Law Society of New South Wales v Barwick & Dechnicz (No.2)

[2001] NSWADT 114

CITATION:	Law Society of New South Wales v Barwick & Dechnicz (No.2) [2001] NSWADT 114
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Ross Garfield Barwick RESPONDENT Roman Alexander Dechnicz
FILE NUMBER:	002018; 002019
HEARING DATES:	19/04/2001
SUBMISSIONS CLOSED:	04/19/2001
DATE OF DECISION:	07/03/2001
BEFORE:	Needham CA - (Deputy President); Currie JS - Judicial Member; Mahon D - Member
APPLICATION:	Hearings - application to join proceedings
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:
CASES CITED:	Barwick v Law Society of New South Wales (2000) 169 ALR 275 HCA 3
REPRESENTATION:	APPLICANT G Lindsay SC RESPONDENT - Barwick No appearance RESPONDENT - Dechnicz S Cuddy, solicitor
ORDERS:	Orders made on 19/04/2001; 1 Application granted

History

1 The proceedings in this Tribunal numbered 002018 and 002019 were commenced by the Law Society of New South Wales against Mr Ross Garfield Barwick and Mr Roman Alexander Dechnicz respectively by informations dated and filed 2 November 2000.

2 They succeed proceedings commenced in the Legal Services Tribunal against Mr Dechnicz No 37 of 1996 and against Mr Barwick No 38 of 1996 (“the former proceedings”). The former proceedings were instituted by the Law Society by informations filed 30 September 1996 and amended 24 July 1996.

3 In the former proceedings an order was made on 15 April 1997 on the application of the Law Society that the proceedings against Mr Dechnicz be joined with the proceedings against Mr Barwick.

4 When this Tribunal succeeded the former Tribunal in October 1998, the former proceedings continued as Nos 9637 and 9638 in this Tribunal.

5 A challenge to the jurisdiction of the former Tribunal (and of this Tribunal as its successor) was made by Mr Barwick to the Court of Appeal and thence to the High Court of Australia. In those proceedings:

a. Mr Dechnicz was a party;

b. Mr Dechnicz supported the submissions of Mr Barwick;

c. It was common ground that the validity of both informations would depend on the decision in the court proceedings brought by Mr Barwick, since the procedures adopted by the Law Society antecedent to the filing of the both informations were materially identical.

6 By its judgment in Barwick v Law Society of New South Wales (2000) 169 ALR 275, [2000] HCA 3 the High Court found that:

a. The procedures followed by the Law Society before filing the information and amended information in the Barwick matter were defective, hence this Tribunal had no jurisdiction to hear the proceedings;

b. Accordingly the Tribunal was prohibited from proceeding with the hearing of the information and amended information against Mr Barwick.

7 The Law Society subsequently commenced the fresh proceedings Nos 002018 and 002019. As a matter of convenience, orders were made without objection that the parties might refile in these proceedings the evidence which they had filed in the former proceedings and this was done, whether in whole or in part we are not aware.

The joinder applications

8 By application in each matter dated and filed 2 November 2000 the Law Society seeks an order that there be a joinder of the informations in the proceedings, upon the grounds that each information raises allegations of professional misconduct by the practitioner which are founded on the same or closely related acts or omissions as the allegations against the other practitioner.

9 The applications were heard together on 19 April 2001. Mr Lindsay S.C. appeared for the Law Society, Mr Cuddy appeared for Mr Dechnicz and there was no appearance for Mr Barwick. His solicitor who appeared at a directions hearing before Deputy President C A Needham S.C. later in the day confirmed that she was not instructed to appear on the joinder application.

The application for joinder was opposed by Mr Dechnicz. A reply to the application was filed and appears at the end of the reply to the information filed 1 December 2000.

10 The Law Society provided a helpful “Procedural Summary” dated 18 April 2001, which identifies the evidence served by the Law Society and the evidence served by the respondent in each matter. The Society relied on Mr Lindsay’s written “Outline of Submissions” dated 19 April 2001 supplemented by oral submissions. Mr Cuddy made oral submissions.

