Donaghy t/as GJ Donaghy & Company Solicitors v Legal Aid Commission of NSW

Background facts summarised

1. Mr Donaghy relied on two affidavits, filed on 6 August 2021 (which is the composite of two affidavits dated and filed on 3 August 2021 and which contains an annexure) and 18 October 2021 respectively. The defendant (LAC) relied on two affidavits affirmed by Ms Danielle Roth and filed on 22 November 2021 and 22 December 2021 respectively. Ms Roth is a Senior Solicitor employed in the LAC in the Private Lawyer Quality Standards (PLQS) Unit, a position she has held since October 2020.
2. Ms Roth described amendments to the Legal Aid Commission Act 1979 (NSW) (LAC Act) which came into effect on 27 July 2020. Rather than assign legal aid matters to private legal practitioners as occurred previously, the amendments require matters to be assigned to law practices. Ms Roth described how in late 2020 the LAC invited members of the existing Legal Aid panels to apply for membership of the revised panels. This new scheme commenced on 1 February 2021. Ms Roth also described how, immediately prior to 1 February 2021, Mr Donaghy was a member of the Summary Criminal Law Panel and the General Family Law Panels under the previous scheme and that he had also been a member of other panels under that previous scheme.
3. On or about 14 December 2020, Mr Donaghy lodged an application seeking to be appointed to some of the revised panels.
4. There is a lengthy history both predating that application and relating to its consideration and determination by the LAC. That history may be summarised as follows.
5. As noted above, Mr Donaghy was a member of at least two panels under the previous scheme. The evidence discloses, however, that the LAC had concerns at various times as to Mr Donaghy's capacity to conduct legal aid work. For example, on 11 November 2015, the LAC decided not to reappoint Mr Donaghy to the General Criminal Law Panel having regard to the Court of Appeal decision in Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 with particular reference to [97]­-[104].
6. On 6 November 2019, the LAC decided not to reappoint Mr Donaghy to the Care and Protection Panel on the basis that he had not demonstrated that he had provided prompt, reliable and professional service in the conduct of legal aid matters. Criticisms which Mr Donaghy had made of the Department of Family and Community Services were also taken into account.
7. On 16 March 2020, Mr Donaghy was advised by the LAC that it was considering suspending his membership of the Summary Criminal Law Panel and General Family Law Panels pursuant to s 51(5) of the LAC Act as then in force. This arose from Mr Donaghy's plea of guilty to a high range drink driving offence on 11 February 2020 and several client complaints that he had not attended listed court dates and had failed to communicate appropriately with those clients.
8. Following material provided by Mr Donaghy in response to the LAC's concerns, the LAC told him on 6 April 2020 that it had deferred its decision to suspend or remove him from the Panels for three months (ie until 7 July 2020), but that no further legal aid work would be assigned to him during that period. He was also asked to provide a report from his treating psychologist addressing his capacity to return to full time legal practice. Not without some delay on Mr Donaghy's part, he ultimately provided on 11 May 2020 a medical certificate from his General Practitioner regarding his capacity to retain his existing matters.
9. The LAC then told him in an email dated 12 May 2020 that it had reconsidered its decision to transfer his legal aid matters but added that it needed an updated medical certificate and progress report from Mr Donaghy's counsellor by 5 July 2020 prior to the LAC reaching a final decision on his suspension.
10. On 5 June 2020, the LAC told Mr Donaghy that it had received a further complaint in relation to his conduct representing a client (whom I shall refer to as "K") and that it intended to take this into account in considering the deferred suspension decision. On 19 June 2020, Mr Donaghy responded to that further complaint regarding K. On 23 June 2020, the LAC confirmed that Mr Donaghy's failure to report the breakdown of his relationship with K remained a matter to be taken into account.
11. It was not until 10 July 2020 (and after the LAC had written to Mr Donaghy on 6 July 2020 noting that he had failed to provide a progress report and an updated medical certificate by 5 July 2020) that Mr Donaghy provided some requested documents.
12. On 16 July 2020, Mr Donaghy was told that the LAC had decided not to remove him from the relevant Panels and had instead determined to make his membership conditional for a period of six months, including by placing a cap on the number of legal aid matters in his practice. He was told that his panel membership would be reviewed on 16 January 2021 and that the condition would be lifted if he was not subject to any further complaints and/or did not fail audits during that period.
13. On 6 November 2020, Mr Donaghy was told that the LAC would conduct an audit of some of his assigned legal aid matters.He was asked to have ten selected files relating to nine legally aided clients ready for collection by 7 December 2020.
14. There was an exchange of correspondence between the LAC and Mr Donaghy during November and December 2020 regarding the renewal of his practising certificate by the Law Society having regard to his conviction and sentence for the high range drink driving offence earlier that year. His renewed practising certificate had a condition requiring him to give an undertaking to the Law Society that he would provide copies of medical reports concerning his capacity to practise.
15. Mr Donaghy was granted an extension of time to provide the selected files for the purpose of the audit. On 14 December 2020, the LAC informed Mr Donaghy that no information had been provided in response to its enquiries regarding the condition on his practising certificate. He was told that the LAC had decided to suspend him from the relevant Panels. On the same day, Mr Donaghy provided the requested material and also complained about the volume of requests for information he had been required to deal with over the previous six months.
16. On 15 December 2020, Mr Donaghy was told that the LAC was now satisfied that his Panel membership could be reactivated, conditional upon him continuing to provide to the LAC relevant medical reports required pursuant to his undertaking to the Law Society.
17. Against that early background, it is now desirable to summarise relevant matters concerning Mr Donaghy's December 2020 application for membership of certain panels under the new regime and the LAC's consideration and determination of that application.

