New South Wales Bar Association v Donnelly [2003] NSWADT 3 (9 January 2003)

Last Updated: 13 June 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: New South Wales Bar Association -v- Donnelly [2003] NSWADT 3 revised - 11/03/2003

PARTIES: APPLICANT

Council of the New South Wales Bar Association

RESPONDENT

Bruce Leicester Donnelly

FILE NUMBERS: 012007, 012015, 022001

HEARING DATES: 01/07/2002, 02/07/2002

SUBMISSIONS CLOSED: 02/07/2002

DECISION DATE: 09/01/2003

BEFORE: Robinson WL QC -Judicial MemberBarnes M - Judicial MemberMahon D - Member

LEGISLATION CITED: Crimes Act 1900

Legal Profession Act 1987

CASES CITED: Veron ex parte Law Society of New South Wales [1966] 1NSWR 511; (1966) 84 WN (Pt 1) (NSW) 136

APPLICATION: Professional Misconduct - breach of Barristers' Rules 75

Professional Misconduct - charge & recover costs from legally assisted person

Professional Misconduct - fail to appear on behalf of client

Professional Misconduct - fail to comply with Family Court rules

Professional Misconduct - fail to make arrangements for representation of client

Professional Misconduct - hold out to be a Solicitor/Barrister without being the holder of a practising certificate

Professional Misconduct - mislead Law Society/Bar Association/LSC

Professional Misconduct - witness affidavit contrary to Oaths Act

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

P Garling SC, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT

No appearance

ORDERS: 1. That the legal practitioner be publicly reprimanded

2. The Bar Association shall not issue a practising certificate to the legal practitioner before 1 March 2003

3. The legal practitioner shall undertake and complete over the next two calendar years a course of further legal education comprising 30 hours of seminars in continuing professional development conducted or accredited by the NSW Bar Association and satisfy the Bar Association that he has attended those courses.

4. The legal practitioner pay the reasonable costs of the Bar Association as agreed or assessed.

Reasons for Decision:

1 In this matter the Tribunal has before it for determination three separate Informations pursuant to s.167 of the Legal Profession Act 1987 drawn from files numbered 012007, 012015 and 22001. The first Information sets out 31 grounds of alleged professional misconduct or unsatisfactory professional conduct by BRUCE LEICESTER DONNELLY, a legal practitioner, principally in dealings with lay clients. Similarly, the second Information details 2 grounds which are alleged to constitute unsatisfactory professional conduct in dealings with a client. The first two matters were set down for hearing on 1 July 2002.

2 The third Information is of a significantly different character. It alleges professional misconduct and or unsatisfactory professional conduct by Mr Donnelly by way of two separate allegations of practising without being the holder of a current practising certificate and one allegation of misleading the New South Wales Bar Association. This matter was separately listed for hearing on 2 July 2002.

3 Whilst the Bar Association of New South Wales was represented at the hearing by Senior Counsel, no appearance was made on either date by or on behalf of Mr Donnelly. He had earlier made Replies to each of the first two Informations, and given some indication of an intention to contest those grounds not admitted by him. Mr Donnelly does not ever appear to have acknowledged the third Information. During the course of the sittings a 4 page facsimile transmission dated 1 July 2000 was received from Mr Donnelly and is referred to below.

The First Information

4 On 20 April 2001, the Council of the New South Wales Bar Association filed an Information in which it informed the Tribunal that as a result of the Council's investigation of a complaint made under Part 10 of the Legal Profession Act 1987 against Mr Donnelly, the Council claimed that the legal practitioner whilst practising as a barrister was guilty of professional misconduct or unsatisfactory professional conduct on the grounds set out in the First Schedule. The accompanying Schedule proceeded to detail 31 Grounds arising from 16 separate matters.

5 By a Reply filed 9 November 2001, Mr Donnelly admitted 20 of those allegations. The 20 matters so admitted may be conveniently grouped into two groups of ten as follows:

The first group of 10 allegations, being Grounds 2, 4, 7, 9, 12, 14, 16, 18, 20 and 22 that he failed to make disclosures to a direct access client in that he did not advise in writing of the matters required by New South Wales Barristers' Rule 80 to be disclosed to his clients Cullen, Denning, Baker, Airs, Urquhart, Van Wees, Howarth, Lavers, Barnes and Potts.

The second group comprised 10 further identical allegations being grounds 3, 5, 8, 10, 13, 15, 19, 21 and 23 that he failed to make disclosures regarding fees in that he did not advise in writing of the matters required to be disclosed to a client by the provisions of section 175 of the Legal Profession Act 1987 to those same clients Cullen, Denning, Baker, Airs, Urquhart, Van Wees, Howarth, Lavers, Barnes and Potts. We will return to the matters so admitted later.

6 That left as live issues for determination the following grounds of the first Information:

Ground 1: Charging and recovering costs from a legally assisted person for work assigned by the Legal Aid Commission.

