BARWICK v LAW SOCIETY OF NEW SOUTH WALES [1998] NSWCA 31

BARWICK v LAW SOCIETY OF NEW SOUTH WALES [1998] NSWCA 31

The Legal Profession Act 1987 (NSW) time limitation in s138 does not apply to complaints initiated by a Council or by the Commissioner. Proceedings in the Tribunal must not be instituted until the statutory investigation has been completed; this requirement provides important protection to practitioners. The Tribunal may only hear allegations particularised in the Information that were included in the complaint, subject to variation in accordance with s167A if fair and reasonable. Consequently, the Information is not defective solely because conduct occurred over three years before initiation, but it is defective if filed before investigation completion or if it alleges matters outside...

Parties
Claimant: Ross Garfield Barwick; First Opponent: Law Society of New South Wales; Second Opponent: Legal Services Tribunal; Third Opponent: Roman Alexander Dechnicz
Jurisdiction
Australia
Judgment Date
16 July 1998
Procedural Posture
Application for Declarations and Orders (appeal) / Court of Appeal Judgment on Interlocutory Relief
Outcome
Declarations made and proceedings remitted to Tribunal; no order as to costs
Legal Topics
Interpretation of Legal Profession Act 1987, Time Limitation for Complaints, Commencement and Conduct of Investigations, Filing and Amendment of Information, Procedure Before Legal Services Tribunal
Statutory Interpretation Disciplinary Proceedings Legal Profession Regulation Interpretation of Legal Profession Act 1987 Time Limitation for Complaints Commencement and Conduct of Investigations Filing and Amendment of Information Procedure Before Legal Services Tribunal

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Ross Garfield Barwick

Claimant

Law Society of New South Wales

First Opponent

Legal Services Tribunal

Second Opponent

Roman Alexander Dechnicz

Third Opponent

Procedural Posture

Application for Declarations and Orders (appeal) / Court of Appeal Judgment on Interlocutory Relief

Legal Issues

  1. 1 Whether s138 of the Legal Profession Act 1987 applies time limitations to complaints initiated by a Council or Commissioner
  2. 2 Whether s155 requires completion of an investigation by the Council before proceedings can be instituted
  3. 3 Whether allegations in an Information may extend beyond those the subject of the complaint

Ratio Decidendi

The Legal Profession Act 1987 (NSW) time limitation in s138 does not apply to complaints initiated by a Council or by the Commissioner. Proceedings in the Tribunal must not be instituted until the statutory investigation has been completed; this requirement provides important protection to practitioners. The Tribunal may only hear allegations particularised in the Information that were included in the complaint, subject to variation in accordance with s167A if fair and reasonable. Consequently, the Information is not defective solely because conduct occurred over three years before initiation, but it is defective if filed before investigation completion or if it alleges matters outside...

Court Disposition

Declarations made and proceedings remitted to Tribunal; no order as to costs

Orders

  • Declare that neither the complaint initiated on 8 June 1995 nor the Information laid on 30 September 1996 and amended on 1 August 1997 is defective solely for being made more than three years after the conduct alleged.
  • Declare that the Information is defective if it was laid before completion of Council's investigation and should be struck out unless the claimant waives the defect.