Abubaker v Vaughan

CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343

Collins v Urban [2014] NSWCATAP 17

Cominos v Di Rico [2016] NSWCATAP 5

Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109

Donohoe v Albulario [2025] NSWSC 9

FTB v Children's Guardian [2024] NSWCATAP 174

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Orr v Cobar Management PL [2020] NSWCCA 202

Owen v Kim [2017] NSWCATAP 26

Pholi v Wearne [2014] NSWCATAP 78

Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62

1. We have decided, for the reasons below, to refuse leave to appeal and to dismiss the appeal.
2. Both parties appeared in person and neither sought leave for legal representation on the appeal. The respondent, although a solicitor, is not entitled to seek the costs of representing himself: Bell Lawyers PL v Pentelow [2019] HCA 29, 269 CLR 333. We accordingly make no order as to costs of the appeal.

1. The respondent to the appeal (who was also the respondent in the primary proceedings) is a solicitor of the Supreme Court of NSW. He was retained by the appellant (who was the applicant in the primary proceedings) in respect of representation of the appellant, including briefing of counsel as required.
2. The appellant was initially charged with 21 counts centring on obtaining a dishonest financial advantage and using (originally making) a false document to obtain a financial advantage. The charges related to alleged false certification as roadworthy of many vehicles when the appellant was not an authorised examiner, was not employed by any authorised inspection station and received fees in respect of the certifications. The charged offences carried a maximum imprisonment term of 10 years. An associated charge of recklessly dealing with proceeds of crime of $128,394 was pressed as to $3,250 only (owing to difficulty in obtaining a large number of witness statements) but the total amount was on the police fact sheet handed up on sentencing and was commented on by the sentencing magistrate.
3. In the primary proceedings filed 5 June 2024 the appellant sought a refund of $10,000 of the legal fees that he claimed to have paid the respondent under the retainer.
4. The appellant claimed a breach of the consumer guarantee of due care and skill (described below) in provision of retained representation services. The respondent was alleged to have failed to give the police the appellant's instructions on the content of agreed facts and withdrawal or modification of two charges in formulating the terms of an agreement whereby the appellant pleaded guilty to some of the charges. In particular, the respondent was said not to have followed instructions to plead guilty only to $3,520 of the financial advantage received for falsification of roadworthy certificates, not $128,394. A sentencing hearing on 3 April 2024 was said to have been adjourned because the respondent had not followed such instructions. At the adjourned hearing on 10 April 2024 the briefed barrister was alleged not to have listened to the appellant's seeking to correct the amount the subject of the plea.
5. The appellant stated that, at the sentencing on 15 May 2024, the magistrate read out agreed facts and stated that a harsh sentence should be imposed to teach the appellant a lesson and to act as a deterrent to the community due to the large amount of money involved and that an amount greater than $128,000 did not allow him to exercise leniency. The magistrate proceeded to convict and imposed a 200-hour community service order (CSO) with a two-year good behaviour bond. This represented in substance what the magistrate said when the transcript was obtained, relevantly:

"... There is also an additional charge of recklessly dealing with proceeds of crime, which suggests that over a considerable period of time he dealt with about $124,000 that were the proceeds of crime. Mr Abubaker, the offences are very serious. They carried significant terms of imprisonment, as Mr Conomos has clearly said in his submissions, in New South Wales, the system of transport on the roads requires a significant degree of integrity amongst those who work within it, so that the vehicles are roadworthy and it promotes road safety and creates a less risk to the community. And there's a real need for general deterrence in relation to this matter, to send a strong message to the community that people who engage in acts such as you were engaging in creates a significant risk to the community, as well as having committed an offence of dishonesty."