The allegations in support of this ground were that the Legal Aid Commission ("the Commission") determined that legal aid be provided to Bruce Gordon, the Commission referred Mr Gordon to Mr Donnelly by letter dated 30 June 1998, and assigned work to Mr Donnelly. The allegation continues that from the time he received the letter dated 30 June 1998 (with enclosures), Mr Donnelly knew that Mr Gordon was a legally assisted person whose work had been assigned by the Commission and that on or about 8 July 1998, he purported to agree with Mr Gordon that he would, in lieu of payment of his fees by the Commission, charge a total amount of $800 for work relating to the hearing in the Tamworth Local Court of a charge of assault which had been made against Mr Gordon.

7 It was alleged that Mr Donnelly ought to have known that he was not entitled to charge or recover from a legally assisted person any amount by way of costs in respect of work assigned by the Commission to him, except with the approval of the Commission; and that any agreement which he reached with Mr Gordon which provided that Mr Gordon was under an obligation to pay for such legal work as had been assigned to the him by the Commission was, by reason of the provisions of s.41 of the Legal Aid Commission Act 1979, void, and that he did not have the approval of the Commission to charge an amount by way of costs. It was further alleged that on or about 26 October 1998, contrary to the provisions of s.41 of the Legal Aid Commission Act 1979, Mr Donnelly demanded and received from the client an amount of $800 in respect of the legal work he had performed. The Commission did not approve such payment by Mr Gordon.

8 In addition to the documentary material tendered in support of this ground, Mr Gordon gave evidence before us in support of his complaint against Mr Donnelly. We do not consider it necessary to dwell at length on the resolution of this ground. Suffice it therefore to say that the Tribunal found Mr Gordon to be a less than compelling witness, and even in the absence of a sworn version to the contrary, is dubious as to a number of his contentions. Mr Donnelly has always maintained a robust defence of these allegations whilst admitting some of the surrounding context and that he received the fees alleged. He has consistently maintained a credible alternative version of the factual matrix of events and the circumstances in which Mr Gordon came to pay those fees. Those contentions are in the documentary evidence before us and adverted to in the faxed submissions received during the hearing. Given the standard of proof required by the Briginshaw test, the Tribunal does not find this ground proven.

9 The next matter for consideration arises as:

Ground 6: Failure to make satisfactory arrangements for representation of a client while overseas.

The particulars of this ground were that on or about 22 March 1998, Mr Donnelly was retained directly by a Mrs Joanne Denning to act on her behalf in resisting an application for an apprehended violence order sought by a Ms Condon and to obtain such an order in Mrs Denning's favour against Ms Condon. On or about 20 April 1998 Mr Donnelly appeared on Mrs Denning's behalf at the Tamworth Local Court, at which time the court stood the respective applications over for hearing on 28 July 1998 and they were subsequently adjourned to 17 September 1998. On that day, in Mr Donnelly's presence, the court stood over the application by Ms Condon against Mrs Denning to 20 January 1999. Mr Donnelly went overseas on or about 27 November 1998. At the time he left for overseas he knew that Mrs Denning's matter was listed for hearing in the Tamworth Local Court on 20 January 1999. It is alleged that before he went overseas Mr Donnelly failed to tell Mrs Denning that he was going overseas; that he would be away for a period which included the hearing date of 20 January 1999 and that he had not made any, or any adequate arrangements for Mrs Denning to be represented by another legal practitioner. It was further alleged that in the circumstances, he failed to make any, or any satisfactory arrangements for Mrs Denning's matter to be transferred to another legal practitioner who would be available to give it due attention in the period leading up to the hearing and who would be available to appear, or to instruct another legal practitioner to appear, on Mrs Denning's behalf on 20 January 1999. In conclusion, it was alleged that he failed to appear in Tamworth Local Court on 20 January 1999.

10 Mr Donnelly does not admit this Ground. We have considered the evidence in support of the ground set out in the affidavits of Mrs Denning and Mr O'Reilly, in particular we note the terms of Mr Donnelly's letter to Mrs Denning of 23 September, dated 1993 but presumably 1998, wherein Mr Donnelly proposes a course for the further conduct of the Condon matter without reference to his proposed absence in January 1999. We have also given consideration to the various bases of Mr Donnelly's contentions that Mrs Denning was aware of his unavailability, as set out in his correspondence with the Bar Association, though we note on his own account that those arrangements underwent a variety of alterations. Having regard to the whole of the material we are satisfied that Mr Donnelly failed to adequately communicate with Mrs Denning and make appropriate arrangements for her continued representation and accordingly we find this Ground proven.

Ground 11: Failure to comply with notification provisions of the Family Court Rules.

