Donaghy v Council of the Law Society of NSW

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Geoffrey James Donaghy, is a legal practitioner practising in northern New South Wales. In late 2009, the practitioner was the subject of a complaint by a barrister in relation to the non-payment of fees and subsequent failure to communicate by the practitioner. The complaints were investigated by the Council of the Law Society of New South Wales ("the Council"), following which the practitioner was reprimanded pursuant to a summary procedure under s 540 of the Legal Profession Act 2005 (NSW) (since repealed). In deciding to act under s 540 the Council was satisfied that: (i) it was reasonably likely that the Administrative Decision Tribunal (as in place at the time of the complaint; "the Tribunal") would find that the practitioner had engaged in unsatisfactory professional conduct (but not professional misconduct; and (ii) the appellant was "generally competent and diligent". The practitioner sought review of that decision by the Tribunal. In August 2012, the Tribunal dismissed the application for review and reprimanded the practitioner. In 2013 this decision it was set aside by the Court of Appeal on the ground that the Tribunal did not afford the practitioner procedural fairness. The matter was remitted to the Tribunal. On 9 April 2014, the Tribunal (now the Civil and Administrative Tribunal) set aside the Council's decision after finding that the practitioner engaged in unsatisfactory professional conduct, holding that as the practitioner was not, in the Tribunal's view, "generally competent and diligent", the summary procedure was not available to the Council. The Tribunal remitted the matter to the Council for reconsideration of possible disciplinary proceedings. The Tribunal making these findings was constituted identically to a Tribunal which earlier made adverse findings in relation to the practitioner in an unrelated matter. The practitioner appealed this decision alleging in part that the Tribunal's decision was affected by a reasonable apprehension of bias. At the hearing of the appeal, the Council conceded that the decision should be set aside and the matter remitted for reconsideration. The parties were granted leave to make submissions in relation to the alternative that the Court should itself determine the matter and what should be the correct and preferable outcome if the Court decided to dispose of the complaints. The Council submitted that the reprimand should stand, while the practitioner submitted that the complaints should be dismissed. The Court (Basten JA, Gleeson JA and Sackville AJA) held, allowing the appeal. (Basten JA; Gleeson JA and Sackville AJA agreeing)

1. In circumstances where the orders of the Tribunal are set aside and the Court is in a position to dispose of the matter on merits, that course should be taken: [77]. Civil Procedure Act 2005 (NSW), s 56 and Uniform Civil Procedure Rules 2005 (NSW) referred to.
2. The Tribunal dealt with the present case "on the papers"; the primary facts underlying the complaints were not subject to significant dispute; there were no direct findings with regard to credibility; and the issues to be decided related to the characterisation of the underlying complaints: [80].
3. The practitioner's submission that remittal was preferable as he might wish to provide further material to the Tribunal on a rehearing should be rejected. He had had ample opportunities to do so prior to the Tribunal's decision on 9 April 2014 and subsequently pursuant to the leave granted at the conclusion of the appeal hearing: [83].
4. In these circumstances the Court should determine for itself the practitioner's application for review of the Council's decision: [84], [122]. In doing so the Court is required to determine, on the material that was before the Council, whether (i) it was reasonably likely that the Tribunal would find that the practitioner engaged in unsatisfactory professional conduct; (ii) the practitioner was generally competent and diligent, and (iii) a reprimand was the appropriate outcome: [80].
5. Considering that the duration of the delay in paying counsel's fees amounted to over two years for which no reasonable justification had been given, the Council was correct that such conduct fell within the terms of s 540(1)(b)(i): [97].
6. The assertion that there had been repeated calls from counsel's chambers to the practitioner's associate, did not address the gravamen of the complaint. Where the practitioner's associate provided no response in relation to inquiries related to the fees owed, it was reasonably likely that the Tribunal would consider such conduct as unsatisfactory professional conduct: [98].
7. As there was no other material before the Council which would suggest that the practitioner was other than generally competent and diligent, the Council was justified to deal summarily with the complaints: [99].
8. Of the alternatives available under s 540(2), a reprimand was the appropriate course for the Council to take given the need for firm professional disapprobation of the practitioner's conduct, and that a caution is a lesser response appropriate in isolated cases, whereas in the present case both complaints involved persistent conduct over a significant period of time: [100].

Judgment

1. BASTEN JA: The appellant, Geoffrey James Donaghy, is a legal practitioner who practises as a solicitor in northern New South Wales. In late 2009 he was the subject of a complaint by a barrister in relation to the non-payment of fees. The matter was investigated by the Law Society; on 1 September 2011 a Professional Conduct Committee resolved on behalf of the Council of the Law Society to deal with the conduct by way of reprimand, without making a disciplinary application to the Administrative Decisions Tribunal. The practitioner sought review of that decision in the Tribunal.
2. The proceedings in the Tribunal have had a tortured path, outlined below. The practitioner now appeals from the decision of the Civil and Administrative Tribunal (which replaced the Administrative Decisions Tribunal on 1 January 2014 [1] ), delivered on 9 April 2014. That decision was adverse to the practitioner: although the Tribunal set aside the decision of the Council, it did so on the basis that the Council should consider instituting formal disciplinary proceedings. [2]
3. The appeal to this Court is an appeal by way of rehearing, governed by s 75A of the Supreme Court Act 1970 (NSW), [3] so that this Court may exercise the powers available to the Tribunal. [4] The practitioner sought to have the decision of the Tribunal adverse to him set aside, on what might be described as judicial review grounds, including a complaint of procedural unfairness. He did not come to this Court prepared to deal with the substance of the complaints of possible unsatisfactory professional conduct.
4. The Council conceded that the orders of the Tribunal should not stand. For reasons which will be explained below, the chronology of the matter, the facts in issue having been determined on more than one occasion by the Tribunal and the need for finality in disciplinary proceedings, combined to demand that, if possible, the matter be disposed of by this Court. Accordingly, the parties were given an opportunity following the hearing of the appeal, to tender any further material, together with relevant submissions, so as to allow this Court, if appropriate, to dispose of the proceedings. They were also invited to make submissions as to the appropriate course.
5. The original decision of the Council was to reprimand the practitioner for conduct reasonably likely to be found to be unsatisfactory professional conduct. In this Court, the Council did not propose any more serious outcome: no lesser order is appropriate. For reasons given below, this Court should set aside the decision of the Tribunal, but dismiss the appellant's application to the Tribunal, challenging the decision of the Council.

Procedural background

1. The complaints the subject of the Tribunal decision under appeal, concerned a failure to pay counsel's fees in a timely manner and a failure to communicate with counsel with respect to her fees. In dealing with those complaints, the Council of the Law Society sought to exercise summary powers, by way of reprimand, pursuant to s 540 of the Legal Profession Act 2004 (NSW) (since wholly repealed [5] ) which provided: 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. … (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.
2. Under s 540(1)(b)(i), the Council did not have to be satisfied that the practitioner had engaged in unsatisfactory professional conduct, but only that there was "a reasonable likelihood" that the Tribunal would so find. [6] However, in order to exercise that summary power, the Council had to be satisfied that the practitioner was "generally competent and diligent". [7] The Council was so satisfied. Nevertheless, on the practitioner's application for review, the Tribunal was not so satisfied and hence concluded that the summary (or diversionary) procedure under s 540 was not available. In forming that view, the Tribunal had regard to separate complaints concerning the practitioner's conduct in certain Children's Court proceedings, which therefore require brief reference as part of the background to the present appeal.

