Law Society of New South Wales v Andreone

[1999] NSWADT 14

CITATION:	Law Society of New South Wales -v- Andreone [1999] NSWADT 14
DIVISION:	Legal Services
APPLICANT:	The Council of the Law Society of New South Wales
RESPONDENT:	Francesco Leonardo Andreone
FILE NUMBER:	9744
HEARING DATES:	10/12/1998
SUBMISSIONS CLOSED:	10/12/1998
DATE OF DECISION:	29 March 1999
BEFORE:	C G Staff Presiding Judicial Member M J Barnes - Judicial Member P O Miller - Member
PRIMARY LEGISLATION:	Legal Profession Act 1987
APPLICATION:	-
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: I Wales SC with G Hanson of counsel instructed by R J Collins Respondent: C Porter QC of counsel instructed by Stewart Cuddy & Mockler
ORDERS:	1. The Respondent be reprimanded. 2. The Respondent be fined the sum of $25,000. 3. The Respondent pay the costs of the Applicant as agreed or as assessed.

INFORMATION

1 By information dated 10 December, 1997 filed in the Tribunal on 24 December, 1997, the Council of the Law Society of New South Wales (“the Society”) complained that Franceso Leonardo Andreone (“the Solicitor”) was guilty of professional misconduct.

2 There are a series of serious allegations against the Solicitor and it is noted in large measure that the Solicitor made admissions as to the majority of the acts and omissions which we will turn to shortly.

3 We set out the grounds on which the complaint was made and summarise the particulars of the grounds together with the Solicitor's admissions as follows:

GROUND 1

4 Solicitor purported to witness a signature on an affidavit and to take an oath under the provisions of the Oaths Act 1900 when he was:

(i) not present when the affidavit was signed by the deponent and

(ii) the oath was not taken in accordance with the formal manner of taking oaths provided in the Act.

Alliance Strata Management

5 Whilst an employed Solicitor and acting on behalf of Alliance Strata Management Pty. Ltd. the Solicitor held out that he had properly witnessed a signature on an affidavit of discovery. In particular the signature of Mr. John Scott on 27 November 1992. This was not the case at all. Rather Mr. Scott had signed the document at one premises and submitted the affidavit of discovery to the Solicitor by facsimile.

6 The Solicitor, being not in the presence of Mr Scott, then signed the affidavit.

7 The Solicitor admits this ground and the particulars supplied in the Information.

GROUND 2

8 The Solicitor misled his clients or failed to inform his clients as to the status of their matters and as to the steps taken on their behalf.

Salisbury

9 In acting on behalf of Mrs. Salisbury in relation to a personal injury claim the Solicitor conferred with Mr A. Johnson of counsel on 6 September, 1990. On 12 September the solicitor requested counsel to draft a Statement of Claim. The Statement of Claim was provided on or about 28 May 1991.

10 There was an issue as to owner and/or developer of the site and that between May 1991 and June 1993 the Solicitor did not identify the owner and/or developer of the site and did not file a Statement of Claim.

11 Further Mrs. Salisbury frequently contacted the Solicitor to ascertain the progress of the matter and it was represented to her that the matter was "progressing well" that ‘it’ (the hearing) “will not be long now” and (in or about April, 1993) that the matter would be heard “in a few months". No proceedings were in fact filed.

12 The Solicitor admits that his actions did mislead Mrs. Salisbury.

Knight

13 In relation to a proposed action by a Mr. Knight against his former employer, it was alleged the Solicitor was responsible for the conduct of the matter and he failed to lodge a Statement of Claim within the limitation period. Further he did not inform anyone of that failure and proceeded to file a Notice of Motion seeking an extension of time without taking instructions.

14 In relation to those allegations the Solicitor admits he failed to keep the parties informed.

Villata

15 (i) In or about June, 1992 the Solicitor was instructed by Mr Luciano Villata, the owner of a property at 179 Kingsgrove Road, Kingsgrove, to commence proceedings against the receivers of Australians Curtain Industries Pty. Limited for the recovery of outstanding rental, outgoings and repairs totalling approximately $30,000.00;

(ii) On several occasions, the Solicitor told Mr Villata that a Statement of Claim had been issued and had been filed and served and that the judgment would shortly be obtained;

(iii) In fact, no Statement of Claim had ever been filed;

(iv) Mr Villata, at or about the same time, instructed the solicitor to commence proceedings against a Mr Dunn, a guarantor of the company;

(v) On a number of occasions, the solicitor told Mr Villata that he had commenced proceedings against Mr Dunn;

(vi) In fact, no such proceedings have been commenced;

(vii) In or about 1992, the solicitor informed Mr Villata that he had obtained a default judgment against a debtor, Mr McKenzie and had lodged a writ on the tile of Mr McKenzie’s house;

(viii) This statement was untrue. No such writ had been lodged.

