find the latest legal job
Corporate/Commercial Lawyers (2-5 years PAE)
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Specialist commercial law firm · Long-term career progression
View details
Graduate Lawyer / Up to 1.5 yr PAE Lawyer
Category: Personal Injury Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Mentoring Opportunity in Regional QLD · Personal Injury Law
View details
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Full time · Join a leading Adelaide commercial law firm
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Sydney NSW
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
In-house Legal Counsel & Commercial Lawyers
Category: Corporate and Commercial Law | Location: All Melbourne VIC
· Providing lawyers with flexibility and control over when they work, how they work and who they work for.
View details
Claims that lawyers ‘robbed and cheated’ client dismissed

Claims that lawyers ‘robbed and cheated’ client dismissed

Attempts by a Victorian man to have his legal fees refunded and take disciplinary action against lawyers he said told him ‘diabolical lies’ have been thwarted.

Nissanka (Neville) De Silva took his lawyers before the Victorian Civil and Administrative Tribunal last year seeking a refund for fees he believed the lawyers overcharged him for and a list of other pecuniary costs he said were incurred.

The self-represented man told the tribunal that in January 2014, Victorian solicitor Frank Randle and barrister Jim Buchecker failed to file an application to revoke an intervention order obtained by his ex-wife, as he instructed, which led to the cancellation of a firearms licence and the confiscation of his guns.

As a disability pensioner, Mr De Silva told the tribunal, competitive shooting had become "an important social activity". He also submitted that he used the firearms to deter predatory birds on his rural property in Queensland.

Mr De Silva’s application mainly alleged that the lawyers failed in their professional duties to him but also that they “robbed him, cheated him, conspired with his ex-wife and her lawyers, acted in conflict of interest, fabricated documents and were fraudulent and dishonest”.

In her decision, tribunal member Elisabeth Wentworth said Mr De Silva was unable to prove his claims “on the balance of probabilities”, however strong his belief in the assertions may be.

“Mr De Silva may believe these assertions to be true, but assertion of or belief in a fact is not enough,” Ms Wentworth said.

The tribunal member added that evidence provided by Mr De Silva and the legal practitioners differed considerably as to ‘who said what, and when’. On issues where differences arose, contemporaneous documents supported the evidence of the lawyers, she said.

Mr Randle and Mr Buchecker denied the allegations made against them.

Ms Wentworth formed the view that a combination of misunderstanding and “jumping to conclusions” led to the ultimate position taken by Mr De Silva concerning the conduct and alleged negligence of Mr Randle and Mr Buchecker. The applicant received assistance from a translator during proceedings.

“Contrary to Mr De Silva’s submissions after the hearing that Mr Randle told ‘diabolical lies’ at the hearing, I found both Mr Randle and Mr Buchecker to be truthful and careful witnesses, who took care to answer the questions they were asked and conceded that there were limits to their recall on some matters,” Ms Wentworth said.

She went on to acknowledge that while the applicant did his best in the proceedings, Mr De Silva was a less compelling witness. In part this may be attributed to Mr De Silva’s language difficulties and how a failure of communication and understanding in respect of legal proceedings led him to form the views he did.

“[Mr De Silva] gave at times inconsistent evidence, appeared on occasion to be avoiding answering a direct question, and gave the impression of jumping to extreme conclusions about the conduct of Mr Randle and Mr Buchecker without any real basis,” Ms Wentworth said.

“An example of the latter was Mr De Silva’s perceptions of the discussions Mr Buchecker had with the legal representative for [his ex-wife] over the course of the day at court, which in the circumstances were quite appropriate and important discussions to have. Mr De Silva saw this as collusion with the other side.”

The tribunal noted emails containing “quite extreme language” that Mr De Silva sent his lawyers demanding a full refund and $6,000 in expenses. Ms Wentworth said this evidence showed a propensity on Mr De Silva’s part “to make very serious allegations without any reasonable foundation”.

The tribunal concluded that Mr De Silva could not prove any of the serious claims of robbery, fraudulence or conspiracy with his ex-wife that had been contended.

The application against the Victorian legal practitioners was dismissed in November 2016.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Claims that lawyers ‘robbed and cheated’ client dismissed
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Dec 13 2017
Young humanitarian lawyer California-bound
A young Australian lawyer will be travelling to the US next year for a prestigious nine-month study ...
Jackie Rhodes
Dec 12 2017
Report sheds light on LGBTQI inclusion in law firms
A recent report has revealed the varying perceptions on LGBTQI diversity and inclusion in the Austra...
Women in business
Dec 12 2017
Annabel Crabb headlines Women in Business Forum
Political journalist Annabel Crabb has appeared at the Coleman Greig Lawyers Women in Business Forum...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...