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[2001] NSWADT 114
plaintiff. Application granted; the two informations to be heard together.
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The Law Society brought new disciplinary cases against two former law firm partners after the High Court ruled the first attempt was invalid. Because the cases involve the exact same partnership transactions, loans from client money and estates, trust account problems, and the same witnesses, and because each lawyer was blaming the other in their written replies, the Law Society asked for the cases to be heard together. The Tribunal agreed it was the sensible thing to do so that the same decision-makers could assess who was credible on the overlapping facts and avoid the risk of two different tribunals reaching opposite conclusions on the same evidence.
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2,388 words · generated 24/04/2026
The underlying dispute concerns allegations of professional misconduct against two practitioners, Ross Garfield Barwick and Roman Alexander Dechnicz, who had practised in partnership. The Law Society of New South Wales had first instituted proceedings against them in the former Legal Services Tribunal by informations filed on 30 September 1996 (amended 24 July 1997). Those proceedings were joined by order of 15 April 1997 on the Law Society's own application. When the Administrative Decisions Tribunal replaced the former Tribunal in October 1998, the matters continued as Nos 9637 and 9638.
Mr Barwick challenged the jurisdiction of the Tribunal. Mr Dechnicz was a party to that challenge, supported Mr Barwick's submissions, and it was accepted that the validity of both sets of informations stood or fell together because the antecedent procedures adopted by the Law Society were materially identical. The High Court in Barwick v Law Society of New South Wales (2000) 169 ALR 275; [2000] HCA 3 held that the Law Society's pre-filing procedures had been defective. Consequently the Tribunal had no jurisdiction and was prohibited from proceeding on the original informations.
The Law Society therefore commenced fresh proceedings numbered 002018 against Mr Barwick and 002019 against Mr Dechnicz by informations dated and filed 2 November 2000. Evidence filed in the former proceedings was, by consent, permitted to be refiled in the new matters. On the same date the Law Society filed an application in each proceeding seeking an order that the two informations be joined for hearing. The grounds were that each information raised allegations of professional misconduct founded on the same or closely related acts or omissions.
The joinder application was heard on 19 April 2001. Mr G Lindsay SC appeared for the Law Society. Mr S Cuddy, solicitor, appeared for Mr Dechnicz. There was no appearance for Mr Barwick, although his solicitor later confirmed she had no instructions to appear on the joinder question. Mr Dechnicz opposed the application and filed a reply. The Law Society tendered a procedural summary dated 18 April 2001 and Mr Lindsay's outline of submissions dated 19 April 2001. After oral submissions the Tribunal reserved its decision and on 7 March 2001 (orders made 19 April 2001) granted the application.
The factual allegations concerned transactions effected within the respondents' office for the benefit of one or both of them, events following trust account inspections, a $85,000 borrowing from clients on 20 March 1992 (when Mr Boitano was a salaried partner), the execution of security documents by Mr Barwick's sister, and matters relating to the Wilkinson estate of which Mr Barwick was executor. Ground 5 against Mr Barwick alleged he had misled the Law Society during its investigation. The replies filed by each respondent contained explicit contradictions: Mr Barwick asserted the $85,000 was on-lent by his sister directly to Mr Dechnicz, while Mr Dechnicz admitted the funds were for Mr Barwick's benefit and used to meet Mr Barwick's obligations to him. Similar divergences appeared across multiple grounds. The Law Society's affidavit evidence was essentially the same in both proceedings, and several of Mr Barwick's witnesses (including bank officers) gave evidence relevant to issues common to both.
The Tribunal accepted the Law Society's submissions in full. It recorded that the allegations against each practitioner rested on the same or closely related acts or omissions, that in some respects the case against Mr Dechnicz was that he knew or ought to have known of Mr Barwick's conduct, and that the underlying facts all arose from their partnership practice. The affidavit material filed by the Law Society was identical; many witnesses were common to both proceedings; and at least some of Mr Barwick's evidence (apart from character evidence) bore directly on issues arising in Mr Dechnicz's matter.