Mr Donaghy's application for membership of Legal Aid Panels

1. On or about 14 December 2020, after receiving an invitation from the LAC to apply to join the new panel regime which was due to commence on 1 February 2021, Mr Donaghy lodged a pro forma application for membership of the following panels: the Summary Crime, Indictable Crime, Child Crime, Family Law, Care & Protection, Domestic Violence and Mental Health Panels.
2. By a letter dated 14 January 2021 (which was in fact sent on 13 January 2021, as confirmed by Ms Roth's affidavit filed on 22 December 2021 at [57] and Mr Donaghy's email dated 13 January 2021 referring to this letter), Mr Donaghy was told that the LAC had formed the preliminary view that he should be reappointed to the Family Law and Summary Criminal Law Panels only. He was told that the reasons for this decision were as follows: The current undertaking on your practicing certificate requiring you to comply with medical treatment and submit reports every six months addressing your fitness to practice; The criminal convictions disclosed in your application; Your non appointment to the Care & Protection (Adult) Panel in 2019; The substantiated complaints against you in 2019 and 2020 and the subsequent suspension from the General Family Law and Summary Crime panels; your further suspension from Legal Aid NSW panels in December 2020 for failure to respond to our request for information; the current cap on your legal aid matters to 30; your files are currently the subject of a quality audit.
3. This letter also invited Mr Donaghy to consider withdrawing his panel application in relation to the five other panels to which he sought appointment. It was explained that if he did not do so, the effect of a formal refusal of his application would be to prevent him from applying again within a six-month period. By an email dated 13 January 2021, Mr Donaghy declined to withdraw his application in respect of the five other panels.
4. There were logistical difficulties during December 2020 and January 2021 in collecting the requested audit files. These difficulties were not all Mr Donaghy's responsibility. By a letter dated 21 January 2021, the LAC wrote to Mr Donaghy describing some of the difficulties it had experienced in obtaining the files. The letter also referred to an earlier letter dated 19 January 2021 from the LAC (which apparently was not received by Mr Donaghy until March 2021) in which he was advised that the LAC would not be determining his panel application until the file audit had been completed. He was asked to deliver the audit files by close of business on 29 January 2021 and was told that failure to co-operate with the audit process could result in the refusal of his panel application.

