent) Representation: G Donaghy (Applicant) L Muston (Respondent) File Number(s): 122025 reasons for decision INTRODUCTION 1These proceedings resulted in a decision on 20 November 2013 reported as Donaghy v Legal Services Commissioner [2013] NSWADT 261 and also in Donaghy v Legal Services Commissioner (No. 2) [2014] NSWCATOD 1. The Application was by the solicitor Geoffrey James Donaghy for a Review of a decision by the Legal Services Commissioner to impose on him a reprimand pursuant to s. 540 of the Legal Profession Act 2004 ("the LP Act"). 2The decision of the Tribunal was in accordance with Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") that the correct and preferable outcome was to impose a reprimand and also a condition on the solicitor's Practising Certificate requiring him to complete a course in Ethics that included the topic of the obligations of lawyers to the Courts. 3The Respondent to the Application applied by letter of 29 January 2014 for an order that the Applicant pay the Respondent's costs of and incidental to the proceedings. 4The Respondent argued in support of the proposed costs order in its letter of 29 January 2014 and a subsequent letter of 11 February 2014 that ss.566(1) of the LP Act applied or else, clause 23(1) of schedule 5 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") and either would require that the Applicant pay the Respondent's costs, because the Tribunal made a finding that the Applicant had engaged in unsatisfactory professional conduct. 5However, there was no such finding made in the proceedings by the Tribunal. In accordance with the requirements of s. 540, the question was whether there was: "a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct (but not professional misconduct)"; not whether the Respondent had committed unsatisfactory professional conduct. 6In the subsequent submission for the Legal Services Commissioner forwarded with the Commissioner's letter of 10 March 2014, the previous submissions were abandoned and the Commissioner relied upon s. 88 of the ADT Act. For the purposes of the these proceedings the ADT Act continues to apply, these being on 1 January 2014 "part-heard proceedings" under the Civil and Administrative Tribunal Act 2013, and particularly clause 7 of Schedule 1 to that Act. 7Section 88 of the ADT Act provides: 88 Costs (1)Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1)(A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a)whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii)failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii)asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv)causing an adjournment, or (v)attempting to deceive another party or the Tribunal, or (vi)vexatiously conducting the proceedings, (b)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c)the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d)the nature and complexity of the proceedings, (e)any other matter that the Tribunal considers relevant. (2)The Tribunal may: (a)determine by whom and to what extent costs are to be paid, and (b)order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3)However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4)In this section, costs includes: (a)costs of or incidental to proceedings in the Tribunal, and (b)the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. SUBMISSIONS 8The submissions of the Legal Services Commissioner are attached to the Commissioner's letter of 10 March 2014. The submissions of Mr Donaghy are contained in his letter of 20 March 2014. Part 1 of Mr Donaghy's submissions - Application for Disqualification. 9In his submissions Mr Donaghy seeks to have the Tribunal disqualify itself in relation to the costs application because he says that in the Reasons delivered on 24 January 2014: "At paragraph 7 there is a commentary upon the progress of this matter since the Order of 8 November 2013 in which it clearly implies that I ignored the Order of the Tribunal and raises an alternative factual scenario in relation to the condition "within 14" days running from the date of 25 November 2013." 10In his letter Mr Donaghy says: "These implications to say at least are inaccurate and fail to disclose the Tribunal's Directions of 25 November 2013 where I was advised that the period for filing evidence and submissions pursuant to the Order of 8 November 2013 had expired and it was impertinent of me to assume that any such extension would be granted." 11He made further submissions about that aspect. 12However, these proceedings were not before the Tribunal on 25 November 2013. That afternoon there was a Directions Hearing in the matter of Donaghy v The Law Society of NSW, but these proceedings were not before the Tribunal. 13Mr Donaghy goes on to allege "actual bias" and says that the Tribunal by paragraph 7 of its judgment has "demonstrated actual malice towards myself." 14The Tribunal is not able to discern from the submissions of Mr Donaghy precisely what the complaint is. He claims that there was a discussion on 25 November 2013 and "the outcome of that discussion was that there was no extension granted". He appears to be referring to these proceedings, but these proceedings were not listed on that day, nor did he make any application at any time to extend the time for submissions in this matter. 15The issue in Part 1 of his submissions has not been made out. THE RELEVANT MATTERS UNDER ss. 88(1A) OF THE ADT Act (b)Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings. 16Mr Donaghy was responsible for prolonging unreasonably the time taken to complete the proceedings because of irrelevant submissions he persisted in making about perceived errors by the Legal Services Commissioner. He did this despite repeatedly being reminded by the Tribunal of its role under s. 63 of the ADT Act and of the irrelevance of such submissions. 17Mr Donaghy did not just prolong the hearing and add to the costs of the hearing by this conduct, he also did it by his documentation. His Application raised 11 grounds of which about 9 were allegations of errors by the Legal Services Commissioner which were not relevant issues before the Tribunal under s. 63 of the ADT Act. 18This is a similar approach to his letter of 4 July 2012 to the Legal Services Commissioner making submissions. 19In his written submissions to the Tribunal dated 4 September 2013 there are 18 pages of submissions, most of which were irrelevant to the decision by the Tribunal. That conduct continued in his oral submissions at the hearing. About half of the time taken by the hearing was occupied by Mr Donaghy making submissions that were irrelevant, and questions of, or responses to, those submissions by the Tribunal and by counsel for the Respondent. (c)The relative strengths of the claims made by each of the parties including whether a party has made a claim that has no tenable basis in fact or law. 20The major weakness in Mr Donaghy's case was that it was focussed on irrelevant matters and largely ignored the issues of his conduct, the relevant legal requirements and standards it offended and matters that might mitigate against a reprimand or other sanction. 