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[2014] NSWCATOD 71
NCAT Occupational
2014-06-30
General Member J
Original judgment source is linked above.
reasons for decision BACKGROUND 1These were proceedings by way of an application for the Administrative Decisions Tribunal to review a decision of the Council of the Law Society of NSW to reprimand the Applicant in respect various conduct. The application was made pursuant to s 540 of the Legal Profession Act 2004 ("the Act") and decided pursuant to s 63 of the Administrative Decisions Review Act 1997. 2There was an Interlocutory Application made by the Applicant in relation to a Summons, which was heard by ADT Judicial Member D Fairlie and refused. It is reported as Donaghy v Council of the Law Society of NSW (No. 1) [2012] NSWADT 185. 3Meanwhile the Applicant had also commenced proceedings in the ADT for review of a decision of the Legal Services Commissioner under section 540 to reprimand the applicant in respect of other conduct. 4The proceedings commenced in the ADT against the Legal Services commissioner were listed for hearing on 6 September 2013 and allocated to this panel of Senior Member M Riordan, General Member J Butlin and myself. 5There was a decision on the hearing of the Law Society proceedings by the ADT (a different panel) and that was subsequently set aside by the Court of Appeal and the matter was remitted for hearing by a different panel. The present panel was assigned the matter. 6The hearing of the review of the decision of the Legal Services Commisioner proceeded on 6 September. During the a later part of the day Mr Donaghy applied for the Tribunal members to disqualify themselves on the ground of apprehended bias. The hearing was completed after submissions from the Respondent and submissions from Mr Donaghy except that Mr Donaghy was informed by the tribunal that if it was considering something other than setting aside the decision completely or confirming it, he would be given an opportunity to provide further submissions. One possibility that the tribunal raised and invited Ms Webster to address at the hearing was imposing a condition on the practising certificate of Mr Donaghy requiring him to attend an ethics course that covered the duties and obligations of a solicitor to the courts. 7Another interlocutory application in these proceedings was made by the applicant and determined by me on 31 October 2013. Orders were made refusing and dismissing the Application and reserving the costs of the parties in connection with that Application (Donaghy v Council of the Law Society of NSW (No. 2) [2013] NSWADT 245). 8Meanwhile, on 2 October 2013 the final hearing was listed for 29 November 2013. 9On 8 December 2013 Mr Donaghy was notified by the Registrar of the ADT that in the proceedings involving the Legal Services Commissioner the Tribunal was considering whether to impose a condition on his practising certificate (of the type raised at the hearing) and he had been ordered to provide any submissions he wished to make on that issue by 22 November. 10Mr Donaghy did not file any submissions in response to that order. Instead he wrote to the Registrar some days later and indicated that he would not do so unless he was given the findings of the Tribunal that supported the raising of that issue. The findings of the Tribunal about his conduct and other issues (including reason for the panel's refusal to disqualify themselves but excepting discussion of the appropriate outcome) were provided to the parties on 20 November. 11Meanwhile, Mr Donaghy wrote to the Tribunal on 14 November 2013 seeking an adjournment of the hearing of these proceedings set for 29 November. His application for an adjournment was heard on 26 November with Ms Webster SC for the Law Society and Mr Donaghy participating by telephone. Mr Donaghy informed the Tribunal that the reason for the adjournment application was that he could not properly prepare for the hearing because he had to also prepare submissions in the other proceedings in the Tribunal between him and the Legal Services Commissioner. The adjournment was refused and reasons given. 12Mr Donaghy did not file any submissions in the proceedings involving the Legal Services Commissioner about the possible imposition of a condition on his practising Certificate and did not apply for any extension of time to do so. 13On 28 November 2013 Mr Donaghy wrote to the Tribunal (sent by fax at 4.14pm) giving notice that he wanted an adjournment of the hearing the next day because he was suffering from gastric. Mr Donaghy provided a medical certificate from his general practitioner saying that he had severe gastroenteritis and was "unfit to continue his usual occupation" from 28 November to 2 December. It was not possible to deal with the application that afternoon because of the short notice and the fact that I was at that time travelling to Sydney. 14The hearing on 29 November was before the present panel. Mr Donaghy appeared by telephone and the respondent was represented by Ms Webster SC. The Tribunal ascertained that neither party wished to rely on any evidence other than that already filed by him/it. The Tribunal was also informed in responses to questions that neither party wished to cross-examine any witness. 15Accordingly, orders were made for the matter to proceed by the filing of written submissions. Mr Donaghy's submissions were ordered to be filed and served by 13 December 2013 and the Law Society's submissions were ordered to be filed and served by 20 January 2014. Mr Donaghy raised no objection to the matter proceeding that way. 16On 21 January 2014 the decision in the proceedings involving the Legal Services Commissioner was delivered (Donaghy v Legal Services Commissioner (No.2) [2014] NSWCATOD 1). 