1. In a visit to the respondent's office on 27 May 2024 the appellant said that he expressed his dissatisfaction with the handling of the case, particularly the reference in the sentencing reasons to the large amount. The respondent was said to have advised an appeal to the District Court but that would require payment of further fees. The appellant requested and the respondent refused to return $10,000.
2. The appellant contended that the refund should occur because most of the hard work had been done and there were only two more hearings of about 40 minutes each. The respondent was alleged to have deliberately misled the appellant by telling him that the remaining hearings would take many hours and involve cross-examination of him and his family when in reality there were only two 40 minute hearings to go (said at one point to be 20 minute hearings) because the work had already been done on negotiating a plea having received and modified the police brief. On that basis the appellant had sought the $10,000 refund on 28 March 2024.
3. The appellant said that he paid $1,000 on 1 December 2023 and $4,000 on 28 December 2023 - those dates were said to correlate with his ANZ account withdrawals and a cash receipt signed by the respondent. The appellant said that he made a further withdrawal of $10,000 on 27 March 2024 and the receipt of 28 March 2024 related to that further payment, so that he had paid $15,000 in total. The respondent's signatures on cash receipts were not disputed. When he asked the respondent to repay $10,000 out of the $15,000 the appellant said that he had paid, the respondent's reply did not dispute the total amount of the payment as one would expect but refused the refund.
4. The appellant also said that the respondent had claimed for work until 28 May 2024 when the case ended on 15 May 2024 and that there was an unexplained reduction in actual fees from $18,355 to $13,475 in the respondent's later correspondence compared with his submission at hearing.
5. The respondent said that in accord with usual practice he asked the appellant to take the police brief after it arrived on 2 February 2024 and mark it with areas of disagreement. (The appellant said that the respondent did not read the brief.) The respondent said that, after he read the brief, it became apparent that the appellant would potentially face, if found guilty, a custodial sentence because of the hundreds of vehicles falsely certified as roadworthy, with the proceeds being expended by the appellant in buying vehicles for himself and a cash payment of $50,000 to his brother. The potential for a custodial sentence was made plain to the appellant who was fearful of that outcome. Negotiations with the police resulted in withdrawal of sequences that related to charges of making false documents and limiting the sequences to use of false documents.
6. To avoid such an outcome with a relatively lenient sentence was a very successful result that involved five appearances with a well-qualified counsel who was a former District Court judge. The appellant was advised to have his family in court only if they were required as character witnesses. There was no rudeness to the appellant as alleged and the adjournment on 3 April 2024 was to allow the latest indictment and charge sheet from the police to be reviewed.
7. There was a costs agreement and bill of costs which the respondent said that he had given to the appellant but the appellant said that he had not seen until the primary proceedings and that the costs agreement and its estimate were fabrications. The costs agreement included a 2.5 hour conference with the appellant on 27 May 2024.
8. The respondent said that the appellant had paid 5,000 in two tranches in December 2023 and $5,000 on 27 March 2024, totalling $10,000, with the receipt for $10,000 issued by him on 28 March 2024 being for such payments in total even though he agreed he had already issued a receipt for the first $5,000. He did not know what the appellant had done with the remaining $5,000 shown as part of the appellant's cash withdrawal on 27 March 2024.
9. After the primary hearing on 17 September 2024 the primary member ordered further evidence as to the amount of cash payments to the respondent for his services, such as account records. This elicited from the appellant the handwritten cash receipts and bank records mentioned above.
10. On 22 November 2024 the primary member dismissed the application with detailed written reasons that are summarised and reviewed below. The appeal was filed within time on 12 December 2024.
11. The Australian Consumer Law is Sch 2 to the Competition and Consumer Act 2010 (Cth) and is made part of NSW law by s 28 of the Fair Trading Act 1987 (NSW) (FTA) under the title Australian Consumer Law NSW (ACL NSW). There was no issue before either the primary member or us that the Tribunal has jurisdiction under FTA Pt 6A to deal with the matter as a "consumer claim". The respondent supplied professional legal services to the applicants as consumers in NSW: FTA s 79D "consumer" para (a), "supplier"; ss 79E-79K(1)(a). The claim was clearly made within three years after it "first accrued": s 79L(1). The amount claimed was under the current Tribunal jurisdictional limit of $100,000 and under the prior limit of $40,000: s 79S. The Tribunal can make a money order under s 79N(a) with s 79Q(1). The claim was not within s 79M which precludes from Tribunal jurisdiction