21At the hearing and in his written submissions, Mr Donaghy submitted that unsatisfactory professional conduct required: "serious, wilful, dishonest or dishonourable conduct". That submission was rejected. It had no tenable basis in law. 22The submissions of Mr Donaghy that his conduct in failing to attend Court or a part heard matter in the particular circumstances and failing to attend Court when ordered to do so by the Magistrate was not conduct which the Tribunal was reasonably likely to find to be unsatisfactory professional conduct also had no tenable basis in fact or in law. (d)The nature and complexity of the proceedings. 23Had it not been for the stance taken by Mr Donaghy, the proceedings would have been relatively simple. It would have been focused on his conduct the subject of the complaint, relevant authorities and legislation and any evidence or submissions in mitigation. 24But Mr Donaghy, instead was focused on the Legal Services Commissioner and criticism of his conduct. This and the reported decisions he relied upon in support of his criticisms added unnecessary complexity to the proceedings. So did his submissions with no merit about the meaning of "unsatisfactory professional conduct" and submissions that a Tribunal would not find that his subject conduct was such. (e)Any other matter that the Tribunal considers relevant. 25Mr Donaghy in his Application for the Review and in his submissions sought that the reprimand be set aside. The Tribunal found that he should be reprimanded. It also appears from his Application and from his submissions that he was seeking to have the Tribunal make findings of errors of law by the Legal Services Commissioner. Any such finding would not be relevant to the Tribunal's task and no such finding was made. 26Not only did the Tribunal decide that he should be reprimanded, its decision was that the correct and preferable decision was a reprimand and an order imposing a condition on his Practising Certificate requiring that he complete a course in Ethics that includes the obligations and duties of solicitors to the Courts. He unsuccessfully opposed the proposal for such an order. 27From Mr Donaghy's perspective, the outcome was a more onerous outcome than the outcome he was seeking to have set aside. He was wholly unsuccessful in his Review Application. PART 3 OF Mr DONAGHY'S SUBMISSIONS 28Prior to the Commissioner's submissions received by the Tribunal on 13 March 2014, the Commissioner made submissions seeking an order for costs in reliance upon ss. 566(1) of the Legal Profession Act 2004 for clause 23(1) of Schedule 5 of the Civil and Administrative Tribunal Act 2013. But those provisions required that there be a finding by the Tribunal that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct. There was no such finding in these proceedings. The finding that is required under s. 540 of the Legal Profession Act 2004 is a finding: "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)". The subsequent submissions of the Commissioner did not rely upon those provisions and instead relied upon s. 88. 29The Tribunal is persuaded that it is fair that Mr Donaghy should not have to pay costs of the Legal Services Commissioner in connection with the submissions on costs in the letters of the Commissioner to the Tribunal of 29 January 2014 and 11 February 2014. 30In Part 3 of his submissions, Mr Donaghy says that the Commissioner's submission that ss. 566(1) of the L.P. Act applied, had no reasonable prospect of success and: "I should not have been place in this position to have spent some considerable time dealing with this application and I respectfully submit that s. 88(1A)(a)(ii) is enlivened and I should receive my costs in dealing with this application." 31Mr Donaghy then seeks an order for costs in his favour in the sum of $2,200.00, but makes no other submission as to a basis upon which the costs order would be made. 32Presumably the submissions of the Commissioner of 29 January and 11 February were served on Mr Donaghy, but before he made any submission to the first of those submissions, the Registrar responded to the submission, advising the Legal Services Commissioner that there had been no finding of unsatisfactory professional conduct or of professional misconduct so neither s.566 of the LP Act nor Clause 23 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 applied. A copy of that letter was sent to Mr Donaghy. The Tribunal did not call on him to respond to either of those submissions of the Commissioner. 33So far as the Tribunal is aware Mr Donaghy made no submissions to the Tribunal in response to the Commissioner's letters of 29 January and 11 February. If he had done so, the issue was a narrow one and, given the Registrar's letter, would not have required much research and the submission could have been confined to less than a page. 34The Tribunal has concluded that the fair result in respect of the costs application of the Commissioner is that given the extensive irrelevant submissions of Mr Donaghy, his conduct in lengthening the proceedings and unnecessarily adding costs to the proceedings, the fact that he has been wholly unsuccessful in the proceedings, and the fact that the submissions of the Commissioner regarding costs dated 29 January 2014 and 11 February 2014 had no merit, the Applicant, Mr Donaghy should pay the Commissioners costs of and incidental to the proceedings with the exception of any costs of the Commissioner incurred in relation to the submissions on costs to the Tribunal made in the Commissioner's letters of 29 January 2014 and 11 February 2014. 35For the same reasons, in the context of the order already proposed, and the circumstances of any response of Mr Donaghy to the Commissioner's submissions of 29 January and 11 February, the Tribunal concludes that the fair result for Mr Donaghy's costs application is that it be dismissed. ORDERS 36The Orders of the Tribunal are: (1)The Applicant must pay the Respondent's costs of and incidental to these proceedings (with the exception of any costs of the Respondent in connection with the submissions on costs made in the Commissioner's letters to the Tribunal dated 29 January 2014 and 11 February 2014) such costs to be as agreed or as assessed. (2)The Applicant's application for costs is refused and dismissed. ********** 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 06 May 2014 - Typographical errorRespondent's changed to Applicant's Amended paragraphs: 36 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: 06 May 2014