CITATION: Law Society of New South Wales -v- Barwick & Dechnicz [2002] NSWADT 66 revised - 06/05/2002 DIVISION: Legal Services Division APPLICANT Council of the Law Society of New South Wales PARTIES: RESPONDENTS Ross Garfield Barwick Roman Alexander Dechnicz FILE NUMBER: 002018; 002019 HEARING DATES: 28, 29, 30, 31/05/2001; 1, 4, 5, 6, 7, 8, 12, 13, 14/06/2001; 24/07/2001, 27/07/2001 SUBMISSIONS CLOSED: 07/27/2001 DATE OF DECISION: 04/29/2002 BEFORE: Needham CA - (Deputy President); Mattila J - Judicial Member; Mahon D - Member APPLICATION: Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - mislead Court/Tribunal - Professional Misconduct - mislead Investigator - Professional Misconduct - mislead Law Society/Bar Association/LSC - Professional Misconduct - prefer own interests to those of others MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 Barwick -v- Law Society of New South Wales (2000) 169 ALR 275, [2000] HCA 3 Re Hodgekiss (1962) 79 WN (NSW) 163 Kennedy -v- The Council of the Incorporated Law Institute of New South Wales (1939-1940) 13 ALJ 563 Incorporated Law Institute of New South Wales -v- Meagher (1909) 9 CLR The Council of New South Wales Law Society -v- Foreman (1994) 34 NSWLR 408 Allinson -v- General Council of Medical Education & Registration [1894] 1 QB 750 Prothonotary of the Supreme Court of New South Wales -v- Costello [1984] 3 NSWLR 201 CASES CITED: Re Mayes [1974] 1 NSWLR 19 Law Society of New South Wales -v- Foreman (1991) 24 NSWLR 238 Briginshaw -v- Briginshaw (1938) 60 CLR 336 Ex parte Attorney-General (Commonwealth); Re a Barrister and Solicitor (1972) 20 FLR 234 New South Wales Bar Association -v- Livesey [1982] 2 NSWLR 321 O'Reilly -v- Law Society of New South Wales (1988) 24 NSWLR 204 Smith -v- Bar Association of New South Wales (1992) 176 CLR 256 Ex parte Tziniolis; re the Medical Practitioners Act (1966) 67 SR (NSW) 448 APPLICANT G Lindsay SC, barrister REPRESENTATION: RESPONDENTS R C P Allaway QC with L McCallum, barristers D Cassidy QC, barrister ORDERS: 1. In proceedings 002018, the name of Ross Garfield Barwick be removed from the Roll of Legal Practitioners; 2. Mr Barwick to pay the Law Society's costs of those proceedings; 3. In proceedings 002019, the name of Roman Alexander Dechnicz be removed from the Roll of Legal Practitioners; 4. Mr Dechnicz to pay the Law Society's costs of those proceedings. 1 The proceedings numbered 002018 and 002019 in the Administrative Decisions Tribunal were commenced by the Law Society of New South Wales against Mr Ross Garfield Barwick and Mr Roman Alexander Dechnicz by Informations filed 2 November 2000. 2 The proceedings succeed earlier proceedings against Messrs Barwick and Dechnicz commenced in 1996 in the Legal Services Tribunal and numbered 37 of 1996 and 38 of 1996. They became proceedings numbered 9637 and 9638 in this Tribunal when it succeeded the earlier Tribunal. 3 Those proceedings were successfully challenged in the High Court of Australia by Mr Barwick. The Court found that the Law Society had not followed the necessary procedures before filing the Information against Mr Barwick, hence the Tribunal had no jurisdiction to hear the proceedings: Barwick -v- Law Society of New South Wales (2000) 169 ALR 275, [2000] HCA 3. 4 Mr Dechnicz was a party to the proceedings in the High Court and supported the submissions put by Mr Barwick. The procedures adopted by the Law Society antecedent to the filing of the Information against Mr Dechnicz were materially the same as those followed in relation to the investigation concerning Mr Barwick, so that the validity of the proceedings against Mr Dechnicz was resolved by the appeal by Mr Barwick. 5 The Law Society then commenced fresh proceedings against Mr Barwick and Mr Dechnicz in this Tribunal. As a matter of convenience, orders were made that the parties might refile in these proceedings the evidence they had filed in the former proceedings upon which they wished to rely. 6 By applications filed 2 November 2000 the Law Society sought an order that the two Informations be joined. 7 The applications were heard together by this Tribunal on 19 April 2001 and allowed. The judgment was delivered orally on 19 April 2001. 8 The proceedings were fixed for hearing on 30 May 2001 and the usual directions were made. Applications were made by each of the respondents on the first day of the hearing for orders vacating the order for joinder and seeking orders that the two matters be heard separately. The Tribunal was urged to deliver its reasons straight away, before embarking on the hearing. 9 Accordingly judgment was delivered orally the next day, 31 May 2001. It is reported at [2001] NSWADT104. The applications for separate hearings were unsuccessful and the hearing then commenced. Brief Summary of Events 10 In early 1992 Mr Barwick ("Barwick") and Mr Dechnicz ("Dechnicz") were partners in the firm of Barwick Dechnicz and Boitano ("BDB"). Dechnicz was in severe financial difficulties and facing possible bankruptcy as a result of debts owed to his former firm Smits Leslie Barwick and other creditors. 11 In March 1992 Dechnicz reviewed moneys held in the trust account of BDB. After discussion with Barwick, they decided that clients' funds would be used to pay Dechnicz's debt to Smits Leslie Barwick ("SLB") and his other debts. Dechnicz says that Barwick owed him this money for his share of the practice. Barwick denies that this was so. 12 On about 20 March 1992 the sum of $85,000 was withdrawn from the firm's trust account and paid to the creditors of Dechnicz. The funds were supposedly lent to Mrs Roberts, who was Barwick's sister, on the security of her home in Mosman by way of a contributory mortgage from the clients whose moneys had been used. 13 The respondents did not produce at the hearing any file opened in the name of Mrs Roberts relating to the matter, nor was a ledger card opened for her as the supposed borrower of the monies. 14 A subsequent title search showed there was a preexisting mortgage over the Mosman property to the National Australia Bank. The only evidence of the date on which the search was made is the date stamp showing it was received on 26 March 1992. Although Barwick had accompanied his sister to the National Bank in early 1991 to arrange the loan secured by that mortgage, he denies that he was aware that the bank had taken security over her home. 15 In about April 1992 Barwick approached his sister to support a loan to him from the bank by providing a guarantee and her home as security. At this time Barwick and Dechnicz were transferring the firm's banking arrangements to the National Bank and an overdraft facility was established for BDB. 16 Mrs Roberts said she was unaware that she had given a mortgage to clients of BDB until it was brought to her attention during the Law Society's investigation of the matter. 17 On about 23 April 1992 Mrs Roberts attended the offices of BDB to sign the documents for the National Bank. The bank manager who was present recommended that she obtain independent legal advice. Unfortunately Mrs Roberts trusted her brother and declined to do so. She signed the documentation believing her security was for an amount of $45,000 but in fact it was for $200,000. 18 It appears the contributory mortgage may have been included with the documents required for the bank and that Mrs Roberts signed the contributory mortgage without being aware that she was signing such a mortgage. 19 There were three contributors to the mortgage purportedly given over Mrs Roberts' property. They were Mr James Mottram, the Lubomyr Sklepkowycz Foundation (trustees Kolomyjek and Figol) for whom Decnicz acted, and the estate of the late Everil May Wilkinson (executor Barwick). The lenders were provided with no independent legal advice for the supposed loan to an associate of a member of the firm. 20 Barwick was the executor of the Wilkinson Estate when the funds were borrowed. He did not seek the approval of the beneficiaries, Mrs Rosaline Fulton and the estate of the late Eileen Lenihan. 21 There had already been considerable delay in the distribution of the Wilkinson estate. When the file was transferred to Barwick on 17 February 1992 the only outstanding issue was the finalisation of the tax returns for the estate. Barwick used $38,000 from the estate as part of the purported contributory mortgage on about 20 March 1992. There was no authority in the will for Barwick to invest estate funds by way of such mortgage, nor was a lending authority obtained from the beneficiaries. 22 Mrs Fulton rang the firm continuously from that time, requesting that the estate be finalised as soon as possible. It is clear that they were unaware and would not have consented to any part of the estate funds being lent by way of contributory mortgage for a twelve month term, delaying finalisation of the estate. 23 On 18 August 1992 there was a routine inspection of BDB by the Law Society's trust account inspector, Mr Sofiak. Mr Sofiak sighted an epitome of Mrs Roberts' mortgage and, noting it involved deceased estates, requested to sight the file. He was told it was in Barwick's office and was unavailable that day. 24 As part of the routine interview procedure Mr Sofiak interviewed Dechnicz, the managing partner and asked him a standard questionnaire. Dechnicz stated that there were no loans by clients to associates of the members of the firm. This of course was not true because Mrs Roberts as the sister of Mr Barwick was an associate within the meaning of the regulations. 25 The file and the mortgage were not available again the following day when Mr Sofiak attended the offices. Barwick told him the mortgage was out of the office being registered. 26 Mr Sofiak became suspicious and the matter was subsequently assumed by another inspector. 27 Mr Sofiak had raised with Barwick the absence of authority in the will for investment on contributory mortgage. Barwick subsequently in February 1993 obtained a general lending authority from Mrs Fulton, by telling her it was a document that needed to be signed so that the final distribution of the estate funds could be released to her. Afterwards the document was predated 24 August 1992. 28 Barwick gave instructions in early April 1993 to Mrs Hayward, the office manager and a paralegal who was Dechnicz's sister-in-law, to tidy up the file. He prepared false diary notes and asked her to place them on the Wilkinson estate file together with the death certificate for one of the beneficiaries. He dictated letters and other false documents to her related to the contributory mortgage. 29 The Law Society wrote to BDB on 21 October 1992 requesting a reply to the issues raised by the trust account inspector in his report. The Law Society wrote again on 30 November 1992 again requesting a reply. On 13 January 1993 the Law Society wrote to BDB enclosing copies of the letters of 21 October 1992 and 30 November 1992 and advising that if there was no response by 13 February 1993, they would consider forwarding the matter to the professional conduct department. 30 Then followed correspondence between the Law Society and BDB, in the course of which a number of false and misleading statements were made in letters signed variously by Barwick and Dechnicz in response to the Law Society's enquiries. 31 Barwick filed two statutory declarations made 6 March 1997 and 2 May 1997 in the Legal Services Tribunal in the aborted proceedings which were inaccurate in certain respects. The Pleadings 32 The hearing proceeded upon the Amended Information filed with leave on 29 May 2001 against Mr Barwick and the Amended Information filed with leave on the same date against Mr Dechnicz. These superseded the original Informations filed 2 November 2000. 33 In due course each of the respondents filed their responses to the Amended Informations. 34 The final response for Mr Barwick is his Amended Reply to Amended Information dated 8 June 2001 and filed in Court on that day. It superseded his Reply filed 16 January 2001, an Amended Reply to Ground 7(b)(ii), (iii) and (iv) of the Information filed without leave on 15 May 2001 and a Reply [to the Amended Information] filed on 30 May 2001. 35 Mr Dechnicz's response is contained in his Reply to Amended Information dated 30 May 2001 and filed that day. Information against Barwick 36 By his Amended Reply to the Amended Information filed 8 June 2001 Barwick admitted that he had committed professional misconduct. He admitted the following grounds of the Amended Information, which we set out using the same numbering as in the Amended Information. Ground 1 37 Ground 1 in the administration of the estate of the late Everil May Wilkinson ("the Deceased"). Ground 1 is admitted. 38 The Particulars of Ground 1 are also admitted subject to two qualifications to which we alleges professional misconduct by Barwick, by neglect, delay and incompetence will refer. 39 It is admitted that the deceased had been a client of Barwick before her death, that he was granted probate of her will on 10 March 1989 as her sole executor and trustee and that there was no justification for the delay in his administration of her estate. It was admitted that the will did not authorise the lending of estate money on the security of a contributory mortgage or the application of estate assets for Mr Barwick's personal benefit. 40 It is admitted that on or about 20 March 1992 (after all estate assets had been realised) Barwick, purporting to act as the executor of the estate of the Deceased but without any proper authority from the beneficiary so to act, ostensibly lent $38,000 from the Wilkinson estate on a contributory mortgage dated 20 March 1992 to his sister Mrs Diane Roberts. (The total amount of the loan was $85,000 with the balance consisting of funds from other clients of the firm in which Barwick and Dechnicz were then partners.) 41 It is denied however (and this was the "first qualification" on his admissions) that the loan was made "for his own personal benefit". It is admitted that the loan was for Barwick's personal benefit in the sense that it enabled Dechnicz to discharge his personal debts but for which the partnership with Mr Dechnicz would have been jeopardy. 42 Mr Barwick's case is that the loan was for the benefit of Mr Dechnicz, who needed the money to discharge pressing personal debts or face probable bankruptcy. Mr Barwick says that he provided the $85,000 to Mr Dechnicz to help him out of a difficult financial predicament. 43 It was admitted by Barwick that the moneys ostensibly lent to Mrs Roberts ($85,000) were on-lent by her to Mr Barwick. However it is denied (and this was the "second qualification") that he used those moneys "to meet a personal obligation that he owed to Mr Dechnicz arising from his entering into partnership with Mr Dechnicz. It is admitted that the loan moneys of $85,000 were applied to discharge Mr Dechnicz's obligations to his creditors and were disbursed at the direction of Mr Dechnicz as follows: (i) $60,000 to discharge a debt due by Mr Dechnicz to Smits Leslie Barwick, solicitors, in relation to a winding up of that firm; (ii) $10,000 to the State Bank in relation to money payable by Mr Dechnicz; (iii) $15,000 to Esplins, solicitors, for professional fees due to them from Mr Dechnicz. 44 It was admitted by Barwick that the contributory mortgage was never registered or protected by a caveat and was not stamped until 10 November 1992 following the intervention of the Trust Account Inspector of the Law Society of New South Wales 45 It was admitted that interest was not paid in accordance with the provisions of the contributory mortgage and in particular, that the interest due on 20 June 1992, which was before the Trust Account Inspector's intervention, was not paid when due. We add that interest was ultimately paid. 46 It is admitted that at all material times the subject land was encumbered by a prior registered mortgage to the National Australia Bank. We add that it was conceded at the hearing that the bank mortgage was securing the firm's ever increasing overdraft account with the National Bank before 20 March 1992 when the contributory mortgage was granted. 47 It is admitted that Mr Barwick did not keep Mrs Rosaline Margaret Fulton ("Mrs Fulton") a residuary beneficiary fully informed of the progress of, and developments in, the administration of the estate; or account to her promptly for moneys payable to her from the estate. We comment that particular 1(j), and the corresponding admission provide an outstanding example of the art of understatement. It in no way conveys the extravagant delay and obfuscation in which Mr Barwick engaged towards Mrs Fulton and her late husband over a period of a year and his almost complete disregard of her more that reasonable and courteous inquiries for information. But we digress. 48 It is admitted that Mr Barwick was guilty of neglect, delay and incompetence in that (i) he failed to attend within a reasonable time to the conduct and completion of the administration of the late Mrs Wilkinson's estate, (ii) he applied estate moneys without any authority from the beneficiaries to do so via the loan to Mrs Roberts, on-lent to himself, (iii) he failed to ensure that the contributory mortgage granted by Mrs Roberts in respect of the loan was duly stamped and registered or protected by caveat as a first charge on the subject land, or at all [noting that the mortgage was eventually stamped but not until well after the trust account inspection], (iv) he failed to obtain the fully informed consent of Mrs Fulton to the loan transactions and failed to attend promptly to her enquiries about the estate of the late Mrs Wilkinson. 49 We consider these admissions were properly made; indeed the evidence against Mr Barwick on these matters clearly establishes the admitted allegations. 50 Mr Barwick's case on the delay in administering the estate is that he accepts there were excessive delays, but he says he was not the solicitor for the estate from May 1989 to November 1991 when he was an employed solicitor with Smits Naple Barwick, later SLB. Before and after that period, although he was the solicitor for the estate he did not personally handle the matter. The file was conducted by para-legals or solicitors under his supervision. He now accepts that the loan of estate funds should never have been made. He says he now realises he may have jeopardised the interests of his client and his sister, with the primary aim of helping partner Mr Dechnicz to discharge his debts. However he says he did not know that at the time and he thought the estate would be protected by the security for the loan. Ground 2 51 Ground 2 alleges that Mr Barwick committed professional misconduct in that he preferred his own interests over the interests of Mrs Fulton, to whom (as the executor and trustee of the estate of the Deceased and a solicitor acting in the administration of the estate) he owed fiduciary obligations. Ground 2 is admitted. 