Council of the Law Society of New South Wales v Autore [2019] NSWCATOD 10

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Autore [2019] NSWCATOD 10 Hearing dates: 5 June, 16 October, 9 November, 16 November 2018 Date of orders: 09 January 2019 Decision date: 09 January 2019 Jurisdiction: Occupational Division Before: J O'Meally, Principal Member J Pheils, Senior Member E Hayes, General Member Decision: (1) The respondent is guilty of professional misconduct. (2) The respondent will pay the applicant's costs as agreed or assessed. (3) Further hearing is adjourned to a date to be fixed. Catchwords: Solicitor – notice under s 371 requiring answers – insufficient or no answers to questions asked – professional misconduct Legislation Cited: Legal Profession Uniform Application Act 2014 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) Anthony Autore (Respondent) Representation: Solicitors: L Pierotti (Council of the Law Society of NSW) (Applicant) A Autore (Self Represented) (Respondent) File Number(s): 2017/00376917 Publication restriction: Nil

REASONS FOR DECISION

INTRODUCTION 1. This is an application by the Council of the Law Society of New South Wales (the applicant) seeking disciplinary findings and orders against Anthony Autore (the respondent). The application alleges that the respondent failed to comply with a notice issued under s 371 of the Legal Profession Uniform Law Application Act 2014 (the Uniform Law). The respondent said he complied with the notice and also said the notice was not authorised by law. Section 371 relevantly provides: 371 Requirements—complaint investigations (1) For the purpose of carrying out a complaint investigation in relation to a lawyer ..., an investigator may, by notice served on the lawyer ..., require the lawyer ... to do any one or more of the following-- (a) to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document); (b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states); (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. 1. Notice pursuant to s 371 was served on the respondent on 3 May 2017. That notice related to a complaint made against the respondent on 15 March 2016. It is important to emphasise that we are not concerned with that complaint. We are concerned only with the questions whether the respondent has complied with the notice served upon him on 3 May 2017 and whether the notice was lawfully issued. 2. On 24 May 2017 the respondent wrote to the applicant providing what the applicant says was an incomplete answer to the notice. 3. On 25 May 2017, a complaint was made against the respondent alleging he had failed to comply with the notice. 4. The notice required compliance on or before 21 days after service. 5. On 29 May 2017 a letter was sent by the applicant to the respondent informing him of the complaint and requesting his response by 20 June 2017. No response was received. 6. On 22 June 2017 a further letter was sent by the applicant to the respondent requesting a response by 14 July 2017. No response was received. 7. On 17 July 2017, a final letter was sent by the applicant to the respondent requesting a response by 3 August 2017. No response was received. 8. The issues for our determination, as noted, are whether the applicant was permitted by law to make the demands upon the respondent pursuant to s 371 and whether there has in fact been a response by the respondent to the notice in his letter of 24 May 2017. 9. It is appropriate to record that the respondent concedes these proceedings have been regularly instituted. 10. The relevant parts of the notice are as follows: You are required to provide the following information: 1. By letter dated 28 February 2017, Mr Tom Williams, your legal representative, sent a letter to the Law Society, on instructions from you, which relevantly stated under heading "5 Absence of authority to withdraw money from the trust account": "..Mr Sommadossi's signed authority was not a single blanket authority, but rather individual authorities for the case of individual transfers, and it is difficult to give those authorities any construction other than that they were referable to the transfers which were effected." (a) For each of the following tax invoices issued by you to Mr Sommadissi (referred to at pages 204 to 210 of the trust report prepared by Mr Ronald Dunlop and dated 24 July 2015 (Trust Report)), please specify which signed authority (located at 213 to 220 of the Trust Report) relates to each tax invoice: (i) Tax Invoice dated 18 March 2014 in the sum of $46,200 (ii) Tax Invoice dated 10 April 2014 in the sum of $19,800 (iii) Tax Invoice dated 1 May 2014 in the sum of $6,600 (iv) Tax Invoice dated 1 June 2014 in the sum of $6,600 (v) Tax Invoice dated 19 June 2014 in the sum of $77,000 (vi) Tax Invoice dated 1 July 2014 in the sum of $5,500 (vii) Tax Invoice dated 28 July 2014 in the sum of $5,500 (viii) Tax Invoice dated 4 August 2014 in the sum of $5,500 (ix) Tax Invoice dated 25 August 2014 in the sum of $11,000 2. At Pages 18 and 19 of the Trust Report, Mr Ronald Dunlop (Mr Dunlop) has set out his questions and your responses at an interview on 15 April 2015. (a) Do you agree with the setting out of the questions asked of you by Mr Dunlop ? (b) If you do not agree, please specify, in words to the effect, what you say was asked by Mr Dunlop. (c) Do you agree with the responses attributed to you for each of the answers provided at pages 18 and 19 of the Trust Report ? (d) If you do not agree, please specify, in words to the effect, what you say was said by you to Mr Dunlop in reply to each of his questions. 3. By letter from Mr Williams to the Law Society dated 28 February 2017, he has advised that in relation to complaint 3: (a) "on a regular basis", you informed Mr Sommadossi of the "level of fees being incurred". (b) On "each occasion" when Mr Sommadossi attended your office "for the purpose of discussing the amount of the bills, those bills were prepared for his scrutiny. The original bills were there.." (c) "Clearly the bills were on the file when it was inspected by Mr Dunlop". For each of the tax invoices issued by you in respect of acting for the Estate of Fabio Larger and the sale of the property located at 54 Bland St, Port Kembla: (i) On what date(s) did you "speak" with Lorenzo at his office and where did the conversations occur? (ii) Who was present during the meeting(s)? (iii) What was said by each party? Please use direct speech in your reply. (iv) What invoice(s) was/were discussed? 4. On what date did you commence preparation of the itemised bills? 5. If you engaged the services of a costs consultant to prepare the itemised bills, please advise the name of the costs consultant and the date of engagement of the costs consultant. 1. The affidavit of Anne Marie Foord dated 12 December 2017 (ex AX1) filed for the applicant states that the respondent failed to provide responsive answers to the questions at paragraphs 1(a)(i) to (ix), 2(b), 2(d), 3(c)(i), 3(c)(iii), 3(c)(iv) and 4. 2. In addition to his affidavit, the respondent gave evidence and was cross‑examined. 3. The evidence before the Tribunal in respect of each response is as follows.