11 In or about July 1998 Mr Donnelly was retained directly by Mr and Mrs Airs to act on their behalf in proceedings in the Family Court in which they sought orders in respect of their grand daughter ("the Family Court proceedings"). By application filed on 22 July 1998, Mr Donnelly represented that he was the solicitor for the applicants in the matter and gave the address of his chambers as his address for service. It is alleged that he failed to give any written memoranda regarding costs to Mr and Mrs Airs at any stage in the Family Court proceedings, and accordingly failed to give a copy of such memorandum to the Family Court or Registrar or to any other party as required by Division 1A of Order 38 of the Family Court Rules. This allegation is essentially a recast of the earlier grounds 9 and 10 concerning appropriate costs disclosure by reference to another statutory basis of Mr Donnelly's obligations to the Airs, and potentially to others involved in the litigation. Mr Donnelly denies this allegation in his reply. The later investigatory correspondence between the parties focuses on the earlier allegations and accordingly investigations of this matter have centred upon the earlier Grounds rather than the detail of this allegation. On the limited evidentiary material before us directed to these particulars we do not find this Ground proven to the requisite standard.

Ground 24: Filing process on behalf of a client in a court in the barrister's name

12 In or about 2000, Mr Donnelly was retained directly by Mr and Mrs Haling to act on their behalf in defending civil proceedings commenced by Mr and Mrs Haling in the Local Court at Tamworth. It is alleged that contrary to the provisions of New South Wales Barristers' Rules 75(a) Mr Donnelly filed a defence in the proceedings in the Local Court at Tamworth on behalf of Mr and Mrs Haling in his own name, which appears on the back sheet to the defence, following the words: "Filed by." Similar allegations of transgressions of Rule 75 appear below in Grounds 26 and 30.

13 Relevantly, the Barristers' Rules provide:

"75. A barrister must not, in the barrister's professional work:

(a) commence proceedings or file process in any court on behalf of the client in the barrister's name;

(b) serve any process of any court;

(c) make any demand, by letter or otherwise, on behalf of the client in the

barrister's name, except for the purposes of work under Rule 74(c) and (d);

and

(d) conduct correspondence on behalf of the client in the barrister's name or

deal on behalf of the client with any other person, unless:

(i) the correspondence is to seek information from a potential witness;

or

(ii) the dealing is a conference with a potential witness; or

(iii) it is for the purposes of work under Rule 74."

14 Mr Donnelly did not admit this allegation, however nor did he deny its factual basis. In his response to the Bar Association, in particular in his letter of 24 July 2000 (Annexure page 19 to Exhibit T), Mr Donnelly argued that a defence is not originating process and he therefore had not breached the rule. He did not address the broader ambit of the current rule. We reject this argument and find the Ground proven.

15 The next four grounds commencing with 25 may conveniently be treated as a group as all of Grounds 25, 27, 28 and 29 were allegations of:

Witnessing affidavit, contrary to the provisions of the Oaths Act (s.27).

Each of these matters arises from an allegation that Mr Donnelly witnessed an affidavit contrary to the provisions of the Oaths Act 1900, which relevantly provides:

" S.27 Authority to take and receive affidavits

(1) A solicitor who has in force a certificate issued under Part 3 of the Legal Profession Act 1987 shall, except in so far as the Chief Justice of the Supreme Court by order under his or her hand otherwise directs, be authorised to take and receive, subject to subsection (4), affidavits concerning any matter within the jurisdiction of any court or required for the purpose of registering an instrument in New South Wales or for any other purpose to be effected in New South Wales.

(2) The Chief Justice may, by commission under the seal of the Supreme Court, authorise as many other persons as the Chief Justice may think necessary to take and receive affidavits concerning any matter within the jurisdiction of any court.

(3) A person (not being a solicitor who has in force a certificate issued under Part 3 of the Legal Profession Act 1987 who was, immediately before the commencement of the Legal Practitioners and Oaths (Amendment) Act 1970, authorised under the section which this section replaces to take and receive affidavits, shall be deemed to have been authorised under subsection (2) to do so.

(4) The authorisation of a solicitor by subsection (1) has effect subject to any rule made by any court in respect of any affidavit made concerning any matter within its jurisdiction.

(5) In this section:

solicitor who has in force a certificate under Part 3 of the Legal Profession Act 1987 includes an interstate legal practitioner (within the meaning of section 48N of that Act) who has established an office in this State (within the meaning of section 48S of that Act) and who practises in this State as a solicitor and barrister. "

16 The affidavit of Rosemary MacDougal sworn 5 December 2001 (Exhibit C) sets out the relevant evidence in each matter. Shortly, as to Ground 25 the affidavits witnessed by the respondent were those of Charles Refalo and Doris Refalo sworn the 12th day of April 2000. We observe that on each document the respondent was described in the jurat as "Attorney." As to Ground 27 the affidavit alleged to have been witnessed by the respondent was that of Ronald Edward Buckpitt sworn 28th March 2000 in which Mr Donnelly is again described in the jurat as "Attorney." As to Ground 28, in the Denning proceedings, the affidavit witnessed by the respondent was that of Tina Hausfield, sworn the 29th day of March 2000. The typewritten jurat of that document allowed for the witness to be described as "Justice of the Peace/Solicitor." Those choices are both struck out and replaced in handwriting by the word "Attorney." Similarly, Ground 29 related to two affidavits deposed by Noel William Shorten and witnessed by the respondent. On the jurat of the affidavit sworn 14th August 1998, Mr Donnelly where purporting to witness therein was described in handwriting below his signature as "Counsel" and on that of 15th August 1998 by election on the typed form as "Solicitor."