11 The Society submits:

a. Each of the informations raises allegations of professional misconduct which are founded on the same or closely related acts or omissions of the respondents. In some respects the complaint against Mr Dechnicz asserts that he knew or ought to have known that Mr Barwick was engaging or had engaged in the conduct alleged.

b. At all relevant times the respondents practised in partnership and the facts underlying the allegations made in the informations relate to:

i. Transactions effected within their office for the benefit of one or both of the respondents.
ii. Events relating to and following upon, trust account inspections of records of their firm.

c. Each of the respondents has filed affidavits attributing to the other knowledge of, and responsibility for, steps taken in relation to the underlying events.

d. Neither information can be properly considered without hearing the evidence and submissions foreshadowed by the respondent to the other information.

e. The grounds and particulars in the informations are substantially overlapping and in large part, are identical in substance apart from some differences in the way the allegations are put against each of the respondents.

f. The affidavit evidence for the Law Society is the same in both proceedings.

g. The affidavit evidence filed for Mr Barwick (apart from character evidence) is relevant to some of the issues which are common to both proceedings. That evidence includes an affidavit of Mr Boitano made 6 February 2001 and affidavits from bank officers whose evidence is relevant to or as background for, common issues in both proceedings.

Mr Boitano was the salaried partner of the respondents from about October 1991 and on 20 March 1992 when the sum of $85,000 was borrowed from clients of the firm in which the respondents were partners. That borrowing is the subject of allegations made in both proceedings.

The affidavits of Messrs Banfield and Shaw are relevant to the execution of security documents by Mr Barwick’s sister, which are also the subject of allegations common to both proceedings.

h. In these circumstances, all the witnesses to be called for the Society will be common to both proceedings and at least some of the witnesses for Mr Barwick will give evidence bearing on the issues in both proceedings.

i. Each respondent has filed affidavits going to the relationship between them and the conduct in relation to the matters the subject of the informations. Questions of credit will arise. Those questions should be determined in the same set of proceedings, otherwise the potential exists for differently constituted Tribunals to reach different findings on credit. If the conduct complained of is established it will or may be necessary for the Tribunal to determine the respective responsibility or degree of responsibility of each respondent for the misconduct, and since this may well depend upon credit findings the respondents’ evidence should be heard in the same set of proceedings and by the same Tribunal.

j. Affidavits going to character had been filed by Mr Barwick but not as yet by Mr Dechnicz. However it was not expected that there would be any or any substantial cross examination of character witnesses which would prolong the hearing.

k. Grounds 1 and 3 alleged against Mr Barwick, although not mirrored in the information against Mr Dechnicz, relate to the Wilkinson estate and to matters of fact which also arise in relation to ground 2, which corresponds to ground 6 of the information against Mr Dechnicz. Ground 5 of the information against Mr Barwick is an allegation of misleading the Law Society in the course of its investigation of matters the subject of the informations. Accordingly ground 5 should not be viewed in isolation from the matters that will be before the Tribunal in both proceedings.

12 In oral submissions Mr Cuddy agreed that there is “a huge amount of meshing” of the facts in both matters, that there will be issues of credit arising from the evidence of the respondents and that there will be a large number of common witnesses in both matters, Ultimately we did not understand him to strenuously oppose the joinder.

13 In their Replies filed 16 January 2001 and 1 December 2000 each of the respondents denies professional misconduct and in some instances, points to the other respondent as having been responsible for the actions or the failure to act which is complained of in the informations.

For example, the reply of Mr Barwick by paragraph 1(d)(3) and (e)(1) responds to allegations that a loan of $85,000 was improperly made to his sister from estate monies and “on-lent” to him for his own benefit/to enable him to meet financial obligations to Mr Dechnicz, and that to the extent of $38,000 the loan monies included assets from the estate of the late Everil May Wilkinson of which Mr Barwick was the executor, which loan was made for his own personal benefit.

Mr Barwick denies that the loan of $38,000 from the Wilkinson estate was for his own personal benefit and denies that the $85,000 was on-lent to him by his sister and used by him to meet his personal obligations to Mr Dechnicz. He alleges that the sum of $85,000 was on-lent by his sister directly to Mr Dechnicz and disbursed by him to various creditors or third parties.

However in Mr Dechnicz’s reply to the corresponding allegations in the information laid against him, paragraphs 6(c) and 6(d), he admits both that the $38,000 from estate assets were lent to Mr Barwick’s sister for Mr Barwick’s benefit and admits that the sum of $85,000 was on-lent by her to Mr Barwick who used the money to meet personal obligations to Mr Dechnicz.

Clearly the resolution of these issues, and similar differences in the evidence to be given for each of the respondents going to issues which are largely common to both of the informations, should occur at the same hearing. Particularly since their resolution will depend in part upon findings of credit on the evidence given by each of the respondents.

14 We agree with the submissions of the Law Society. The Tribunal is directed by its objects “to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings”: Administrative Tribunal Act 1997 section 73(5)(b). This can be done most conveniently by hearing both informations together.