(a) counsel's fees

1. On 24 June 2009, the barrister, Ms Graycar, wrote to the practitioner accepting instructions to appear in a matter set down for hearing on 15 July 2009. The letter included an estimate of fees, expected to be between $8,800 and $13,200, and a costs agreement. It was not in dispute that the costs agreement was accepted and that the practitioner was personally responsible for payment of the fees, pursuant to relevant Professional Conduct Rules. [8]
2. On 17 July 2009, two days after the hearing, the barrister rendered a bill in the amount of $11,687.50. Having received no payment and had no communication from the practitioner by 30 November 2009, the barrister wrote in the following terms: "I remind you that I sent you invoices dated 17 July 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 calls."
3. The practitioner did not respond to the letter and on 14 December 2009 the barrister made a complaint to the Legal Services Commissioner regarding the failure to pay her bill. The Commissioner referred the complaint to the Council of the Law Society for investigation.
4. The practitioner did not seek to have the costs assessed, but on 24 November 2010 the barrister lodged an application for assessment. By notices of objection filed on 28 February 2011 the practitioner sought to have the costs reduced to $3,625 but did not pay that, or any other, amount. On 9 May 2011, a costs assessor determined that the full amount claimed by the barrister was payable.
5. The practitioner was entitled to review the assessment within 30 days, [9] but did not do so. However, on 20 June 2011 he filed a late application for review. The dispute was then settled "on terms not to be disclosed" and the application for review was withdrawn on 24 June 2011. The practitioner did not notify the Law Society of that fact until 15 August 2011.
6. In its decision of 9 April 2014 the Tribunal held: [10] "In 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."
7. The Tribunal was satisfied that there was a reasonable likelihood that such conduct would be found to constitute unsatisfactory professional conduct, but not professional misconduct. [11]

(b) failure to communicate

1. As noted above, inquiries during the period of some 4 months from the rendering of the bill until 30 November 2009 attracted no response from the practitioner. Nor did the practitioner respond to the letter of 30 November 2009.
2. Following the complaint to the Commissioner and its referral to the Law Society, the Law Society wrote to the practitioner on 5 January 2010, enclosing a copy of the complaint and seeking a written response within 14 days. On 27 January 2010 the practitioner sought an extension of 14 days to enable him to place a considered response before the Society. He stated that correspondence from the Professional Standards Department of the Society "is treated with the utmost seriousness by this office". The Law Society responded by facsimile the same day, granting an extension of time until 12 February 2010. Despite the professions in his last letter, by 2 March the practitioner had not responded and the Law Society wrote to him again. He was invited to provide "a detailed response", absent which the matter would be "upgraded to the status of a formal complaint for investigation". He responded on 20 March 2010 and sent a copy to the barrister. As explained by the Tribunal: [12] "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."
3. The practitioner did, however, deny any failure to communicate, on the basis that there had been "repeated telephone conversations between her clerk and this firm through my associate Ms Hodgson." The Tribunal further noted that there was "no evidence from his associate as to the content of any such telephone conversations." He also stated that, "it has been conveyed to Ms Graycar and Mr Bell [who led Ms Graycar on the appeal] 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." [13] The Tribunal continued: [14] "M[s] 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 [practitioner] 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.'"
4. The Law Society advised the practitioner on 9 April 2010 that the matter was being treated as a formal complaint for investigation with respect to (1) a failure to pay the barrister's fees and (2) a failure to communicate. The latter complaint was said to constitute a breach of the principles governing relations with other practitioners and in particular r 25 of the Revised Professional Conduct and Practice Rules. The Tribunal considered that the practitioner's failure to communicate with the barrister "was not honest or courteous, nor was it competent conduct of his business" being rather conduct which was "offensive and provocative." [15]
5. The Tribunal further stated: [16] "The 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."

(c) Children's Court proceedings

1. Other conduct of the practitioner, involving proceedings in the Children's Court, was the subject of separate complaints to the Legal Services Commissioner. The Tribunal's findings in respect of them are not under appeal, but its findings were relied on by the Tribunal in dealing with the fee complaints and therefore require explanation. Much later, and indeed after the hearing of the present appeal, the separate complaints with respect to the Children's Court matter were dismissed by consent. However, those proceedings remained on foot in the Tribunal while it was considering the fee complaints and were dealt with by the Tribunal in a decision handed down on 20 November 2013. [17] In the decision on the Children's Court complaints, which the Tribunal described as its "first stage reasons", it was satisfied that the correct and preferable decision was either a reprimand or a reprimand coupled with a condition requiring the practitioner to attend a legal ethics course.
2. The background to the Children's Court complaint was as follows. On 5 July 2011 the practitioner appeared in the Children's Court at Grafton for a mother in care proceedings relating to her children. The matter was adjourned to 9.30am on Tuesday, 22 November 2011. On the afternoon of Monday, 21 November, the Department of Family and Community Services circulated a revised care plan; discussions between the parties ensued. Neither the practitioner nor his client attended at court on 22 November, although he expected the solicitor for the Department to mention the matter and to have it stood over whilst negotiations continued. The practitioner attended the Federal Magistrates Court in Lismore on Tuesday, 22 November. When the magistrate in the Children's Court discovered that neither the practitioner nor his client was present, he gave a direction that the practitioner attend and stood the matter down to 11.30am. The practitioner did not attend but instructed an agent to attend to seek an adjournment to the following day.
3. On 27 February 2012, there was a hearing in the Children's Court with respect to the costs of 22 November 2011. In a judgment delivered on 7 May 2012 the magistrate found that he did not have power to order the practitioner to pay costs. However, the conduct was referred to the Legal Services Commissioner. On 12 June 2012 the Commissioner identified two complaints namely, (1) that the practitioner failed to comply with cl 19 of Practice Note No 5 of the Children's Court in relation to applications to vacate a hearing date, and (2) the practitioner failed to comply with the direction of the Children's Court magistrate to attend the court at Grafton on 22 November 2011. The Commissioner determined on 4 September 2012 to deal with both complaints under s 540 of the Legal Profession Act. The Commissioner noted in his decision: [18] "I note you submit that it was not your intention to vacate the hearing on 22 November 2011. His Honour clearly states that when a matter has been set down for hearing you must either attend or apply to vacate the hearing. You did neither. His Honour also states that late service of material is not a reason to not attend court. With regard to the allegation of failing to comply with a direction given by a magistrate, I note that you concede that in not attending when directed to do so you were discourteous to Magistrate Heilpern."
4. The practitioner sought review of this decision in the Tribunal, which considered the various responses made by the practitioner at different times to the substance of the complaints. The practitioner's submissions to the Tribunal raised issues that the Tribunal considered irrelevant. In reasons delivered on 20 November 2013 the Tribunal noted, with respect to the hearing on 6 September 2013: [19] "81 At commencement of the hearing The Presiding Member raised with Mr Donaghy the role of the Tribunal as defined by section 540 of the Legal Profession Act 2004 and section 63 of the Administrative Decisions Tribunal Act 1997. The Presiding Member indicated that much of the written submissions of Mr Donaghy seemed to be misdirected by arguing that the Commissioner, in making his decision, made various errors, whereas the principal issue for the Tribunal is what, on the evidence available to the Tribunal, is 'the correct and preferable decision'. 82 But, Mr Donaghy did not accept that ruling, which was repeated several times throughout the hearing. Mr Donaghy remained focussed primarily in raising perceived defects in the procedures and decision of the Commissioner and in the Commissioner's conduct and procedures before and after the Commissioner's decision. He alleged the Commissioner was actually biased against him. He raised an allegation that the Commissioner had breached an undertaking to him not to publish his decision on the Disciplinary Register pending the outcome of the review hearing."
5. The Tribunal expressed satisfaction that the practitioner "intentionally did not attend the Children's Court on the day the part-heard hearing was fixed to resume and he made the decision on the previous day." [20] The Tribunal also found that the practitioner had provided it with "no reasonable explanation for his failure to comply [with] the Magistrate's orders for him to attend the Court on 22 November." [21] Finally, whilst characterising the practitioner's conduct as "not, in all the circumstances, careful conduct of his client's case or careful protection of her interests", [22] and noting that his subsequent responses reflected adversely on his general diligence [23] the Tribunal nevertheless concluded that he was "generally competent and diligent" and thus amenable to the summary process provided by s 540. [24]

(d) present relevance of Children's Court complaints

1. The Tribunal took a different view as to the practitioner's competence and diligence when dealing with the fee complaints. After considering the practitioner's conduct the subject of the Children's Court complaint, the Tribunal was not satisfied that the practitioner was (a) "generally competent" and (b) "generally diligent". Accordingly, the condition in s 540(1)(b)(ii) was not satisfied and the Tribunal concluded that the procedure provided by s 540 of the Legal Profession Act was not available with respect to the fee complaints.