17 Although the respondent did not admit these grounds, nor did he deny being the person who purported to witness each of the nominated affidavits nor raise any factual matter to contest the allegations. Rather, in his responses to the Bar Association he repeatedly relied upon the same argument as justifying his actions. The gist of this argument is that although by the current terminology of the Legal Profession Act 1987 both barristers and solicitors are rendered "legal practitioners" the Oaths Act 1900 has not been "updated" so as to replace the term "solicitor" with the term "legal practitioner." Mr Donnelly appears to contend that his actions were therefore justified.

18 As to each of the grounds in this group, we reject the argument put by the respondent which, apart from its erroneous and self serving approach to statutory interpretation, displays a wholesale lack of appreciation of the current scheme effected by the Legal Profession Act and Bar Rules 74 and 80 permitting clients direct access to barristers in limited and highly regulated circumstances related to the provision of advocacy and specialist advisory functions. Accordingly we find each of these Grounds proven to the requisite standard.

19 In or about 1999 Mr Donnelly was retained directly by Mr Ron Buckpitt to act on his behalf in civil proceedings to be commenced by Mr Buckpitt against Wayne Pursehouse in the Local Court at Tamworth. That litigation gives rise to:

Ground 26: Commencing proceedings in a court on behalf of a client in the barrister's name contrary to the provisions of New South Wales Barristers' Rules 75(a).

It is alleged that contrary to the provisions of New South Wales Barristers' Rules 75(a) Mr Donnelly commenced two proceedings in the Local Court at Tamworth by filing Statements of Liquidated Claim on behalf of Mr Buckpitt in his own name, which appears on the back sheet, following the words: "Filed by." It is convenient to deal with this allegation in association with the next two Grounds, although arising from services rendered to different clients, due to their overall similarity.

20 Next it is alleged that in or about January 2000 Mr Donnelly was retained directly to act on behalf of Alcester Investments Pty Limited, trading as Peel Valley in a claim for property damage to be brought in the Small Claims Division of the Tamworth Local Court against Daniel Cashman. From the conduct of this matter the next two grounds arise, first:

Ground 30: Commencing proceedings in a court on behalf of a client in the barrister's name.

This is particularised that contrary to the provisions of New South Wales Barristers' Rules 75(a) Mr Donnelly commenced proceedings in the Small Claims Division of the Local Court at Tamworth on behalf of Alcester Investments Pty Limited in his own name and contrary to the provisions of Part 5 rule 2 of the Local Court Rules, Mr Donnelly signed the Statement of Liquidated Claim. Secondly,

Ground 31: Serving court process contrary to the provisions of New South Wales Barristers' Rules 75(b)

alleges that contrary to the provisions of New South Wales Barristers' Rules 75(b), Mr Donnelly served by post, under cover of letter dated 17 February 2000, the Statement of Liquidated Claim on the defendant, Mr Cashman.

21 The contents of Barristers' Rule 75 are set out above. Once again, Mr Donnelly's approach to these matters has been to not challenge the evidence of the conduct, but to argue the meaning of the rules as they apply to his conduct. In these instances those arguments are principally set out in Mr Donnelly's letter of 5 September 2000 to the Bar Council and as we read them contend that because the process sues in the name of Mr Donnelly's client Rule 75(a) is not breached (despite the form of the filing particulars endorsed on the documents) or the actuality of the filing of the document in Grounds 26 and 30. He further argues in relation to 31, as we understand his response, that mailing the document to the defendant was not service, or was justified by being accompanied by a letter seeking compromise of the claim. The Tribunal rejects these arguments in favour of the plain and traditional understanding of these rules and in each matter we find the Ground proven.

Conclusions as to Information 1

22 As previously observed, it is to Mr Donnelly's credit that he admitted, in an appropriate and timely fashion, the 10 instances of failing to make disclosures to direct access clients as required contrary to Barristers Rule 80, and a further 10 failures to make fee disclosures as required by s.175 of the Legal Profession Act 1987. Nevertheless, Rule 80 imposes on a barrister a requirement to provide information to a client so as to enable a client to have a proper understanding from the outset of a direct access arrangement. Similarly, the fee disclosure provisions imposed by s.175 of the Legal Profession Act 1987 endeavour to protect the public by providing a mechanism whereby clients are provided with a means to understand the basis for fee calculation from the outset of the lawyer/client relationship. The failure to observe these requirements, even in the context of repeat clientele in the relatively relaxed and familiar context of rural practice is a matter of concern, particularly given the regular repetition of the failures to comply with the requirements. We also note that in respect of a number of the remaining matters it is to Mr Donnelly's credit that he made it plain from the outset that he did not contest the factual basis of the allegations, but confined his position to argument of the reading of the relevant requirement.