Relevant legislative provisions

1. The LAC is constituted by s 6 of the LAC Act and is a statutory body representing the Crown: s 6(3).
2. Division 2 of the LAC Act sets out the functions of the LAC. Its principal function (pursuant to s 10(1) of the Act) is to provide legal aid and other legal services.
3. Sub-section 10(2) sets out various things which the LAC may do in the exercise of its principal function.
4. Sub-section 10(4) provides: The Commission may do all such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of its functions.
5. Section 11 deals with the provision of legal aid and relevantly provides: 11 Provision of legal aid (1) Legal aid may be provided by the Commission by such means as it may determine, including any one or more of the following means - (a) by arranging for the services of law practices to be made available, wholly or partly at the expense of the Commission,
6. Part 3 is headed "Provision of legal aid". Part 3, Div 1 is titled "General" and deals with matters including the provision of legal aid and the mechanism by which a person makes an application for legal aid.
7. Prior to the amendments which commenced in mid-2020, Pt 3, Div 2 was titled "Assignment of work through panels of private legal practitioners" and provided for a detailed regime by which the LAC was to assign work. In particular, ss 50 to 52 relevantly provided (emphasis added): 50 Panels of private legal practitioners (1) The Commission may establish panels of suitably qualified and experienced legal practitioners in private practice who have notified the Commission that they are willing to act as legal practitioners for legally assisted persons. … 51 Application for appointment to panel (1) A legal practitioner in private practice may apply to the Commission for appointment to one or more panels. (2) The Commission is to establish a selection committee under this Act, comprising a nominee of the Law Society, a nominee of the Bar Association and such other persons as may be appointed by the Commission. (3) All matters relating to the membership and procedure of a selection committee are to be determined by the Commission after consultation with the Law Society and the Bar Association. (4) An application is to be assessed by the selection committee which, after its assessment is made, is to recommend to the Commission whether, in its opinion, the applicant is a suitable person to be appointed to the panel or panels for which the person has applied. (5) The Commission may not - (a) refuse to appoint a legal practitioner to a panel for which the legal practitioner has made application, or (b) suspend or remove a legal practitioner from a panel, otherwise than at the legal practitioner's request, unless the Commission has given written notice to the legal practitioner of its reasons and has given the legal practitioner a reasonable opportunity to be heard in relation to the proposed refusal or removal. … 52 Conditions applying to members of panels (1) The appointment of a legal practitioner to a panel is for 2 years (or such other term as may be specified by the regulations), unless the legal practitioner is sooner removed from the panel at his or her request or in accordance with this Division. (2) A legal practitioner in private practice may re-apply under section 51 for appointment to a panel. (3) Before work may be assigned to a legal practitioner who is appointed to a panel, the practitioner must enter into a service provision agreement with the Commission. … (5) Appointment to a panel does not confer an entitlement to work.

Mr Donaghy's submissions summarised

1. Mr Donaghy represented himself. He provided a written outline of his written submissions and also made lengthy oral submissions in support of his judicial review challenge. His submissions may be summarised as follows.
2. First, Mr Donaghy described the challenged decision as the LAC's decision dated 16 July 2021 in which he was informed that Mr Thomas considered that he had been afforded procedural fairness and that the decisions to refuse his panel application and reassign his legal aid matters to other practitioners were correctly made. In oral submissions, he clarified that he did not intend to exclude from his judicial review challenge earlier LAC decisions, including Mr Hitter's decision dated 11 June 2021 and her earlier correspondence on 14 May 2021. He submitted that these matters, all taken together, constituted the "process" undertaken by the LAC which he now challenged.
3. Secondly, in support of his submission that the LAC's impugned conduct had a statutory source, Mr Donaghy submitted that ss 11(1), 12(f) and 49 of the LAC Act were the relevant statutory provisions.
4. Thirdly, in support of his complaint of procedural unfairness, Mr Donaghy contended that: 1. he was misleadingly informed by the LAC's 14 May 2021 letter that the adverse "case against [him] was the audit outcome and other general matters"; 2. in her affidavit dated 22 November 2021, Ms Roth deposed that in 2020 the LAC had consulted with "Ms Sexton, Senior Solicitor at our Lismore Office and Hugh Van Dugteren Solicitor in Charge at our Lismore Office" on issues relating to Mr Donaghy and that both those persons "expressed serious concerns about Mr Donaghy's concern to act for vulnerable clients and the reputational damage that he may be causing to Legal Aid NSW"; 3. this evidence: 1. left unclear the precise time in 2020 being referred to; and 2. no particulars were provided as to who spoke to Ms Sexton and Mr Van Dugteren.
5. Fourthly, Mr Donaghy submitted that the LAC's claim that he had failed to co-operate in providing the audit files was factually baseless and demonstrated unreasonableness as well as procedural unfairness.
6. Fifthly, he contended that the LAC acted arbitrarily and capriciously in deciding to terminate his panel membership as of 1 February 2022, even though the audit was not completed.

The LAC's submissions summarised

1. To avoid adding unnecessarily to the length of these reasons for judgment, I will summarise and address the salient points raised by the LAC in its written and oral submissions in the next section.