(a) first Tribunal decision

1. The history of the fee complaints and the decision of the Council has been referred to above. The application for review of the Council's decision was filed in the Administrative Decisions Tribunal on 26 September 2011. It is not necessary to set out the grounds of that review. The Council of the Law Society filed a bundle of material pursuant to s 58 of the Administrative Decisions Tribunal Act 1997 (NSW) (as then in force). The practitioner challenged the completeness of the bundle, to which the Council responded noting that, pursuant to s 602 of the Legal Profession Act, it could not be required to produce evidence. The practitioner responded on 20 December 2011 by issuing a summons to the Law Society to give evidence; the application was dismissed by the Tribunal on 2 March 2012. There was a hearing in the Tribunal on 18 June 2012. On 17 August 2012 the Tribunal dismissed the application for review and reprimanded the practitioner. [25]

(b) first Court of Appeal judgment (2013)

1. That decision was the subject of an appeal to this Court and was set aside on the basis of a failure to accord the practitioner procedural fairness. [26] The matter was remitted to the Tribunal to be dealt with according to law. The problem identified in that judgment should be noted, as the practitioner submitted to this Court that the subsequent decision of the Tribunal repeated the error identified on the first appeal.
2. It appears that the principal submission made in writing by the practitioner on the first appeal was that the Tribunal, having formed a view that the reasons of the Council were legally flawed, should not have proceeded to deal with the merits of the complaint, but should have quashed the decision and sent it back to the Council. This Court noted that the practitioner's submission was misconceived and that s 63 of the Administrative Decisions Tribunal Act required that the Tribunal "decide what the correct and preferable decision is having regard to the material then before it." (The failure of the practitioner to accept that legal proposition was noted by the Tribunal in its later decision on 20 November 2013, referred to above.)
3. The argument which found favour in this Court was of a different kind, which requires reference to aspects of the statutory scheme for review. The exercise required of the Tribunal in considering a review of a decision under s 540 of the Legal Profession Act is not easy to encapsulate in a simple proposition. Thus, the power conferred on the Council is engaged only if the Council "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)." [27] In exercising its powers of review, the Tribunal, then operating under s 63 of the Administrative Decisions Tribunal Act, was empowered to exercise all of the functions that are "conferred or imposed by any relevant enactment on the administrator who made the decision." [28] As a result, the Tribunal was given the linguistically (if not pragmatically) awkward task of being satisfied as to the likelihood that it would make a finding of unsatisfactory professional conduct on the material then before it. When that power was imposed on the Council, it provided what can be described as a diversionary mechanism, allowing the practitioner to avoid a finding that he or she had engaged in unsatisfactory professional conduct. The disciplinary orders which were then engaged were of limited severity. The powers of the Tribunal on review were similarly constrained.
4. The first Tribunal determined that, on the findings of fact which it had made, the practitioner's conduct did "amount in our view to unsatisfactory professional conduct." Before this Court, on appeal from that decision, the Council submitted that a finding of unsatisfactory professional conduct encompassed the reasonable likelihood that the practitioner would be found to have engaged in such conduct. As to that submission, this Court held: [29] "[T]the Tribunal did not approach the question on the basis that if it was satisfied that the appellant had engaged in unsatisfactory professional conduct, it could equally be satisfied as to the existence of a reasonable likelihood that it would so conclude. Instead, it addressed the wrong question and made a finding, by way of conclusion, which it was not required to make."
5. The Court also held that by referring to the practitioner's "misconceptions about the assessment process" it had dealt with a matter which the practitioner was given no opportunity to address and therefore denied him procedural fairness. [30] On 6 June 2013, the matter was remitted to the Tribunal for further hearing and determination.
6. On 30 August 2013 the practitioner sought, by letter to the registrar of the Tribunal, a number of interlocutory orders. None of these are of any present consequence, as they dealt with attempts to circumvent the immunity conferred on the Law Society by s 602 of the Legal Profession Act and to identify the members of the Professional Conduct Committee of the Law Society which made certain decisions. This application was disposed of by a judicial member of the Tribunal on 31 October 2013.
7. On 25 November 2013, four days before the remitted matter was listed for hearing, there was a further directions hearing. The practitioner sought an adjournment on the basis that his review application with respect to the decision of the Commissioner in relation to the Children's Court complaints was still being finalised, although findings had been made a few days earlier. He also raised a question as to a possible appearance of bias if the same panel considered the fee complaints as that which in effect had already rejected his review application with respect to the Children's Court complaints. The judicial member rejected both applications. It appears, however, that on 29 November 2013 the present matter was ordered to proceed by way of written submissions. The applicant filed submissions on 20 December 2013 and the Council replied on 20 January 2014. The substantive decision impugned in this appeal was delivered on 9 April 2014 and a judgment with respect to costs on 21 July 2014.

Commencement of appeal

1. The decision of the Tribunal now subject to challenge was delivered on 9 April 2014; no notice of intention to appeal was filed and a notice of appeal challenging the substantive orders was only filed on 18 August 2014, more than 3 months out of time. Grounds 1, 3, 5 and 6 did little more than allege that each of the steps taken by the Tribunal was erroneous. Ground 2 alleged a denial of procedural fairness, though it was not particularised. Ground 4 stated error in the Tribunal failing to "disqualify itself from hearing this matter having previously made adverse findings against the appellant in unrelated tribunal proceedings." The "unrelated tribunal proceedings" referred to the decision with respect to the Children's Court complaints decided on 20 November 2013, a little more than a week before the hearing of the present matter. Although the Tribunal had not then made findings with respect to penalty in those proceedings, it had made findings of fact adverse to the practitioner. That ground became a primary focus of the oral submissions in this Court.
2. Except for the last matter, an amended notice of appeal filed on 25 February 2015 replaced the whole of the grounds set out in the original notice of appeal with the far more lengthy grounds. It is not necessary to identify those in detail, because of the restricted approach adopted by the parties following the filing of the respondent's written submissions on 1 April 2015, indicating that the Council did not seek to maintain the orders made by the Tribunal. (The Council also indicated that it would not oppose an extension of time to 18 August 2014 for the filing of the notice of appeal.) It remains necessary, however, to identify the scope of the concession made by the respondent.
3. The source of the concession made was to be found in the judgment of this Court given on 19 December 2014 setting aside orders made by the Tribunal in relation to the Children's Court complaints. [31] The consequence was that the basis for the finding with respect to the fees complaints as to whether the practitioner was "generally competent and diligent" had been set aside. That being so, the respondent conceded that error infected the orders with respect to the fees complaints.
4. When the appeal came on for hearing, the issues in dispute appeared to be whether (as the appellant submitted) this Court should dispose of the complaints by dismissing them, or (as the respondent submitted) the matter should be remitted for a further hearing before the Tribunal. However, the Court noted that the appeal being by way of rehearing, there was a third possibility, namely that this Court could dispose of the proceedings by making its own orders which did not involve dismissing the complaints. In particular, it was suggested that if the errors were limited (as they likely appeared to be) to the manner in which the Tribunal had dealt with general competence and diligence, the Court might be able to determine the appeal on the basis that there was no problem with general competence or diligence. The jurisdiction available to the Council under s 540 would then remain open. Senior counsel for the appellant resisted that proposition on the basis that the errors with respect to the last matter might be seen to "leak back into the earlier findings". [32] Further, counsel sought to agitate the separate ground involving a reasonable apprehension of bias.
5. The parties (and in particular the appellant) originally put before this Court only part of the material necessary to resolve the appeal, even on the basis that it was limited in the way anticipated by the parties. That aside, in a matter involving the discipline of a legal practitioner, the parties should not approach the Court on the basis that the Court will simply rubber stamp an accommodation reached between the parties in relation to the appeal. Disciplinary proceedings are not, and never have been, ordinary litigation between adversaries. The Court has an interest in determining whether the conduct of a practitioner admitted by the Court has fallen short of the required standards or deserves a sanction.
6. Senior counsel for the practitioner not being in a position to deal with the case on the merits against his client, leave was given to both parties to file further material and submissions. The practitioner filed the full documentary material before the Tribunal and further submissions as to the course the Court should take. The submissions contained a number of errors and propositions which were unsustainable as a matter of law. There is no purpose in reviewing them in detail. The Court should accept the basic premise of the submissions, namely that a further remittal to the Tribunal is undesirable. The matter should therefore be disposed of by this Court. The question is why the Court should not order that the appeal to the Tribunal be dismissed. To address that question, it is necessary to consider the substantive challenges raised in the amended notice of appeal, the practitioner's written submissions and the arguments presented at the oral hearing.
7. The following issues were raised: (a) the specific allegations of error made in the amended notice of appeal; (b) whether any errors infected the determination of the likelihood that the two complaints would be upheld, and (c) whether the decision of the Tribunal was attended by a reasonable apprehension of bias.