23 As a consequence of the matters above either admitted or otherwise found proven in this information, the Tribunal finds the legal practitioner guilty of unsatisfactory professional conduct. We have considered the "Totality" argument put on behalf of the Bar Association suggesting that the large number of matters raised by this Information are such as ought be viewed as warranting an elevation of the characterisation of Mr Donnelly's conduct in these matters to a finding of professional misconduct in the terms provided for in S127 (1) (a) of the Legal Profession Act 1987. We have given this submission our earnest consideration While we accept that it is appropriate that the submission be considered, and we are concerned by the level of repetition of the respondent's failure to observe fundamental information providing requirements to lay clients, we decline to so elevate our findings. We consider that in the present circumstances Mr Donnelly has not been demonstrated to have consistently failed to reach reasonable standards of competence and diligence in the carrying out of his actual service provision, indeed his overall conduct of the matters we have reviewed indicate considerable competence in the conduct of litigation and while the omissions are numerous, they reflect a narrow aspect of the requirements imposed.

The Second Information

24 By the second Information filed 5 June 2001, the Council of the New South Wales Bar Association informed the Tribunal that as a result of the Council's investigation of a complaint made under Part 10 of the Legal Profession Act 1987 against Mr Donnelly by Michael Robert Potts, the Council claimed that Mr Donnelly, whilst practising as a barrister, was guilty of unsatisfactory professional conduct on the 2 grounds set out, namely:

Ground 1 Failure to Appear on behalf of the complainant, and

Ground 2 Failure to make satisfactory arrangements for the complainant to be represented at a Court hearing.

These related grounds were particularised so as to allege that Mr Potts had engaged Mr Donnelly to represent him in the Tamworth Local Court in an appeal against the refusal to issue Mr Potts with a security licence. On 7 October 1998 the matter was "not reached" and listed for further mention on 12 October 1998, on which occasion Mr Donnelly appeared for Mr Potts and the matter was fixed for hearing on 15 December 1998. It was further alleged in respect of Ground 1 that Mr Donnelly failed to inform his client that he would be away and therefore unable to represent him at the 15 December 1998 hearing. The particulars continued in respect of Ground 2 that, without the knowledge or consent of Mr Potts, Mr Donnelly made arrangements for a solicitor (Mr O'Reilly) to take over the matter. Mr Potts declined to instruct that solicitor and represented himself at the 15 December hearing.

25 In a Reply filed by Mr Donnelly on 9 November 2001 together with other material he joined issue in respect of these allegations and made indication of an intention to contest them. As with the earlier matter concerning the representation of Mrs Denning, referred to in the first information, Mr Potts complained he was left without the benefit of Mr Donnelly's services in the period Mr Donnelly spent overseas in the United States commencing in late 1998.

26 The bulk of the documentary evidence relied upon by the Bar Association in respect of the matters dealt with by this Information is found in the affidavit of Rosemary MacDougal sworn 5 December 2001 (Ex Q) which annexes Mr Donnelly's responses to the Bar Association concerning Mr Potts' various allegations. However also relied upon were further extensive documentary evidence contained in the affidavit of Rosemary MacDougal sworn 5 June 2001 (Ex P), the affidavit of Stephen Anthony O'Reilly sworn 6 December 2001 (Ex E), the affidavit of Robert Michael Potts sworn 11 December 2001 (Ex R), the affidavit of service by Robert Colin Lloyd sworn 21 March 2002 (Ex G), the further affidavit of Rosemary MacDougal sworn 3 April 2002 (Ex H), a further affidavit of service of Robert Colin Lloyd sworn 26 April 2002 (Ex J) and a further affidavit of Rosemary MacDougal sworn 25 June 2002 (Ex K).

27 It is not without some concern that we note from a review of this material that a constant feature of Mr Donnelly's mode of practice during the period from which these, and some of the earlier matters dealt with in Information 1 emerge, is that much of the client contact, particularly concerning future arrangements, is not merely of a casual nature, which given the rural context might not be unduly unprofessional, but was regularly taking place in hotels and other forms of licensed premises. It is of little wonder that Mr Potts quite credibly says in his letter to the Bar Association of 26 February 1999 "last thing I knew was that Mr D was saying he would take care of it for me. Since Mr D had postponed the trip twice before for case (sic) I thought this was no different and he had made out in the past he had so much work on and no time for a holiday." In our view the material again plainly demonstrates that Mr Donnelly's mode of communication was inadequate as a professional communication. Given that background, combined with the state of arrangements deposed to by Mr O'Reilly, the Tribunal finds the Grounds in this second Information proven and accordingly makes a finding that the practitioner is guilty of unsatisfactory professional conduct.