52 The particulars to Ground 2 are admitted, subject to the two qualifications made for Ground 1. 53 The particulars of Ground 2 repeat those for Ground 1 and further allege that Mr Barwick preferred his own interests over the interests of Mrs Fulton in that: (i) He failed to attend within a reasonable time to the administration of the estate of the late Mrs Wilkinson; (ii) He applied estate assets for his own personal benefit via the loan to Mrs Roberts, on-lent to himself; (iii) He failed to protect the interests of the estate by ensuring the provision of proper, authorised security and compliance with the terms on which interest was payable on the loan to Mrs Roberts; (iv) He failed to obtain the fully informed consent of Mrs Fulton to his application of the estate moneys. 54 We consider that the admissions in relation to Ground 2 were properly made and were consistent with the evidence of the Law Society at the hearing. 55 Mr Barwick's case concerning particular 3.4 is that on 25 February 1993 Mrs Fulton ratified the loan by signing a general lending authority. He says that he informed Mrs Fulton's husband by telephone of the proposed loan of estate funds on a short-term mortgage. Ground 3 56 The particulars of Ground 3 repeat the particulars of Ground 1 and further allege that Mr Barwick misled Mrs Fulton in that: (i) At a time when Mrs Fulton was to his knowledge concerned about delays in the administration of the estate of late Mrs Wilkinson, he failed to disclose to her that estate moneys had been lent to Mrs Roberts, on lent to himself, for his own personal benefit (the latter being denied) (ii) In submitting the "General Lending Authority" dated 24 August 1992 to Mrs Fulton for her signature on 25 February 1993; (A) He falsely represented to Mrs Fulton that the document related to the release of estate moneys, by way of distribution to her, (B) He failed to explain to Mrs Fulton that the document purported to be an authority for the investment of estate moneys which he proposed to produce to the Law Society as evidence that she had ratified his loan of estate moneys to his sister Mrs Roberts, (C) He failed to explain to Mrs Fulton that, notwithstanding the form of clause 1 of the document (which purported to authorise an investment secured by a registered mortgage), estate moneys had be lent of the security of a mortgage which had been neither registered nor protected by caveat, (D) He failed to explain to Mrs Fulton that, notwithstanding the form of clause 8 of the document (which purported to record an understanding that estate moneys would not be lent to him, or his associate, or to a borrower in which he had a financial interest), estate moneys had been lent to his sister, and on-lent by her to him, for his personal benefit. 57 Ground 3 and the particulars are admitted, subject to the usual qualifications. No admission is made on particular 3 (b)(ii)(A). 58 We consider that the admissions in relation to Ground 3 were properly made in light of the evidence adduced by the Law Society at the hearing. 59 In respect of paragraph 3(b)(ii)(A) it is necessary for the Tribunal to make a finding of fact. 60 Ground 3 alleges that Mr Barwick committed professional misconduct in that he misled Mrs Fulton about the application of assets of the Wilkinson estate for his own benefit. The Law Society's case is that Mr Barwick induced Mrs Fulton to sign a General Lending Authority on 25 February 1993 in the belief it was a release for the estate moneys to be distributed to her. 61 By his Reply filed 8 June 2001 Mr Barwick does not admit that he falsely represented to Mrs Fulton that the General Lending Authority related to the release of estate moneys. In opening it was conceded that he did not inform Mrs Fulton that the estate moneys had been used to pay his partner's debts and that Mr Barwick did not inform Mrs Fulton sufficiently to allow her to form an informed consent as to what document she was signing when she signed the authority. However Mr Barwick says that he did not intend to mislead Mrs Fulton. Ground 4 62 Ground 4 alleges professional misconduct by Mr Barwick in that, in providing for his sister Mrs Roberts to borrow moneys from clients of the firm of solicitors of which he was a partner (including the Wilkinson estate): (a) He failed to comply with clause 27(2) of the Legal Profession Regulation 1987. (b) He failed first to obtain from Mrs Fulton, Mr Mottram and Messrs Kolomyjek and Figol as lenders, an authority in writing as required by clause 32(1) of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988. (c) By his failure to comply with clause 32 (1) of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988, wilfully contravened section 61(1)(b) of the Legal Professional Act 1987. (d) He failed to comply with clause 33 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 (which provided for the preparation, issue and recording of a prescribed form of epitome of mortgage). (e) By his failure to comply with clause 33 of the Legal Profession (Trust Accounts and Controlled Money), he wilfully contravened section 62 of the Legal Profession Act 1987. 63 Ground 4 and the particulars are admitted and we consider properly so in light of the evidence adduced by the Law Society at the hearing. 64 As to Ground 4(a) it is admitted that Mrs Roberts as the sister of Mr Barwick was an "associate" within the meaning of the Regulation. It is admitted that the lenders under the contributory mortgage were all "clients" of Mr Barwick within the meaning of the Regulation and that in breach of clause 27(2) Mr Barwick provided for his sister to borrow $85,000 from his clients without ensuring that they received full disclosure of his relationship with Mrs Roberts and without requiring them to seek independent legal advice. The clients were: (a) The estate of the late Mrs Wilkinson; (b) James Mottram ("Mr Mottram"); (c) Mr Zdan Kolomyjek ("Mr Kolomyjek") and Mr Taras Figol as trustees of the estate of the late Lubomyr Slepowycz. 65 As to Grounds 4(b) and (c) it is admitted that in Mr Barwick wilfully and in breach of clauses 32(1) and 61(1)(b) of the specified regulation did not obtain an authority in writing from his "clients" as lenders to his sister as his "associate". 66 As to Grounds 4(d) and (e) it is admitted that in breach of clauses 33 and 62 of the specified regulation Mr Barwick wilfully failed to record the contributory mortgage in a prescribed form of epitome of mortgage. (The epitome prepared by Mr Dechnicz being in a superseded form.) 67 Mr Barwick's case on Ground 4(a) was that he was not aware that his sister was deemed to be his "associate" under the Regulation. Ground 5A 68 Ground 5A alleges that Mr Barwick committed professional misconduct by making representations in a letter of 12 May 1993 written in the course of the investigation by the Law Society which were misleading and that he attempted thereby to mislead the Law Society and the Legal Services Tribunal. The letter is alleged to contain false representations that: (i) Mrs Fulton had executed a "General Lending Authority" on 24 August 1992 being the date shown on the document, whereas Mrs Fulton did not sign the document until about 25 February 1993; (ii) Mrs Fulton had ratified Mr Barwick's conduct by signing a General Lending Authority" for the loan of estate moneys to Mrs Roberts, whereas the document did not constitute a ratification in the absence of fully informed consent by Mrs Fulton to the loan of estate moneys; (iii) By implication, Mrs Fulton's ratification (by signing the authority) occurred on 24 August 1992 being the date shown on the document. 69 Ground 5A and the particulars are admitted by the Amended Reply and by the correspondence before the hearing in Exhibit A, although at the hearing we understood that he did not concede that Mrs Fulton's authority was not an effective ratification. 70 If it is necessary for the Tribunal to make a determination of the question of law raised by particular 5A(d)(ii), we do so now. There can be no effective ratification unless the ratifying party has full knowledge of the circumstances and on the issue of law we find against Mr Barwick 71 We consider that the admissions by Mr Barwick on Ground 5A were properly made in light of the evidence presented by the Law Society at the hearing. 72 At the hearing Mr Barwick conceded that his letter was misleading in the sense that the authority was dated 24 August 1992 although not signed by Mrs Fulton until 25 February 1993 almost a year later. His letter conveyed the impression that the authority had been given on the date it bears. He asserts that he did not draft that letter himself and was insufficiently attentive to its contents. He says that he did not intend to mislead the Law Society. Ground 5B(f) 73 Ground 5B(f) alleges that Mr Barwick committed professional misconduct by making misleading representations to the Law Society and attempting thereby to mislead the Law Society and the Legal Services Tribunal by a statutory declaration made by him in the Legal Services Tribunal (the predecessor to this Tribunal) on 2 May 1997. It is alleged that Mr Barwick by paragraphs 55 and 56 represented that he was not aware in the latter part of March 1992 (when discussing with Mrs Roberts and Dechnicz the availability of her Mosman property as security for borrowings by Dechnicz and himself) that the property was subject to a first mortgage to the National Bank, when Barwick was aware of the prior mortgage since he had negotiated with the Bank in or about January 1991 to raise moneys for Mrs Roberts. 74 Professional misconduct on this Ground is not admitted by Mr Barwick. (We note the earlier admission in this regard in correspondence was unintentional and not authorised by Mr Barwick). 75 By his Amended Reply, Mr Barwick admits that paragraphs 55 and 56 of his Statutory Declaration did represent that he was not aware in the latter part of March 1992 that the property was subject to a first mortgage. He admits that he attended the National Bank with his sister but says that he did not negotiate the mortgage with the bank and did not know there was a first mortgage over her Mosman property. 76 Accordingly it is necessary for the Tribunal to make findings on these factual matters. Grounds 6 and 7(A) 77 Grounds 6 and 7(a) of the Information were not pressed by the Law Society. Ground 7(b) 78 Ground 7(b) alleges that Mr Barwick committed professional misconducted by attempting to mislead the trust account inspector with regard to the conduct of the estate of the late Mrs Wilkinson by instructing his employee Mrs Hayward to place false and misleading documents on the Wilkinson estate file and a file for the mortgage advance to Mrs Roberts including: (a) Handwritten file notes of telephone conversations with Mrs Fulton; (b) a letter to the executor of the Lenihan estate requesting the death certificate for Eileen Lenihan and evidence of the death of Kathleen Lenihan (c) the typed documents annexures "MH-I" to "MH-O" to the affidavit of Ms Motra Hayward. 79 It is alleged that he instructed Ms Hayward to take the death certificate from the Lenihan estate file and place it in the Wilkinson estate file and instructed Ms Hayward to reconstruct the Wilkinson estate and to cull it to conceal that his firm had previously acted in the estate of the late Eileen Lenihan. 80 Mr Barwick admits professional misconduct on Grounds 7(b)(i) and (ii). He denies parts of (iii) and does not admit other parts of (iii) and does not admit (iv). 81 We consider the admissions to be properly made in light of the evidence presented to the Tribunal by the Law Society. It is necessary for the tribunal to make findings of fact in relation to the disputed or not admitted allegations. 82 We observe that in the letter dated 24 May 2001 contained in Exhibit A from Barwick's solicitors to the Law Society, it was stated that Mr Barwick would plead guilty to professional misconduct on ground 7(b) of the Information as particularised. This preceded the Amended Information and the original information did not contain allegations relating to certain typed documents which is made in the amended information particular 7(b)(iii)(c). Accordingly we do not place any weight on the earlier admission in relation to this Ground, before the amended information was filed. 83 In his Amended Reply, Mr Barwick admits that he was the author of the hand written file notes relating to the Wilkinson estate file and admits that he instructed Ms Hayward to place those notes in that file. He does not admit they were false in the sense of not being genuine file notes. He says that they were prepared from earlier notes of conversations with Mrs Fulton which he made on other pieces of paper, but admits that in transcribing the conversations, inaccuracies as to the dates and contents of the conversations may have occurred. 84 It was conceded at the hearing that the file notes were misleading by reason of the dates shown on them, in the sense that they purported to be notes of conversations which took place on the dates shown on the document. Mr Barwick's case is that the file notes were made from earlier jottings on scraps of paper made during the course of conversations with Mrs Fulton. 85 Accordingly it is necessary for this Tribunal to decide whether the file notes relate to actual conversations or were created to mislead the Law Society. 86 There is also an allegation by the Law Society that Mr Barwick dictated some typed documents to Ms Hayward relating to the Wilkinson estate and the contributory mortgage to Mrs Hayward and directed her to place them on the relevant file. Mr Barwick denies he was the author of these letters and denies that he instructed Mrs Hayward to place them on any file. Accordingly it is necessary to decide these issues of fact. 87 The allegation of instructions relating to death certificates and evidence of death are not admitted. Information against Dechnicz 88 The Information against Dechnicz alleges that he committed professional misconduct. 89 The Information contains allegations of breach of regulations corresponding to those made against Barwick. These appear as Grounds 1 to 5. 90 Ground 6 relates to the Wilkinson estate, which is the subject of Ground 1 in the Information against Barwick. It is alleged that Dechnicz in circumstances in which he knew or ought to have known that his partner Barwick was so conducting himself as to prefer his own personal interests over the interests of Mrs Fulton, to whom Barwick(as the executor of the estate and a solicitor acting in the administration of the estate) owed fiduciary obligations, wilfully failed to take steps to prevent misconduct by Barwick. 91 Ground 7 was not pressed by the Law Society. 92 Ground 8 alleges that Dechnicz attempted to mislead the Trust Account Inspector with respect to the contributory mortgage in that he: (a) Failed to disclose that the mortgagor was his partner's sister; (b) Failed to disclose that he had a personal interest in the proceeds of the advance; (c) Failed to disclose the time taken in completing the Wilkinson estate. (d) In his Reply, Dechnicz admits the breaches of the regulations but denied the contravention was wilful. He admits that he ought to have known of Barwick's misconduct in relation to Mrs Fulton but denies actual knowledge and substantially denies the allegation of attempting to mislead the Trust Account Inspector. (e) In correspondence with the Law Society before the hearing (Exhibit B) Dechnicz accepted only that he had committed unprofessional conduct. His case was that Mr Mottram and the Wilkinson estate were Barwick's clients and he did not know that Barwick was misconducting himself in relation to the estate. He says that the Sklepkowycz estate was his client but he had the informed consent of Mr Kolomyjek to the transaction. He says that the co-executor Mr Figol left the conduct of the estate to Mr Kolomyjek. Dechnicz says in relation to Mrs Roberts that he had no real input into her affairs. He admits he failed to disclose to the Trust Account Inspector that she was Barwick's sister and says the failure occurred during a questionnaire that made no reference to particular matters. He says it slipped his mind that Mrs Roberts was a client of the firm because he had not done any work for her and the firm had not charged her fees because of her relationship with Barwick. 93 Mr Dechnicz's case is that he was the innocent victim of Mr Barwick's misconduct. He said that he regarded Mr Kolomyjek as his client and considered that he held an appropriate lending authority from him. He declares in his statutory declaration of 14 March 1997 (Exhibit RAD 1) that he actually told Mr Kolomyjek that the purpose of the loan was for his partner Mr Barwick to obtain funds to pay Mr Dechnicz for his share of the practice. As we find (below), Mr Kolomyjek's authority was limited to a first mortgage and Mr Kolomyjek's evidence does not support Mr Dechnicz's assertion that he had disclosed Mr Barwick's need to obtain funds. 94 Mr Dechnicz says that he did not know Mrs Roberts was an associate and that his only role in the loan was to speak with Mr Kolomyjek and obtain his $27,000. 95 Mr Dechnicz says he was not aware there was a first mortgage over the Mosman property until "much later" than the April 1992 meeting at their offices Mr Barwick asked Mrs Roberts to provide security for further borrowings on her existing mortgage. Mr Dechnicz says he was not aware that the mortgage was unregistered and not protected by a caveat until after the trust account inspection in August 1992. 