The statutory scheme

1. Before addressing those issues, it is desirable to outline the statutory scheme pursuant to which the Council and, on review the Tribunal, was acting. Chapter 4 of the Legal Profession Act, dealing with Complaints and discipline, provided for a complaint about a practitioner to be made either to the Legal Services Commissioner or to the relevant professional Council. For present purposes, nothing turns on the identity of the body to which the complaint was made. The statutory procedure will be identified by reference to the body to which the present complaint was referred, namely the Council of the Law Society.
2. Generally, the Council was to notify the practitioner by providing a copy of the complaint and advising the practitioner of his or her right to make submissions. [33] The Council might dismiss the complaint if, for example, it was vexatious, misconceived, frivolous or lacking in substance. [34] In deciding whether to exercise that power of summary dismissal, the Council could conduct a "preliminary assessment of the complaint for the purpose of assessing the substance of the complaint." [35] If the complaint were not dismissed, the Council was required to investigate the complaint. [36] The investigation was not limited to the allegations contained in the complaint, but might extend to conduct revealed during the investigation which was related to the subject matter of the complaint or otherwise involved the complainant. [37] The practitioner was to be informed of such an extended investigation. Further, while investigating a complaint, the Council could modify the complaint by omitting or altering allegations or details and by adding allegations or details. [38] After completing an investigation, the Council had to do one of three things, namely: (a) commence proceedings in the Tribunal; (b) dismiss the complaint under Part 4.5 of the Legal Profession Act, or (c) take action under s 540 (the summary procedure allowing only a caution, reprimand, compensation order or the imposition of conditions on the right to practice). [39] A critical factor for the Council to consider was whether there was "a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct." [40] If so satisfied, and unless s 540 applied, the Council was required to commence proceedings in the Tribunal.
3. The summary procedure under s 540 was available only where the satisfaction was that the conduct might constitute unsatisfactory professional conduct but not professional misconduct.
4. If the Council decided to commence proceedings in the Tribunal, the initiating process was known as "a disciplinary application". [41] Part 4.8 of the Act then prescribed how the Tribunal was to conduct the proceedings.
5. The scheme revealed two important features. First, the Council's functions broadly included the investigation of complaints and the determination of what steps should be taken following an investigation. The role of the Tribunal, by contrast, was, in most circumstances, to conduct a hearing in relation to a disciplinary application brought against a practitioner by the Council. Secondly, within this broad framework, s 540 could be seen as a diversionary procedure. It allowed for less severe sanctions to be imposed than those available in the Tribunal without the need for a Tribunal hearing and without the need for the Council, which imposed the sanction, to form a view that the conduct complained of actually constituted unsatisfactory professional conduct.
6. In this scheme, it was understandable that the test to be applied by the Council was whether the Tribunal was reasonably likely to find that the practitioner engaged in unsatisfactory professional conduct, rather than whether the Council itself held that opinion. On the other hand, and subject to a possible qualification, it was unlikely that members of the Council would address the matter differently in their own minds than the manner in which they would expect the Tribunal to address the matter. A qualification might arise if the material available to the Tribunal were expected to be different from that available to the Council. That might occur, if, for example, the rules of evidence were to apply in the Tribunal, but not to the deliberations of the Council. As an investigatory body, there was no doubt that the Council was not constrained by the rules of evidence. Nor was the Tribunal so constrained except when dealing with a question of professional misconduct. [42] However, professional misconduct might not be dealt with under s 540, as the Council could not proceed under that provision if satisfied there was a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in professional misconduct.
7. There is one further issue which underlay the practitioner's submissions in this Court. It is whether the test of "reasonable likelihood" to be applied by the Council operated with respect to both findings of fact and the characterisation of the facts as found as unsatisfactory professional conduct. To the extent that there was no provision for the Council to conduct hearings in the course of its investigation, it had no ready means for resolving disputed questions of fact in the way that the Tribunal would at a hearing. Accordingly, it should be accepted that the test of "reasonable likelihood" was applied both to what may be described as findings of primary fact and to the exercise of characterising the conduct found as likely to have occurred.
8. The phrase "reasonable likelihood" is not a term having objective precision, although it would appear to refer to a lesser standard than the balance of probabilities. That appearance is confirmed by its context, which does not require the resolution of disputed facts, nor indeed consideration of all the evidence which might be proffered in the case of a dispute. The exercise required is likely to have a significantly speculatively character. For present purposes, however, it is not necessary or appropriate to go beyond the statutory language.
9. While s 540 finds its place within the structure of the Act, an apparent anomaly arises when, in accordance with s 540(5), the practitioner exercises a right to review a decision of the Council. The function of the Tribunal in carrying out such a review was clearly different from its function in hearing a disciplinary application. On a review, the Tribunal was required to make "the correct and preferable decision", having regard to the material then before it, and was empowered to exercise the functions of the Council in reaching its determination. [43]
10. It is not necessary to consider whether either the Council or the practitioner was entitled to present further material to the Tribunal, being material which had not been before the Council when it made its decision. Neither party sought to do that. What did happen, without objection, was that the Council filed in the Tribunal a bundle of documents, including its notification to the practitioner of its resolution of the complaints and brief reasons for its decision. The remainder of the tender comprised correspondence relating to the complaints, significant passages from which have been referred to above.
11. Although there was some suggestion in the practitioner's submissions that the decision of the Council should not have been before the Tribunal (and indeed, the Tribunal decision should not have been before this Court), the suggestion was misconceived. The Tribunal was entitled to have before it the decision of the Council which it was reviewing, even though it was required to reach its own conclusion as to the correct and preferable decision. (The practitioner was inconsistent in this respect: how else was the Tribunal to consider a ground of review which alleged error in failing to take into account relevant considerations?)

Determination of appeal

1. For reasons which will be addressed shortly, once it was accepted that the orders of the Tribunal made on 9 April 2014 must be set aside, the grounds of appeal lost significance. There may be cases in which particular findings are not afflicted by error, so that the outstanding issues can be limited, but if the complaint of apprehended bias is made good, that possibility falls away. The remaining question will then be what course this Court should take by way of consequential orders. Before turning to that question it is desirable to address briefly the extant grounds.

(a) extant grounds of appeal

1. The appeal proceeded on the basis of an amended notice of appeal filed on 25 February 2015. Ground 1 alleged failure of the Tribunal to disqualify itself for "perceived bias" when asked to do so on 25 November 2013.
2. Ground 2 alleged that the Tribunal determined the application before it "on the basis that the complaint the subject for the review was other than the complaint", or that the Tribunal took into account extraneous matters, which were not the subject of the complaints. The matters relied on were particularised by reference to specific paragraphs in the reasons of the Tribunal. There were seven separate matters raised, to which reference will be made shortly. The same matters were said to demonstrate procedural unfairness (grounds 2.2 and 4).
3. Ground 3 raised a concern of a different kind, also involving two related limbs. The first was that the Tribunal failed to conduct its review in the same manner as the Council was required to, namely by way of a summary procedure. The second limb alleged that the Tribunal made findings of fact adverse to the practitioner "other than on the basis of the 'reasonably likely' test". Five specific findings were particularised as demonstrating error in this respect.