17Mr Donaghy did not file his submissions due by 13 December in this matter until 20 December 2013. In those submissions he did not raise any issue of apprehended bias by the Tribunal or actual bias. His submissions and the submissions for the Law Society were taken into account buy the tribunal in the decision, which was delivered dated 9 April 2014 and reported as Donaghy v Council of the Law Society of NSW (No. 3) [2014] NSWCATOD 32. So far as the Tribunal is aware there has been no step by either party to challenge that decision. 18Some days prior to 29 May the Law Society raised with the Tribunal the fact that there had been orders earlier in the proceedings reserving costs and the Law Society raised its application for costs. 19On 29 May the parties were given notice of directions made by me for the parties to each file and serve any submissions or additional evidence he/it relied upon regarding an issue of costs by 13 June and by 27 June each to file and serve any submissions or evidence in reply. 20The Law Society filed submissions on 13 June 2014. Those submissions indicate that the Law Society is seeking its costs in respect of the interlocutory proceeding heard by Judicial Member Fairley in February 2012 (Donaghy v The Council of the Law Society of NSW (No. 1) [2012] NSWADT 185 and also in the proceedings Donaghy v the Council of the Law Society of NSW (No. 3) [2014] NSWCATOD 32. 21Mr Donaghy has not filed any submissions or evidence regarding any costs issue. 22Mr Donaghy's Application for Interim Orders seeks to set aside the directions of 29 May 2014 and to have the Members of the panel disqualify themselves because of alleged actual bias, which he alleges was demonstrated by the decision of 7 April 2014. He filed supporting Affidavits with his Application, which I have read.
CONCLUSIONS 23The Applicant did not in these proceedings raise any allegation of apprehended bias or actual bias prior to the decision of 7 April 2014. He then did not raise any such allegation until the costs directions were made and 12 days had passed. Indeed, he did not raise any such issues until more than 9 weeks after he received the decision dated 7 April 2014. 24The argument the Applicant seeks to raise in an "Interim Application" is an argument that the findings of the Tribunal of 7 April 2014 display bias and for that reason the panel should disqualify themselves in respect of the costs issue. The appropriate way to challenge the decision of 7 April in the Supreme Court . 25Assuming for the moment that there is merit in the Applicant's allegation of actual bias, if this application succeeded, a different panel would then hear the costs issues. That would mean that the decision about costs would be significantly delayed and decided by a different panel. It would introduce the unnecessary complexity of 2 appeals to appeal panels or 2 separate actions in the Supreme Court if there were appeals or actions against both the decision of 7 May and the costs decision. 26Granting the application facilitates unnecessary delays and costs for the parties in both the Tribunal and the Supreme Court and unnecessary costs for the Tribunal and probably the Supreme Court . 27The preferable course in terms of time and costs for the parties, the Tribunal and the Court is for the present panel to decide the costs issue, even if there were merit to the bias argument. Then if one party or both parties wish to challenge any part or parts of the reasons of this panel by appeal or proceedings in the Supreme Court, it can be done in a single proceeding. 28Mr Donaghy has not filed any evidence or submissions in response to either the first direction of 29 May requiring him to file such material by 13 June or the second requiring him to file by 27 June any material in response to the Law Society material already filed. 29Even if Mr Donaghy's application is granted, if he had filed submissions, they would have been used for the costs decision by another panel. 30It must be implied by Mr Donaghy's application that he opposes the application for costs by the Law Society. But he has chosen to not file any submission or evidence in response. He has not complied with the order that he do so. That conduct is apparently intended to further delay the decision as to costs after the "Interim Application" is decided. It is similar to his failure to comply with the order of 8 November 2013 in the proceedings regarding the decision of the Legal Services Commissioner and requiring that the Tribunal first provide reasons for it considering such an option. 31The Tribunal is satisfied that Mr Donaghy's grounds relied upon are not bona fide. The Tribunal is also comfortably satisfied that Mr Donaghy's reason for bringing the "interim application" is about delaying a decision on the costs issue and frustrating the Law Society. 32The Application should be dismissed as an abuse of the processes of the Tribunal.
COSTS SUBMISSIONS 33Mr Donaghy has had since 29 May to provide costs submissions. He has made no application for costs. He should have until 3.00pm on Friday 4 July to file and serve any material in response to the Law Society application for costs.
ORDERS 34The Orders of the Tribunal are: (1) The Application for interim orders filed by Geoffrey James Donaghy on 12 June 2014 is refused and dismissed. (2) The time for the Applicant to file and serve material pursuant to order 2 of the orders of 29 May 2014 is extended to 3.00pm on 4 July 2014.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2014
Donaghy
Council of the Law Society of NSW