The Third Information

28 By the third Information filed 16 January 2002, the Council of the New South Wales Bar Association informed the Tribunal that as a result of the Council's investigation of a further complaint made under Part 10 of the Legal Profession Act 1987 against Mr Donnelly, the Council claimed that Mr Donnelly was guilty of professional misconduct or unsatisfactory professional conduct on 3 grounds out as follows:

Ground 1 In breach of ss25(I), (2), 48B(I) and 48C(2) of the Legal Profession Act 1987(or any of them) the Legal Practitioner practised as a barrister without being the holder of a current practising certificate in the matter of Fenner.

Ground 2 In breach of ss25(1)(2),48B(1) and 48C(2) of the Legal Profession Act 1987( or any of them) the Legal Practitioner practised without being the holder of a current practising certificate in the matter of Hawkins.

Ground 3 Misleading the NSW Bar Association

29 Ground 1 was particularised commencing with the averment common to all three grounds, that between 1 and 31 July 2000 Mr Donnelly was not the holder of a current practising certificate to practise as a barrister. Nevertheless, on or about 4 July 2000 he held a conference with his client David Alan Fenner ("Fenner") who had been charged with two offences under the Crimes Act 1900 of larceny of goods. On or about 1 July 2000 Mr Donnelly had received a medical report from a Professor Holland concerning his examination of Fenner about memory loss and during the conference on or about 4 July 2000 with Fenner, Mr Donnelly telephoned Professor Holland and discussed with him his opinion about the medical condition of Fenner. It was further alleged that on 4 July 2000 he sent a facsimile transmission to the Tamworth Local Court regarding the matter of Fenner then listed for hearing at that court on 7 July 2000. In that letter Mr Donnelly described himself as "Barrister-at-Law" on his letterhead, and informed the court that because of the delay in obtaining medical evidence on behalf of Fenner, he would seek an adjournment on 7 July 2000 to obtain the necessary medical advice and evidence for Fenner's defence. Further, on 4 July 2000 Mr Donnelly forwarded a copy of his facsimile to the police prosecutor.

30 The particulars provided in support of Ground 2 in respect of the matter of Hawkins were that during that same period when Mr Donnelly was not the holder of a current practising certificate, on 13 July 2000 he represented Adam Hawkins at a bail hearing at the Tamworth Local Court when some matters for hearing and other matters for mention were adjourned to 28 July 2000. It was further alleged that on 25 July 2000 Mr Donnelly wrote to his client Adam Hawkins, in which correspondence he described himself as a Barrister-at-Law on his letterhead.

31 As to Ground 3 the particulars provided by the third Information again commenced by adverting to the allegation that between 1 July 2000 and 31 July 2000 Mr Donnelly lacked a current practising certificate. They went on to allege a course of events concerning Mr Donnelly's endeavours to obtain a practising certificate commencing on 10 July 2000 when Mr Donnelly made an application to the NSW Bar Association for a practising certificate for the year ending 30 June 2001. By way of response, by letter dated 11 July 2000 the NSW Bar Association wrote and, inter alia, asked him to provide:

"statutory declaration confirming that you have not practised as a barrister in the period 1 July 2000 to date, being the period you have not been the holder of a practising certificate as a barrister"

On 17 July 2000 Mr Donnelly declared a statutory declaration in which he said:

"I have not practised as a barrister for the period 1 to 17 July 2000 inclusive being the period in which I have not renewed my practising certificate. I further declare I will not practise as a barrister until my certificate is issued".

32 The particulars continue, that on or about the 20 July 2000 Mr Donnelly sent a facsimile transmission to the Administrative Decisions Tribunal (in an unrelated matter) in which he described himself on his letterhead as a Barrister-at-Law, but in which he acknowledged that he was not sending that communication as a practising barrister, "as I have not received my practicing (sic) certificate from the Bar Association." Thereafter, by letter dated 28 July 2000 the NSW Bar Association informed Mr Donnelly that it had information which suggested that contrary to his statutory declaration, he had performed work as a barrister in the period 1 to 17 July 2000 and referred to Mr Donnelly's letter dated 4 July 2000 addressed to the Tamworth Local Court referred to in the Fenner matter in Ground 1.

33 By facsimile transmission dated 31 July 2000 addressed to the NSW Bar Association, the legal practitioner said, inter-alia:

"I have not practised as the statutory declaration states and that is still the position".

In response to Mr Donnelly's facsimile transmission, the NSW Bar Association issued a practising certificate to Mr Donnelly effective that day. Mr Donnelly has not filed any form of reply in response to these allegations.

34 The evidence relied upon by the applicant in respect of this Information comprises a series of affidavits sworn by the solicitor for the applicant, Ms Rosemary MacDougal, in particular her affidavit sworn 15 January 2002 (Exhibit T) which annexes the correspondence and other documents which chart the course of conduct particularised in the information, in particular the exchanges between between the applicant association and Mr Donnelly in respect of Ground 3. This is supplemented by Ms MacDougal's subsequent affidavits of 3 April 2002 (Exhibit H) and 25 June 2002. (Exhibit K) The applicant also relies upon the affidavits of service by Robert Colin Lloyd sworn 21 March 2002 (Exhibit G) and 26 April 2002, ( Exhibit J) which we note evidences service being effected on Mr Donnelly in a club which we infer would be licensed premises.