(b) the specific errors

1. Putting to one side the complaints about the Tribunal's findings with respect to the general competence and diligence of the practitioner, the particulars in the amended notice of appeal identified only two paragraphs in the decision of the Tribunal, namely [63] and [80]. (The Tribunal started to address the question "Is the applicant generally competent and diligent?" at [87].)
2. At [63] the Tribunal stated: "However, our research does not reveal any decision where a single failure to pay counsel, even where 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."
3. The written submissions suggested that this paragraph raised an implication that funds had been provided by the client and misappropriated. That implication, it was further submitted, had not been raised at the hearing and was procedurally unfair.
4. This submission relied upon taking the paragraph out of context. The discussion in the reasons from [60]-[67] was directed to an assessment of the seriousness of the conduct alleged. There was no indication that the practitioner had misappropriated funds provided by his client: the point was raised as part of a broader consideration of what might constitute professional misconduct in relation to non-payment of counsel's fees. That was a critical issue because the powers conferred by s 540 were not engaged if the conduct might reasonably be thought to constitute professional misconduct. The conclusion, at [67], was in the following terms: "However, 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 … unsatisfactory professional conduct."
5. There was no substance to this complaint.
6. The second matter related to the complaint of failure to communicate with counsel. As explained above, the Tribunal approached this matter on the basis of a breach of principles stated in the Revised Professional Conduct and Practice Rules, and in particular, r 25. At [80], the Tribunal concluded that the practitioner's conduct breached the requirements of the rules regarding relations with other practitioners. The complaint about this single sentence is not entirely clear: it was not addressed in written submissions or in oral argument. It is true that the Tribunal expressed its finding in unqualified terms, rather than as a provisional finding on the material before it, but that would seem to be a matter of form rather than substance. When the Tribunal expressed its conclusion (at [83]) it did so in terms reflecting the statutory language. No doubt the finding of fact on which the assessment of a reasonable likelihood of unsatisfactory professional conduct might be based should also have been expressed in qualified terms. For present purposes, the error is immaterial. If the Tribunal were satisfied that the practitioner breached r 25 on the material before it, it would also have been satisfied that the conduct was reasonably likely to be found to contravene r 25. That is not to say that the finding in those terms should have been allowed to stand, but only that the more limited finding can now be made.
7. These being the only complaints made in respect of the findings of the Tribunal, other than the overall qualification as to general competence and diligence, the challenge must fail unless the latter findings in some way infected the earlier findings.

(c) effect of inappropriate findings

1. For the purpose of considering this matter, it is sufficient to assume the validity of the practitioner's complaint that the findings of the Tribunal in separate proceedings dealing with the Children's Court complaints should not have been relied on as a basis for concluding that the applicant was not generally competent and diligent. One basis for that assumption may be that the review proceedings in the Tribunal should have been limited to material before the Council when it made its decision, and therefore could not include events which had occurred thereafter. An alternative basis may be that if later events were material, nevertheless they could not be relied upon without notice to the practitioner: failure to take that step would constitute a denial of procedural fairness. As there was no notice to the practitioner in these proceedings, it is sufficient to base the assumption of invalidity of approach on a denial of procedural fairness, without considering whether, as a matter of principle, later events could ever be relied upon.
2. The difficulty with the practitioner's infection argument is that it finds no support within the structure and reasoning of the Tribunal. The findings in the other proceedings were only relied upon in relation to the question of general competence and diligence, which was the last matter addressed in the Tribunal's reasons. Not only was there no reference to those complaints in dealing with the fee complaints, but the very nature of the issues militated against any reasonable inference of infection.
3. On the evidence before the Tribunal, there was no dispute but that counsel's fees had not been paid for a period of some two years after liability arose. Absent any further material which might be proffered at a hearing of a disciplinary application, it was not difficult for the review Tribunal to be satisfied that the facts alleged were reasonably likely to be found. Thus, neither that the factual issue, nor the characterisation of the facts as likely to constitute unsatisfactory professional conduct, had anything to do with the general competence or diligence of the practitioner.
4. Similarly, any uncertainty as to upholding the second complaint of failure to communicate appears to have been the implausible assertion that the practitioner's associate communicated with the barrister because she took calls from the barrister's clerk. Accepting the fact that that occurred, the Tribunal could readily be satisfied that there was a failure to communicate, as revealed by the material before it, without being influenced in any manner by any view it may have held as to the practitioner's general competence and diligence. As with the first complaint, the characterisation of the failure to communicate had nothing to do with the general competence and diligence of the practitioner.
5. In these circumstances, the suggestion of one impermissible finding infecting the other findings should not be accepted. Subject to the question of bias, the Court should reject the challenge to the findings of the Tribunal made pursuant to s 540(1)(b)(i), but uphold the appeal based on the finding with respect to par (ii).

(d) reasonable apprehension of bias

1. The remaining ground asserted that the Tribunal's decision was affected by a reasonable apprehension of bias. The underlying factual premise was that the Tribunal, constituted by the same members, had made findings adverse to the practitioner in relation to the Children's Court complaints. The primary findings (though not final orders) were delivered on 20 November 2013, subject to further consideration as to whether a condition should be imposed on the practitioner's practising certificate.
2. In assessing whether a court or tribunal is disqualified for bias, where there is no claim of actual bias, the reviewing court must ask whether a fair-minded lay observer might reasonably apprehend that the tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues before it. [44] The fair-minded observer in the present case should be taken to have knowledge of the findings made by the Tribunal in relation to the Children's Court complaints so as to be able to assess, before the Tribunal reached a decision with respect to the fee complaints, whether a reasonable apprehension might arise.
3. An apprehension of bias may arise where a tribunal (or members of the tribunal) have already determined or indicated a firm view about an issue for determination in a future hearing. [45] Even where there is no predetermined issue, a tribunal may be disqualified from hearing a further case if it has already formed a view about the credibility or reliability of a witness who has appeared before it in other proceedings. [46]
4. To assess an assertion of bias it is necessary to make "an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension of bias and the asserted conclusion that the judge might not bring an impartial mind to bear on the issues that are to be decided." [47]
5. The submissions in support of this ground raised three issues as to the correct approach. First, reliance was placed on a judgment of this Court, delivered on 19 December 2014, setting aside the orders made by the Tribunal with respect to the Children's Court complaints. This Court was critical of the Tribunal for upholding the first complaint in those proceedings on the basis that the practitioner had failed to be present at court at 9.30am on 22 November 2011, whereas the subject of the complaint was a failure to comply with the Children's Court practice note with respect to adjournments. [48] In relation to the second complaint (the failure to comply with the magistrate's direction to attend), this Court was critical of the Tribunal for drawing factual inferences which were held not to be available on the material before the Tribunal. [49] The Court held that a specific finding made by the Tribunal indicated that it "mistook its task." [50] However, this judgment was delivered more than a year after the Tribunal last sat to review the Council's decision with respect to the fee complaints and some eight months after the Tribunal handed down its reasons in this matter.
6. Secondly, it is necessary to identify the basis on which bias might be apprehended. The very nature of the review proceeding meant that there was no question before the Tribunal as to the credibility of any party, nor of any witness. All that could be said was that the Tribunal, with the same membership, had found in unrelated proceedings of a similar kind that the practitioner had likely committed unsatisfactory professional conduct. Each of these issues will be addressed in turn.
7. Thirdly, there is an issue as to whether, having raised a question as to the propriety of the same members constituting the Tribunal with respect to both sets of complaints, but not pressed a recusal application, he should be treated as having waived his objection. [51]
8. There is an additional issue as to the relevance of this ground. It is common ground that the appeal must be upheld and the orders of the Tribunal set aside. That does not depend upon any finding by this Court as to a reasonable apprehension of bias with respect to the Tribunal. This ground would only be relevant if it affected the course to be taken by the Court on setting aside the orders of the Tribunal.

