Frustrated with the way his criminal matter was handled, an NSW man attempted to win back the $10,000 he paid to a solicitor who allegedly ignored instructions and deliberately misled him.
Self-represented man Amir Abubaker was unsuccessful in his bid to recoup the $10,000 in legal fees he paid to a solicitor to represent him in the Local Court on charges of obtaining a dishonest financial advantage and using false document to obtain a financial advantage.
The dispute was rejected by the NSW Civil and Administrative Tribunal last September, but Abubaker tried to appeal on the grounds of error of law and error of facts requiring the grant of leave.
Referring to the duty to deliver legal services competently and diligently, senior members Gregory Burton SC and Peter Molony found that services under the retainer were “delivered with due care and skill and were fit for purpose” in their recently published decision.
Abubaker was charged in relation to alleged false certification as roadworthy of many vehicles, when he was not an authorised examiner, was not employed by any authorised inspection station, and received fees in respect of the certifications.
An associate charge of recklessly dealing with proceeds of crime in the sum of $128,394 was pressed as $3,250 only, due to the prosecution’s difficulty in obtaining a large number of witness statements.
However, the whole amount was contained on the fact sheet handed up to the sentencing magistrate, who commented on the large figure and commented a “harsh sentence” should be imposed.
Abubaker was convicted, ordered to complete 200 hours of community service, and placed on a two-year good behaviour bond.
He attended the solicitor’s office shortly afterwards and expressed his dissatisfaction with the handling of his matter, but especially the reference of the large amount during the sentencing hearing.
In the primary decision, the member said there was “ample” evidence to support the solicitor’s communication with police to have charges amended or withdrawn, as well as contemporaneous handwritten notes, that indicated he acted on Abubaker’s instructions.
In contrast, there was “no evidence” showing an instruction to change the amount to be pleaded apart from a note, written several months before the sentencing, to have “some charges” out.
The primary member was also satisfied that there was no evidence that Abubaker “expressly or by implication disclosed” a purpose for the legal services other than to ensure the sentence was non-custodial.
This was in circumstances where it was “not reasonably foreseeable” from the commencement of the retainer contract that a conviction and sentence at the lower end of the scale would be provided.
“Ultimately, the services supplied resulted in a product, being the sentence, which was reasonably fit for purpose of achieving a specified result, being a non-custodial sentence.
“The consumer relied on the skill and judgment of [the respondent] and the barrister he engaged and achieved the result that was bargained for,” the primary member determined.
The primary member was also satisfied that the barrister acted reasonably in not allowing Abubaker to give evidence, adding it would have been almost negligent for a barrister to put the accused in the witness stand to give evidence “demurring from the facts and charges”.
In the appeal proceedings, Burton and Molony said there was no basis for saying the reasons were inadequate.
In doing so, they pointed to the primary member’s finding that Abubaker had signed a new fact sheet that contained the higher figure several months before the sentencing. However, he noted this should not be construed as his “not having instructed to agree”.
“Even if the file note … recorded an instruction to seek to lower what was pleaded to, the applicant had ample opportunity to seek a correction before signing the fact sheet and not to sign the fact sheet if it was contrary to his instructions,” Burton and Moloney said.
Abubaker also appealed the primary member’s finding that they had no jurisdiction to deal with the $10,000 refund request.
While Molony and Burton found receipts to be “curious”, the primary member’s decision on jurisdiction was correct.
“A costs assessment initiated by either the legal representative or the client is the logical precursor to a determination of whether the respondent is required to refund part of what was paid or is entitled to further payment,” the tribunal said.
The case: Abubaker v Vaughan [2025] NSWCATAP 228.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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