Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 Hearing dates: 28 May 2015 Decision date: 05 August 2015 Before: Basten JA at [1]; Gleeson JA at [118]; Sackville AJA at [119] Decision: (1) Allow the appeal and set aside the orders made by the Tribunal on 9 April 2014.

(2) In place thereof order that the practitioner's application to review the decision of the Council of the Law Society of 1 September 2011 be dismissed.

(3) Set aside order 1.3 (as to the costs of the substantive proceedings before the Tribunal) made on 21 July 2014, with the effect that there be no order as to costs incurred in the Tribunal other than those covered by Tribunal orders 1.1 and 1.2.

(4) Order that the appellant pay 50% of the respondent's costs of this appeal. Catchwords: APPEAL – appeal from Civil and Administrative Tribunal – error conceded – whether court should remit or finally dispose of the matter – Supreme Court Act 1970 (NSW), s 75A; Civil Procedure Act 2005 (NSW), s 56

LEGAL PRACTITIONERS – solicitor failed to pay counsel's fees – complaint referred to the Law Society for investigation –reprimand under s 540 of the Legal Practitioners Act 2004 (NSW) issued – whether s 540 procedure was available to the Law Society – whether it was reasonably likely that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct – whether practitioner generally competent and diligent – whether reprimand preferable penalty

WORDS AND PHRASES – "reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct" – Legal Profession Act 2004 (NSW), s 540(1)(b)(i) Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW), ss 58, 63, 88 Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29 Civil Procedure Act 2005 (NSW), ss 56, 98 Legal Profession Act 2004 (NSW), ss 373, 496, 498, 508, 510, 511, 525, 527, 534, 535, 537, 540, 551, 558, 602, 701, 703, 729A; Ch 4; Pts 4.5, 4.8, 7.5 Legal Profession Uniform Law Application Act 2014 (NSW), s 167 Revised Professional Conduct and Practice Rules 1995, rr 25, 32 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53 Cases Cited: AT v Commissioner of Police, New South Wales [2010] NSWCA 131 Byrne v Law Institute of Victoria Pty Ltd [2005] VSC 509 Donaghy v Council of the Law Society of NSW (No 3) [2014] NSWCATOD 32 Donaghy v The Council of The Law Society of New South Wales [2013] NSWCA 154 Donaghy v Legal Services Commissioner of New South Wales [2014] NSWCA 445 Donaghy v Legal Services Commissioner [2013] NSWADT 261 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 Category: Principal judgment Parties: Geoffrey James Donaghy (Appellant) Council of the Law Society of NSW (Respondent) Representation: Counsel: Mr J Priestley SC (Appellant) Ms C Webster SC (Respondent)