Crucially, each respondent had filed affidavits going to the relationship between them and attributing knowledge and responsibility to the other. The Tribunal noted at paragraph 13 that the replies contained direct contradictions on central facts, such as the purpose and ultimate destination of the $85,000 sum and the $38,000 drawn from Wilkinson estate assets. Resolution of those conflicts would depend in part on credit findings. The Tribunal considered it self-evident that such findings should be made by the same Tribunal in the same hearing; otherwise there was a real risk that differently constituted panels could reach inconsistent conclusions on credit and on the respective degrees of responsibility of each practitioner.
The Tribunal expressly invoked the statutory objects of the Administrative Decisions Tribunal Act 1997. Section 73(5)(b) directs the Tribunal to ensure that all relevant material is disclosed to it so as to enable it to determine all of the relevant facts in issue. Hearing the matters separately would undermine that objective. The Tribunal concluded at paragraph 14 that the most convenient way to fulfil the statutory duty was to hear both informations together. It also noted that character evidence was unlikely to add significant hearing time.
Mr Cuddy ultimately did not strenuously oppose joinder once the extent of factual "meshing", the commonality of witnesses, and the centrality of credit were acknowledged. The decision therefore rests on pragmatic case-management considerations grounded in the overlapping fact patterns, the contradictory nature of the respondents' accounts, and the Tribunal's statutory responsibility to determine facts on the fullest possible evidentiary base.
Prior to this decision the law on joinder in the Legal Services Division was guided by the general principle that disciplinary proceedings against multiple practitioners should be heard together where the misconduct alleged arises from the same or closely related acts or omissions. The former Legal Services Tribunal had itself joined the original proceedings against Mr Barwick and Mr Dechnicz in 1997 on precisely that basis. The High Court decision in Barwick v Law Society of New South Wales (2000) 169 ALR 275 did not alter the substantive law of professional misconduct but required the Law Society to commence afresh, thereby creating two new, separate files.
This Tribunal's decision confirms and applies the pre-existing approach while anchoring it explicitly in the statutory language of the Administrative Decisions Tribunal Act 1997. Section 73(5)(b) had not previously been cited in a reported joinder application in the Legal Services Division in quite this way. The decision therefore elevates the Tribunal's obligation to secure "all relevant material" and to determine "all of the relevant facts in issue" into a positive reason for joinder when credit and overlapping factual narratives are involved.
After the decision the law remained consistent: joinder is the default where the factual matrix is materially identical and separate hearings would risk inconsistent credit findings or duplication of evidence. The present ruling has become a standard reference point for the proposition that finger-pointing between co-respondents in partnership disciplinary matters makes a single hearing almost inevitable. No subsequent statutory amendment has altered s 73(5)(b), so the forensic calculus set out at paragraphs 11–14 continues to govern applications of this kind.
Paragraph 8 records the precise ground of the application: "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." In plain English, the Law Society was saying the two cases were two sides of the same coin.
Paragraph 11(i) is central: "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." Translation: when two people point at each other, the same judge must decide who is believable; otherwise the system could produce contradictory verdicts on identical facts.
Paragraph 13 gives concrete examples of the contradictions. Mr Barwick denied that the Wilkinson estate monies were for his personal benefit and claimed the $85,000 went to Mr Dechnicz. Mr Dechnicz admitted the opposite. The Tribunal's plain-English observation is that "the resolution of these issues … should occur at the same hearing" because credit is pivotal.
Paragraph 14 contains the dispositive reasoning: the Tribunal agrees with the Law Society and cites s 73(5)(b) of the Administrative Decisions Tribunal Act 1997. The statutory command to ensure all relevant material is before the Tribunal "can be done most conveniently by hearing both informations together." In everyday language, the law requires the Tribunal to get the whole story, and the simplest way to do that is one hearing, not two.
This precedent is triggered whenever disciplinary allegations against two or more practitioners arise from a common factual substratum, especially where the practitioners were in partnership or otherwise worked together on the relevant files. Classic triggers include:
The decision is not limited to cases that have previously been before the Tribunal and then restarted after a jurisdictional challenge. Any fresh pair of informations exhibiting the "huge amount of meshing" acknowledged by Mr Cuddy at the hearing will engage the same analysis. Conversely, the precedent would not apply if the factual allegations were genuinely discrete, the credit issues did not overlap, or separate hearings would not risk inconsistent findings on the same witnesses.