96 Dechnicz denies he was aware of any misconduct by Mr Barwick in relation to Mrs Fulton or the Wilkinson estate generally. He says the firm had inherited this matter from SLB and he did not know of the delays in the administration of the estate. Up until the hearing he denied even that he ought to have known that his partner was misconducting himself (Exhibit B) however at outset of the hearing this much was conceded. Mr Dechnicz admits that he failed to tell the trust account inspector on 19 August 1992 that Mrs Roberts was Mr Barwick's sister "It slipped my mind that Mrs Roberts was a client of the firm because ... the firm had never charged her fees". As we set out below, we do not accept his evidence on any of these matters. The Prior Mortgage 97 On about 24 January 1991 Mrs Diane Roberts, Mr Barwick's sister, granted an "all monies" first mortgage over her home at Military Road, Mosman, to the National Australia Bank ("the National Bank"). This is the mortgage referred to in the Information against Mr Barwick in Ground 5B(f). It is in Exhibit U at page 46. It is dated 24 January 1991 and signed in Mrs Roberts' former married name of Robbins. It was registered on 14 February 1991. 98 One of the factual issues in the proceedings is whether Mr Barwick had notice of the first mortgage to the National Bank when the clients' funds were lent on the contributory mortgage. 99 Mrs Roberts gave oral evidence which was later supplemented by her affidavit (Exhibit T). (That affidavit annexes an earlier unsworn affidavit prepared in other proceedings and earlier statutory declarations. For convenience we will identify this material compendiously as her affidavit). Mrs Roberts' evidence in chief is consistent with her unsworn affidavit. The affidavit is more detailed no doubt because it was made closer to the events in question. 100 Mrs Roberts deposes that she was entitled to some money ($50,000) from a family company called Mundroola Pty Ltd. The money was placed in Mr Barwick's bank account. When she needed to obtain her money she was delayed for a year by Mr Barwick who finally informed her in early January 1991 that he had used the money since he had a temporary need for it. Mr Barwick agrees with this except that he says that Mrs Roberts was entitled to a half share of the $50,000. 101 Mrs Roberts deposes that Mr Barwick told her he was unable to lend her any money but he would organise with her bank for her to take a short term loan and would repay the bank when he had funds. 102 In her oral evidence in chief Mrs Roberts says that she went with Mr Barwick to her branch of the National Australia Bank at Cremorne and Mr Barwick negotiated with her bank manager for a loan to her of $25,000. However Mrs Roberts could not recall after the passage of 10 years whether Mr Barwick was present when she signed the mortgage or not. Nor could she recall whether she signed the mortgage to the bank on the occasion that she went with Mr Barwick or subsequently. 103 In evidence in chief, Mrs Roberts consistently with her affidavit said (T416) that she did not recall whether there was discussion about a mortgage at the meeting with the bank manager attended by her brother. She stated (T416) that she did not remember when she signed the mortgage, whether it was on the occasion that she attended the bank (with Mr Barwick) to request the loan or whether it was at a later time. 104 Although in cross examination by senior counsel for Mr Dechnicz (T443-444) Mrs Roberts agreed that by 20 March 1992 (when the contributory mortgage was signed) Mr Barwick "would have known" of the existence of the first mortgage which she had given over the property to the National Bank, and agreed that Mr Barwick must have known of the first mortgage to the National Bank because he had been present at the Bank when Mrs Roberts signed the mortgage, in re-examination (T478) Mrs Roberts reasserted her evidence in chief. We prefer her evidence in chief and in her affidavit to the answers at T443-444 which she may well have understood as an invitation to speculate as Mr Barwick's state of knowledge. 105 Mrs Roberts was a careful and honest witness who did her best to recall events many years ago. She had no axe to grind against her brother notwithstanding that their relationship has been strained for a number of years. On the contrary Mrs Roberts appeared to be favourably disposed towards her brother and hoped that their relationship might be mended. We find her to be a reliable witness and where her recollection conflicts with Mr Barwick's we prefer the evidence of Mrs Roberts. 106 In Mr Barwick's Statutory Declaration Exhibit B6 he says he attended the National Bank at Cremorne with his sister in January 1991 but it was Mrs Roberts who negotiated the loan. He says that he believed it was to be a personal loan from the bank and that he did not know that any mortgage was involved. We reject his evidence that he was not aware of the bank mortgage. 107 There is in evidence a bank diary note (Exhibit U page 45H) which may suggest that on the occasion when Mrs Roberts signed the mortgage (22 January 1991) she attended the bank alone. 108 Whether or not Mr Barwick was present with Mrs Roberts when she signed the mortgage, it is inconceivable that Mr Barwick was not aware that the loan was to be secured by a first mortgage over Mrs Roberts' home. Mrs Roberts was clearly very reliant on Mr Barwick for his advice and assistance. He was her older brother and a solicitor whereas she is not legally trained. Mr Barwick was an experienced conveyancing solicitor who had acted for her in her family law proceedings. The title deed was with the National Bank at the time of the contributory mortgage and this alone should have put Mr Barwick on notice that further inquiry was needed to ascertain whether the property was unencumbered. 109 We find that Barwick negotiated for Mrs Roberts with the bank. In all probability the bank made its security requirements known to him on that occasion. Even if the question of security did not come up until after their meeting with the manager, we are sure that Mrs Roberts would have discussed this with him before signing the mortgage. 110 We think Mr Barwick was well aware in January/February 1991 that the loan from the National Bank to Mrs Roberts was to be secured and was actually secured by a first mortgage. 111 We are confirmed in this view by Mrs Roberts' evidence of the meeting with her brother, joined by Mr Dechnicz, in early April 1992 to which we refer below. 112 In his statutory declaration of 2 May 1997 (Exhibit F) Mr Barwick in paragraphs 55 and 56 deposed that he was not aware when the loan of clients' money had been made that Mrs Roberts' property was subject to the prior mortgage to the National Bank. It follows from our finding above that this evidence was false. 113 Accordingly we hold that ground 5B(f) of the Information against Mr Barwick is established. The contributory mortgage 114 The contributory mortgage is in Exhibit U at page 81. It is dated 20 March 1992. It is expressed to secure a loan to Mrs Roberts by three clients of the firm for a total of $85,000. It is for a term of one year and provides for payment of interest. 115 Mrs Roberts' signature appears as the mortgagor. Her signature is purportedly witnessed by Mr Symond, a solicitor employed by Barwick Dechnicz Boitano. He was not called to give evidence. 116 The mortgage is signed by Mr Barwick for the Wilkinson estate. Mr Dechnicz signed for the Sklepkowycz estate without identifying that he was signing as solicitor for the mortgagee. Mr Mottram has signed personally. The signature of the mortgagees is apparently witnessed by Mrs Hayward. 117 According to Mrs Roberts, whose evidence we accept, the mortgage was signed on about 23 April 1992. The trust account ledger (Exhibit O) shows that the clients' funds had been used to pay Mr Dechnicz's creditors before then. 118 On page 4 of the trust ledger, payments totalling $85,000 were made to his creditors from 20 March 1992 to 9 April 1992. They are all misdescribed. A bank cheque to SLB on 20 March 1992 for $40,000 is described as "Smits Leslie Barwick payment of legal fees as per client's instruction". A cheque to SLB on 23 March 1992 for $20,000 is described as "Smits Leslie Barwick balance interest re settlement". A cheque to Esplins on 31 March 1992 for $15,000 is described as "Esplins solicitors legal fees". A bank cheque to the State Bank on 9 April 1992 for $10,000 is described as "State Bank of NSW part payment of loan". 119 Mr Dechnicz was the financial controller for the practice and looked after the trust accounts. He admitted that he gave the directions to the bookkeeper to pay these amounts and had stated on his cheque requisitions how they should be entered in the trust ledger. We think this was a deliberate concealment of the fact that clients' funds had been used by Mr Barwick and / used by him. 120 We think Dechnicz was at least an equal participant with Mr Barwick in devising and effectuating the scheme to make use of trust funds. 121 We now refer to the circumstances leading to the preparation of the contributory mortgage. 122 In early 1990 Mr Barwick had purchased office premises at Fennell Street, North Parramatta for about $900,000. The property was subject to a first registered mortgage to the ANZ Banking Corporation ("ANZ Bank") for about $400,000. Mr Barwick's understanding was that the Bank would not consent to any further encumbrances over that property, so that at the relevant times it was effectively not available for raising funds. 123 Mr Barwick also owned his family home at Beecroft together with his wife. This was also subject to the ANZ mortgage, it being an "all monies" mortgage. His wife had indicated to him that she would not agree to any further borrowings on their home. 124 Mr Barwick also owned an unimproved property at Bungan Head, Newport which he wished to sell in subdivided lots. Ultimately the subdivision proved successful although not until well after the events in question. At the time of the contributory mortgage, subdivision approval had not been granted and the project had a history of repeated obstacles and delays. Mr Barwick was optimistic that approval was imminent, however it took about a year to obtain final approvals so that the pre-sales of the lots could be completed. 125 In about November 1991 Mr Dechnicz's partnership in Smits Leslie Barwick ended in circumstances which led to Supreme Court proceedings. These were settled on the terms of a deed of settlement (Exhibit B10) which required Mr Dechnicz to pay $127,858 by 31 March 1993 by instalments of $40,000 by 27 February 1992, $20,000 by 15 April 1992, $30,000 by 30 September 1992 and thereafter the balance. 126 Esplins, solicitors, had acted for Dechnicz in his dispute with his former partners and Mr Dechnicz incurred a debt to them for legal fees in an amount of about $15,000. He also had a debt to the State Bank of about $10,000. These debts, together with the first two instalments due to SLB, were the debts paid from monies in the BDB trust account. 127 On about 1 December 1991 Barwick and Dechnicz established a new firm of Barwick Dechnicz and Boitano. Mr Barwick and Mr Dechnicz were equal equity partners. Mr Boitano was a salaried partner. 128 It is clear that at all relevant times, Mr Barwick and Mr Dechnicz had virtually no cash resources or available assets to raise funds to meet their debts and the expenses of their practice. 129 Mr Dechnicz's position was especially difficult. He was unable to pay even the first instalment due to SLB on 27 February 1992. Mr Smits was pressing hard for payment. On 18 March 1992 SLB had obtained judgment against him for $128,000 and both he and Mr Barwick feared that if Mr Dechnicz did not pay SLB it would lead to his bankruptcy, to the prejudice of their new firm. Dechnicz was worried, agitated and extremely apprehensive about what might happen if he failed to pay SLB. He made this known on several occasions to both Mr Barwick and Mr Boitano. The matter was raised in partnership meetings. 130 It was in these circumstances that a supposed loan of $85,000 of clients funds was made to Barwick's sister, Mrs Roberts, on the security of a mortgage over her home dated 20 March 1992. The loan advance was never paid to Mrs Roberts. The mortgage was not stamped [by which we mean, not until well after the trust account inspection], registered or protected by a caveat. The matter came to light during a routine trust account inspection of the records of BDB in August 1992. 131 At the hearing there was an issue between the respondents as to who made the first approach to the other to use clients' funds. We do not think anything turns on this. We take the view that the respondents participated in putting in place the transaction involving the contributory mortgage. We are in no doubt that they acted together in what was a joint enterprise. Signature by Mrs Roberts 132 Mr Barwick's case is that the $85,000 was raised to pay Dechnicz's debts and that the intention of the transaction was that the clients' funds would be lent to Dechnicz, with Mrs Roberts being interposed as the immediate borrower and mortgagor. Mr Barwick denied that he was the borrower from Mrs Roberts or that he owed any obligation to Dechnicz to pay him the money. 133 Mr Dechnicz's case is that Barwick was the borrower, with Mrs Roberts interposed, and that the funds were applied in payment of Dechnicz's debts in partial discharge of Barwick's obligation to pay Dechnicz $120,000 for the purchase of his share in the practice. 134 Mrs Roberts says however that she was unaware she had even signed the contributory mortgage. She was unaware of the existence of the contributory mortgage until it was brought to her attention by an officer of the Law Society in 1997 during the course of its investigation. 135 Mr Barwick's evidence in his Statutory Declaration of 2 May 1997 (Exhibit F) was that in the latter part of March 97 there was a conversation between him, Mr Dechnicz and Mrs Roberts when Mr Barwick said to Mrs Roberts: "Roman is raising some money to meet commitments and there will be a number of lenders. If we're going to raise money we need to be able to secure it on property. I can't help at the moment." Mrs Roberts said: "That's OK, you can use my title. The title deed to the property is with the Bank." 136 Mr Dechnicz in his Statutory Declaration of 17 November 97 (Exhibit RAD 11) denies this conversation. He admits he attended a joint meeting with Mrs Roberts at their offices in early April 92. He says that at this meeting Mr Barwick said: "I have been speaking to Dee about her assisting me to purchase my interest in the practice, Dee is prepared to let me have the use of her title deed for the property she owns at Mosman to be used as security." Mrs Roberts said: "Roman, Boss has explained the situation to me and I am prepared to help him as he has helped me many times in the past". 137 Mrs Roberts denies the conversation relied on by Mr Barwick. She deposes that in early April 1992 she had a conversation with her brother and Mr Dechnicz at their offices. Mr Barwick said to her, in Mr Dechnicz's presence: "Di, I need to reorganise my finances and I need your assistance. I have run out of securities. As you know Roman and I have gone into practice with very little capital and although the bank has assisted us we do need to raise some additional capital and they are reluctant to give us any further money unless we can come up with some other security. As you are already mortgaged to the bank it would be easier for them to cover the additional borrowings with your security. ... We can add it to the existing mortgage and we can combine your indebtedness with ours." Mrs Roberts then agreed to provide security to the bank. This evidence is consistent with her oral evidence. At T420 Mrs Roberts said that both Barwick and Dechnicz were present on the occasion that Barwick asked her to allow her home to be used to raise money from the National Bank for their practice. 138 We accept this evidence which shows that both Barwick and Dechnicz were aware by April 1992 at the latest of the prior mortgage to the National Bank. In any event, by April 1992 the title search of the property had apparently been obtained which disclosed the existence of the bank's first mortgage. 139 Mrs Roberts deposes that on about 23 April 92 she went to their offices after work. On that occasion both Mr Barwick and Mr Dechnicz were there as well as a bank manager from the National. She signed what she believed were bank documents. Before signing the manager said to her: "You have already got a mortgage to the bank and I understand that you have agreed to extend that mortgage to cover further borrowings by your brother." 140 Mrs Roberts believes that she unwittingly signed the contributory mortgage on 23 April 1997 when she went to their offices to sign the documents for the National Bank (T421). She thought she was signing documents for the bank for a loan of $45,000 as additional capital to the practice (although she later discovered that the guarantee she had signed was for $200,000). However she says this must have been when she signed the contributory mortgage (T431). She said (T432) she had no recollection of borrowing from clients of the practice. 141 We accept this evidence. Mrs Roberts was a reliable witness. We do not consider Mr Barwick to be a witness of credit, nor Mr Dechnicz, and we prefer her evidence to theirs. 142 Mrs Roberts' unsworn affidavit was prepared by her in relation to certain equity proceedings against her brother commenced in 1995. It seems her affidavit was prepared about 1997 when the events would have been relatively fresh in her mind. Mrs Roberts was unaware that she had granted any "private mortgage" over her home and she did not recall borrowing money from any of the clients of BDB We think she would have recalled this, certainly at the time her earlier unsworn affidavit was prepared. We have no hesitation in accepting her evidence. Signature by and for the lenders 143 The lenders under the contributory mortgage are shown as: (a) Mr Barwick as executor of the Wilkinson Estate - $38,000 (b) Mr Mottram - $20,000 (c) Messrs Kolomyjek and Figol - $27,000 144 Although Messrs Kolomyjek and Figol were executors of the Sklepkowycz estate or Foundation, this is not apparent from the mortgage. 145 Ms Hayward's signature appears as the witness to the signatures for all the mortgagees, however the evidence of Mr Dechnicz was that she was not present when he signed the mortgage. He says that he signed it in late February or early March 1992 and did not consider her presence was necessary, since he was signing as the solicitor for Messrs Kolomyjek and Figol. We reject his evidence that he signed the mortgage in February or early March. 