Consequential orders

1. Once the orders of the Tribunal are set aside, the Court must consider what consequential steps should be taken. Broadly speaking, alternative courses are available. One course is to remit the matter to the Tribunal to determine the unresolved review application; the other is for the Court to dispose of the unresolved review application itself. If the latter course were taken, there are, again, alternative results available: either the Court should uphold the review application, in which case further consequential orders would need to be considered, or it might dismiss the application.
2. Generally, the Court will not remit a matter for a new trial unless satisfied that some substantial wrong or miscarriage has been occasioned which requires that course to be taken. [52] There may be some doubt as to the precise operation of that rule in circumstances where it may seem to derogate from the breadth of the powers conferred by s 75A of the Supreme Court Act. However, in circumstances where the Court is well able to dispose of the matter on the merits without remittal, that should be the proper course consistent with the overriding purpose of the Civil Procedure Act 2005 (NSW) and the UCPR. [53]
3. The powers conferred by s 75A are not limited to appeals where particular kinds of error have been identified. They are available where procedural error has resulted in a trial miscarrying. They are also available, in principle, where the judgment or decision under appeal is to be set aside for a reasonable apprehension of bias.
4. The powers conferred by s 75A are, however, constrained by practical considerations. For example, where a finding on a material issue turns on the credibility of a specific party or witness, a conclusion that the fact-finding process at trial miscarried because of a reasonable apprehension of bias means that the assessment must be undertaken afresh. Because the appellate court will not have heard the witness, a remittal for a new trial will be necessary.
5. It may be assumed for present purposes that the apprehension of bias ground was made good, so that the whole of the exercise undertaken by the Tribunal must be revisited. However, subject to any discretionary factors, there is no reason why this Court should not undertake precisely the same exercise of review as that required of the Tribunal. As explained above, the statutory function adopted by the Council was not to make a disciplinary application, thereby engaging the disciplinary powers of the Tribunal over the practitioner, but itself to exercise limited powers available in circumstances where a disciplinary application was considered inappropriate, the matter falling within the criteria specified in s 540(1). That decision is taken "on the papers", without a hearing. No witnesses are called and no assessment of credibility is required, except perhaps in a somewhat eviscerated sense. As has been noted, the primary facts were not the subject of significant dispute. What was challenged, by way of submissions to the Council and later to the Tribunal, was the possible characterisation of the circumstances underlying each complaint. Thus the questions to be resolved were (and are): (a) whether there was a reasonable likelihood that the primary facts, as revealed in the material before the Council, would be accepted by the Tribunal at a disciplinary hearing; (b) whether there was a reasonable likelihood that, on the facts likely to be found, the conduct would be characterised by the Tribunal as unsatisfactory professional conduct, and (c) if both those questions were answered in the affirmative, which, if any, of the powers of the Council under s 540(2) should be applied.
6. Pursuant to leave granted by the Court at the hearing of the appeal, the Court was provided with the bundle of materials which were before the Professional Conduct Committee on 22 March 2010, when it made its decision. In his accompanying submissions, the practitioner stated that the Court, in determining the review, should be limited to the evidence before the Committee. That submission was not challenged and may be accepted as correct. In any event, neither party sought to tender additional material, either in this Court or before the Tribunal (except as to costs).
7. The practitioner took the matter one stage further, submitting that neither the reasons of the Committee, nor the decision of the Tribunal of 9 April 2014, should be taken into account if the Court were to undertake a review. Insofar as that submission reflected the requirement that the Court must form its own view of the material, it may be accepted as correct once error vitiating the findings of the Tribunal has been established or assumed.
8. In support of the practitioner's submission that this Court should not undertake the review for itself, senior counsel appearing at the hearing of the appeal raised the possibility that the practitioner might wish to provide further material to the Tribunal on a rehearing. That submission was unpersuasive for two reasons. First, the practitioner had had several opportunities to provide material both to the Council and to the Tribunal over some years prior to the decision of 9 April 2014. Secondly, the leave given by the Court at the completion of the hearing did not preclude the tender of further material. Further material was not tendered, the practitioner taking the view noted above that the review should be limited to the material before the Committee.
9. In these circumstances, the proper course for the Court to take is to determine for itself the practitioner's application to review the decision of the Council.