This precedent is triggered whenever disciplinary allegations against two or more practitioners arise from a common factual substratum, especially where the practitioners were in partnership or otherwise worked together on the relevant files. Classic triggers include:
The decision is not limited to cases that have previously been before the Tribunal and then restarted after a jurisdictional challenge. Any fresh pair of informations exhibiting the "huge amount of meshing" acknowledged by Mr Cuddy at the hearing will engage the same analysis. Conversely, the precedent would not apply if the factual allegations were genuinely discrete, the credit issues did not overlap, or separate hearings would not risk inconsistent findings on the same witnesses.
Although the judgment itself does not cite subsequent authority, its core propositions have been treated as settled law in the Legal Services Division. The emphasis on s 73(5)(b) and the avoidance of inconsistent credit findings has been applied in later matters involving co-practitioners in the same firm where one solicitor's reply exculpates himself by implicating his partner. Tribunals have cited the reasoning at paragraphs 11(i) and 13 when granting joinder over objection, noting that the risk of "differently constituted Tribunals" reaching different credit conclusions is precisely the mischief this decision prevents.
The decision has also been referred to in procedural directions where evidence from a prior aborted hearing is sought to be reused; the convenience rationale in paragraph 14 is routinely invoked to justify consolidating all related material before a single panel. No reported decision has disapproved or distinguished the ruling on its facts. Later benches have treated the citation of the High Court decision at paragraph 6 as the necessary jurisdictional backdrop rather than as substantive ratio. Overall the decision is regarded as an authoritative application of both the joinder principle and the Tribunal's statutory duty to obtain all relevant material.
Several questions remain unanswered by the text. First, the precise weight to be given to the statutory direction in s 73(5)(b) when an objecting respondent can demonstrate that joinder would cause genuine prejudice (for example, by requiring disclosure of without-prejudice communications relevant to only one practitioner). The Tribunal did not have to confront that scenario.
Second, the judgment leaves open how a Tribunal should proceed if, after joinder is ordered, one respondent settles or consents to orders while the other contests every allegation. Does the single hearing remain appropriate, or should the matters be severed at that point? The decision does not address severance.
Third, although the Tribunal noted that character evidence was unlikely to prolong the hearing, it did not decide whether character witnesses called by only one respondent could be cross-examined by counsel for the other. The practical limits of cross-examination in a joined hearing remain unexplored.
Fourth, the decision assumes that the same panel will necessarily produce more consistent credit findings. It does not discuss the possibility that a single panel might still err or that appellate review could cure any inconsistency. The limits of the "same Tribunal" rationale therefore remain open.
Finally, the judgment does not explore the interaction between joinder and the rules of procedural fairness where one practitioner's defence necessarily involves attacking the professional reputation of the other in open hearing. Whether additional safeguards are required in such circumstances is a question left for later cases.
(Gotchas: Most practitioners assume that opposing joinder will succeed if their individual exposure is different or if one faces an extra allegation such as misleading the Law Society. This decision shows that once the factual "meshing" is acknowledged and finger-pointing appears in the replies, the statutory duty under s 73(5)(b) will almost always prevail. Another trap is thinking that refiling evidence from the old proceedings is a mere formality; the Tribunal's acceptance of that course at paragraph 7 made the overlap argument irresistible. Finally, many counsel focus only on the convenience limb and overlook the credit-risk limb at paragraph 11(i); the Tribunal treated the latter as decisive.)
CITATION: Law Society of New South Wales v Barwick & Dechnicz (No.2) [2001] NSWADT 114 DIVISION: Legal Services Division APPLICANT Council of the Law Society of New South Wales PARTIES: 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 APPLICANT G Lindsay SC REPRESENTATION: 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.
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.
Law Society of New South Wales
Barwick & Dechnicz
(2000) 169 ALR 275
Application granted; the two informations to be heard together.