Dechnicz v Law Society of New South Wales [2002] NSWADT 198

CITATION: Dechnicz v Law Society of New South Wales [2002] NSWADT 198 DIVISION: Legal Services Division APPLICANT PARTIES: Roman Alexander Dechnicz RESPONDENT Council of the Law Society of New South Wales FILE NUMBER: 37 of 1996 HEARING DATES: 19/04/01 SUBMISSIONS CLOSED: 04/23/2001 DATE OF DECISION: 10/08/2002

BEFORE: Needham CA - (Deputy President); Staff C - Judicial Member; Mara A - Member APPLICATION: Costs - Order for dismissal MATTER FOR DECISION: Dismissal and costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Barwick v Law Society of New South Wales [2000] HCA 2, 74 ALJR 419, 161 ALR 236 Law Society of New South Wales v Boland [2001] NSWADT 151 Malfanti v Legal Profession Disciplinary Tribunal (1993) 4 LPDR 17, BC 9303657 CASES CITED: Knaggs v Solicitor's Statutory Committee (No 2) (1992) 27 NSWLR 603 Milosevich v GIO of New South Wales (1993) 31 NSWLR 323 Walton v MacBride (1935) 36 NSWLR 440 Law Society of New South Wales v Barwick & Dechnicz [2002] NSWADT 66 APPLICANT REPRESENTATION: S Cuddy, solicitor RESPONDENT G Lindsay SC , counsel ORDERS: No orders made. Tribunal's records to be noted that the proceedings lack jurisdiction.