Conclusions on complaints

1. In supplementary submissions filed after the hearing, the practitioner noted that orders had been made by consent dismissing the complaint in respect of the Children's Court proceedings. However, that did not advance the case relied on at the hearing of the appeal, at which stage that decision of the Tribunal had been set aside by this Court and the complaints remitted to the Tribunal for determination according to law. Nor does it affect the concession made by the Council in this Court that the Tribunal in the present proceedings was in error in taking into account the earlier findings as a basis for its lack of satisfaction that the practitioner was "generally competent and diligent", with the result that s 540 was not engaged.
2. Once that part of the Tribunal's decision was rejected, its orders setting aside the decision of the Council of the Law Society and remitting the matter to it for reconsideration of possible disciplinary proceedings (being the orders made on 9 April 2014) must be set aside. So much was common ground between the parties.
3. At this point the submissions parted company. The Council submitted that, with respect to both complaints, the criteria specified in s 540(1)(b)(i) were satisfied and that a reprimand was the correct and preferable exercise of the discretionary power contained in s 540(2). The practitioner submitted that, if the Court were to undertake the review, the correct course would be to uphold the application for review of the Council's decision and dismiss the complaints.
4. The practitioner deployed a number of contentions in support of his proposed outcome. First, he suggested, relying on the judgment Gillard J in Byrne v Law Institute of Victoria Pty Ltd [54] that "to decide a disputed fact 'on the papers' is a near impossibility." Because there was no opportunity "to test the conflicting versions" the course adopted by the Council was, he submitted, erroneous and procedurally unfair.
5. That submission might be resolved on the ground that there was no material dispute as to the facts requiring resolution. However, it should also be rejected on the more fundamental basis that s 540 neither requires nor permits the resolution of a dispute as to the facts. That is why an earlier Tribunal was found to be in error in reaching a conclusion that there had been unsatisfactory professional conduct; all that was possible and permitted was the formation of an opinion as to a "reasonable likelihood" of such a finding.
6. This submission was repeated in the final reply filed by the applicant on 24 July 2015, stating: [55] "This is the essence of the Appellant's complaint. The Society was not entitled to prefer 2 persons account [sic] against anothers [sic] where the evidence to support that has not been properly tested".
7. The "essence" of the practitioner's complaint is misconceived for the reasons noted above.
8. Secondly, the practitioner submitted that "where no actual finding about a practitioner's conduct has been made a reprimand is never appropriate". [56] The practitioner sought to derive some support for that proposition from an unrelated case in which a finding of professional misconduct resulted in a public reprimand. As with sentencing appeals, the actual penalty imposed in one case is unlikely to provide useful guidance as to the range of penalties appropriate in another. The question of the appropriate penalty will be considered below.
9. Thirdly, the practitioner submitted that "to remit the matter for a further hearing before the Tribunal is not in the interests of the administration of justice and is unduly oppressive upon the Appellant." [57] There is much to be said for that view: it does not follow, however, that the correct course is for this Court to dismiss the complaint. If the correct and preferable decision is that originally reached by the Council, the Council's decision should stand and the application for review should be dismissed, subject to any discretionary factors arising from the passage of time and subsequent events. It is convenient, therefore, to consider whether the decision of the Council was the correct and preferable one at the time it was adopted.
10. The exercise of characterisation requires reference to the concept of "unsatisfactory professional conduct", which was defined to include "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." [58] That definition is not exclusive and the concept is therefore not limited to relationships with members of the public. Again without limiting that non-exclusive definition, conduct involving a contravention of "legal profession rules" may also constitute unsatisfactory professional conduct. [59] The term "legal profession rules" was defined to mean rules made under Pt 7.5 of the Legal Profession Act [60] "to promote the maintenance of high standards of professional conduct by Australian legal practitioners". [61] The Council was authorised to make such rules with respect to legal practice as a solicitor. [62]
11. As noted above, the Council relied upon the operation of r 32 of the Revised Professional Conduct and Practice Rules as supporting a conclusion that the practitioner was personally liable to pay the fees: it was but a short step to conclude that failure to pay fees could involve a contravention of the Legal Profession Rules. (No challenge was made to that aspect of the legal analysis adopted by the Tribunal. [63] )
12. With respect to the failure to communicate, reliance was placed on rules relating to the relationship between solicitors and other practitioners and in particular r 25 which provided that the practitioner "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." [64] It would have been open to a Tribunal to find that the circumstances underlying the complaint of a failure to communicate constituted a breach of that rule and thus constituted unsatisfactory professional conduct.
13. There is no need to repeat the factual circumstances set out above. So far as the non-payment of fees was concerned, there was a period of two years between the date of counsel's invoice and the date of payment of an agreed sum. The practitioner took issue in his final submissions with the Council's contention that he had "delayed unreasonably" in paying the fees; he submitted that that was not "and has never been, the complaint". That submission was beside the point: the question was whether the non-payment over that period was reasonably likely to be found to constitute unsatisfactory professional conduct. A short delay would clearly not bear that characterisation. Because the Tribunal might well consider it a lengthy delay and one for which no reasonable justification had been provided, the Council was correct in concluding that the non-payment of fees, in those circumstances, fell within the terms of s 540(a)(b)(i).
14. A similar analysis should be accepted with respect to the failure to communicate. The substance of the practitioner's response, as presented to the Council, was that it was "incorrect to say that this firm has not responded to Ms Graycar's telephone calls or letters", asserting that there had been "repeated telephone conversations between her clerk and this firm through my associate Ms Hodgson." That was not a response which addressed (or even acknowledged) the gravamen of the complaint. In the context of non-payment of fees, it was well arguable that having one's agent or associate accept inquiries without providing a response involved a failure to communicate with counsel to whom the fees were owed. It was reasonably likely that the Tribunal would so characterise the undisputed circumstances. It was also reasonably likely that the Tribunal would treat such conduct as unsatisfactory professional conduct. Accordingly, the view adopted by the Council that the criteria in s 540(1)(b)(i) were satisfied with respect to that complaint was the correct and preferable view.
15. In the result, and in the absence of material before the Council to suggest that the practitioner was other than generally competent and diligent, the Council was justified in taking action under s 540.
16. The next question was the appropriate course for the Council to take, having regard to the options available under s 540(2). There was no suggestion that this was a case in which it would have been appropriate to impose a condition on the practitioner's practising certificate; nor was there any suggestion that a compensation order was called for. Thus the options set out in s 540(2)(c) and (d) were not appropriate. The remaining possibilities were to caution the practitioner (under par (a)) or to reprimand him (under par (b)). There can be no general rule as to which course is to be preferred in particular circumstances. However, a caution will usually be considered the lesser response and one which would readily be applied in a case of an isolated incident not having serious consequences. This case could not properly be described as an isolated incident: both complaints involved persistent courses of conduct over a significant period of time. Those features required a firm statement of professional disapprobation. They were related and did not call for separate treatment. In these circumstances, a reprimand by the Council was the appropriate course (arguably the only appropriate course) for the Council to take, once satisfied that it should take steps under s 540 and not proceed with a disciplinary application.
17. It remains to consider whether either the lapse of time or subsequent events should lead to a different outcome.
18. It was not entirely clear whether the practitioner sought to rely upon the passage of time in the event that the Court were satisfied that it was appropriate for the Council to proceed under s 540 and that, at the time of its decision, a reprimand was an appropriate course to take. However, in support of a submission that the complaint should be dismissed, the practitioner noted that it was almost six years since the initial non-payment of the barrister's fees and almost four years since the dispute had been resolved. [65] Most of that time, however, has elapsed since the decision of the Council the subject of the application for review. If the application for review should otherwise be dismissed, it is far from clear why delay in taking that step should of itself warrant interference with an otherwise sound decision. This Court is hearing an appeal from the Tribunal's review of the Council's decision. The Court is not itself hearing a disciplinary matter.
19. There may perhaps be cases where something in the nature of a penalty might become unnecessary where there was evidence of insight and recognition as to the unsatisfactory nature of the conduct. No such elements were relied on in the present case. Even had they been, it is by no means clear that that would provide a basis for interfering with a penalty imposed in a timely fashion and not found to be erroneous.
20. Thus I would accept that the Tribunal was reasonably likely to uphold the factual assertions as to the practitioner's conduct and to characterise the conduct as unsatisfactory professional conduct. In those circumstances the decision of the Council to reprimand the practitioner was the correct and preferable decision. The Court should set aside the orders made by the Tribunal and in lieu thereof order that the application to review the decision of the Council be dismissed.

(a) costs in the Tribunal

1. There remains a question as to the appropriate orders as to costs. The relevant statutory regime in the Tribunal up to 30 December 2013 was governed by s 88 of the Administrative Decisions Tribunal Act, which stated, so far as presently relevant: 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. (1A) 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 … (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. … (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.
2. On 21 July 2014 the Tribunal made the following orders as to costs: [66] "1. The Applicant must pay the costs of the Respondent of and incidental to: 1.1 the interim proceedings reported as Donaghy v The Council of the Law Society of NSW (No. 1) [2012] NSWADT 185; 1.2 the interim proceedings reported as Donaghy v The Council of the Law Society of NSW (No. 2) [2013] NSWADT 245; and 1.3 the substantive proceedings reported as Donaghy v The Council of the Law Society of NSW (No. 3) [2014] NSWCATOD 32 after November 2013; such costs to be as agreed or as assessed. 2. The Application of the Applicant for costs in respect of the substantive proceedings is refused and dismissed."
3. To understand the logic of these orders, it is necessary to refer back to the procedural history. It may be recalled that the first judgment of the Tribunal (differently constituted) was given on 17 August 2012. On 6 June 2013, this Court set that decision aside and ordered that the application for review be remitted to the Tribunal. The orders of the Tribunal did not include any order as to costs. It may be assumed that no order as to the costs of the first proceedings were made: nor were they covered by the present orders.
4. The first matter the subject of the costs order set out above was the decision of the Tribunal of 2 March 2012 relating to a summons to produce documents directed to the Law Society, which was set aside. There has never been a challenge to that decision and the order that the practitioner pay the costs of that interlocutory application should stand.
5. The second interlocutory application by the practitioner was dismissed on 31 October 2013. [67] Again, there has been no challenge to that ruling and the order that the practitioner pay the costs should stand.
6. With respect to the costs of the decision currently under review, although it set aside the decision of the Council, the Tribunal did not regard the application by the practitioner as "successful". [68] However, the effect of its order was that each party pay his or its own costs up to November 2013 and that the practitioner pay the costs thereafter. The costs to be paid by the practitioner related entirely to his application for costs, which was unsuccessful and relied on arguments that were not relevant to the issues to be determined. [69]
7. It remains true, in a substantive sense, that the practitioner has been entirely unsuccessful in his application for review of the decision of the Council. However, the basis of his lack of success is not that relied on by the Tribunal in the decision under appeal. Accordingly, a significant ground upon which the practitioner was ordered to pay the costs after November 2013 has fallen away.
8. The Council acknowledges the reasoning so far, but submits that part of the hearing resulting in order 1.3 included argument which resulted in orders 1.1 and 1.2. However, this Court is in no position to divide those costs by issue, nor is the amount involved likely to be such as to warrant further disputation. Remembering that the basic rule under s 88 is that subject to an order warranted under s 88(2) each party should bear its own costs, [70] the preferable course is to make no order as to any costs in the Tribunal with respect to the second hearing of the review application, following the first judgment of this Court. That is, order 1.3 made by the Tribunal should be set aside, but the other orders should stand.