146 It is common ground that Mr Barwick had no authority to lend the monies from the Wilkinson estate. The will did not authorise the loan because it was on contributory mortgage. Mr Barwick says that he was not aware of his want of authority at the time. 147 It is common ground that Mr Barwick did not seek or obtain the consent of one of the beneficiaries to the loan, the Lenihan estate. He says that he had the consent of the other beneficiary, Mrs Fulton. We reject this evidence which we deal within more detail in relation to the handwritten file notes. 148 Mr Barwick says that Mrs Fulton ratified the loan at the end of the term when she signed a general lending authority at her home on about 25 February 1993 (Exhibit U page 400). This is for a registered mortgage "contributory or otherwise". After Mrs Fulton signed the authority it was pre- dated 24 August 1992. Mrs Fulton's evidence is that she was not informed of the true nature of this document by Mr Barwick. She gave evidence that he told her it was a release to allow the final distribution under the estate to be made to her. We accept this evidence and deal with it in relation to the Wilkinson estate. 149 There is also in evidence a general lending authority from Mr Barwick as executor of the Wilkinson estate dated 20 June 1993 (Exhibit Q). This was a document that Mr Sofiak, the trust account inspector, had obtained from the files. 150 Mr Dechnicz says that he spoke with Mr Mottram by telephone on 20 March 1992 and his file note of the conversation was in evidence. He says that Mr Mottram agreed to a composite mortgage to Mrs Roberts. He was not present when Mr Mottram signed the mortgage. He conceded that he would not have told Mr Mottram that the mortgage would be a second mortgage. 151 Mr Mottram signed a general lending authority also (Exhibit U page 398). That authority is also dated 24 August 1992. In a letter dated 13 May 1994 to the Law Society Mr Mottram says that the circumstances and conditions of the loan were well explained to him "at the time" and that he gave authority at the time of the loan. The general lending authority that he signed is for a registered first, second or contributory mortgage. He was not called to give evidence. 152 Mr Kolomyjek (but not Mr Figol) had signed a general lending authority (Ex S) as trustees for the Sklepkowycz Foundation dated 1 December 1991. This is for a first registered mortgage or contributory mortgage. 153 At the hearing there was an issue between Mr Barwick and Mr Dechnicz about whose client Mr Mottram was. Mr Mottram was an acquaintance of Mr Barwick's who had worked in his campaign for Federal Parliament. We do not think anything turns on this. 154 All the authorities are for registered mortgages. Mrs Fulton's and Mr Mottram's permit a second mortgage but the authority from Mr Kolomyjek is for a first mortgage only. When this was pointed out in cross- examination Mr Dechnicz said (T944) that he held other authorities from him to lend on second mortgage. None was tendered. We do not accept this evidence. 155 Mr Kolomyjek provided a Statutory Declaration (Exhibit RAD 4). He says that Mr Dechnicz approached him in January/February 92 regarding a loan to his partner's sister, Mrs Roberts as a combined loan with other lenders. He says Mr Dechnicz told him that the funds would be by way of "first mortgage". 156 The mortgage of course was never registered, nor do we think registration was intended by either Mr Barwick or Mr Dechnicz. By reason of the first mortgage to the National Bank, it was at no time capable of being registered. No request for the bank's consent to a second mortgage was made or considered at any stage. This confirms the view we hold that the mortgage was never intended to see the light of day at the Land Titles Office. 157 This was a clear breach of the duties owed by each of Mr Barwick and Mr Dechnicz to their clients. It matters not whose client Mr Mottram was. The Obligations between the Respondents 158 The Law Society alleges that Mrs Roberts was the ostensible borrower of the clients' funds under the contributory mortgage and that Mr Barwick borrowed the $85,000 from her and thereafter paid it to Mr Dechnicz or in discharge of Mr Dechnicz's debts pursuant to an obligation that he owed to Mr Dechnicz. The Law Society submitted in closing that the resolution of this issue is not necessary for the determination of the Informations. We agree. 159 In the event we are wrong we will make a finding. 160 Since Mrs Roberts was unaware that she was the borrower of the clients' monies, she lacked the necessary intent to make a loan of the $85,000 to Mr Barwick as alleged in the Informations. The $85,000 was not received by Mrs Roberts even notionally. There was no ledger card created for Mrs Roberts and no entry in trust account showing payment her. 161 The money was paid directly from the trust account to Mr Dechnicz's creditors in four amounts between 20 March 1992 and 9 April 1992 (Exhibit O page 4). These payments were made at the direction of Mr Dechnicz. He drew the cheque requisitions (T 899). He directed the firm's bookkeeper how to describe the payments. The descriptions of the payments are misleading and he conceded they are. 162 We have found that Mrs Roberts signed the contributory mortgage on about 23 April 1992. This was after the clients' funds had been used by Mr Dechnicz to pay his creditors. We note that the first such payment was made on 20 March 1992 which may explain why that date was selected as the date to be shown on the contributory mortgage. 163 There was an issue between Mr Barwick and Mr Dechnicz at the hearing as to who was the immediate recipient of the money after it had been ostensibly borrowed by Mrs Roberts. Mr Dechnicz's case was that in substance Mr Barwick was the borrower. He said that Mr Barwick owed him $120,000 for the purchase of his share of the practice or Mr Dechnicz's work in progress and the money was obtained by Mr Barwick and notionally provided to Mr Dechnicz in partial discharge of this obligation. 164 Mr Dechnicz asserted the existence of this obligation without giving very satisfactory evidence in support. He pointed to the first partnership accounts which contained a reference to the amount of $120,000. He also gave evidence that his work in progress was about $240,000 - $250,000 with the implication perhaps that Mr Barwick as an equal partner had agreed to pay about half this amount. 165 Mr Barwick denied that he had agreed to pay that amount to Mr Dechnicz to enter partnership with him. He gave evidence of a conversation before they entered partnership in which he says it was agreed that his contribution would be the provision of the Fennell Street premises rent free, with a contribution of office furniture and payment of an amount of money towards the fitout of the offices. He says that indeed he did provide the premises rent free from 1991 to 1995 when the partnership dissolved at an estimated rent of $150,000 per annum 166 .The evidence of Mr Boitano supported Mr Barwick's evidence. 167 Mr Dechnicz denied the conversation and said it was the intention that the practice would pay rental as soon as funds started to come in. Of course what happened was that the overdraft kept escalating so this did not occur. No amount for rent was quantified. 168 Their partnership agreement is not recorded in writing and the evidence on this aspect was inconclusive in establishing a contractual obligation upon Mr Barwick which was enforceable in March 1992. There is a suggestion in the evidence that Mr Barwick's obligation would not arise until after he had subdivided his property at Newport and received the proceeds of sales. 169 However we do find that Mr Barwick owed a financial obligation (to use a general expression) to Mr Dechnicz to pay him some money for the purchase of a share in the practice. Mr Barwick believed at the time the clients' funds were used, that he had to make a payment to Mr Dechnicz. Mr Dechnicz was exerting pressure on Mr Barwick to do so. We do not accept Mr Barwick's explanation that he entered the transaction simply to assist Mr Dechnicz in his predicament, although that was one of his reasons for doing what he did. 170 In coming to this finding we accept the evidence of Mrs Roberts concerning her meeting with Mr Barwick in early February/late March 93 at a coffee lounge near their offices when Mr Barwick said to her: "As you know I have purchased an interest in Roman's practice and I owe him for my share". 171 We also rely on Mr Barwick's handwritten letter to Mrs Roberts (Exhibit U page 283) which says: "When I left Smits I had no practice ... I went into partnership with Roman. I bought into his work in progress and goodwill but had no cash. Roman and I are equal partners but out BDB accounts show an indebtedness on my part." 172 As well there is Mr Barwick's letter to the Law Society dated 12 May 1993 which in paragraph 2.3.4says: "Mr Barwick had (sic) requested his sister to assist him with finalising the outstanding affairs of the new partnership ... and in order to raise funds to do so, she asked this office to provide mortgage funds". 173 Accordingly on this issue we would, if it is necessary to do so, accept the allegation of the Law Society that there was an obligation owed by Barwick to Dechnicz. The Regulations - The General Lending Authorities 174 Regulation 32 (1) of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 prohibits the loan of money to be secured by mortgage where a solicitor acts for the mortgagee unless the solicitor has previously obtained an authority in writing in the prescribed form from the lender. 175 Both respondents admit a formal breach of the regulation. The general lending authorities to which this ground relates do not extend to an unregistered mortgage. 176 The respondents deny their breach was wilful. The classic definition of "wilful" is given in Re Hodgekiss (1962) 79 WN (NSW) 163 at 172 per Hardy J: "In the instant case the duty of the solicitor to his client is based upon a contractual and fiduciary relationship. Upon that relationship and duty the legislature has superimposed express statutory duties. Breaches of those duties are not made an offence punishable summarily, as are breaches of other sections of the Act. The sanction or penalty provided by the Act is the exposure of the solicitor concerned to the disciplinary and punitive powers of the Court and of the statutory committee in the event of the provisions being breached and such breach or breaches being wilful, and to the exercise by the institute of its power to cancel or to refuse to renew the solicitor's practicing certificate whether - it would seem - the breaches be wilful or not. The fact that the duties which form the subject matter of Section 43 are statutory does not render inappropriate or inapplicable the principles laid down in the cases already cited for the determination of the question as to whether there has been "wilful failure" on the part of the solicitor to comply with Section 41 or Section 42. Applying those principles, I am of opinion that the Section deals with personal breaches of the statutory provisions in question on occasions when the solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard. It is thus essential in an inquiry as to whether or not there has been wilful breaches by a solicitor of the provisions of Sections 41 to examine the facts and circumstances relevant to his state of mind, knowledge and intention at the material dates." 177 We note that the general lending authorities are less than unsatisfactory in that they do not disclose the true purpose for which the loan was made. They do not disclose that Barwick and Dechnicz would each benefit from the loan in the ways we have set out above. 178 Mrs Fulton's authority was provided about a year after the event and on the basis of false information from Mr Barwick and is accordingly ineffective to ratify what was done. In any event it does not extend to an unregistered mortgage, as this was. 179 The general lending authority signed by Mr Kolomyjek does not cover an unregistered or a second mortgage. He was only asked by Dechnicz to agree to a first registered mortgage (Exhibit RAD 4). His consent does not extend to the transaction which was put in place. 180 Mr Mottram was not called and the circumstances surrounding the signature of his general lending authority are murky. His authority does not cover an unregistered mortgage either. 181 "Wilful" embraces both deliberate and reckless states of mind. Mr Barwick admitted that he acted recklessly in certain respects. Mr Dechnicz admitted that he had acted negligently in some respects. 182 We find that each of the respondents acted deliberately. Alternatively we would find they acted recklessly. Accordingly we find they each acted wilfully in breach of section 61(1)(b) of the Legal Profession Act. 183 We hold that Grounds4(b) and 4(c) of the Barwick Information and Grounds2 and 4 of the Dechnicz Information are established. The Regulations - The Epitome of Mortgage 184 An epitome was prepared for the contributory mortgage. It was typed by Mrs Hayward at Mr Dechnicz's direction. It is admitted by both respondents that the epitome was not in the prescribed form 6 but in a superseded form. This is a technical breach which pales into insignificance in light of the other misconduct which we find has occurred. 185 However clause 33 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 also requires that an epitome be sent to "each lender and contributor whose money has been lent". 186 Mr Barwick deliberately refrained from sending the required notice to Mrs Fulton. This would have alerted her to the existence of the loan. We find that Barwick's breach of the regulation was wilful and in contravention of section 62 of the Legal Profession Act 1987. 187 Since the regulation requires that a notice be issued to and neither respondent ensured that a notice was issued to Mrs Fulton, the regulation is breached. 188 We also find that Dechnicz acted wilfully in contravention of the regulation in relation the loan from the Sklepkowycz Foundation. Mr Dechnicz was a most experienced mortgage lending solicitor. He prepared the epitome and would have been well aware of the requirement of notice to the lender. We find that his breach of the regulation was wilful and in contravention of section 62 of the Legal Profession Act 1987. 189 Accordingly we hold that Grounds 4(d) and 4(e) of the Barwick Information and Grounds 3 and 5 of the Dechnicz Information are established. The Regulations – Independent Legal Advice 190 Clause 27(2) of the Legal Profession Regulation 1987 prohibits a solicitor from borrowing money, or permitting an associate of the solicitor to borrow money, from a client of the solicitor except in the circumstances provided. They include the provision of independent legal advice to the lender to and a certificate of independent legal advice, and full disclosure by the solicitor of the interest in the proposed borrowing of the solicitor or associate. 191 "Associate" is defined in the Legal Profession Act 1987 section 60(2) and (3) to include a sibling of the solicitor or his partner, and the partner of the solicitor. We set out extracts from the section below. 192 It is common ground that Mrs Roberts, as Mr Barwick's sister, was an "associate" of each of the respondents and that the lenders under the contributory mortgage were "clients" of each respondent within the meaning of the regulation. 193 The respondents admit the regulation was breached. However each of Barwick and Dechnicz says that at the time of the loan, he was unaware that Mrs Roberts was an associate. We do not accept the evidence of either respondent. 194 We deal below with the evidence of Mr Dechnicz relating to the way the transaction was structured. We deal elsewhere in these reasons with our finding that Barwick and Dechnicz acted in concert in putting in place the contributory mortgage transaction. We find that the supposed loan transaction was carefully conceived and fully discussed between Mr Barwick and Mr Dechnicz. We find that they each fully understood that the purpose of the regulation is to regulate the loan of clients' funds to persons associated with their solicitors and each knew that Barwick's sister was their associate as defined. 195 Mr Dechnicz and Mr Barwick were both experienced conveyancers. They would each have been well aware of the provisions of sections 60 – 62 of the Legal Profession Act and regulations concerning the requirements imposed upon loans or use of trust funds by solicitors or persons associated with them. 196 Mr Dechnicz in particular would have been well familiar with the requirements for lending of clients' funds. He conducted a large mortgage lending practice. He was the managing partner and financial controller for the firm and had the role of keeping their trust account. 197 We also find that the failure by each of them to comply with regulations concerning loans to associates was wilful and in deliberate breach of the regulations. 198 We find that ground 4(a) of the Information against Mr Barwick is established and ground 1 of the Information against Mr Dechnicz are established. The Trust Account Inspection 199 On 18 and 19 August 1992 a routine Trust Account Inspection was made by Mr Sofiak. On the first day of his visit he spoke to Mr Dechnicz. On the second day of his visit he spoke with Mr Barwick. 200 At this time the mortgage was not stamped, was unregistered and was not protected by a caveat. 18 August 1992 201 On 18 August 1992 Mr Sofiak conducted a preliminary interview in the course of which he asked Mr Dechnicz a standard questionnaire including question (i): "Have you, your partners or associates (including corporations and partnerships) borrowed money from a client since the date of last inspection?" Mr Dechnicz answered "No". 202 This was a false answer, however the supposed contributory mortgage transaction is analysed. It does not matter whether Mrs Roberts, Mr Barwick or Mr Dechnicz is properly to be regarded as the borrower, the borrowing of trust funds was by an "associate". "Associate" is defined in the Legal Profession Act 1987 section 60 for the purpose of Part 6 of the Act which deals with Trust Accounts. The section provides: "(2) In this Part, a reference to an associate of a solicitor is a reference to: (a) a partner of the solicitor, whether or not the partner is a solicitor; ... (e) a person who bears a prescribed relationship to the solicitor or a person referred to in paragraphs (a)-(d); or ... (f) a person prescribed by the regulations as an associate of the solicitor." By subsection (3) a person bears a prescribed relationship to a solicitor or other person if he or she is a sibling. Mrs Roberts was clearly an associate of Barwick and also Dechnicz. If Barwick was the true borrower, as Dechnicz's partner he too was an associate. 