Legal Services Commissioner v Donnelly [2025] QCAT 516

• [4] Mr Donnelly faces six charges. Charges 1, 2 and 3 relate to a failure by Mr Donnelly to lodge an external examiner's report for DLG in 2020, 2021 and 2022 by the required date. Under ss 268 and 274 of the Act, DLG was required to have its trust records externally examined for each financial year ending 31 March and a report provided to the Queensland Law Society ('QLS') within 60 days unless DLG had a reasonable excuse. In those years the report was provided but late-97 days, 16 days and 65 days respectively. No excuse was provided.

• [5] Charges 4 and 5 relate to Mr Donnelly failing to comply with the terms of an undertaking he gave to the QLS (charge 4) and then supplying information to the QLS in relation to that undertaking which he knew to be false (charge 5).
• [6] Upon his application for renewal of his practising certificate in June 2021 and again breaching s 274 of the Act (the subject of charge 2), QLS expressed concern about his fitness to continue holding a certificate. In response Mr Donnelly provided the following undertaking:

I hereby undertake to compete an additional five CPD units in the core area of practice management and business skills by 31 December 2021 and provide evidence to General Manager, Regulation by that date that those additional CPD units have been completed. I acknowledge that those CPD units would be in addition to the 10 CPD units that I am required to complete for the CPD year ending 31 March 2022.[1]

• [7] The undertaking was accepted by the QLS. On 31 December 2021, Mr Donnelly sent a letter to the QLS notifying that he had complied with the undertaking as he had completed five CPD units in the core area of practice management and business skills and identifying the five topics completed, each being webinars hosted on an identified online platform. Upon examination it appeared that none of the topics were in the core area of practice management and business skills, one of those webinars had been cancelled and never occurred, and one was not available for viewing until a date in February 2022, long after the required date.
• [8] When challenged by the QLS, Mr Donnelly acknowledged that he had 'not at all complied with the Undertaking'.[2] The QLS had several issues concerning the adequacy of his response and issued a notice under s 80 of the Act requesting that Mr Donnelly complete a spreadsheet identifying when and how he viewed the two webinars mentioned above that he claimed to have seen. Mr Donnelly then provided a spreadsheet in which he falsely claimed he had completed one of those webinars.
• [9] Thus, Mr Donnelly knowingly supplied false information to the QLS on two occasions: firstly, in claiming he had seen the two webinars (on 31 December 2021); and secondly, when claiming he had seen one of those when challenged (on 23 February 2022). Mr Donnelly accepts he acted dishonestly on those two occasions.

• [10] Mr Donnelly is charged that on or about 7 February 2022, he failed to exercise appropriate forensic judgment called for during a case by preparing and filing an affidavit on behalf of a client which included explicit and sensitive material.
• [11] Mr Donnelly acted for the respondent to an application for a protection order under the Domestic and Family Violence Protection Act 2012 (Qld) ('DFVP Act'). In preparing an affidavit on behalf of his client in response to the application, Mr Donnelly caused to be annexed to the affidavit photographs depicting the applicant naked and revealing the genital and buttock regions ('the sensitive material'). On the relevant date Mr Donnelly caused the affidavit to be filed without taking measures to:

(a) limit or redact the sensitive material; and/or

(b) protect or ensure the confidentiality of the sensitive material; and/or

(c) refer to the sensitive material in the affidavit without annexing explicit images of the sensitive material.

• [12] Rule 17.1 of the Australian Solicitors Conduct Rules 2012 provided:

A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's and the instructing solicitor's instructions where applicable.

• [13] It is accepted that the placing of such material before the court hearing the application was a legitimate forensic purpose. The gravamen of the charge, however, is the method adopted for the provision of the evidence. All that was required was to inform the court that there would be a necessity to tender sensitive material and to seek directions how best to do so.
• [14] The filing of the affidavit, even in the relatively closed environment of the court involved in such applications, necessarily required publication to the applicant seeking a protection order, and others required by their duties to deal with the affidavit. Given the principal objects of the DFVP Act include the safety, protection and well-being of those who fear or experience domestic violence and to minimise disruption to their lives the very act of filing the explicit images within the affidavit potentially involved an act of domestic violence itself. Hence the need for forensic judgment in this difficult area. Mr Donnelly accepts that he failed to do so.