Consideration and Determination

1. As the LAC pointed out, Mr Thomas' decision dated 16 July 2021, which Mr Donaghy identifies as the focus of his judicial review challenge, was a letter sent by the CEO in response to Mr Donaghy's letter dated 30 June 2021. The decision to refuse Mr Donaghy's panel application had been made well prior to 16 July 2021. The 16 July 2021 letter confirmed that the decision to refuse Mr Donaghy's panel application had been made by Ms Hitter on 11 June 2021.
2. Despite this matter having been drawn to his attention, Mr Donaghy did not seek to amend his amended summons. He persisted in challenging the "decision" recorded in the 16 July 2021 letter. As noted above, however, Mr Donaghy clarified in his oral submissions that his judicial review challenge was directed to the process leading up to and including the 16 July 2021 letter.
3. However the matter is approached, it is plain that the critical decision which was made as part of that process was Ms Hitter's decision dated 11 June 2021. This decision was to the effect that Mr Donaghy's panel application had been refused and there would be a reassignment of his existing legal aid matters. As noted above, he was told that this was for the reasons set out in Ms Hitter's earlier letter dated 14 May 2021.
4. I shall explain why Mr Donaghy's judicial review complaints, for which he carries the onus, have not been established. Before doing so, it is desirable to say something about a threshold issue raised by the LAC, namely the amenability of the LAC's conduct to judicial review.
5. The LAC's primary submission was that its conduct relating to and including the matters recorded in both the 11 June 2021 and 16 July 2021 letters was not the subject of any express statutory power and was therefore not susceptible to judicial review. It emphasised the significance of the amendments made by the Amending Act. The LAC contended that there is no longer a legal requirement for it to use a panel system, nor any express entitlement for legal practitioners to apply for appointment to a panel (in contrast with the former s 51(1)). Nor is there any longer an express power to assess and determine a person's application to join a panel. With reference to the present form of s 12(f) and the requirement that any work assigned to a law practice must be made in accordance with procedures from time to time determined by the LAC in accordance with Pt 3 Div 2 of the LAC Act, the LAC submitted that this requirement does not deal with the manner in which it determines to appoint applicants to any panels.

(a) No procedural unfairness

1. Ms Hitter's letter of 14 May 2021 (see [32] above) put Mr Donaghy on notice of the matters which the LAC was proposing to consider, namely: 1. the conclusions of the Audit Outcome Report; 2. the judgments in previous disciplinary matters; 3. the investigated complaints (being the "three independent complaints" referred to in the second paragraph of the letter); 4. Mr Donaghy's criminal conviction; and 5. the conditions on Mr Donaghy's practising certificate.
2. Mr Donaghy was expressly invited to address these matters and was told that the LAC would take into account his response to the outcome of the audit, as well as any further matters of relevance he raised.
3. Mr Donaghy submitted that he was denied procedural fairness because he was not told which of the "judgments in previous disciplinary matters" were to be considered. In different circumstances, there may have been some force in this submission. It must be rejected, however, in circumstances where Mr Donaghy was being invited to respond to this and other matters raised in the 14 May 2021 letter. If he had any doubt or uncertainty regarding the particulars of any of the five listed matters, it was open to him to seek clarification from the LAC. He did not do so.
4. Mr Donaghy complained that when he was ultimately provided with the Audit Outcome Report, he was denied procedural fairness because the document was "prepared by anonymous persons". Mr Donaghy was told in the 14 May 2021 letter that the audit had been conducted by "Senior Solicitors in the Family Law Division" of the LAC, but was not told their exact identities. It was open to Mr Donaghy to ask the LAC to identify the relevant persons and to show the relevance of that matter if the LAC asked him to do so. The difficulty for Mr Donaghy is that he made no such request.
5. Mr Donaghy was ultimately provided with the unsigned and undated two-page Audit Outcome Report and was told of the LAC's "key areas of concern" in the letter of 14 May 2021. The files were returned to him. Mr Donaghy had every opportunity to review his own files and prepare a response which addressed the substance of the concerns raised in the Audit Outcome Report. It is well-established that where procedural fairness is owed, the decision-maker must give the affected person an opportunity to deal with adverse information that is credible, relevant and significant to the decision to be made (see, for example, Kioa v West (1985)159 CLR 550 at 629; [1985] HCA 81 per Brennan J). There is no procedural unfairness if the affected person (in this case, Mr Donaghy) chooses not to take advantage of that opportunity.