203 By section 61(7) a wilful contravention of subsection (1) is professional misconduct. 204 Section 61(4)(a) of the Legal Profession Act provides that "Money received by a solicitor on behalf of another person is not available for payment to a creditor of the solicitor". This is the substance of what was done. 205 Mr Dechnicz concedes that he gave a false answer to the trust account inspector but says it was honestly given in ignorance of the fact that Mrs Roberts was a "deemed" associate or "client" of the firm such that the correct answer would have been yes. He says he did not even think there was an issue that she fell into that category (T831). We do not accept this evidence. We do not think for a moment that Mr Dechnicz took the trouble to structure the loan in the way that he did without first carefully considering the Legal Professional regulation concerning lending of clients' funds. The transaction was designed to hide the true borrower(s) and the true purpose of the transaction. 206 We find that Dechnicz gave a deliberately incorrect answer to Mr Sofiak's question and thereby attempted to mislead the Law Society. 207 Mr Dechnicz said that the interposition of Mrs Roberts as the immediate borrower of the clients' funds was for the purpose of avoiding breach of the Regulation. He conceded (T878) that had the loan been made directly either to him or Mr Barwick, it would have been an unauthorised transaction. When asked: "Q. Did you have any conversation with Mr Barwick along the lines 'Look, you can't do this directly, it's a clear breach of the Act?' A. I think that is why it was done that way, it was the fact that there was a breach of the Act, that if we borrow money from our own clients then that is breach of the Act, and that is why Mrs Roberts was the person to whom the money was lent." 208 It was put to Mr Dechnicz (T874): Q. "Now in substance and on the probability you knew didn't you that Mr Barwick was going to be the true borrower? A. Yes, but the way I interpreted that was Mr Barwick was not the prime borrower of this money, Mrs Roberts was the borrower. Q. The form of the transaction you addressed your mind too? A. Yes and that …he would be a borrower from Mrs Roberts not from these particular people per se. The direct line was not there". 209 At the time of the mortgage transaction, Mr Dechnicz was aware that if the loan of clients' funds had been made directly to him or to his creditors, or directly to Mr Barwick, there would have been an unauthorised transaction and he conceded this at the hearing (T878). He admitted that the reason for Mrs Roberts being interposed as the borrower was to avoid a breach of the Legal Profession Act on the basis that (T879). "Mrs Roberts was the person to whom the money was lent. What she did with that money was then a matter for her and it happened to be that she paid Mr Barwick, who then paid me". Had it been simply a matter of using Mrs Roberts' security, she need not have been shown as the borrower. 210 We think the form of the transaction was a scheme of Dechnicz's devising to avoid the prohibition on borrowings of client funds by solicitors. He gave evidence at the hearing that what had probably happened was that he needed to use client's money to pay his creditors and had come up with the idea of having an apparently independent person [Mrs Roberts] interposed as the borrower, to give the appearance that no breach of the regulations took place [T878]. We think it was also to avoid the prohibition in section 62(4) on the use of trust funds to pay creditors of a solicitor. 211 That Mr Dechnicz was the architect of the plan is suggested by his notes/line diagrams made at the time of the loan. (Exhibit U pages 78 and 80). The notes headed "9581" related to the lenders' file. On this page Mr Dechnicz shows the incoming clients' funds on the right hand side, with his payments to creditors on the right hand side. The other notes set out the mechanism for the clients' funds to be paid. These show that a mortgage file should be opened for Robbins (Mrs Roberts' former name in which title to her property was held) and the funds should be transferred to her account and from there, paid to Mr Dechnicz's creditors shown by three arrows next to Mrs Roberts' account. 212 In these circumstances we do not think it was overlooked that Mrs Roberts was as associate. 213 We hold that particular (a)(i) of Ground 8 of the Information against Mr Dechnicz is established. He attempted to mislead the Trust Account Inspector by failing to disclose that the mortgagor was his partner's sister. 214 Mr Dechnicz also failed to disclose to the Inspector that he had a personal interest in the proceeds of the loan secured on the contributory mortgage. The intention of the Act and Regulations is clear. It is to prevent the unauthorised use of clients' funds by solicitors or persons associated with them except on certain conditions. In the circumstances it would have been prudent for Mr Dechnicz to have disclosed his receipt and use of the client monies, and to disclose the way the transaction had been structured. We think that the questions by Mr Sofiak called for fuller and accurate disclosure and by failing to make full disclosure he attempted to mislead the Inspector. 215 We find that Dechnicz's answer was intentionally misleading and we hold that particular (ii) of ground 8(a) is also established. 216 We do not think the circumstances called for disclosure of the time taken in completing the Wilkinson estate and we do not find against Dechnicz on particular (iii) to Ground 8. 217 On the first day Mr Sofiak had observed that the Miss Wilkinson's will made no provision for investment on contributory mortgage and there was no authority from Mr Mottram. He also noted that the epitome was in a superseded form and that although it showed interest payments were due in June, they had not been received. He had asked to examine the security documents, especially the contributory mortgage. Mrs Hayward told him the mortgage was with Mr Barwick and was not able to be inspected. 218 Mr Sofiak noted on his report that further action was required in respect of the mortgage to Mrs Roberts. He left a copy of his report with Mr Dechnicz. 19 August 1992 219 On 19 August 1992 Mr Sofiak returned for the second day of his inspection. He had some difficulty in speaking to Mr Barwick but managed to catch up with him just as he was leaving the office. Mr Sofiak told Mr Barwick that the Wilkinson will made no provision for investment on a contributory mortgage and that that no lending authority appears to have been obtained from James Mottram. He wished to see the registered mortgage. 220 Mr Sofiak gave evidence is that Mr Barwick told him the mortgage had been sent for registration that day. We accept this evidence. Mr Sofiak's recollection is supported by his contemporaneous notes. 221 Mr Barwick said that he told Mr Sofiak the mortgage had been sent for stamping. We think nothing turns on this except the issue of Mr Barwick's credit. The mortgage had not been sent for stamping or for registration so whichever explanation Mr Barwick gave Mr Sofiak, it was false. Doubtless the reason he gave the false answer to Mr Sofiak was to avoid having to show Mr Sofiak the unstamped and unregistered mortgage. 222 We think Barwick then set about fabricating documents relating to the contributory mortgage to give the appearance that it had been sent for stamping and been mislaid in the process. 223 He prepared a "checklist" (our description) (Exhibit U page 211). This is a crucial and damaging piece of evidence in the case against Mr Barwick. It is in his own handwriting. It lists: "Instructions memo search – enquiries receipts – costs epitome. Receipt of stamp duty/cash from RGB [Barwick]" memo Send to SDO [Stamp Duties Office] Delays at SDO Loss of mortgage Caveat - RAD [Dechnicz] to sign Memo to Legalities Letter to DMR [Mrs Roberts] re Letter from DMR [Mrs Roberts] re payment of costs and saying going to re-finance" 224 Mr Barwick admitted these were his notes. He said he thought he had made them before the inspection by Mr Sofiak. It is difficult to escape the obvious conclusion that that is a list of things to do in order to give the appearance of legitimacy and to explain his failure to produce the mortgage to Mr Sofiak. 225 We find below that Mr Barwick undertook such an exercise by creating some typed letters and documents concerning the mortgage. We observe at this point that the checklist refers to letters to and from Mrs Roberts and that one of the letters ("MH-N") falls within the description on the checklist. We also find (below) that Barwick created false file notes to be placed on the Wilkinson estate file. 226 The mortgage file (Exhibit B5) contains a title search of Mrs Roberts' property by Legalities. It is undated but stamped as received on 26 March 1992. The search shows the registered mortgage to the National Bank in February 1991. The failure to obtain a search until after the loan of client funds is a clear departure from good conveyancing practice which may have placed clients' funds at risk. 227 Although an unsigned caveat appeared in the file, none was lodged. We note that a caveat is one of the documents on Mr Barwick's checklist. We think that the caveat was prepared well after the event as part of Barwick's attempt to justify to the Law Society what had taken place. 228 Finally we mention that on 10 November 1992 stamp duty was paid on the contributory mortgage in the amount of $281. That was paid in cash by Mr Barwick. We were not told why it was decided to finally stamp the mortgage some eight months after it had been signed, presumably because a response had to be made to the Law Society and a copy of the mortgage provided. At the very least, a stamped mortgage would have to be produced. The file notes 229 On 5 April 1993 Mr Barwick left a handwritten memorandum for Ms Hayward headed "Di Roberts" asking Ms H to attend to certain matters relating to Mrs Roberts' application for the loan from St George (Exhibit U page 307). This was the application for a loan of $95,000 to be used as to $85,000 by Mr B to discharge the contributory mortgage. 230 Paragraph 3 of his note, Mr Barwick raises a personal conflict if he was to act for his sister in relation to her mortgage to St George, given that his firm also acted for St George. In this contest wrote: "I think it preferable no file be opened in Di's name. What do you think? Nothing turns on this although it is yet another example of Mr Barwick's preparedness to conceal matters which might reflect badly on him. 231 The note concludes: "Tape herewith for you re other matters." The other matters included the Wilkinson estate file. 232 Although Mr B wrote "tape" not tapes, Ms Hayward's evidence was that she was left two tapes for typing by Mr Barwick. One tape is evidence as exhibit M, together with a rough transcription which appears in exhibit U at page 312. The Tribunal heard the tape played at the hearing and the transcipt is accurate apart from some minor discrepancies of no importance. 233 The tape is a damning piece of evidence against Mr Barwick. It commences by saying "Motra, I'll give this tape to you if you do not mind, it relates to tidying up some things in advance of the trust account inspector turning up." This reference is to the anticipated return of the Trust Account Inspector in relation to the contributory mortgage, the Wilkinson estate and the general lending authorities. At the time it was dictated, the Law Society by its letter of 13 Jan 1993 had foreshadowed that the matter might be referred to the Professional Conduct Committee. 234 On the tape Mr Barwick says (in part): "The next one that's got to be looked at Motra is the Wilkinson estate and I will leave the file with this tape. There are some notes there which need not be put on the file, there are some other notes which I think should be put on the file ...I think the starting point is whether the Wilkinson estate file has been seen by the Inspector before and at what time ... I think there should be an early note that we would probably invest the funds pending sorting out tax and other problems relating to the administration of the estate. Then after that there is a letter which we sent off to Mrs Fulton saying there is a tax matter to be dealt with, I think after that I spoke to her and told her that I'd decided to invest the funds ... Then further down the track we should report to her about delays that will be later in 1992, just by phone messages saying 'Still waiting to administer the Estate and tidy up the tax, the accountants have asked for a lot more material etc...Now I think what we've got to do is put a letter on the file directed to the executor, Estate late Eileen Gertrude Lenihan, c/o Peat Marwick in Melbourne saying ... 'Please furnish evidence of the death of the abovenamed. It occurs to us that you may also be able to furnish evidence of the death of Kathleen Winifred Lenihan late of Canberra, who we believe was the sister-in-law of Eileen Gertrude Lenihan and who we understand also to be deceased. Now I don't want there to be any reference on the Wilkinson file Motra to the fact that we were at one stage acting for the Eileen Gertrude Lenihan Estate 8799, but I'll leave the file with the tape and from that file you can extract a copy of the death certificate if there is one there ... and place it on the Wilkinson file so that it actually has after I'd written that letter to the accountants in Melbourne and you might have a look through that Lenihan file and see if you can see a note of the death of Kathleen ... The purpose of going through that exercise is Motra to show that I made a mistake in supposing that Rosaline Fulton was only entitled to half the residue ... So it's a matter of noting up the file with those steps". 235 The tape directs Ms Hayward to put file notes on the Wilkinson estate file at a time when a further inspection by the Trust Account Inspector was anticipated. The clear tenor of the tape is that the estate file is to be sanitised, rearranged and falsified to mislead the Law Society to believe that certain steps had been taken which were not in fact taken, or to conceal other matters. 236 The handwritten file note of Mr Barwick annexure "MH-E" to Ms Hayward's affidavit (exhibit U page 315) bears date 28 February 1992. That note says: "Rang Margaret Fulton. Balance of estate funds sent to us from SLB. We to invest on short term mortgage funding. Estate tax returns being done – may be 6 months or so. She agrees will write to us and confirm. Better interest rate than building society – payable at end of term. She would like to see finalised distribution by end of year." 237 This file note was annexed to the statutory declaration made by Mr Barwick on 2 May 1997 (Exhibit F). This declaration was filed in the former Legal Services Tribunal in the proceedings which were affected by want of jurisdiction. In his declaration paragraph 45 Mr B deposes: "Exhibit 6 is my file note of my telephone conversation with Mrs Fulton on 28 February 1992. Although in that conversation I apparently suggested a short-term mortgage, I did not then know of the proposed transaction which resulted in the loan to my sister Mrs Roberts" The reference to the loan is to the contributory mortgage transaction. 238 Mrs Fulton gave evidence that Mr Barwick did not inform her or her late husband that the estate funds had been lent on mortgage until about 16 February 1993 just before the final distribution was made. She denied that she was advised at any time before 16 Feb 1993 that the monies were on short term mortgage and says she was never asked to consent to such an investment. Mrs Fulton says that if she had been asked to send a letter confirming that she consented to the investment, she would have done so as she is usually meticulous in following up such undertakings. She did not send a letter and this confirmed her evidence. 239 Mrs Fulton was a thoroughly reliable witness. It was obvious from Mrs Fulton's demeanour, from her correspondence in relation to the estate and the notes she prepared concerning her efforts to progress the administration of the estate and completely consistent with her training and work experience in the office of Sir William McMahon that this would be so. We have no doubt whatsoever that if Mrs Fulton had been requested to write to Mr Barwick she would have so and she would have done so promptly. 240 In cross-examination Mr Barwick conceded that he could not recall a conversation with Mrs Fulton to the effect set out in the note. He said that he did not know when he prepared this note. When it was put to him that the conversation never occurred, he denied that but conceded that "MH – E" may not be an accurate note of the conversation. Mr Barwick said that he did not think that the note was a contemporaneous note and accepted that, since it bears date 28 February 1992 it was capable of being understood as falsely representing but was a contemporaneous note of a conversation with Mrs Fulton on that date. He denied an intention to create a false note. 241 We reject Mr Barwick's evidence. He is not a witness of credit. He has shown that he is prepared to make a false declaration, fabricate documents, rearrange files and conceal material which might be prejudicial. His admissions do not go beyond the file notes in his own handwriting and his recorded voice on the tape. The evidence shows that Barwick developed over many months an elaborate web of lies and deceit in relation to the matters under consideration. In a calculated fashion he deliberately misled his sister, his clients and the Law Society. 242 We are in no doubt that the supposed file note "MH – F" was a fabrication and falsely purports to record a conversation with Mrs Fulton on or about that date, which did not occur. It was deliberately prepared to mislead the Law Society in its investigation by suggesting that Mrs Fulton had consented to the contributory mortgage. She knew nothing of it. 243 The next file note "MH – F" is dated 19 June 1992. It says: "Mrs Fulton rang. Told her money on loan – income earning. Still have to do tax – estate to pay… She to send me a note agreeing to short term mortgage investment – say six months or so". 