16 The Solicitor admits that Mr Villata was misled in the following sense only:

(a) Between April/June 1993 that a Statement of Claim had been issued against the Receiver of Australian Curtain Industries Pty. Limited when it had not been issued.

(b) A Writ of Execution was lodged on the title of the debtor McKenzie’s home at Malabar, when at that time it was prepared but the Writ of Execution on other property had not then been returned by the sheriff, so that no writ could be registered on the title.

17 The Solicitor denies particulars (ii), (iv) and (v).

18 In answer to particular (i) the Solicitor says that he was first instructed on or about 3 August, 1992.

Kovacevic

19 In a motor vehicle accident on 22 August 1989 involving a Mr. Kovacevic it was alleged the Solicitor:

(1) Failed within time to send a claim form to the correct Third Party Insurer;

(2) The Insurer applied to have the Statement of Claim struck out;

(3) Without instructions from his client, the strike out application was adjourned on a number of occasions;

(4) On 21 August 1992 without instructions from his client, he consented to the matter being struck out and consented to an order for payment of indemnity costs;

(5) The Solicitor prior to ceasing employment with Blackshaw Lindsay & Bugden Solicitors on or about 18 June 1993 did not inform Mr. Kovacevic of the strike out application or the orders made on 21 August 1992.

20 The Solicitor admits the allegations.

The Proprietors of Strata Plan 32861

21 The Proprietors of Strata Plan 32861 had given instructions to wind up a company known as Dylmine Pty. Ltd. It is alleged:

The Solicitor by letter of 13 October 1992 wrote to his client stating a Summons had been filed and a hearing date for winding up had been allocated of 17 November 1992. No summons had been filed. Further the Solicitor caused records to be prepared indicating that he attended Court on 17 November 1992, when in fact there was no attendance at Court on that day.

22 The Solicitor admits that he had written such a letter on 13 October 1992 and that it was false and misleading. He further admitted he prepared time costing records falsely indicating he attended at Court on 17 November .

Proprietors of Strata Plan 10217

23 Proceedings were commenced in the District Court of New South Wales where the Proprietors of the Strata Plan were the Defendants and the Solicitor assumed the conduct of such proceedings in or about September of 1989.

24 Directions were given on 17 August 1992 that the Plaintiff file witness statements by 28 September 1992 and the Defendant file witness statements by 2 November 1992.

25 The Plaintiff did not comply with the timetable and further Directions were given on 30 November 1992. The Plaintiff was directed to file and serve witness statements by 11 January 1993 and the Defendant file and serve witness statements by 15 February 1993.

26 On 28 January the Plaintiff filed and served its witness statements.

27 By 15 March the Defendants had not filed and served witness statements. On that day Judge Bell directed the Defendants to file and serve witness statements by 12 April, 1993. On 14 April such statements had not been filed however the Solicitor informed the Plaintiff's Solicitors that he would be in a position to file and serve his witness statements by 16 April. It is alleged that this was untrue and the Solicitor was not in a position to give such assurances.

28 On 7 May, on the Plaintiff's Application, the matter was relisted before Judge Bell and His Honour ordered the Defendant to file and serve witness statements by 21 May. The Solicitor did not inform the Body Corporate of the Direction. The timetable was not complied with and the matter was again listed before His Honour on 11 June, 1993. A further direction was made that the documents be filed by 18 June. Again the Solicitor did not inform the Body Corporate of this Direction. On 18 June 1993 the Solicitor served the Statement of the principal lay witness, a Mrs. Hurst.

29 The Solicitor admitted that he had failed to advise his client of the Directions of 7 May 1993 and 11 June 1993.

30 The Solicitor contended that in relation to certain aspects of the matter he had believed that he would have been able to attend to the settlement of the statements as promised however pressure of work prevented this. Further that as at 11 June he had given one month’s notice of his intention to resign however he was instructed to leave on 18 June and had sent the witness statement in the best form in the time available.

GROUND 3

31 The Solicitor having misled his clients, prepared false documents to support that deception.

32 As previously noted it was alleged that the Solicitor had in the matter of the Proprietors of Strata Plan 32861 falsified time costing records to support a contention that the Solicitor was at Court on 17 November 1992.

33 The Solicitor admits that he had falsified such records.

GROUND 4

34 The Solicitor delayed carrying out instructions without reasonable cause.

35 The Society relies upon the particulars of the aforesaid matters relating to Salisbury, Knight, Villata, the Proprietors of SP 32861 and the Proprietors of SP 10217.

36 The Solicitor admits he did not act with the necessary diligence in the matters of Salisbury, Knight, Kovacevic and SP 32061.

GROUND 5

37 The Solicitor acted without instructions.

38 The Society relies upon the particulars previously set out in relation to Knight, Kovacevic and the Proprietors of SP 10217.

GROUND 6

39 The Legal Practitioner, Francesco Leonardo Andreone, failed, on two occasions, to comply with a requirement by the Council of the Law Society of New South Wales pursuant to Section 152(1) of the Legal Profession Act, 1987.