• [15] The parties are agreed that the conduct the subject of charges 1, 2 and 3 involved 'unsatisfactory professional conduct' within the meaning of s 418 of the Act. They are agreed that the conduct the subject of charges 4, 5 and 6 involved 'professional misconduct' as defined in s 419 of the Act.
• [16] The Tribunal agrees with that characterisation in each case.
• [17] Section 418 provides:

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening 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

• [18] To fail in a timely way to comply with a requirement of maintaining a trust account in the way required is a serious departure from the standards expected. The public are entitled to be reassured that trust accounts are conducted 'appropriately and responsibly'.[3] A timely audit and the timely provision of the independent auditor's report are material safeguards for both the practitioner and the public that the practitioner does not stray, even inadvertently, from the strict rules applicable. Mr Donnelly's conduct falls below the standard set out in s 418 in each of the three charges.
• [19] Charges 4, 5 and 6 each involve materially more serious conduct.
• [20] Section 419 provides:

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; ...

• [21] Charge 4 concerns the undertaking. To fail to comply with an undertaking has long been accepted as a very serious matter. The Commissioner cites Legal Services Commissioner v Wrightway Legal:

The ability to rely upon a legal practitioner's undertaking is of utmost importance. It is central to dealings with legal practitioners. Because of its importance, noncompliance with the clear terms of an undertaking involves a substantial failure to reach or maintain a reasonable standard of competence and diligence and so amounts to professional misconduct as that term is described in s 419 of the Legal Profession Act.[4]

• [22] So here.
• [23] Charge 5 involves dishonesty. This charge is particularly troubling. Mr Donnelly provided false information about his compliance with his undertaking and knew it to be false when he did so. This Tribunal has consistently held that dishonestly misleading the regulator, such as the QLS, amounts to professional misconduct.[5] As observed in Legal Services Commissioner v O'Brien the provision of false information, as here, 'strikes at the heart of a practitioner's entitlement to practise'.[6]
• [24] The conduct here falls squarely within s 419(1)(a) of the Act.
• [25] Charge 6 we are told is a novel one. The use of sensitive images in a proceeding has not been considered in a disciplinary context in this State. The Commissioner cites a decision in Alberta, Canada involving somewhat similar facts: In the matter of a hearing regarding the conduct of Karen Herrington a member of the Law Society of Alberta.[7] There, the solicitor drafted an affidavit and forwarded to the client. The client added sensitive images to the draft, then swore the affidavit and returned it to the solicitor. At an ex parte emergency application the solicitor filed, and subsequently served, the affidavit exhibiting the sensitive images. The solicitor accepted that she had brought the administration of justice into disrepute and the Hearing Committee stated that her reliance and filing 'should not have happened' and 'was ultimately the wrong decision'.[8]
• [26] The Commissioner has drawn the Tribunal's attention to a recent publication of the Law Society of New South Wales ('Law Society') entitled Tendering Sensitive or Intimate Images in Family Law Matters (published subsequent to the conduct the subject of the charge) wherein the following appears as the stated purpose:

This document aims to assist solicitors to consider,

in their independent exercise of forensic judgement, whether to include sensitive images, which may be moving or still, in evidence in family law proceedings. In family law matters, the use of sensitive images is not uncommon, and may in some circumstances provide valuable evidence in a party's case. However, decisions as to whether, and how, to tender these images in evidence should be approached with care.[9]

• [27] The Law Society warns that there may be professional conduct implications for the practitioner. Obviously if there is no probative value no such tender should be made, but that is not this case.
• [28] Given the novel nature of the charge we set out the Commissioner's suggestions, adopted from the Law Society's publication, as to how a practitioner should proceed when considering sensitive or intimate images:

Consider whether there is another way of proving what is asserted, other than by including the image in evidence. For example:

(a) include a statement in an affidavit along the lines of "I have not annexed those images to this affidavit but they are available for production if required"; or

(b) describe the image rather than annexing it; or

(c) provide a redacted copy, with an indication that unredacted versions (including metadata for forensic purposes) are available; or

(d) provide the image separately to the Court.

• [29] Such a resource is not authoritative, and judgment remains to be exercised in the way one proceeds.
• [30] The use of such images in the domestic violence arena is especially fraught given the emphasis in the legislation of protection, respect and wellbeing of the person who may well be the subject of domestic violence. There was a serious failure here of reaching the standards expected in exercising one's forensic judgment. We consider that the conduct here 'involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence' and hence the correct characterisation is of professional misconduct under s 419(1)(a) of the Act.