244 This was also annexed to Mr Barwick's statutory declaration of 2 May 1997 filed in the former Tribunal. 245 Mrs Fulton's evidence was that she had no recollection of the conversation but it was possible Mr B had advised her that the moneys were invested. Had she been advised in such terms, Mrs Fulton stated she would have understood that to mean they were readily accessible, such as monies on call on an interest bearing deposit. She would have considered that unremarkable, however she was firm in her denial that she was not informed by Mr B that the estate funds were on short term mortgage investment. Again she says that if she had been asked to send a note she would have done so, but she did not. 246 In cross-examination on this file note, Mr Barwick denied that it was a false record. He said that he thought that he had spoken with Mr Fulton about a short-term mortgage investment. He conceded that the note was not prepared on or about 19 June 1992 and that it was not a contemporaneous note. However he denied that it was a false document. 247 We reject his evidence. In this regard, as we have said, we prefer the evidence of Mrs Fulton to the evidence of Mr Barwick without hesitation. In particular, we are influenced by Mrs Fulton's clear recollection of her late husband's reaction after the telephone conversation when Mr Barwick informed him that the estate funds had been lent on mortgage. Her husband's reaction is precisely how one would expect him to have reacted when first he heard of the estate funds having been put on mortgage, in light of their repeated requests that the estate be finalised. 248 The requests in the file notes for a letter or note from Mrs F agreeing to the mortgage do not sit easily with Mr B's protestations to the Trust Account Inspector on 19 Aug 1992 that he believed that as the executor of the estate, he could authorise a loan of estate monies. 249 The next file note "MH-G" is dated 19 June 1992. It says: "Rang Mrs Fulton. We still await word from accountants. We to have money invested...We still need a note confirming from her" 250 Mrs Fulton says she may have spoken with Barwick on this day. They may have spoken of the investment of estate monies in a short term interest bearing deposit or building society account. Indeed the balance of the estate monies were invested with St George Building Society at this time. However Mrs Fulton had a clear recollection that no reference was made to investment on a mortgage. 251 We accept Mrs Fulton's evidence. Throughout this whole period Mrs Fulton was keen to have the estate finalised, as anyone would wish after so many years. She and her husband were seeking unsuccessfully to speak to Barwick about the progress on the estate and he was clearly avoiding them. The last thing Barwick would have done was disclose to them that he had placed $20,000 of the estate monies on a one year mortgage. That would have invited questions and he would not have dared to tell them that the money had been used to pay his partner's debts. 252 The other file note "MH-H" is dated 3 Aug 1992. It says: "Mrs Fulton rang again. Still no result on tax return. Money invested. Four years to day since Wilkie died". "Wilkie" the testatrix, had been the secretary of Mr Barwick's father when he was in political office. 253 This note "Four years today since Wilkie died" which would be factually accurate if the diary note had been made on the date it bears. This gives it some semblance of authenticity. The reference to the money being invested is consistent with the fact that $18,000 of estate funds were indeed invested with St George Building Society in an interest bearing account. Mrs Fulton was did not exclude the possibility that a conversation such as this occurred on about the date shown on the file note. 254 Mrs Fulton did not strongly dispute this conversation. We make no finding on this adverse to Mr Barwick. The death certificate 255 Barwick does not admit that he instructed Mrs Hayward to reconstruct or cull the Wilkinson estate file to make it appear that he had obtained evidence of the death of Kathleen Lenihan at an early stage, to place a death certificate for Eileen Lenihan on the file and to conceal that he had at one time acted for the estate of the late Eileen Lenihan. 256 On the tape Mr Barwick requests Ms Hayward to: "[P]ut a letter on the file directed to the Executor – estate late Eileen Gertrude Lenihan, c/o Peat Marwick in Melbourne … saying … please furnish evidence of the death of the abovenamed. It occurs to us that you may also be able to furnish evidence of the death of Kathleen Winifred Lenihan, late of Canberra, who we believe was the sister-in-law of Eileen Gertrude Lenihan and who we understand also to be deceased." 257 No denial or explanation for this was offered by Barwick We accept the submission of the Law Society that this was a direction to Ms Hayward to prepare a false document to be placed on the Wilkinson estate file to give the appearance that such a letter had indeed been sent. Clearly this was false and misleading conduct in anticipation of the trust account inspectors return visit. It would be difficult to deny the evidence of his voice on the tape. The Borrower's File 258 The tape concludes with Mr Barwick saying: "Now lastly, subject to those things being looked at, Motra you and I can then get together on both files, that's to say the Wilkinson one and the one for Dee's loan, and see that things are matched up together". 259 Ms Hayward gave evidence that she understood the reference to the file "for Dee's loan" was to a file for Mrs Roberts as the borrower under the contributory mortgage. She said that the usual office practice at the time was to open a separate file for the borrower as well as a file for the lender(s) 260 Mr Dechnicz believed that a mortgage file had been opened for Mrs Roberts (T985, 868). 261 At the hearing the lenders' file showing Dechnicz as the solicitor was in evidence as Exhibit B5. However no file for Mrs Roberts was produced. The evidence does not allow us to determine whether there was such a file or not. If so we would think this is the file which Barwick wished to "match up" with the estate file. 262 Had a borrower's file existed it would give the appearance that Mrs Roberts was a client of the firm and that BDB was acting for both parties to the loan transaction, without the consent of either party to do so. 263 Mr Barwick's closing remarks on the tape show that it was his intention to falsify both the Wilkinson estate file and another file relating to the loan to Mrs Roberts, to give each file the appearance of legitimacy and to give them the appearance of consistency with each other. This was done in the course of the investigations into the matter by the Law Society and we are unable to understand how it is seriously suggested by Mr Barwick that in creating the file notes he did not do so for the purpose of misleading the Law Society. Mrs Fulton's evidence makes it abundantly clear that the conversations noted did not take place. 264 His attempts to explain how the file notes came into being, we find, is an example of giving deliberately false evidence. The typed documents 265 The Law Society alleges that Barwick falsely created the typed letters and documents which are annexures "MH – I" to "MH – O" to the affidavit of Mrs Hayward. The documents are in Exhibit U at pages 322 to 329. The originals are not in evidence. 266 Barwick denies that he is the author of these typed documents. He did not suggest who the author might have been. 267 Ms Hayward gave evidence that Mr Barwick's note dated 5 April 1993 saying "Tape herewith for you re other matters" was accompanied by two dictation tapes. After keeping both tapes for some years to protect her own position, she claimed to have erased one of the tapes in mid 1995 upon the dissolution of the partnership of BDB. She says that she did not discuss the contents of either tape with Mr Dechnicz until just before the proceedings were listed for hearing in 1997 (before the various appeals) when she informed him that she had one tape in her possession and Mr Dechnicz told her to provide it to his solicitor. 268 Barwick denies that he dictated a second a tape. 269 The documents which Ms Hayward says were dictated by Mr Barwick on the second tape are of such a nature that, if they had actually been dictated by Mr D, would have been highly prejudicial to him. They relate to the loan to Mrs Roberts and to conveyancing aspects of the contributory mortgage which Mr Barwick says were handled by Mr Dechnicz. We find that Mr Dechnicz was responsible for documenting the contributory mortgage, as we set out below. 270 There is a certain improbability about this aspect of Ms Hayward's evidence. Ms Hayward was clearly a highly intelligent person. She was a the office manager and a para-legal who had worked closely with her step-brother Dechnicz in legal offices over many years. She gave damaging evidence against Barwick and none against Dechnicz. Dechnicz is clearly far from innocent in this matter and yet that is the effect of Ms Hayward's evidence. This reflects on her credibility. 271 However we accept her evidence concerning the documents dictated on the erased tape. They are consistent with Barwick's "checklist" for the contributory mortgage and they fit the explanation he believes he gave to Mr Sofiak on the second day of the trust account inspection. 272 The file note and memoranda (annexures "MH-J" to "MH-L") refer to stamping the contributory mortgage, the mortgage having been mislaid when sent for stamping and the lodgment of a caveat in respect of the mortgage. They are undated. The two memoranda are from "RGB" but omit Ms Hayward's initials as would normally appear on a memorandum typed by her. She said she omitted her initials as she felt uncomfortable with what she was being asked to do, and one can readily understand that. 273 The content of the memoranda suggests they were prepared for the purpose of being placed in a conveyancing file for the contributory mortgage and we accept the submissions of the Law Society regarding the memoranda. 274 The other typed documents (annexures "MH-I" and "MH-L" to "MH-O") purport to be a file copy of a letter from Barwick to his sister commencing "Dear Mrs Roberts" and two letters from Mrs Roberts to Barwick commencing "Dear Ross" relating to the payment of interest under the contributory mortgage and the discharge of the mortgage. Ms Hayward gave evidence that Barwick told her to type the purported letters from Mrs Roberts on a typewriter not the office computer, and that he gave her a different paper to use for these letters, no doubt so they would appear to have been sent by Mrs Roberts on personal stationery. Barwick denied doing so, but this part of Mrs Hayward's evidence has the ring of truth about it and we accept her evidence in preference to Barwick's. 275 The content of these letters shows that they were prepared deliberately to support the version of events given by Barwick in his letter of 11 February 1993 to the Chief Trust Account Inspector (Exhibit Q page 268) which was continued in the letter dated 12 May 1993 signed by him(Ex U page 362). Mr Barwick does not suggest that Dechnicz composed the letter of 11 Feb 1993. 276 The combination of the typed documents and the file notes as well as the attempt to add to and cull the Wilkinson estate file, shows without any doubt that Mr Barwick engaged in a devious and deliberate exercise to mislead the Law Society in an attempt to conceal his misconduct. 277 But for the evidence of Ms Hayward and her presence of mind in keeping at least one of the dictation tapes, he may well have succeeded. Correspondence with the Law Society 278 By letter dated 22 April 1993 (exhibit U page 329A) the Law Society wrote to Barwick Dechnicz and Boitano addressed to the senior partner. There was a dispute between the respondent's as to who initially received that letter. We do not think anything turns on that. 279 Mr Dechnicz gave evidence (T823) that when it did come to his attention he was "quite irate" and challenged Mr Barwick for not bringing it to his attention sooner. His evidence was that it was handed to him by Mr Barwick, apparently some time after the date of sending, and was requested by Mr Barwick to assist with answering it. Mr Dechnicz then proposed that they seek advice and that Mr Barwick agreed with the course. 280 There is some dispute about the circumstances in which advice was obtained by Mr David Raphael. Mr Dechnicz's evidence was that Mr Barwick was with him when he met with Mr Raphael (T823) although Mr Barwick did not recall attending Mr Raphael's office for this purpose and he said he thought he was not present. We do not think it is necessary for us to resolve this. 281 On 7, 10 and 11 May 1993 Mr Sofiak made a follow up inspection of the records of Barwick Dechnicz Boitano. At this time the situation regarding correspondence between the firm and the Law Society was as follows: (a) The 21 October 1992 letter from Law Society to BDB was unanswered. (b) The 30 November 1992 seeking an early reply letter from Law Society to BDB was unanswered. (c) The 13 January 1993 letter from Chief Trust Account Inspector to BDB calling for a response by 13 February 1993 or he would consider forwarding the matter to the Professional Conduct Department was unanswered. (d) The 11 February 1993 letter signed by Mr Barwick to the Chief Trust Account Inspector enclosing photocopy of stamped contributory mortgage was unanswered. (e) The 22 April 1993 letter from Professional Standards Department of Law Society concerning matters reported by the Chief Trust Account Inspector was unanswered. 282 The Information against Barwick does not concern his letter of 11 February 1993 to the Chief Trust Inspector of the Law Society. That letter was in response to the Law Society's letter of 30 November 1992 calling for a reply regarding the matters raised in Mr Sofiak's trust account report of August 1992. Mr Barwick's letter says: "We wish to apologise for the delay in responding to your letter of 30 November, 1992. Attached is a photocopy of the duly stamped mortgage. There have been delays in securing registration, a caveat was prepared. In the meantime interest has been paid, the mortgagor has indicated that the advances are to be refinanced and discharged in full before the due date, together with interest then outstanding." 283 We have noted above the correlation between the final paragraph of this letter and the matters contained in the typed letters annexures "MH – O" and "MH – N" asserting an intention by Mrs Roberts to refinance with St George Bank and to discharge the contributory mortgage. 284 Despite what is said in Barwick's letter, in our view it was never intended by either Barwick or Dechnicz that the contributory mortgage would be registered or protected by a caveat over Mrs Roberts' property. 285 The mortgage was not capable of being registered, initially because it was not stamped and at all times because there had been no request made to or consent given by the National Bank to the registration of the contributory mortgage as a second mortgage. It seems tolerably clear that, had the Bank been requested to give consent, it would have refused. By the time the mortgage was finally stamped (after Mr Sofiak's inspection) the firm's overdraft account with the National Bank had climbed to substantial amounts and was continuing to escalate. 286 We find that Barwick and Dechnicz deliberately concealed the contributory mortgage from the National Bank. The firm's overdraft facility was supported by a guarantee from Mrs Roberts which in turn was supported by her 1991 mortgage to the bank. They had no other available security to offer the Bank. The existence of a second mortgage had the potential to influence the bank's consideration of any request by the firm for increased or continued overdraft facilities. 287 The failure to initially stamp the contributory mortgage is consistent with that concealment. If it was not intended to register the mortgage, or lodge a caveat to protect it, then clearly there was no need to incur the costs of having the mortgage stamped. It is the respondents' case that the usual procedures were not followed because it was intended to discharge the contributory mortgage after a short period of time. This is not a plausible excuse. This was a loan of clients' funds. If it was a genuine loan, both Barwick and Dechnicz knew the importance of protecting it at least by caveat. 288 The letter from Mr Barwick to the Law Society dated 11 February 1993 (Exhibit U page 268) conveys the impression that the contributory mortgage was intended to be registered and protected by a caveat. As we have said, we do not believe this was an accurate statement of intention. We note that this letter forms no part of the Law Society's case against Barwick, however we take it into account in assessing his next letter of 12 May 1993 (exhibit U page 362). 289 A letter dated 12 May 1997 was signed by Mr Barwick and sent to the Law Society. It includes his initials for reference and those of Mrs Hayward as the typist. 290 In his statutory declaration made 2 May 1997 (Exhibit F) at paragraph Mr Barwick deposes that Mr Dechnicz drafted this letter. In cross examination he suggested it had been composed by Mr Raphael, from whom Dechnicz had sought advice as to the response to be made to the Law Society. Dechnicz said that the letter was based on what he was told by Barwick . Our findings do not depend on who composed it. We do not need to determine the original source of the information contained in the letter. 291 When asked whether he had read the letter before he signed it Mr Barwick answered: "You asked me that and the answer is I believe I probably did read it but I was insufficiently attentive to its content". Of course Mr Barwick read the letter. In the circumstances it is inconceivable that would sign the detailed response to the Law Society without doing so. In any event it is signed by him and he cannot escape responsibility for its contents. 292 This evidence provides a good example of Mr Barwick's response to questioning during the hearing. He made no concession except those which were unavoidable as, for example, relating to documents in his own handwriting. He sought to distance himself from any adverse material by saying he had no actual memory of the events and even when presented with a document signed by him sought to escape adverse inferences by refusing to concede full knowledge and acceptance of the contents of the document. 