40 The Professional Standards Division of the Society by letter dated 15 January 1997 referred a complaint of Ian and Andrea Treleaven to the Solicitor requesting his response to the matters raised in this complaint within 14 days.

41 Despite an extension of time being granted to the Solicitor he still did not reply and ultimately on 31 July 1997 the Council resolved that it was satisfied there was a reasonable likelihood the Solicitor would be found guilty by this Tribunal of professional misconduct and that proceedings be instituted in the Tribunal pursuant to s.155(2) of the Act.

42 The Solicitor was notified of the resolution by letter dated 5 August and was given an opportunity to request a review by a joint sitting of the Professional Conduct Committee. No reply was received.

43 By letter dated 15 January 1997 in relation to a complaint by Wayne Bailey, the Professional Standards Division referred the complaint to the Solicitor requesting his response within 14 days.

44 Again a number of reminder and follow up enquiries were made however the Solicitor did not respond to the enquiries and a resolution of 31 July was passed by the Professional Conduct Committee of the Society that it was satisfied that there was a reasonable likelihood that the Solicitor would be found guilty by this Tribunal of professional misconduct and that proceedings be instituted in the Tribunal pursuant to s.155(2) of the Act. Again the Solicitor was notified by letter dated 5 April and no response was forthcoming.

45 The Solicitor admits both failures. Further it is noted that after service of the Information the Solicitor has furnished replies.

BACKGROUND

46 The Solicitor was admitted as a Solicitor on 4 July 1986.

47 He has maintained a Practising Certificate thereafter to date.

48 The Solicitor’s employment may be summarised as follows:

(a) July 1986 through to approximately August of 1989 with Smith Monti & Costa, Solicitors and briefly with Aitken & Magney Solicitors;

(b) Solicitor and then Associate with Blackshaw Lindsay & Bugden Solicitors between August 1989 and June of 1993;

(c) Solicitor with Hunt & Hunt Solicitors between June 1993 and October 1993;

(d) Solicitor with Bamford Tennant Solicitors from 1993 to February 1995;

(e) Associate with Blessington Judd Solicitors from February 1995 to July 1996 and thereafter salaried Partner with Blessington Judd Solicitors to date.

49 The matters raised by the Council are serious and substantial and for the reasons that follow give rise to a finding by the Tribunal that the Solicitor is guilty of professional misconduct.

SOLICITOR’S EXPLANATION

50 On behalf of the Solicitor, Mr Porter, Q.C. in his final submission acknowledged the following:

(1) The Solicitor did not seek to minimise that it was very wrong for a Solicitor to mislead his client.

(2) It was not appropriate to suggest that the case could be satisfied by a mere reprimand.

(3) It was accepted that the Solicitor should be fined and it should be a fairly substantial fine.

(4) It was submitted that during his employment with Blackshaw Lindsay & Bugden he was overworked and over stressed.

51 It was acknowledged that it was a situation that the Solicitor did not seek to remedy at the time.

52 Substantial evidence was tendered in support of the Solicitor which in broad terms had a focus on his professional skills and general good character and it is appropriate to note the affidavit evidence can be broadly categorised as follows:

Firstly, fellow Solicitors or Barristers who have known the Solicitor in various circumstances and who have been appropriately alerted to the allegations against him and his admissions have sworn as to his trustworthiness and competency.

Secondly, persons who have been and who remain clients of the Solicitor and again who have been alerted to the serious allegations and his admissions in that regard.

Thirdly, the Solicitor's Partner at Blessington Judd.

53 The Tribunal notes the affidavits within the first category are as follows:

(1) Mr Gary Bugden, Solicitor who has known the Solicitor for approximately 7 years. Mr. Bugden deposes that he holds the Solicitor in high regard as a very competent Strata Titles practitioner and would still feel confident in referring appropriate strata title work to him in the future.

(2) Mr Michael Budini, Solicitor who has known the Solicitor for approximately 5 years. He acknowledges they have become close friends and further in a 1111professional context he has formed the view that the Solicitor is an expert in the area of land subdivision and more particularly strata and community titles. Despite the serious matters raised he deposes to his trust in the Solicitor and unreservedly accepting any undertaking from him.

(3) Ms Michelle Worner, Solicitor who has known the Solicitor dating back to University days. Ms. Worner acknowledges a background of friendship with him and a continuing relationship on a professional basis. Ms. Worner deposes that the Solicitor is a person of good character, who is generally reliable and in her dealings with him has acted honestly. Ms. Worner also deposed that she would refer clients to the Solicitor in his appropriate field of law.

(4) Mr Samuel Gullotta, Barrister deposes longterm knowledge of Mr Andreone together with respect for his opinion in relation to matters involving the Strata Titles Act and the procedures under that Act. Further he has entrusted his personal and family affairs to him from time to time and despite the matters particularised in the information and the amended reply, in his view the Solicitor is trustworthy, highly honourable and technically competent in the area of his specialisation. He does not believe there is any prospect of recidivism.