(b) No irrationality/unreasonableness

1. In raising the grounds of irrationality/legal unreasonableness, Mr Donaghy presumably relies upon cases including Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 and Davis.
2. In National Home Doctor Service Pty Ltd v Director of Professional Services [2020] FCA 386 at [119], I sought to summarise some of the relevant principles concerning review for irrationality/unreasonableness where there is a statutory source for the relevant decision-making: 1. Both grounds of judicial review are stringent and confined and require the judicial review court "to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision" (SZVFW at [79] per Nettle and Gordon JJ) and on the basis of the factual information before the decision-maker (Stretton at [7]-[13]). 2. Where reasons are provided, they are the focal point for the assessment of legal unreasonableness (SZVFW at [84] per Nettle and Gordon JJ and Singh at [47] per Allsop CJ, Robertson and Mortimer JJ). 3. Although the standard of legal unreasonableness applies across a range of statutory powers, the indicia of legal unreasonableness must be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case and the reasoning process in review for legal unreasonableness is inevitably fact dependent (Singh at [48]). 4. Legal unreasonableness can either be "outcome focussed" (without necessarily identifying another underlying jurisdictional error) or it can focus on an examination of the reasoning process by which the decision-maker arrived at the outcome of the exercise of power (Singh at [44]-[47]). 5. In a case where a decision-maker's statutory function calls for a "broad and subjective" evaluation, the task of demonstrating the requisite lack of an "evident and intelligible justification" becomes a "virtually insuperable hurdle" (Plaintiff M64/2015 at [55]-[57]). 6. Legal unreasonableness requires the Court to acknowledge that there is "an area of decisional freedom" vested in the decision-maker in exercising a statutory discretionary power (Li at [28] per French CJ and Singh at [44]).

(c) Failure to consider relevant considerations and improper purpose

1. As noted at [1] above, these additional heads of judicial review were raised in the amended summons, but they were not developed by Mr Donaghy in his written or oral submissions. In any event, these complaints should also be rejected for the following reasons.
2. Mr Donaghy has not demonstrated that the LAC failed to consider properly (or at all) the various considerations listed by him in [6] of his amended summons. As the High Court plurality (Kiefel CJ, Keane, Gordon and Steward JJ) recently emphasised in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]-[27] in a different statutory context concerning the statutory obligation to consider representations, such consideration must occur within the bounds of rationality and reasonableness. Their Honours also emphasised the dangers in using labels such as "proper, genuine and realistic consideration". Furthermore, their Honours reiterated the well settled proposition that the Court is not empowered on a judicial review to substitute its decision for that of an administrative decision-maker (see Plaintiff M1/2021 at [26]).
3. It is settled law that in the case of the exercise of a statutory discretionary power, a decision-maker may commit jurisdictional error if he or she fails to take into account a consideration which he or she is bound to take into account in making that decision (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40 per Mason J). Whether or not a particular consideration is one which the decision-maker is bound to take into account turns on the subject matter, scope and purpose of the relevant statute.
4. As noted above, there is a contestable but undetermined question as to whether or not the LAC's decisions impugned by Mr Donaghy involved the exercise of statutory discretionary powers. Assuming, for the sake of argument, that the source of the impugned decision-making lies in statute, Mr Donaghy has not persuaded me that any of the considerations identified in his amended summons are considerations which the LAC was bound to take into account. Rather, his list of considerations suggest that, properly viewed, his challenge is one to the merits of the LAC's actions.
5. Mr Donaghy's listed considerations may be relevant to his separate complaints of irrationality and/or legal unreasonableness, but for the reasons given above I reject that aspect of his case.