35 The Tribunal members expressed a concern during the hearing that Mr Donnelly continues to appear unaware of the third Information, however given the thorough manner in which the separate proceedings have been drawn to his attention by Annexures "A" and "B" to the latter affidavit of service sworn we accept that he has been appropriately notified. As earlier indicated, Mr Donnelly has made no formal reply or evidentiary response to this material and his position has been left to be gleaned from the documentary material filed by the applicant together with the matters by way of submission received in the facsimile document forwarded by Mr Donnelly during the course of the hearing, which did not direct itself to the substance of these allegations.

36 The Legal Profession Act 1987 provides:

"S.25 (1) A legal practitioner whose sole or principal place of legal practice is this State must not practise as a barrister or solicitor and barrister without being the holder of a current practising certificate.

(2) A legal practitioner whose sole or principal place of legal practice is this State must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister.

and

"S.48B (1) A natural person must not act as a barrister or solicitor and barrister unless the person holds a current practising certificate."

and

"S.48C (1) A natural person must not falsely pretend to be qualified to act as a barrister or solicitor and barrister.

(2) A natural person who does not hold a current practising certificate must not:

(a) take or use a name, title, addition or description implying that the person is qualified to act as a barrister or solicitor and barrister, or

(b) do anything, or permit anything to be done, that holds out, advertises or represents that the person is so qualified "

37 As to Ground 1 of this Information the Tribunal is satisfied on the uncontradicted evidence, largely set out in the affidavit which comprises Exhibit T that between 1 and 31 July 2000 Mr Donnelly lacked a current practising certificate and that on 4 July he:

a. Held a conference with Mr Fenner concerning his court case

b. During the conference he telephoned Professor Holland and discussed matters related to the future conduct of Mr Fenner's case

c. Sent a facsimile to the Tamworth Local Court regarding Mr Fenner's matter seeking an adjournment

d. By his letterhead in that communication he described himself as a Barrister-at-Law

e. He forwarded a copy of the same communication to the police prosecutor.

38 We have considered the nature of this conduct, in particular by reference to the nature of "Barristers' Work" as defined within Rule 74 of the Barristers Rules which provide:

"A barrister must confine the barrister's professional work to:

(a) appearing as an advocate;

(b) preparing to appear as an advocate;

.....

(f) advising on documents to be used in the client's affairs;

.....

(h) carrying out work properly incidental to the kinds of work referred to in (a) - (g)

and conclude that on that on 4 July 2000 Mr Donnelly did engage in practice as a barrister as alleged in Ground 1 of the information. Having regard to the potential professional indemnity insurance consequences for Mr Donnelly's client, this is a matter of considerable gravity.

39 We view Ground 2 very differently. Apart from a paucity of evidence concerning the precise nature of Mr Donnelly's conduct in this matter on the 13th of July, as to the allegation of 25 July, we are not satisfied that provision of information such as would enable Mr Hawkins to locate an alternative legal representative can be characterised as engaging in practice. As this is the principal thrust of this Ground, we find the allegation not proven.

40 Ground 3 of the Information particularises a number of components in seeking to make out the allegation of misleading the Bar Association by the medium of the Statutory Declaration dated 17 July 2000 in which Mr Donnelly declared he had not practised as a barrister in the period commencing 1 July 2000, (it being common ground that he had no current certificate after 30 June 2000) and the later facsimile dated 31 July in which Mr Donnelly advised "I have not practised as the statutory declaration states and that is still the position." First, the Bar Association adverts to Mr Donnelly's facsimile to the Registrar of the Administrative Decisions Tribunal dated 20 July 2000 in the matter of Miller and Welded Mesh. Although the letterhead of that document still describes the respondent as "Barrister-at-Law" the text of the body of the document makes an appropriate disclaimer and we are not disposed to rely on such ambiguous material to Mr Donnelly's detriment.

41 However, in light of our findings in respect of Ground 1, we are satisfied that Mr Donnelly did practise as a barrister in relation to the Fenner matter and that he did so in the relevant period. That being the case, the statement contained in the Statutory declaration of 17 July 2000 "I have not practised as a barrister for the period 1 to 17 July 2000 inclusive..." cannot be accepted as an accurate statement of Mr Donnelly's position. Indeed we accept that in the specific context, whether Mr Donnelly was intentionally misleading, or, having regard to his self-justifying interpretation of his conduct in the Fenner matter, was merely inappropriately indifferent to the detail of his declaration, we are satisfied that his statement was false and he did mislead the Bar Association. In the circumstances of such serious allegations as are contained within this Information, where a prima facie case is made out on the documents, there is ample authority that it is inappropriate and irregular, where the practitioner wishes the Tribunal to accept an exculpatory explanation as to how the conduct came about to attempt to do so by submission rather than by the giving of evidence, see Veron ex parte Law Society of New South Wales [1966] 1NSWR 511; (1966) 84 WN (Pt 1) (NSW) 136.