54 The second category of affidavits, are from clients of the Solicitor and those affidavits are worthy of note:

(1) Mr Peter Bryant, a Company Director who commenced dealings with the solicitor when he was employed with Bamford Terrett Solicitors and subsequently Blessington Judd Solicitors. He too has considerable respect for the Solicitor's professional ability and skills. He has found him prompt and reliable and offers the opinion that the Solicitor is of good character and fit to continue to be a member of the profession. He proposes to continue to have social and professional contact with him in the future.

(2) Ms Muriel Basso, a Company Director of Barass McCarthy Unit Administration Pty. Ltd. who act as managing agents and advise owners in relation to strata schemes has known the Solicitor since he was with Blackshaw Lindsay & Bugden Solicitors. Ms Basso deposes that he is very reliable and conscientious in attending to the affairs of his clients and further that the company of which she is a Director refers the majority of its legal work for strata title matters to him. Further the Company still intends to instruct the Solicitor and she has found him to have acted with propriety and to be of good character.

(3) Mr Vincent Watt, Company Director and as State Manager of Body Corporate Services has known the Solicitor for approximately 2½ years since he joined Blessington Judd. Mr. Watt has dealt with a variety of Solicitors and he holds this Solicitor in very high regard. He believes he is a very trustworthy person and notes he has made appropriate disclosure to him about his involvement with competitive corporations and businesses. He concludes that he is honest and of good character and has no reservation about his capacity to be a proper and effective member of the legal profession now or in the future. He also notes that the Solicitor voluntarily contributes his time to address seminars and training days organised by Body Corporate Services.

(4) Mr John Pickles, Consultant. He has known the Solicitor since 1989 in his role as Chairman of the Body Corporate/Owners Corporation of a home unit block at Darling Point. He expresses absolute satisfaction with the Solicitor's professional attitude, honesty and attention to work. He appreciates the seriousness of the breaches by the Solicitor. He offers the view that the Solicitor is an honest and good person and that he has learnt from his experiences. He intends to maintain a professional relationship with the Solicitor and he is confident he will receive proper professional advice. He is also of the view that over time the Solicitor has increased his level of reliability.

55 Thirdly, Mr William Madden, a Partner of Blessington Judd in summary deposes that he had been impressed with the Solicitor's management, control and supervision of personnel which includes 3 Solicitors. He is complementary as to his efficiency and as previously noted he became a partner of the firm in July of 1996.

56 Further he believes that despite a review of the Information and the Amended Reply of the Solicitor and acknowledging the seriousness of the matters, in his view the Solicitor should continue to have a full practising certificate. In particular he deposed:

"... I will be pleased to have him continue as my Partner and believe that the errors of the past have led to the learning of lessons and the adoption of practices which are so different to the type of problems he had previously suffered in respect of which he made entirely improper and inappropriate responses.

Obviously I have carefully considered the Solicitor's character since he was first employed by the firm. I believe that the defects in his character which led to the present proceedings have been overcome by him. He is in my opinion an honest and capable person fit to be a Solicitor."

57 Further the Tribunal had the opportunity to consider both affidavit and oral evidence of the Solicitor in the proceedings. It is clear that the Solicitor is completely contrite and apologetic for the acts of professional misconduct, which he has admitted.

58 In mitigation for his acts and omissions the Solicitor gave evidence that whilst with Blackshaw Lindsay & Bugden he was overworked, overstressed and not properly assisted. It was also clear from the evidence that there was a benefit to the Solicitor if he recovered professional costs over and above $100,000.00 and that this was a factor in his not seeking to diminish his workload or adjust his workload.

59 Relevantly the Solicitor acknowledged:

"It is true to say that I was happy to work that hard. In hindsight I realise it was excessive for my skill and ability at the time."

60 Further in relation to the Solicitor's oral evidence we note and accept the following evidence:

Q. But one of the things that occurred, and has got you into trouble of course, is the fact that on a number of occasions you did not tell the truth to your clients?
A. That is so.

Q. Over the intervening years have you learned your lesson in that regard?
A. My word I have. Since that time I realised the error of my judgment in 1992 and 1993, and that it was no solution to the predicaments I found myself in at the time.

Q. Have you appreciated that a Solicitor is expected to tell the truth at all times?
A. Yes, I do, sir.

Q. And if you were stressed and in trouble again in the future would you try to get yourself out of it by not telling the truth?
A. Never.