• [31] The principles applicable here in imposing disciplinary penalties are to protect the community and to maintain proper professional standards.[10]
• [32] The parties jointly submit that the following orders should be made pursuant to s 456 of the Act:

(a) the respondent be publicly reprimanded;

(b) the respondent pay a pecuniary penalty of $7,000;

(c) the respondent not be granted a practising certificate of any kind for a period of 12 months from the date of this order;

(d) prior to any application for a practising certificate, the respondent must compete, at his own expense, the Queensland Law Society Remedial Ethics Course;

(e) the respondent not be granted a principal practising certificate for a period of two years after first being granted a practising certificate;

(f) the respondent must complete, at his at his own expense, the Queensland Law Society Practice Management Course in the 12 months prior to any application for a principal practising certificate; and

(g) the respondent must include a copy of the Tribunal's orders and reasons, together with evidence of completing the Queensland Law Society Remedial Ethics Course and the Queensland Law Society Practice Management Course when the respondent first re-applies for a principal practising certificate.

1. The Commissioner submits this Tribunal 'should not lightly depart from the agreed position'.[11]Whilst the Tribunal retains at all times a discretion as to the sanction to be imposed, and is in no sense bound to adopt an agreement reached between the Commissioner and a respondent,[12] we have in this instance no reason to depart from that position and upon reflection we agree with those orders submitted. We acknowledge that given the multiplicity of the charges, and charges involving both a breach of an undertaking and an act of dishonesty, the orders may be thought to be at the lighter end of the possible sanctions. Nonetheless, these sanctions are significant.

• [34] In our judgment the orders reflect the seriousness of the conduct involved and, to the necessary level, bring into account mitigating features, despite our concern of the charge involving dishonesty. In doing so we are conscious of the recent decision in Legal Services Commissioner v Tang and the following passages in Bleby AJA's judgment where his Honour cautions the impact of personal circumstances in this context of the protective role of an application of this type:

... Maintenance of public confidence in the profession is a critical element of maintaining public confidence in the courts and the administration of justice. The community and the courts must be able to rely upon the honesty and integrity of practitioners.

The observation that the purpose is to protect the public and not punish a respondent has important ramifications. The personal circumstances of a practitioner may well excite sympathy. They will be relevant to an assessment of what the protective purposes of the Act require in a given case. However, they do not simply operate as mitigating factors as might be invoked in a punitive setting. What might provide cause to ameliorate a punitive response in another context may well, within the protective statutory framework presently under consideration, warrant a conclusion that, for example, a practitioner is medically unfit to practise.

...

To treat the 'probably permanently unfit' test as a separate test risks encouraging a standalone assessment of various factors personal to the practitioner separately from the protective concerns of the Act. [13]