293 Despite Mr Barwick's efforts to distance himself from this letter, we have no doubt that he read it before signing it. It is inconceivable that he would sign an important letter such as this to the Law Society without doing so. Mr Boitano had an opportunity to peruse the letter and we are satisfied that Mr Barwick had the same opportunity. If he failed to sufficiently apply his mind to the contents of the letter we consider that to be reckless indifference which places his conduct in the same category as deliberate misconduct. However as we find, Barwick's decision to put this information before the Law Society was deliberate. 294 By its letter of 22 April 1993 the Law Society had asked (paragraph 2.1): "Please explain the authority for loaning monies of the estate of the late E Wilkinson (it is noted that the Will makes no provision for investment in a contributory mortgage)". 295 Paragraph 2.1 of the letter of 12 May 1993 says in part: "A ratification of Mr Barwick's action from the beneficiaries of the estate as regards making the loan is herewith. In our view that ratification solves the problem as it operates retroactively". A copy of the general lending authority signed by Mrs Fulton on 25 February 1993 but subsequently dated 24 August 1992 was enclosed with the letter. 296 We accept the submission of the Law Society that Barwick, by the letter of 12 May 1993, mislead the Law Society by this letter. By enclosing the document dated 24 August 1992 the letter represented that a general lending authority was signed by Mrs Fulton on that date. 297 Further it represents that Mrs Fulton had consented to the loan transaction. This was false since Mrs Fulton had not given full and informed consent. On the contrary, she was signed the document under a misapprehension as to its nature, after being told by Barwick that it was a release to enable the final distribution of the estate to be made to her. 298 These are other respects in which it is alleged that the letter is misleading. We make it clear that we do not rely on these as they are not particularised in the Information however we do set them out. 299 The letter asserts a ratification by the "beneficiaries". Mrs Fulton was only one of the beneficiaries of the estate. There was no authority sought or requested at any time from Mr Dyer who, as the executor for the Lenihan estate was virtually ignored by Barwick. 300 Paragraph 2.1 of the letter asserts that the grant of a general lending authority by Mrs Fulton would cure the absence of a power in the will to lend estate funds on mortgage. As a matter of law, this is incorrect 301 Paragraph 2.3.1 of the letter responds to the Law Society's question "whether the mortgage is now registered". The reply is: "[I]t had not been registered. It has now been discharged and the principal with all interested paid in full". We consider this paragraph was cleverly worded to conceal the truth that the mortgage was never intended to be registered. 302 Paragraph 2.3.4 refers to an enclosed authority from Mrs Roberts concerning the application of the borrowed funds. That document is headed "Form of Receipt" and appears in exhibit U at page 336 (out of sequence). This is another carefully worded paragraph which is at best a half-truth. Mrs Roberts had no recollection of signing this document either. 303 Because this direction from Mrs Roberts makes no reference to either Barwick or Dechnicz it conceals the benefits which they each received from the loan, in the ways we have described above. 304 This letter is hardly one that makes full and frank disclosure to the Law Society of the nature of the transaction and the role that each respondent played in it. The statutory declarations 305 These do not form part of the allegations against Mr Barwick. 306 In his statutory declaration of 2 May 1997 (Exhibit F), Barwick sets out that he received the estate file from SLB on 28 February 1992 together with their trust account cheque for $38,917.16. He does not say (as was the case) that he had earlier written to SLB requesting the return of the file and transfer of the estate funds to him. 307 In his statutory declaration of 7 March 1997 (Exhibit E), Barwick says that when the Wilkinson estate file and balance of funds were transferred to him by SLB on 28 February 1992, it was "Quite unsolicited by me". This was untrue. 308 Barwick suggested that these inaccuracies arose because he did not have all the papers before him when these declarations were prepared. We do not accept this explanation. The incorrect declarations reflect adversely on his credit The Wilkinson Estate 309 Ground 1 of the Information against Mr Barwick concerns the neglect, delay and incompetence in relation to the Wilkinson estate. 310 Ground 2 alleges that Mr Barwick preferred his own interests to those of Mrs Fulton. As the executor and solicitor for the estate Mr Barwick owed fiduciary duties to Mrs Fulton which were breached. 311 Ground 3 alleges that Mr Barwick misled Mrs Fulton about the application of the estate assets for his own benefit. 312 Ground 6 of the Information against Mr Dechnicz alleges that he knew or ought to have known that Mr Barwick was so conducting himself as to prefer his own personal interests over the interests of Mrs Fulton and wilfully failed to take steps to prevent Mr Barwick's misconduct. 313 We find each of these grounds to be established against Mr Barwick and Mr Dechnicz respectively. 314 On 10 March 1989 probate of the will of the late Miss Everil May Wilkinson was granted to Mr Barwick as the sole executor. Miss Wilkinson was Mr Barwick's father's secretary during the years he held political office. She died on 3 August 1988 leaving a will dated 23 February 1978. The beneficiaries of the will who survived the testatrix were Mrs Rosaline Fulton and Miss Eileen Lenihan. A third beneficiary, Miss Kathleen Lenihan (Eildon's sister) had predeceased Miss Wilkinson and therefore did not take under the will. In the circumstances, Mrs Fulton and the estate of the late Eileen Lenihan were entitled to the residuary estate. 315 At the relevant times, Mr Barwick did not act for the Eileen Lenihan Estate, although at an earlier stage he had been the solicitor for the estate and the file 8799 remained in the office of BDB. 316 The Wilkinson Estate was not a complex estate. The major asset, Miss Wilkinson's home unit at Neutral Bay, had been sold in December 1988. It is common ground that the administration should have been concluded in about one year. In the events which happened, it was not completed for four years despite the best efforts of Commander and Mrs Fulton to progress the administration. 317 The saga of the Wilkinson estate was a long one. An estate that should have taken one year to administer took four years. 318 The delay was probably due initially to neglect. However March 1992 when the $38,000 had been lent under the contributory mortgage and used to pay Dechnicz's creditors, Barwick we think made no genuine effort to progress the matter to completion. 319 The final distribution was not made until February 1993 (shortly before the end of the term of the mortgage) and then only and then only after Commander Fulton had quite properly foreshadowed a possible complaint to the Law Society. 320 We think that throughout the entire period under consideration there was a systematic and deliberate course of conduct by Barwick designed to protract the finalisation of the estate and payment of the final dividend, until such time as his subdivision had been completed and funds became available to him. This finding is relevant to the order that we will make. 321 Commander and Mrs Fulton had been seeking to have the estate finalised since 1990-1991. Mr Barwick had the conduct of the estate as solicitor until May 1989 when his practice merged with Smits Naple Barwick, later SLB. At SLB the matter was placed in the hands of a paralegal under Mr Barwick's supervision. Mr Barwick relies on the circumstance that since he was an employed solicitor at SLB, technically that person was not under his supervision or control. 322 From December 1989 to November 1991 Mr Barwick was fully engaged in pursuing a career in politics. Although he remained the executor he says he was not in legal practice at the time and left the administration of the estate to SLB. By February 1992 it seems that SLB had progressed the matter to the stage where they believed only the estate tax returns remained to be finalised. That proved to be slightly optimistic as it later appeared that some details needed to be obtained before this could be completed. 323 Soon after the estate funds had been transferred from SLB to BDB at Barwick's request, they were used to pay Dechnicz's creditors. 324 On 29 April 1992 Barwick requested his secretary to return Commander Fulton's call and to inform him that "We are preparing tax returns and subject to tax assessments we will be able to make final distribution". It seems clear enough that Barwick was avoiding speaking directly with either Mrs Fulton or her husband, although as the executor of the estate and partner of the firm who was administering the estate, one would naturally expect him to do so. 325 Commander Fulton left a message that he would really like to speak to Mr Barwick about the matter, because he had been told that information before. 326 On the 3 May 1992 Mrs Fulton telephoned Mr Barwick and left a message that she would ring back. There was no evidence that this call was returned or that any later telephone call was successful in reaching Mr Barwick. 327 On 16 June 1992 Nelson Wheeler Arnold advised that the tax due on the Wilkinson estate was "very minimal". At this time (but for the contributory mortgage) it was open to Mr Barwick as the executor to make the final distribution under the estate, withholding sufficient to cover the expected tax liabilities. This course was not followed. 328 On 17 June 1992 Mr Fulton again rang Mr Barwick concerning the Wilkinson estate and left a message. There is no evidence that this call was returned. However it may have prompted Mr Barwick on 19 June 1992 to send a memo to Mr Symond, his employed solicitor, to press for the accountants to do the estate tax returns. Apparently Mr Symond did so, because on 23 June 1992 the accountants wrote to him requesting further information in order to complete the estate tax returns. 329 There is no evidence that anything was done by Barwick or in his office to get in the missing estate documents or supply the information requested until about 24 September 1992. This was after and perhaps prompted by the trust account inspection to which we later refer. On that day a letter was sent by Mr Symond in an attempt to obtain the information which had been requested by the accountants three months previously. 330 Barwick offered no explanation for this failure to obtain and supply the necessary information to enable the accountants to prepare the tax returns. At the lowest, it is unacceptable delay, given the delay already since the death of the testatrix. We think it was another delaying tactic. 331 In the meantime, in July and in August, Mrs Fulton continued to telephone Mr Barwick, attempting to speak with him at his office to enquire about progress on the estate. It appears that she was unable to speak with him personally and that she left messages for him. There is no evidence that he returned any of her calls. 332 In relation to Mrs Fulton's phone message of 3 August 1992, Mr Barwick asked Mr Symond to call her back. One wonders why Mr Barwick did not himself return the calls? No letter was sent to Mrs Fulton to let her know the position was regarding the completion of the estate. She was disregarded while the money to which she was entitled under her friend's will had been used to pay Dechnicz's creditors. 333 As far as the other beneficiary was concerned, Mr Dwyer seems not to have entered Mr Barwick's thinking. Mr Barwick seems not to have corresponded with him or spoken to him or even addressed his mind to his position, apart from idly wondering whether there was any entitlement in a beneficiary who had died after the testatrix. 334 On 15 August 1992 Mr Symond spoke with Mrs Fulton. She asked him to "Chase the accountants ASAP". Clearly by this time Mrs Fulton was increasingly concerned to have the estate finalised and no wonder. On the same day Mr Symond wrote to the accountants providing the information that they had requested to finalise the tax returns for the estate and it does seems as if Mr Symond was attempting in September and October 1992 to have the returns prepared by the accountants. 335 We do not make any criticism of Mr Symond who, as an employed solicitor, acted at Mr Barwick's direction and under his supervision and he was not called to give evidence. 336 On 22 October 1992 Mr Symond wrote a letter to the accountants and was informed that the estate tax returns would be finalised in a maximum of 7 days. We note the coincidence of dates between the Law Society's letter following up their inspection and the heightened activity to bring the administration of the Wilkinson estate to finality. 337 On 23 October 1992 Mr Boitano wrote to Mrs Fulton, informing her that the returns would be another 7 days and indicating that he would advise her when the estate could distributed. We note that this letter makes no suggestion that the estate moneys were on loan for a longer period although under the contributory mortgage the moneys were not due for repayment until March 1993. 338 On 13 November 1992 Mr Barwick addressed a memorandum in the Wilkinson estate to Mr Anthony Symond, who was then assisting him. The memorandum raised the question of the date of death of Kathleen Lenihan who had predeceased the testatrix. The memorandum shows that Mr Barwick was not aware whether or not she had predeceased the testator or whether she was entitled under the will. 339 By a note dated 14 November 1992, Mr Barwick recorded that he had enquired from Mrs Fulton which beneficiaries had predeceased Miss Wilkinson and that Mrs Fulton had informed him that Kathleen Lenihan had predeceased the testatrix. On that basis, Mr Barwick noted for the file that the estate would be divided between Mrs Fulton and Miss Eileen Lenihan [deceased]. 340 On 14 November 1992, some two weeks after the expiration of the promised "7 days" for finalisation of the estate tax returns, Mrs Fulton was advised that a distribution could be made to her within two to three weeks. This did not happen. No steps were taken by Barwick or Dechnicz to raise funds to reimburse the estate for the moneys which had been borrowed without authority. 341 On 16 November 1992 Mr Barwick noted that the estate tax should be paid and the St George Bank account where the balance of the estate funds were invested, should be closed. 342 On 24 November 1992 Mr Barwick sent a letter to the accountants ostensibly enclosing the signed tax returns and a cheque in payment of the outstanding tax. However, the enclosures were not included. Naturally this produced further delays. This might have been an unfortunate oversight. On the other hand, it may have been yet another tactic designed to delay and hinder the administration of the estate, whilst giving the appearance some activity was taking place on the part of Mr Barwick. 343 The omission came to light only on 22 December 1992 when the accountants wrote to Mr Barwick informing him that the enclosures had not been received. 344 Why was the finalisation of the tax returns allowed to drag on after Mrs Fulton had been promised a final distribution at the end November or early December? The consequence was to postpone the day when the funds would have to be repaid otherwise Mrs Fulton would have to be told they were on mortgage. 345 By this stage it was assumed by Mr Barwick that when the time for repayment of the $85,000 came, Barwick rather than Dechnicz would repay the money. 346 On 9 January 1993 Mrs Fulton called Barwick, again without success. 347 On 15 and 16 February 1993 Mrs Fulton called Mr Barwick yet again, the second time leaving a message that her call was "urgent". On 16 February 1993 Mr Barwick telephoned Cmdr Fulton, who was told during this call that the estate moneys had been invested on mortgage. 348 On 22 February 1993 Cmdr Fulton left a message for Mr Barwick, having been unsuccessful in speaking with him. In the message he foreshadowed a complaint to the Law Society. On 24 February 1993 Mr Fulton left another telephone message for Mr Barwick. In that message Mr Fulton demanded payment of estate moneys by 26 February 1993. 349 Three days later on 25 February 1993 Barwick went to the Fultons' home. He asked Mrs Fulton to sign the general lending authority which is in exhibit U at page 213A. According to the evidence of Mrs Fulton (which we accept) Mr Barwick told her that he wished her to sign a document in the nature of a release, so that the final distribution could be made to her. 350 No disclosure was made to Mrs Fulton that the estate monies had been lent to Mr Barwick's sister or that he had obtained a benefit from the loan in the sense that the monies had been used to satisfy a financial obligation to his partner, Dechnicz. Mr Barwick did not tell Mrs Fulton that the purpose of the loan was to enable his partner to pay his creditors, or that the monies had been used to pay Dechnicz's debts. 351 this was notwithstanding that the General Lending Authority included by paragraph 8 the statement: "This authority is given on the understanding that, in respect of any loans secured by mortgage, neither you nor any associate, by which is meant a person or company, associated with a solicitor (as defined by section 60(2) of the Legal Profession Act) will be the borrower or have any financial interest in the borrower" 352 We find that Mr Barwick intentionally misled Mrs Fulton as to the document she was signing. Certainly he did not make full disclosure. We hold that Ground 3 of the Barwick Information is established. 353 On 26 February 1993 Mrs Fulton received, by courier to her home her final distribution from the Wilkinson estate of $20.918.05 accompanied by a letter. No statement of account was provided with that letter. Mrs Fulton was burdened by having on 26 March 1993 to send a letter to Mr Barwick requesting a statement. 