CONSIDERATION

61 We are satisfied based on the evidence and the Solicitor's admissions, that the Solicitor has been guilty of professional misconduct in relation to the following matters:

(1) The Solicitor purported to witness a signature on an affidavit and to take an oath under the provisions of the Oaths Act 1900 when he was not:


(a) Present when the affidavit was signed by the deponent; and

(b) The oath was not taken in accordance with the formal taking of oaths provided for in the Oaths Act, 1900.
(2) The Solicitor misled his clients or failed to inform his clients of the status of their matters and as to the steps taken on their behalf.
The particulars thereof which we accept as having been made out are as follows:
(a) Mrs Penelope Salisbury


(i) The Solicitor between May 1991 and the cessation of his employment in June 1993 did not ascertain the identity of the owner and/or developer (although this information was readily available) and did not file any Statement of Claim.

(ii) Mrs. Salisbury frequently contacted the Solicitor to enquire about the progress of the matter. She was told that the matter was "progressing well", that "it" (i.e. the hearing) "will not be long now" and (in or about April 1993) that the matter would be heard "in a few months".

(iii) In fact, no Statement of Claim has ever been filed.

(b) Knight:

(i) The Solicitor failed to file a Statement of Claim within the limitation period, did not inform his partner of such failure nor did he inform his Queensland principals of that failure. The Solicitor filed a Notice of Motion seeking an order extending time under the Limitation Act without taking instructions.

(c) Villata:


(i) Mr Villata was misled in that between April/June of 1993 he was led to believe that a Statement of Claim had been issued against the Receiver of Australian Curtains Industries Pty. Limited when it had not been issued.

(ii) In or about 1992 the Solicitor informed Mr. Villata that he had obtained a Default Judgment against a Debtor being a Mr. McKenzie and had lodged a Writ on the title of Mr. McKenzie's house. Such statement was untrue and no Writ had been lodged.

(d) Mr. Kovacevic


(i) The Solicitor failed, within time, to send the claim form to the correct third party insurer, Commercial Union.

(ii) Commercial Union applied to have the statement of claim struck out.

(iii) The Solicitor, without instructions from his client, had the application adjourned on a number of occasions.

(iv) Ultimately, on 21 August 1992, His Honour Judge Kirkham ordered that the statement of claim be struck out with indemnity costs.

(v) The Solicitor informed opposing counsel and the Court that he consented to the statement of claim being struck out with indemnity costs. The Solicitor had no instructions to consent.

(vi) The Solicitor did not inform Mr. Kovacevic of the application by Commercial Union to strike out the statement of claim nor did he inform Mr. Kovacevic of the orders made on 21 August 1992 at any time prior to his departure from Blackshaw Lindsay & Bugden Solicitors on or about 18 June 1993.

(e) The Proprietors of Strata Plan 32861


(i) Blackshaw Lindsay and Bugden Solicitors acted for the Proprietors of Strata Plan 32861 who had given instructions to have Dylmine Pty. Ltd. wound up.

(ii) The Solicitor had the conduct of the matter.

(iii) By letter dated 13 October 1992, the Solicitor wrote to his client stating that a summons for the winding up of Dylmine Pty. Ltd. had been filed and the hearing date of that summons was 17 November 1992.

(iv) These statements were false. No winding up summons had been filed.

(v) The Solicitor caused time records to be prepared indicating that he attended at Court on 17 November 1992. This was false. There was no attendance at Court on that date.

(f) Proprietors of Strata Plan 10217


(i) By statement of claim filed on 12 February 1987, Mrs. N. Deveridge commenced proceedings against the Proprietors of Strata Plan No. 10217 ("the body corporate").

(ii) The Solicitor took over the carriage of the proceedings on behalf of the body corporate in or about September 1989.

(iii) On 17 August 1992, His Honour Judge Urquhart directed, inter alia, that the plaintiff file her witness statements by 28 September 1992 and that the defendant file its witness statements by 2 November 1992.

(iv) The plaintiff failed to comply with the above direction and, accordingly, on 30 November 1992, His Honour Judge Bell directed that the plaintiff file and serve her witness statements by 11 January 1993 and that the defendant file and serve its witness statements by 15 February 1993.

(v) By letter of 28 January 1993, the plaintiff by her Solicitors, served her witness statements.

(vi) By 15 March 1993, the defendant had not filed and served its witness statements. Accordingly, on 15 March 1993, Judge Bell directed that the defendant file and serve its witness statements by 12 April 1993.

(vii) On 14 April 1993 the Solicitor informed Mr. Brampton of Messrs. Colin, Biggers & Paisley, the Solicitors for the plaintiff, that he would be in a position to file and serve his witness statements by 16 April 1993. This was untrue and the Solicitor was not in a position to give this assurance.

(viii) On 7 May 1993, on the application of the plaintiff, the matter was relisted before His Honour Judge Bell. His Honour ordered that the defendant file and serve its witness statements by 21 May 1993. The Solicitor did not inform the body corporate of this direction.

(ix) The Solicitor failed to cause the defendant to comply with His Honour's directions. Accordingly, the matter was relisted by the plaintiff before His Honour Judge Bell on 11 June 1993. His Honour ordered that the defendant file and serve any material upon which it sought to rely by 18 June 1993. The Solicitor did not inform the body corporate of this direction.