• [35] It needs to be recognised that no client was harmed by Mr Donnelly's conduct. His trust accounts were in order. Despite reminders and assistance from QLS, Mr Donnelly persisted in failing to comply with the regulation requiring the supply of a timely audit report. This eventually led him to his dishonest statement, which was made in an apparent hope to avoid his own embarrassment at the obviously chaotic management of his practice. He so acted at a time, and his practice ended in some disarray, when the practitioner had certain difficult personal issues. Mr Donnelly had acted responsibly for some years prior to the period in question. However, he suffered from certain physical impairments due to his service in the Royal Australian Air Force in the 1990s, which were gradually overcoming him. He had significant problems with debts and was unable to obtain any credit, and had resorted to alcohol to try and overcome insomnia, mood swings and anxiety. Mr Donnelly eventually recognised his difficulties, sought professional help in about August 2022, has received treatment including medication, and with guidance has made significant changes to his diet, exercise and alcohol consumption. His practising certificate was cancelled in April 2023 and he accepts QLS had no option then.
• [36] Mr Donnelly is now aged 56 years. He has since obtained a responsible position in a legal support role with a commercial property management company and earns a reasonable income. He has expressed his deep regret and remorse at his conduct. As he asserts, Mr Donnelly makes no attempt to place blame for his conduct on anyone or thing apart from himself. He has fully co-operated with the Commissioner once he accepted that his defence of charge 6 was misguided. In our judgment he has done all that he can to rehabilitate himself.
• [37] Attendance at the QLS courses should ensure that Mr Donnelly gains an appreciation and understanding of the importance of meeting one's undertakings and the seriousness of breaching an undertaking, and the fundamental duty to conduct oneself honestly as a legal practitioner. He has accepted the appropriateness of these requirements and that too is encouraging.
• [38] The imposition of a reprimand serves to remind other practitioners that such conduct is not acceptable and dissuade them to such conduct.[14]
• [39] Suspension is appropriate where 'it has reason to think that at the expiry of such period the practitioner will have learned his lesson and will be of appropriate character to resume practice'.[15] In our judgment that applies here. Effectively, Mr Donnelly will not be able to practise in any capacity for at least another 12 months and on his own account for at least three years from now: cf. Council of the Queensland Law Society Inc v Whitman [2003] QCA 438 where a nine-month suspension was not interfered with (albeit the Chief Justice considered the suspension involved a degree of leniency) for arguably more egregious conduct including misleading the QLS.
• [40] As to charges 1, 2 and 3, we note that the pecuniary penalty submitted to be appropriate is fixed at close to the maximum penalty permitted for breaching s 274(1) of the Act ($8,345). Given the three transgressions and Mr Donnelly's failure to comply despite reminders and assistance from the QLS justifies a penalty at the higher end. As the Commissioner submits, Mr Donnelly's conduct involved a culture of repeated non-compliance and a disregard of his statutory obligations.
• [41] As to charge 6 we observe that, importantly, Mr Donnelly held a genuine, and indeed accurate, belief that evidence of the sensitive images had a legitimate forensic value. He defended this charge on that basis initially. However, he failed to appreciate the forensic judgment involved in how to proceed. In mitigation, he can plead that he was not assisted with any independent resource to guide his conduct.
• [42] In our judgment the submitted orders will provide the protection the public are entitled and serves sufficiently to maintain proper professional standards.

• [43] The respondent accepts that he must meet the Commissioner's costs.[16]

(a) the respondent is to be publicly reprimanded;

(b) the respondent pay a pecuniary penalty of $7,000;

(c) the respondent is not to be granted a practising certificate of any kind for a period of 12 months from the date of this order;

(d) prior to any application for a practising certificate, the respondent must compete, at his own expense, the Queensland Law Society Legal Ethics Course;[17]

(e) the respondent is not to be granted a principal practising certificate for a period of two years after first being granted a practising certificate;

(f) the respondent must complete, at his at his own expense, the Queensland Law Society's Practice Management Course in the 12 months prior to any application for a principal practising certificate;

(g) the respondent must include a copy of the Tribunal's orders and reasons, together with evidence of completing the Queensland Law Society Legal Ethics Course and the Queensland Law Society's Practice Management Course when the respondent first re-applies for a principal practising certificate; and

(h) the respondent pay the Commissioner's costs of and incidental to the discipline application such costs to be agreed or assessed in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland assessed on the standard basis.

[1] Hearing Book filed 15 August 2025, vol 1 38 [4.5] ('Hearing Book').

[3] Legal Services Commissioner v Hadley [2020] QCAT 509, [23] (Daubney J).

[4] [2015] QCAT 174, [26] (DG Thomas J).

[5] See, eg. Legal Services Commissioner v Foster [2016] QCAT 101; Council of the Queensland Law Society Incorporated v Whitman [2003] QCA 438; Legal Services Commissioner v Conradie [2018] QCAT 170.

[6] [2025] QCAT 190, [43] (Williams J).

[7] (Hearing Committee, R Anderson QC et al, 1 April 2021) ('Re Karen Herrington').

[9] Family Law Committee_,_ The Law Society of New South Wales Tendering Sensitive or Intimate Images in Family Law Matters (2025), 2.

[10] See Legal Services Commissioner v Madden (No 2) [2008] QCA 301; Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66.

[11] Legal Services Commissioner v McLeod [2020] QCAT 371, [32].

1. [12] See Legal Services Commissioner v Manz [2019] QCAT 147, [41]-[52].

[13] [2025] QCA 206, [27]-[28], [31].

[14] Legal Services Commissioner v Bentley [2016] QCAT 185, [48]-[50].

[15] A-G v Kehoe [2000] QCA 222, [28] (Thomas JA, de Jersey CJ and Ambrose J agreeing).

[16] Legal Profession Act 2007 (Qld), s 462(1).

[17] We note that the Law Society at its website refers to the relevant course as ordered here rather than the "Remedial Ethics Course" as adopted in the agreed position - hence the change here.