1 These proceedings were commenced in the former Tribunal [Legal Services Tribunal] and were effectively replaced by proceedings 002019 reported at Law Society of New South Wales v Barwick and Dechnicz [2002] NSWADT 66 in which the Applicant, Mr Dechnicz, was found guilty of professional misconduct. The Tribunal ordered that he be struck off the Roll of legal practitioners. 2 These proceedings have remained dormant (but for a directions hearing and this Application), since the lodging of an appeal to the Court of Appeal in the related matter of Law Society v Barwick no 38 of 1996 which led to the High Court's judgment in Barwick v Law Society of New South Wales [2000] HCA 2, 74 ALJR 419, 161 ALR 236. Mr Dechnicz was a party to the High Court appeal. Although taking no active role, he indicated that he would wish to accept the benefit of a successful appeal, which would have the practical effect of establishing that the Information against him was tainted by the same procedural defects as were said to invalidate the proceedings against Mr Barwick. 3 The judgment established that the proceedings were defective by reason of the Law Society's failure to comply with the investigative regime prescribed by Part 10 of the Legal Profession Act, 1987, the Society after investigation having resolved to initiate the complaint, then immediately resolved to institute proceedings in the Tribunal, without an intermediate investigation as required by the Act. 4 Mr Barwick was the former partner of Mr Dechnicz in their law practice at Parramatta. The allegations in both sets of proceedings were substantially similar or interrelated, and accordingly the former Tribunal had directed that the proceedings be heard together. 5 Prior to Mr Barwick's appeal to the Court of Appeal on 19 November 1998, the former Tribunal had commenced to hear the proceedings on 18 and 19 November 1998. The Tribunal heard the Law Society's opening, received its evidence in chief, and heard applications by Mr Barwick and the Law Society. 6 Mr Dechnicz now applies for an order formally dismissing the proceedings. He also seeks an order for payment of his costs from the Special Interest Account under section 171E(2) of the Legal Profession Act, 1987. 7 The application was fixed for hearing on 19 April 2001 before the Tribunal as originally constituted. Sadly, before the hearing one of the panel members died. He was replaced by the Deputy President, Ms C.A. Needham S.C., pursuant to section 79 of the Administrative Decisions Tribunal Act, 1997. 8 The Applicant was represented by his solicitor. The Respondent was represented by Senior Counsel. The Application was heard on 19 April 2001, on which occasion oral submissions were put to the Tribunal for each of the parties. Written submissions were provided by the parties prior to the hearing of the Application. Supplementary written submissions were provided after the hearing. We have considered all of the oral and written submissions. 9 It was submitted on behalf of the Practitioner, that an order for dismissal should be made so that the proceedings could formally be brought to an end. It was submitted that it would be an abuse of process to allow these proceedings to remain extant, after the institution of proceedings 002019 in respect of the same allegations. Reliance was placed on Law Society of New South Wales v Boland [2001] NSWADT 151. 10 In support of his application for costs, the Practitioner submitted that he had reasonably incurred legal costs and disbursements in defending these proceedings, which were aborted for want of jurisdiction after two days' hearing. Reliance was placed on Malfanti v Legal Profession Disciplinary Tribunal (1993) 4 LPDR 17, BC 9303657. 11 Malfanti and Boland are clearly distinguishable. In neither of those cases was there a lack of jurisdiction. The proceedings were regularly commenced. 12 To the extent that reliance was placed on Boland as authority for the proposition that this Tribunal has power to regulate the conduct of its proceedings and make orders in the interests of justice, beyond the powers granted in its governing statute, we reject the submission. We do not regard Boland as authority for such a wide-sweeping proposition, which is clearly wrong. This is a statutory Tribunal which cannot act outside the statutory powers conferred on it by the statute, expressly or by necessary implication: see Knaggs v Solicitors' Statutory Committee (No 2) (1992) 27 NSWLR 603 at 610C-D, 611D-612C; Milosevich v GIO of New South Wales (1993) 31 NSWLR 323 at 336A-B; Walton & MacBride (1935) 36 NSWLR 440 at 447-449. 13 It was submitted that these proceedings are still "formally alive" and that the Tribunal has power to dismiss the proceedings, notwithstanding Barwick, because the Information (as opposed to the Amended Information) includes "matters that were not dependent on the issues of the amended information or the extension of time matter". We reject the submission. 14 It is abundantly clear from Barwick that the consequence of the procedural irregularities is that these proceedings were not validly commenced. They are a nullity and have been from the outset. No distinction can be drawn between the Information and the Amended Information. They are equally invalid. As explained by Mr Justice Kirby at paragraph 117: "Having regard to the 'language of the relevant provision and the scope and object of the whole statute' the acts done by the Council in breach of the provisions of the Act are invalid. They could not sustain the lawful institution in the Tribunal of proceedings against Mr Barwick. The power of amendment of such lawful proceedings could not therefore arise. Accordingly, Mr Barwick is entitled to an order in the nature of prohibition to forbid the Tribunal from proceeding with a hearing on the information that is presently before it." 15 The Legal Practitioner also relied on the form of the order made by the High Court, submitting that the Court "did not finalise the earlier proceedings by order", but made an order prohibiting the Tribunal from hearing the proceedings, so that the proceedings it is said remain on foot. 16 In light of the High Court's finding that the proceedings were a complete nullity, there was no need for an order bringing them "to finality". The proceedings being void, no order is needed. 17 Since the Tribunal is without jurisdiction, there are no valid "proceedings" in respect of which any substantive order can be made. The Tribunal may note in its records, as an administrative matter, that the "proceedings" lack jurisdiction, but can do no more than that. Although a superior court has power to declare proceedings in an inferior Court or Tribunal to be void for want of jurisdiction, this Tribunal is a creature of statute and has no such inherent power. 18 Accordingly, we find that this Tribunal has no power to make any order in these proceedings. 19 In any event, the conditions for making an order for payment of costs from the Statutory Interest Account under section 171E(2) of the Legal Profession Act 1987 are clearly unsatisfied. 20 Section 171E provides: "If, after it has completed a hearing relating to a complaint against a Legal Practitioner, the Tribunal is satisfied that the Practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Statutory Interest Account to the Practitioner of such amount, by way of costs, as it determines." 21 The section requires that before any special order for costs can be made, the following conditions are satisfied: a. The Tribunal "has completed a hearing" relating to a Complaint; and b. The Tribunal is satisfied that the Practitioner is not guilty of misconduct; and c. "Special circumstances" exist which call for the exercise of the Tribunal's discretion to make a costs order in favour of the legal practitioner. 22 The first two prerequisites are clearly unsatisfied. The Tribunal as originally constituted did not "complete" a hearing, nor did the Tribunal reach the stage where it was "satisfied" that Mr Dechnicz was not guilty of misconduct. 23 The "hearing" required by section 171E(2) is not a partial hearing, as purportedly undertaken by the differently constituted panel in 1997. The section contemplates a completed hearing which produces a finding that the allegations of misconduct contained in the Information have not been established. In this case, the Tribunal made no findings, one way or the other. 24 Further, the "hearing" must be in the course of proceedings validly instituted in accordance with the Legal Profession Act, 1987. A purported hearing in proceedings without jurisdiction, is simply a nullity. 25 It has been the practice of this Tribunal, since the High Court's decision in Barwick, to make no orders in proceedings which are without jurisdiction, but to note the file accordingly. The solicitor appearing for the Applicant acknowledged this practice, but indicated that his client sought a different result by this Application. 26 The Application has failed. It was but faintly arguable. If we had power to make orders in these proceedings, we would make a costs order against the Applicant, on an indemnity basis. 27 However in accordance with the usual practice, and in light of our findings on this Application, we make no order. 28 We note for administrative purposes only that the proceedings lack jurisdiction.