(3) The Solicitor having misled his clients prepared false documents to support that deception. There have been admissions by the Solicitor that in relation to the Proprietors of Strata Plan 32861 that by letter of 13 October 1992 he wrote to his clients stating that a Summons for the winding up of Dylmine Pty. Ltd. had been filed and the hearing date of that Summons was 17 November 1992. A further admission was that the Solicitor had caused time costing records to be prepared indicating he attended at Court on 17 November 1992.

The statements as to the filing of a summons, the allocation of a hearing date of the Summons of 17 November 1992 and the attendance at court on that day were false. There was no attendance at Court on that day as no summons had been filed.

(4) The Solicitor delayed carrying out instructions without reasonable cause.

In relation to Mrs Salisbury’s matter there was delay in carrying out instructions without reasonable cause in relation to ascertaining the identity of the owner and/or developer of the Ritz Carlton site. Consequently there was delay. Further the statement of claim, whilst drafted was never filed.

In relation to the matter in acting on behalf of Mr Knight the Solicitor failed to file a statement of claim within the limitation period.

In relation to Mr Kovacevic the Solicitor failed within time to send the claim form to the relevant Third Party motor vehicle insurer. Further the Solicitor adjourned the strike out application without instructions, and consented ultimately to the proceedings to be struck out without instruction.

In relation to the matter of SP 32861 the Solicitor received instructions to issue a summons for the winding up of Dylmine Pty. Limited. The solicitor falsely asserted in a letter of 13 October, 1992 that a Summons had been filed and was listed for hearing on 17 November, 1992.

(5) The Solicitor acted without instructions.

In the matter of Knight having failed to file a statement of claim within the limitation period which expired in June of 1991, the Solicitor without instructions filed a Notice of Motion seeking an order extending time under the Limitation Act.

In the matter of Kovacevic we are comfortably satisfied the Solicitor acted without instructions in adjourning the strike out application on a number of occasions. We are also comfortably satisfied the Solicitor acted without instructions in consenting to the statement of claim being struck out with an order for indemnity costs.

(6) The Legal Practitioner, Francesco Leonardo Andreone, failed, on two occasions, to comply with a requirement by the Council of the Law Society of New South Wales pursuant to Section 152(1) of the Legal Profession Act, 1987. Such failure amounts to professional misconduct pursuant to section 152(4) of the Act.

62 Each of these matters are admitted by the Solicitor.

63 Limited aspects of the particulars were contested and the contested issues principally focussed on the following:

(1) Mr. Villata alleged that he instructed The Solicitor to commence proceedings against a Mr. Dunn, a guarantor of Australian Curtains Industries Pty. Ltd.

(2) Mr. Villata further alleges that on a number of occasions the Solicitor asserted that he had commenced such proceedings.

(3) In fact no such proceedings were commenced.

(4) The Solicitor denies ever having received instructions in that regard.

(5) No documents were produced arising out of a Subpoena directed to Mr. Villata in relation to the alleged giving of such instructions.

64 The Solicitor denies having accepted instructions or having made any assertions as to the filing of a Statement of Claim.

65 Mr Villata gave evidence before the Tribunal. The Solicitor gave evidence on this issue and on a variety of other matters which we will return to later.

66 On this particular issue the Tribunal is not comfortably satisfied that such instructions were given, nor is the Tribunal comfortably satisfied that the Solicitor advised Mr Villata a Statement of Claim had been filed.

67 This finding does not reflect in any way adversely on the genuineness of the efforts of the witness to assist the Tribunal through his evidence under oath.

68 Further in relation to Mr Villata, admissions have been made as set out earlier by the Solicitor.

69 In relation to the default judgment, against the Debtor Mr McKenzie, the Solicitor has already made an admission that he made a statement that was untrue and a writ had not been lodged on the title of Mr McKenzie’s house.

70 We are not comfortably satisfied that the Solicitor in advising Mr Villata a writ was placed on the Malabar property was deliberately lying to Mr Villata.

71 It is clear that the events relate to a period of time going back some 7 years or more and it is also clear that there are aspects of the chronology of events in which Mr Villata acknowledges he could well have been in error.

72 Further it is clear that a writ was lodged on a Cronulla property.

73 In considering what orders should be made in this matter, the Tribunal is mindful of its powers under Section 171C(1) and 171E(1) which are in the following terms:

"171C.(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:


(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct;

(b) order that the legal practitioner's practising certificate be cancelled;

(c).order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order;

(d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000.00 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000.00 if the legal practitioner is guilty of unsatisfactory professional conduct;

(e) publicly reprimand the legal practitioner of, if there are special circumstances, privately reprimand the legal practitioner;

(f) order that the legal practitioner undertake and complete a course of further legal education specified in the order;

(g) in the case of a Solicitor, make any one or more of the orders referred to in subsection (2);

(h) if applicable, make a compensation order;

(i) make ancillary orders."