42 In our opinion, given that a barrister is expected to deal frankly and with candour in connection with professional regulatory matters which come before the Bar Association in a manner analagous to the special duties of frankness and honesty owed a Court, Mr Donnelly's conduct in this respect amounts to professional misconduct, and we so find.

Other Considerations

43 We have reviewed all of the material before us that gives some insight into the background of this matter, most specifically those features which are of assistance in obtaining an appropriate perspective in which to consider the level of penalty and orders consequent on the findings above. We have observed that in his years at the bar since 1988, Mr Donnelly appears to have had broad experience as a barrister, having been instrumental in establishing Chambers in Sydney, engaged in country practice and has apparently been industrious in the pursuit of his profession over a decade, such that he has provided comfortably for his family. As already commented, the documents overall bespeak a practitioner of apparent general competence as a litigator and advocate. Mr Donnelly's more recent communications however suggest a major change in his overall personal and financial fortunes, including difficulties in his marital relationship. We have already expressed a concern that there are some indications within the material that alcohol may have had a role in this decline, however in the absence of direct evidence from Mr Donnelly it is not possible for us to have a complete picture of the background influences.

44 From the exchange of correspondence between Mr Donnelly and the Bar Association, it is plain that from his perspective, although he gave permission for the Association to attend to some urgent matters which arose during his overseas sojourn in late 1998 and early 1999 there was a non-consensual and inappropriate level of interference by Bar Association in his practise during his absence. Much of that difficulty appears to have been due to inadequate early communications between the barrister and the Association, and perhaps due to an undue reliance by the barrister on non-professional staff as a conduit for communication. We are not in a position to fully assay the consequences of these inadequacies, suffice it to say that it is plain that the course of Mr Donnelly's livelihood has been greatly damaged in the aftermath. Even before these Informations were filed in the Tribunal, Mr Donnelly underwent the penalty of a period of suspension from practice from January to June 1999 in compliance with the Bar Association's perceived wishes. We cannot but feel that the events leading to the laying of the third and more serious Information may not have arisen but for the manner in which events unfolded while the earlier matters remained unresolved.

45 Over the past decade there has been a relatively high level of change in the professional operating environment for lawyers, especially in relation to those requirements associated with the move to direct client access, and the former boundaries between the two branches of the profession have somewhat blurred. It is in this transitional context that the majority of Mr Donnelly's earlier transgressions have occurred, and whilst those transgressions relate to matters of importance in the overall statutory scheme, intended to balance public protection with the convenience of direct access, we note that in the circumstances of Mr Donnelly's practice, involving a largely repeat clientele in the relatively relaxed and informal context of a large country town practice, most of the breaches are not matters requiring draconian approaches to penalty, but rather educative approaches.

46 Mr Donnelly's many responses to the Bar Association contain a spirited defence of his position, however they also display both a disturbing arrogance towards the professional obligations reviewed and a significant deficit of knowledge and understanding of the current requirements and the need therefor. It is this context which leads us to the view that, having suffered an effective penalty in the discontinuity of his practice in 1999 and again as from the hearing of these matters, the lapse of time before he can return to practise ought be relatively brief. We are concerned to make appropriate use of the provisions of s.171C (f) of the Legal Profession Act 1987 to ensure that Mr Donnelly is required to undergo an updating of his professional ethical education before it is appropriate that he return to unfettered practice, and it is to this end that we have framed Orders 2 and 3. In the absence of a nominated module or course which would specifically require and assist Mr Donnelly to come to grips with the specific current requirements with which we have been concerned, we specify an attendance requirement of 30 hours over the next two calendar years, commencing from the publication of this judgment, at seminars or courses either within the readers' course or the continuing professional development seminars conducted by, or accredited by the Bar Association now required for all barristers. It is our intent that this requirement should approximately double the now compulsory and universal continuing professional educational requirements, for Mr Donnelly's next two years of practice.

47 Finally, as to the issue of costs, we note that although the proper conduct of these proceedings has required the preparation and filing of a large body of documents, Mr Donnelly made appropriate admissions as to the majority of the Grounds raised against him at time of filing his replies. In relation to a number of other grounds, it was also clear that he did not contest the factual basis of those allegations, but mounted limited arguments in response. Although Mr Donnelly's lack of appearance for the hearings was unheralded, Senior Counsel for the Bar Association was able to deal with all matters of substance on 1 July, to the extent that it was only necessary that his junior make a short formal appearance on the date fixed for hearing of the 3rd Information.

Orders accordingly.

Decision revised 11 March 2003 by the addition of order 4