(b) costs in this Court

1. There was no suggestion that the power to award costs was other than that generally available in this Court, namely pursuant to s 98 of the Civil Procedure Act and r 42.1 of the UCPR. Accordingly, the Court is to order that costs follow the event unless it appears that some other order should be made.
2. There are factors which pull in different directions. As has been noted above, the notice of appeal was filed out of time, and was in any event superseded by the amended notice of appeal filed on 25 February 2015. According to written submissions filed for the Council, the practitioner not suggesting otherwise, the Council had indicated in writing on 9 February 2015 that it would consent to the appeal being allowed, the orders of the Tribunal being set aside and the matter being remitted to the Tribunal for determination according to law, each party to pay his or its own costs in this Court. The proposed orders also included the issue of a certificate to the appellant under the Suitors' Fund Act 1951 (NSW), if so entitled. (However, it is the respondent which obtains a certificate under that Act and it is not clear that the Council of the Law Society was so entitled.) The practitioner filed a supplementary submission dated 25 May 2015 seeking to have the complaint dismissed and seeking payment of costs in the Tribunal from 25 November 2013 and in this Court.
3. So far as the costs up to 9 February 2015 are concerned, they involved the filing of a notice of appeal which was in effect abandoned. (No doubt a filing fee was incurred.) Thereafter, neither party obtained the orders it sought, but the practitioner has been substantially unsuccessful because this Court will dismiss his application for review of the Council's decision. On the other hand, he has avoided the possibility of disciplinary action inherent in the Tribunal's orders. The Council did not oppose such an order, but did not seek it until the possibility was raised by the Court. The practitioner has also been unsuccessful in having the costs orders with respect to his unsuccessful interlocutory applications in the Tribunal set aside, not having demonstrated any basis for that course.
4. On one view, as the Council noted, the practitioner might be ordered to pay the Council's costs in this Court from 9 February 2015; but he might obtain an order for at least part of his costs prior to that date. The preferable course is to make a single order, namely that the practitioner pay 50% of the Council's costs of the appeal.

Orders

1. The Court should make the following orders: (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.
2. GLEESON JA: I have had the advantage of reading the comprehensive reasons of Basten JA. I agree with his Honour's reasons and the orders he proposes.
3. SACKVILLE AJA: I have had the advantage of reading the detailed judgment of Basten JA.
4. It is unfortunate that this matter has been characterised by errors committed by successive Tribunals and by significant delays, for which the errors have been partly responsible.
5. It is also unfortunate that the Tribunal which conducted the second review of the Council's decision [71] was the same Tribunal as made findings adverse to the practitioner on the Children's Court complaints. [72] The practitioner's contention in this Court that the decision of the second Tribunal was affected by a reasonable apprehension of bias was not clearly formulated until well into the hearing in this Court. However, subject to the question of waiver, there is considerable force in that contention. The findings made by the Tribunal on the Children's Court complaint were unfavourable to the practitioner. They included observations or findings that the practitioner had been evasive, was apparently unable to understand his ethical lapses (as found by the Tribunal) and had shown a lack of competence in dealing with the particular matter in the Children's Court. [73] These observations may well have led the hypothetic informed observer to conclude that the Tribunal might not be able to make an objective assessment of the extent of the practitioner's departure from the standards to be expected of a solicitor or of the consequences of any such departure.
6. As Basten JA has pointed out, there was no dispute in this Court that the second Tribunal decision was affected by error and was liable to be set aside. I agree with Basten JA that on the assumption that the decision was also affected by a reasonable apprehension of bias, this Court has the power to dispose of the complaint and should do so.
7. I agree with the orders proposed by Basten JA.

Endnotes

1. It will be convenient to refer to both bodies as "the Tribunal".
2. Donaghy v Council of the Law Society of NSW (No 3) [2014] NSWCATOD 32 ("Donaghy (No 3)").
3. Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act"), Sch 5 cl 29(4)(a), reflecting the terms of the former Legal Profession Act 2004 (NSW), s 729A(1) and (2), repealed as from 1 January 2014 by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW).
4. Supreme Court Act, s 75A(5) , (6) and (10).
5. The Legal Profession Act has been repealed from 1 July 2015: Legal Profession Uniform Law Application Act 2014 (NSW), s 167.
6. Legal Profession Act, s 540(1)(b)(i).
7. Legal Profession Act, s 540(1)(b)(ii).
8. Solicitors' Revised Professional Conduct and Practice Rules 1995, r 32 (since repealed).
9. Legal Profession Act, s 373(1).
10. Donaghy (No 3) at [66].
11. Donaghy (No 3) at [67].
12. Donaghy (No 3) at [32].
13. Donaghy (No 3) at [37].
14. Donaghy (No 3) at [38].
15. Donaghy (No 3) at [78].
16. Donaghy (No 3) at [83].
17. Donaghy v Legal Services Commissioner [2013] NSWADT 261.
18. [2013] NSWADT 261 at [40].
19. [2013] NSWADT 261 at [81]-[82].
20. [2013] NSWADT 261 at [151].
21. [2013] NSWADT 261 at [155].
22. [2013] NSWADT 261 at [166].
23. [2013] NSWADT 261 at [167].
24. [2013] NSWADT 261 at [169].
25. Donaghy v Council of the Law Society of NSW (No 2) [2012] NSWADT 170.
26. Donaghy v The Council of The Law Society of New South Wales [2013] NSWCA 154.
27. Legal Profession Act, s 540(b)(i).
28. Section 63(2).
29. [2013] NSWCA 154 at [19].
30. [2013] NSWCA 154 at [21].
31. See Donaghy v Legal Services Commissioner of New South Wales [2014] NSWCA 445.
32. Tcpt, 28.05.15, p 2(5)-(8).
33. Legal Profession Act, s 508(1).
34. Legal Profession Act, s 511.
35. Legal Profession Act, s 510.
36. Legal Profession Act, ss 525 and 527.
37. Legal Profession Act, s 534.
38. Legal Profession Act, s 535.
39. Legal Profession Act, s 537.
40. Legal Profession Act, s 537(2).
41. Legal Profession Act, s 551.
42. Legal Profession Act, s 558(1).
43. Administrative Decisions Review Act 1997 (NSW), s 63.
44. Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 492.
45. Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.
46. Livesey v New South Wales Bar Association (1983) 151 CLR 288.
47. Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ).
48. [2014] NSWCA 445 at [39], [43].
49. [2014] NSWCA 445 at [57].
50. [2014] NSWCA 445 at [58].
51. Michael Wilson & Partners at [76].
52. Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 51.53.
53. Civil Procedure Act, s 56.
54. [2005] VSC 509 at [66].
55. Applicant's submissions in reply, par 33.
56. Applicant's submissions in reply, par 37.
57. Applicant's submissions, par 32.
58. Legal Profession Act, s 496.
59. Legal Profession Act, s 498(1)(a).
60. Legal Profession Act, s 4, legal profession rules.
61. Legal Profession Act, s 701.
62. Legal Profession Act, s 703(1).
63. Donaghy (No 3) at [61]-[62].
64. Set out by the Tribunal in Donaghy (No 3) at [77].
65. Applicant's submissions, filed 24 June 2015, par 35(c).
66. Donaghy v The Council of the Law Society of NSW (No 4) [2014] NSWCATOD 77 ("Donaghy (No 4)").
67. Referred to at [32] above.
68. Donaghy (No 4) at [39].
69. Donaghy (No 4) at [42] and [43].
70. See generally AT v Commissioner of Police, New South Wales [2010] NSWCA 131 at [33].
71. The Tribunal's decision in Donaghy v Council of the Law Society of NSW (No 3) [2014] NSWCATOD 32.
72. Donaghy v Legal Services Commissioner [2013] NSWADT 261.
73. See Donaghy v Legal Services Commissioner at [49], [57], [65], [70], [92], [110], [113], [115], [164], [167]. 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: 05 August 2015