Award of costs by Tribunal

74 171E. (1) The Tribunal may make orders requiring a legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct (or any associated Solicitor corporation) to pay such amounts by way of costs (including the costs of the Commissioner, the appropriate Council and the complainant) as it determines.

75 In Law Society of New South Wales v Bannister (unreported, Court of Appeal, 27 August 1993) Sheller J.A. with whom Gleeson C.J. and Handley J.A. agreed stated at 11:

...the supervisory jurisdiction of the Court and of statutory bodies such as the Tribunal is directed in part to ensuring that the requirement enshrined in the Charter of Justice of persons admitted to practise as Solicitors be fit and proper persons or, in the language of s.16 of the Legal Profession Act 1987, if good fame and character is maintained. It follows that if a Solicitor is shown not to be a fit and proper person he or she should be removed from the roll. The order for removal is not punitive but protective.

76 In Law Society of New South Wales v. Walsh (unreported), Court of Appeal, 15 December, 1997 Powell J.A, which whom Beazley J.A. and Clark A.J.A. agreed formulated the approach that should be adopted by this Tribunal in this way, at 63:

“The ultimate question for the Tribunal was and the ultimate question for this Court is to determine whether the conduct of the (respondent) renders him a person not of good fame and character or a person who is unfit to remain upon the Roll of Legal Practitioners; and that, in determining that question, it was open to the Tribunal, as it is open to this Court, to have regard to the whole of the evidence as to the respondent’s conduct revealed by the evidence, and not merely to that part of the evidence which might be directly related to the complaints as formulated and as particularised.”

77 Similarly, Beazley, J.A. in Walsh said at 9:

“Principles, then, which should guide the Court, and, I should add, the Legal Services Tribunal, in determining the appropriate penalty may be summarised shortly:

• The Court’s power is discretionary;
• Subject to considerations which would compel the Court to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner’s name from the Roll when the practitioner has been found not to be of good fame and character;
• The subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Court’s jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct promptly to report it;
• In general, mitigating factors, such as evidence of a respected reputation, no previously found misconduct or service to the profession “are of considerably less significance than in the criminal sentencing process”: Law Society of New South Wales v. Bannister at 13.”

78 We have earlier set out the principles which govern disciplinary proceedings as stated in Law Society of New South Wales v. Bannister. It is undisputed that disciplinary proceedings are concerned with the protection of the public: Wentworth v. New South Wales Bar Association (1992) 176 CLR 239 per Dean, Dawson, Toohey, and Gaudron, J.J at 251; Clyne v. New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v. Evatt (1986) 117 CLR 177 at 183-1984; Weaver v. Law Society of New South Wales (1979) 142 CLR 201 at 207; and Walter v. Council of Queensland Law Society Inc. 1988 (62 ALJR) 153 at 157. Beazley J.A. dealt generally with this matter in Walsh at page 3:

“The Court’s duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of Solicitors. In this sense, any penalty imposed should contain an element of “general deterrance publicly marking the seriousness of what the instant Solicitor has done. Forman per Mahony, J.A. at 441; see also 444”.

79 The Court of Appeal in Harvey v. the Law Society of New South Wales (1975) 49 ALJR 362 at 364 stated:

“The function of a Court called upon to consider an application to remove the name of a practitioner from a Roll of Practitioners is to examine the material proffered to it in order to determine whether that material establishes that the Solicitor has failed, by action or inaction, to maintain in his conduct the standards required of him as a member of the profession. The Court’s duty is to ensure that those standards of the profession are fully maintained particularly in relation to the proper relationship of practitioner with practitioner, practitioner with the Court and practitioner with the members of the public who find need to use the services of the profession. It is no part of that function to punish the Solicitor whose conduct the Court finds to be in breach of those professional standards.”

80 In Law Society of New South Wales v. Walsh, Beazley, J.A. with whom Clarke A.J.A. agreed emphasised the discretionary nature of the Court’s power, leaving open the possibility that the Court may decline in particular circumstances to remove a practitioner’s name from the Roll of Solicitors notwithstanding a finding that the practitioner is not (that is at the time of the hearing) of good fame and character (at 9-10). Powell J.A. and Clarke A.J.A. emphasised however, that once a finding is made that a practitioner is not of good fame and character the proper exercise of the protective jurisdiction requires the making of an order removing the practitioner’s name from the Roll.

81 Clarke A.J.A. emphasising:

“Otherwise, as it seems to me, the Court would have failed to recognise the true nature of its obligation to afford protection to the public – an obligation, the ambit of which has been discussed in, inter alia, Law Society of New South Wales v. Bannister."