(d) Decision to not reassign legal aid matters to Mr Donaghy

1. The second decision (or second component of a decision) which the LAC made on 11 June 2021, was to reassign the Legal Aid matters which had previously been assigned to Mr Donaghy under the previous panel regime.
2. Mr Donaghy was informed that a consequence of not being appointed to the Legal Aid Panels would be that his existing matters would be reassigned. Mr Donaghy was invited to provide a response. He chose not to do so.
3. For the following reasons, Mr Donaghy's complaints in respect of the LAC's action in reassigning Mr Donaghy's legal aid matters are rejected.
4. First, the LAC's concern, as expressed in the 14 May 2021 letter, was that Mr Donaghy was "not able to meet the standard required of Legal Aid NSW panel practitioners in accordance with the Panel Service Agreement and Quality Standards." Mr Donaghy was invited to address that concern. It would be incongruous if it was not irrational for the LAC, having concluded that this concern was substantiated, to reassign Mr Donaghy's existing matters.
5. Secondly, s 49(3) of the LAC Act expressly provides that even a law practice that has been engaged by the LAC for the provision of legal aid does not have an entitlement to be given work. Mr Donaghy put in oral submissions the proposition that s 49(3) would only apply if he were a "fresh applicant", whereas he had regularly received work from the LAC for ten years up to that point. I am not minded to accept this submission. It is not apparent that this construction of the statutory language is available and/or persuasive. The LAC Act does not qualify the statement that a law practice is not entitled to be given work. Additionally, it is apparent from the LAC's 11 June 2021 letter that Mr Donaghy's law practice was not to be engaged by the LAC for the provision of legal aid. If a law practice that has been engaged by the LAC is to have no entitlement to be given work, it necessarily follows that a law practice whose application to be appointed to the relevant Legal Aid panels has been rejected also does not have an entitlement to be given work, notwithstanding the fact that they had earlier been provided with work by the LAC. Lastly, even if one were to accept Mr Donaghy's point and employ the language of "fresh applicant", in my view Mr Donaghy was such an applicant. To reiterate some points made above, the Amending Act dismantled the earlier panel regime and constructed a new regime entirely. The consequence was that all existing panel memberships (which were personal to the legal practitioner) were terminated and law practices were invited to apply under the new regime. The consequence of applying s 49(3) would still be to deny Mr Donaghy an entitlement to be given work by the LAC.

Relief

1. The relief claimed in the amended summons is relevantly as follows (without alteration): 3. An Order that the Defendant appoint the Applicant to the Legal Aid Panels forthwith. 4. An Order that the Defendant appoint the Applicant to the Legal Aid Panels according to Law. 5. Further and/or in the alternative that the Defendant be ordered to restore the Plaintiff's grants of Legal Aid held as at 16 June 2021 [sic]. 6. A declaration that the Defendant's decision of 16 July 2021 was void for denial of procedural fairness because …
2. As the LAC pointed out, paragraphs 3, 4 and 5 of the amended summons fundamentally misunderstand the jurisdiction of the Court in judicial review proceedings. The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; [1990] HCA 21. It is not the function of the Court on judicial review to substitute its own decision for that of the LAC (see Plaintiff M1/2021 at [26]) or compel the LAC to make a particular decision where a discretion is involved.
3. There is one further matter which warrants comment. It relates to the LAC's submission (at [124] of its written submissions) regarding the utility of granting Mr Donaghy any relief even if it were limited to setting aside the relevant decisions and remitting Mr Donaghy's panel application to the LAC (assuming, of course, that Mr Donaghy had established a jurisdictional error). The LAC submitted that the utility of even that limited relief may be "questionable". It submitted that a particular matter which the LAC would require Mr Donaghy to address if the matter were remitted for redetermination would be the allegedly incorrect answers in his panel application form, which related to his disciplinary history. It is not all clear that Mr Donaghy did provide "incorrect answers" on his application form as asserted by the LAC. If Mr Donaghy had succeeded in establishing a material reviewable error of law, I would not have been minded to withhold appropriate relief on the basis of lack of utility as contended by the LAC.

Some final observations

1. Although I have rejected Mr Donaghy's judicial review complaints, this should not be taken as an endorsement by the Court of the merits of the LAC's actions. The distinction between judicial review of the legality of administrative decision-making and the merits of such decision-making is well settled. It is only too apparent from the evidence, however, that there has been a strained relationship between Mr Donaghy and the LAC extending over several years. Mr Donaghy gave the impression in Court of being a forceful and determined legal practitioner. He has a robust and forthright style of advocacy. I assume that the qualities he displayed in presenting his case before me are also employed by him in representing his clients, whether legally aided or not.
2. As noted above, Mr Donaghy was advised by Ms Hitter in her 11 June 2021 letter that he would not be permitted to reapply to join any LAC panels for three years which, I assume, reflects a policy of the LAC. On its face, that appears a somewhat harsh constraint which not only adversely affects Mr Donaghy's financial and professional interests, but also those of any potential clients in the Lismore area who would benefit from his robust and forceful advocacy. It is important, of course, that the LAC have regard to the individual circumstances in Mr Donaghy's case when applying any relevant policy constraints.

Conclusion

1. For these reasons, the amended summons will be dismissed. The parties were agreed that costs should follow the event.
2. The Court hereby makes the following orders: 1. The amended summons is dismissed. 2. The plaintiff pay the defendant's costs of the proceedings, as agreed or assessed.

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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: 20 May 2022