354 It took more than a month for Mr Barwick to provide a statement to Mrs Fulton, taking the opportunity to promptly enclose a bill for acting in relation to the estate. Executor's commission was also deducted. It would appear that the amount of commission was fixed simply by reference to a balancing amount, nonetheless it is staggering that in the circumstances which occurred any charge was made and in the absence of authority in the will to charge commission. 355 The money distributed to Mrs Fulton was paid from the office account. Subsequently Mr Barwick repaid the money by means of another loan procured through his sister Mrs Roberts, this time from St George Bank over the security of her property on the south coast of New South Wales at Bendalong. 356 At about this time a cheque was also sent to the executor for the Lenihan estate. 357 In these circumstances we have no doubt that Grounds 1 and 2 of the Information against Mr Barwick were properly admitted. We find that he was responsible for the delay throughout the time he was the solicitor for the estate. This was for all of the time since the death of the testatrix except for the period when the file was with SLB when Barwick remained the executor (and was an employed solicitor in the firm). He clearly breached his duties to the beneficiaries to progress the administration. He betrayed the trust and confidence which Miss Wilkinson placed in him when she made him the executor of her will. 358 Barwick's misuse of the estate funds was a clear conflict of position. He preferred his own interests to the interests of Mrs Fulton (and the other beneficiary). We reject his evidence that he believed his conduct was proper. 359 Ground 6 of the Dechnicz Information alleges that he wilfully failed to take steps to prevent his partner's breach of fiduciary duty to Mrs Fulton, when he knew or ought to have known of Barwick's conduct. 360 Dechnicz denied that he had actual knowledge of Barwick's breach of duty and misconduct in relation to the estate. For the reasons we have already set out, we reject this evidence. We find he had actual knowledge of the misuse of estate funds and their application under the contributory mortgage and for the payment of his creditors. We find he had actual knowledge of the cirumstances in which the estate funds were applied on the supposed loan and that this was in breach of the obligations and duties owed by Barwick to the beneficiaries who were awaiting a final distribution under the estate. 361 There is a dispute between the respondents as to the extent if any that Dechnicz performed work for the Wilkinson estate. We do not need to resolve that issue. We are satisfied to the requisite standard of proof that Barwick and Dechnicz cooperated in the plan to use estate funds. We have no doubt that discussions took place between them on this matter. We find that Mr Dechnicz knew or ought to have known (the latter being admitted by him) that Mr Barwick was misconducting himself in relation to the estate. We have found that Barwick's use of estate funds was to satisfy a financial obligation owed to Dechnicz. 362 Accordingly we hold that ground 6 of the Information against Mr Dechnicz is established as particularised. Orders 363 The Legal Profession Act 1987 (NSW) defines professional misconduct in section 127(1) to include: "(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence or diligence, or (b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or (c) conduct that is declared to be professional misconduct by any provision of this Act, or (d) a contravention of this Act or the regulations, being a contravention that is declared by the regulations to be professional misconduct". 364 By sections 61(7) and 62(4) of the Act a wilful contravention of the provisions dealing with trust accounts constitutes professional misconduct. 365 In Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939-1940) 13 ALJ 563, Rich J said: "A charge of misconduct as relating to a solicitor need not fall within any general definition of wrong doing. It need not amount to an offence under the law. It is enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing relating to the courts, his clients or the public" His Honour said that the particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse of propriety was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction. 366 We have done so. We find that Mr Barwick and Mr Dechnicz each committed professional misconduct. 367 The primary object of the disciplinary jurisdiction is the protection of the public rather than the punishment of the legal practitioner. However, as has been frequently pointed out, the protection of the public includes protection against similar defaults by other practitioners by publicly marking the seriousness of the practitioner's conduct. See, for example, Incorporated Law Institute of New South Wales v. Meagher (1909) 9 CLR 655 at 681, The Council of New South Wales Law Society v. Foreman (1994) 34 NSWLR 408. 368 The conduct of Mr Barwick and Mr Dechnicz involved serious improprieties affecting their professional character and is indicative of a failure to practise the precepts of honesty or fair dealing relating to their clients or the public. 369 Their behaviour, individually and collectively, is such as would reasonably be regarded as disgraceful and dishonourable by their professional colleagues of good repute and competency: Allinson v General Council of Medical Education & Registration [1894] 1 QB 750; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203. 370 Each respondent failed to supervise his partner: Re Mayes [1974] 1 NSWLR 19 at 24; Law Society of New South Wales v Foreman (1991) 24 NSWLR 238 and this of itself can amount to misconduct. Here there has been personal default and misconduct by each of the respondents. 371 The misconduct is of a serious nature. There was a wilful misuse of trust funds in breach of the Act and regulations. In the case of Barwick, his conduct included the fabrication of documents with intent to mislead the Law Society in its investigation. In the case of Dechnicz, included a misleading statement to the trust account inspector. 372 Their conduct did not involve an isolated act or omission. After the initial misconduct committed, each of the respondents engaged in conduct designed to conceal what they had done. 373 We are satisfied on the evidence presented by the Law Society that Mr Barwick and Mr Dechnicz each committed professional misconduct on the grounds set out in the respective Informations. In making these findings we have applied the appropriate standard of proof for disciplinary proceedings: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Ex parte Attorney-General (Commonwealth); Re a Barrister and Solicitor (1972) 20 FLR 234 at 246; New South Wales Bar Association v Livesey [1982] 2 NSWLR 321 at 238 (reversed on other grounds, 151 CLR 289). Mr Barwick 374 Barwick did make some admissions but only at the last moment and they were not full and frank. They were insignificant in the context of the proceedings. 375 He was evasive in his answers and professed to have no recollection of significant events relevant to the proceedings. He did not make full and frank disclosure. We cautiously accept Mr Barwick's evidence that he was suffering from depression throughout some of the period from which these matters arise. This, combined with stress of other kinds, may have affected his ability to recall some matters. However we do not accept this is the true reason why he failed to give evidence of matters adverse to him. 376 Many of the answers given at the hearing were not truthful or were at best a half truth. We do not think this augurs well for the future. We do not think that Mr Barwick has yet accepted his obligation to act honestly and openly in all matters. 377 In addition to the primary findings of fact we have set out in these reasons, we have found that his evidence concerning the file notes was intentionally false. In reaching this conclusion we are conscious of the need for care and a high degree of satisfaction upon the evidence: O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204; Smith v Bar Association of New South Wales (1992) 176 CLR 256 at 268, 271-275. We base our finding not only on the demeanor of the respondent, but upon the whole of the documentary and other evidence before us. 378 By reason of his failure to make full admission of the matters we have found against him, Mrs Roberts was obliged to give evidence at the hearing and was exposed to cross examination. She attended at the request of the Law Society. As Barwick's sister and having for obvious reasons suffered a strained relationship with him for a number of years, her attendance in the Tribunal must have been difficult for her. We do not think the formal apology made by Mr Barwick at the outset of proceedings at a time when Mrs Roberts, was not even present, greatly assists Mr Barwick's position. 379 As a result of his failure to admit the matters found against him, Mrs Fulton was obliged to attend the hearing and endure detailed cross examination. In coming to Court to give evidence Mrs Fulton did not have the support of her late husband and was obliged to retrace events which must have been frustrating in the extreme. Mrs Fulton is aged in her late 70s (and her recall was outstanding). She had to travel some distance from her home to attend the Tribunal, which she did at the request of the Law Society and as a matter of public duty. 380 We have found that Mr Barwick's conduct was part of a deliberate plan to obtain clients' funds in breach of both the letter and the spirit of the regulations concerning the use of trust funds by solicitors. His misconduct in relation to the estate occurred over a quite a long period of time. The gravity and nature of his misconduct prima facie calls for striking off. 381 We take into account the delay in hearing the complaints and in concluding this matter. We do not draw any adverse inference from the circumstance that the substantial part of that delay was a result of challenges to the jurisdiction of this Tribunal and its predecessors which were mounted by Mr Barwick. Those challengers were ultimately successful in the High Court and therefore no criticism can be levelled at him for bringing them. 382 We also take into account Mr Barwick's subsequent good professional conduct. However when a legal practitioner has committed misconduct indicative of lack of integrity and bad character it cannot be assumed that a change of character warranting continuation in practice has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred: Ex parte Tziniolis; re the Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461. 383 We take into account the character evidence, however we feel it is of little weight as it was not based upon any detailed account of the conduct that occurred. 384 We take into account the obvious shame and humiliation which Mr Barwick has suffered by reason of the proceedings. We accept that these proceedings have had a profound influence upon him psychologically, personally and no doubt professionally. However we believe this is attributable less to contrition than to having his conduct exposed in a public way. At T507 he said: "A. Well, I think the shame I have felt has been felt for a long time. Q. And contrition? A. As to how I was going to go about conveying my feelings and expressing my deep regret was, I think, more recent than that. ..Than my feeling of shame. I have felt ashamed for many years. Not by virtue of the detail but rather the event. Q. What event? A. The event of the proceedings. The event of being brought before a Tribunal. The event of letting down my family, my colleagues, those things." 385 We do not think that in the circumstances of this case the public interest would be served by allowing Mr Barwick to remain in practice. Mr Dechnicz 386 It was Mr Dechnicz's urgent need for funds that precipitated the loan of clients' funds. He stood to benefit personally from the transaction at least equally and we think far more so than Mr Barwick. 387 We find that Dechnicz was at least an equal participant with Mr Barwick. He played a significant, we think probably the dominant, role in devising and putting in place a transaction designed to avoid the clear wording and intent of the Regulations. At every stage it is apparent that the transaction was designed to conceal the true destination of the trust funds for the payment of his debts. 388 Yet Mr Dechnicz maintained he was blameless. He showed no acknowledgement of his own wrongdoing. He admitted only unsatisfactory professional conduct. He showed no remorse or contrition. He did not make full and frank disclosure. 389 He had the role of keeping the trust accounts. He drew the cheque requisitions for the trust funds in payment of his creditors. He conceived the misleading descriptions for the payments from the trust account. 390 He did not concede however that he was responsible for the lack of a trust ledger card for Mrs Roberts showing the loan advance to her. When asked why he had not set up a trust ledger for Mrs Roberts when he discovered there was none, he said (T987): "Because I wasn't acting for Mrs Roberts" When asked why he withdrew funds in the absence of the appropriate trust card he said "[W]e needed to pay those funds fairly urgently". We hardly think this is an acceptable explanation. 391 We have set out above our findings on Mr Barwick's letter of 12 May 1993 to the Law Society. This letter was drafted by Mr Raphael it seems after consultation with Mr Dechnicz and perhaps also Mr Barwick, although there is an issue about the extent of Mr Barwick's input. Mr Dechnicz clearly had a hand to play in the preparation of this letter. 392 He says that his input was based on what he was told by Mr Barwick. It is common ground between the respondents that Mr Barwick had asked Mr Dechnicz to take on the task of responding to the Law Society, since he did not feel up to it. Certainly it was signed by Mr Barwick but it related to the partnership and Mr Dechnicz would have been well aware of what had gone on by that time, indeed from the outset as we have found. 393 On 23 July 1993 Mr Dechnicz sent a letter to the Law Society signed by him this time(Exhibit U page 411) in response to a letter from the Law Society dated 30 June 1993 (exhibit U page 407). The letter was composed by Mr Raphael on instructions from Mr Dechnicz and perhaps also Mr Barwick. Mr Raphael was not called to give evidence. 394 In response to the question "Please explain why there was such a delay in the mortgage being registered and why it was finally never registered" paragraph 6 of the letter offers this explanation: "The failure to register was an oversight. This was occasioned by, in part, the necessity for Mr Barwick to look after the writer's clients whilst he was overseas. We understand from discussions with Mr Barwick, the reason it was not registered was that, by the time Mr Barwick became aware of the fact of non-registration, arrangements were well in hand for the mortgagor to refinance and it seemed, in those circumstances, to be unnecessary to register the mortgage". 395 We have found that at no time was it intended to register the contributory mortgage. Had there been such an intention, the existence of the mortgage would have been disclosed to the National Bank in April 1992 when applying for the overdraft facility and the bank's consent to register it as a second mortgage sought. The affidavit of the bank manager Mr Banfield (Exhibit B3) makes no suggestion that he was aware of the contributory mortgage. 396 Paragraph 8 of Mr Dechnicz's letter asserts that a caveat was prepared by Mr Barwick for signature by Mr Dechnicz . The letter states the caveat was not signed because Mr Dechnicz was overseas at the time. As we have found, it was never intended to lodge a caveat. Had this been the intention there was ample opportunity to do so. 397 This letter was a complete smokescreen. The only reasonable inference is that it was done in an attempt to cover up misconduct of which Mr Dechnicz was aware. Mr Dechnicz put it forward as a true explanation of what had been done in his practice. It was far from the truth. We take this into account in deciding what orders should be made but make it clear that we would reach the same decision quite apart from this correspondence with the Law Society by Mr Dechnicz. 398 We have taken into account the delay in concluding the proceedings and the character evidence, however we do not find that evidence is of great weight since it is not based on full disclosure of the conduct which occurred. 399 We accept that Mr Dechnicz's case has been delayed in hearing by Mr Barwick's appeals to higher courts, however Mr Dechnicz supported the appeals. 400 Mr Dechnicz also points to the costs he has incurred in the former proceedings which were invalidated for want of jurisdiction. We accept this has occurred but the want of jurisdiction did, after all, produce to him the outcome that he had remained in practice for the last decade or so. 401 We are mindful of our role of protecting the public. In the absence of any acknowledgement of wrongdoing or professional misconduct by Mr Dechnicz, his participation in a prolonged scheme of deception, his dishonesty, his attempt to conceal the misconduct after the event, his false entries in the trust accounts, his misleading correspondence with the Law Society and his lack of candour in giving evidence to this Tribunal we do not think that, consistently with the authorities, Mr Dechnicz can be permitted to continue as a legal practitioner. 402 We are not persuaded that Mr Dechnicz will not reoffend. 403 In relation to costs, the majority of the issues at the hearing were common to both Informations. There was some time spent on issues relevant only to one or other of the Informations, but this was approximately the same for each of the respondents 404 Accordingly we make orders as below. (a) In proceedings 002018, the name of Ross Garfield Barwick be removed from the roll of legal practitioners (b) Mr Barwick to pay the Law Society's costs of those proceedings. (c) In proceedings 002019, the name of Roman Alexander Dechnicz be removed from the roll of legal practitioners. (d) Mr Dechnicz to pay the Law Society's costs of those proceedings. Decision revised 6 May 2002: Typographical errors. 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.