82 It follows that where a finding is made that a practitioner has rehabilitated himself or herself, a finding that he or she was presently not of good fame and character should not be made. The overriding obligation on the Tribunal is to ensure that the public is protected. It may also take into account subjective considerations which would mitigate penalties, as was stated in Law Society of New South Wales v. Bannister (at 12):

“if the protective exercise being undertaken by the Tribunal requires that they be taken into account”:

83 The following facts, in the Tribunal’s view, can properly be take into account in favour of the Solicitor:

(1) The Solicitor has shown genuine contrition and remorse for his totally unsatisfactory behaviour.

(2) The vast majority of the matters the subject of the information, excluding item 6 thereof, fell within a timeframe which occurred more than 5 years ago. The evidence in favour of the Solicitor is that he is held in very high regard by members of the profession and the community and that he is a person of integrity. During the last 5 years the Solicitor has maintained the standards required of him as a member of the profession.

(3) In that role he has been of service to the profession and the general public.

(4) The Solicitor’s evidence is that he was overworked, overstressed and not properly assisted.

84 In respect of this last matter Mahony J. in Law Society of New South Wales v. Foreman (1994) 34 NSWLR 408 said at 445:

“It is relevant also to bear in mind that some of the pressure to which she referred was not different in kind – whatever be the position as to degree- from the pressure to which other Solicitors are subjected when practising in large firms. It is proper to infer that other Solicitors in large or medium sized firms are pressed to work hard, to procure the prompt and early payment of costs, to obtain special agreements as to costs and to produce costs to budgets fixed in advance. One may understand the affect of such pressures without accepting that they mitigate significantly the falisification of documents which took place in this case.”

85 This case is obviously different to the Foreman case. The Solicitor had as part of his conditions of employment an incentive provision that provided for increased remuneration if his costs exceeded $100,000.00. Such a provision needs to be treated with caution by Solicitors. It can result, as we accept was the case here, in a Solicitor taking on a workload which was excessive for the skill and ability of the Solicitor and which led to the failure of the solicitor to properly discharge his obligations as a member of the profession and to meet the standards required of him as a solicitor.

86 We have further had an opportunity to observe the solicitor’s general demeanour in the witness box. The Solicitor gave his evidence candidly and honestly. We are satisfied as to his genuine contrition and commitment to discharging his professional obligations.

87 The jurisdiction exercised by this Tribunal in relation to the discipline of Solicitors is protective in nature. It is not punitive. If it was merely punitive then this Tribunal may well have adopted a different approach.

88 In our opinion there is in this matter, having regard to the whole of the evidence, mitigating conduct sufficient to compel a lesser order than de-registration. We accept that the Solicitor’s lack of honesty in 1992/1993 can properly be characterised as isolated instances of dishonesty.

89 The Tribunal is satisfied that on the basis of the material before it, the Solicitor has been guilty of a series of acts which constitutes common law professional misconduct and in respect of the Section 152 Complaint, Statutory Professional Misconduct.

90 The Tribunal has considered deeply what are serious matters. It is a fine line between the imposition of a substantial fine in circumstances like this and a strike off order.

91 The authorities suggest that an order for suspension will only be appropriate in very limited circumstances. In Law Society of New South Wales v. McNamara (unreported), New South Wales Court of Appeal, 7 March, 1980), Reynolds J.A. stated (at 7):

“An order for suspension must be based upon a view that at the termination of the period of suspension the Practitioner will no longer be unfit to practice because, subject to any limitation imposed on the issue of a practising certificate, his name will then be on the Roll of Solicitors and he may resume his practice”.

92 His Honour further expressed the opinion that when cases of present unfitness were shown, it would not frequently be appropriate to order suspension because it is difficult for a Tribunal to feel confident that at the expiration of one or more years, a person presently unfit to practice will be fit. He continued (at 8): “the use of the power to suspend is valuable as a punitive measure but needs cautious application where fitness and the Court’s protective function is involved.”

93 The question is whether the Solicitor is fit to be held out as a member of the Legal Profession. In all the circumstances and giving due weight to the whole of the evidence, we have reached the firm conclusion that he is. The Tribunal has been persuaded that there has been over the interval between the misconduct and the hearing of the case, a reformation of character, a real repentance and a determination to act uprightly and honourably so that the Solicitor may continue to be entrusted with the high duties and grave responsibilities of a member of the profession.

94 In all the circumstances, and after a great deal of deliberation, we consider that the Solicitor should be fined the sum of $25,000.00.

95 The Council of the Law Society sought an order restricting the Solicitor's practising certificate to being that of an employed Solicitor for 12 months. In light of the Tribunal’s determination and orders in this matter, we are not satisfied that such an order is required in the public interest.

ORDERS

96 The Tribunal makes the following orders:

1. The Respondent be reprimanded.

2. The Respondent is fined the sum of $25,000.00.

3. The Respondent must pay the costs of the Law Society of New South Wales, as agreed or as assessed.

Last Updated: 06/08/1999