"A matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor ... if the costs can be the subject of a costs assessment" under Pt 3.2 of the Legal Profession Act 2004 (NSW). 12. FTA s 32 applies the ACL NSW to persons carrying on business within NSW, entities incorporated or registered under NSW law and persons ordinarily resident in or otherwise connected with NSW and for such applications extends to conduct and other acts, matters and things occurring or existing outside or partly outside NSW (whether within or outside Australia). The ACL NSW clearly applies to the respondent who carries on practice as a solicitor in NSW and provided the relevant services to the appellant in NSW. 13. As the primary member pointed out, the ACL NSW provides, in respect of the supply of services to a consumer, guarantees that the services were supplied with due care and skill (ACL s 60) and were reasonably fit for any expressly or implicitly disclosed purpose or result (s 61). Under s 64, such guarantees cannot be excluded. Under s 64A(2), a term of a contract for the supply of services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void if the term limits a person's liability for failure to comply with a guarantee to the supplying of the services again or the payment of the cost of supplying the services again. Such a limit was not relevant in the present matter. 14. Where these guarantees are not complied with, the consumer has rights pursuant to ACL NSW ss 267-270. 15. Under ACL NSW s 267(2), if the failure is not major and can be remedied, the consumer may require remediation within a reasonable time or, if such request is not complied with, otherwise have the failure remedied and recover all reasonable costs of remediation from the supplier, or terminate the contract. 16. If the failure cannot be remedied or is major, the consumer may terminate the contract or recover by action from the supplier any reduction in the value of the services below the price paid or payable for the services: ACL NSW s 267(3). 17. Additionally, under ACL NSW s 267(4) the consumer may recover by action from the supplier damages for any reasonably foreseeable loss or damage suffered by the consumer because of the failure. 18. A major failure occurs under ACL NSW s 268 if: the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such purpose; or the services and any product resulting from the services are unfit for a particular purpose made known to the supplier and the services and product cannot easily and within a reasonable time be remedied to make them fit for such purpose; or the services and any product are not of such a nature, quality, state or condition that they might reasonably be expected to achieve a result desired by the consumer made known to the supplier and the services and product cannot easily and within a reasonable time be remedied to achieve such a result. 19. In Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80 at [85]- [107] the Appeal Panel analysed the case law on what constituted a major failure in respect of a supply of goods, summarising its conclusions at [99]-[102]. Under ACL NSW s 260(a), the test is objective and can be applied by analogy to services. Overall, the test is whether, faced with advance knowledge of the problems and what was needed in terms of time, costs and degree of difficulty to remedy them, a reasonable consumer would have acquired the supply of services or acquired nothing or something else. Thus, for a major failure constituted by chronic or repetitive defective supply taken as a whole, such a period is likely to be longer than for a single catastrophic defect. 20. ACL NSW ss 269 and 270 regulate refunds and termination of services contracts and return of goods and refunds under any connected services contract. 21. There is additional specific relief in ACL NSW ss 232-235 and a right of action for damages in s 236 that also apply to contraventions of the consumer guarantees since the guarantees are within ACL Ch 3 to which these rights of relief apply (they also apply to Ch 2). 22. If a defect is established, a respondent has failed to remediate within a reasonable time and an applicant has obtained quotations for remediation by another supplier and seeks that amount as the reasonable cost of remediation, then that reasonable cost would also be the measure of loss in an action under ACL NSW s 267(4). In these circumstances, it also would be the reduction in the value of the services below the price paid or payable for the services in an action for major failure (s 267(3)). 23. The Tribunal jurisdiction under FTA s 79L(1), discussed earlier, is a distinct issue from the relevant ACL NSW limitation period, including because of the test of first accrual in s 79L(1). If the ACL claim is outside the Tribunal jurisdiction as a consumer claim, the ACL claim would need to be pursued in a court. 24. The right of action for damages under ACL NSW has a six-year time limit starting the day after the cause of action that relates to the conduct accrued. The reference to cause of action appears to include the rights of action for damages in ss 259(4) and 267(4) and the rights of action for reduction in value in s 259(3) and s 267(3). There are similar time limits on compensation orders under ss 237 and 239. 25. Here, the applicant's claim was clearly brought within the six-year time limit under the ACL NSW. 26. At the outset of the appeal hearing each party sought leave to rely on further documents. Two were not objected to, including the transcript of the sentence hearing. The third - a handwritten note with the appellant's and the respondent's handwriting on it - was rejected as clearly available at the time of the primary hearing. 27. No transcript of the primary hearing was provided. It is also not clear that we were provided with all evidence before the primary member.

1. At [28] of the primary reasons (PR) the primary member did not consider further the contentions about alleged misrepresentation concerning a great deal of further work to be done on the matter because it went to the reasonableness of the respondent's costs and was therefore outside the Tribunal's jurisdiction under FTA s 79M. At PR [49] he said "Having dismissed the matter, I have not given any consideration to the dispute over the contract sum paid".
2. At PR [33]-[34] the primary member, in relation to changes to the fact sheets, pointed to "ample" evidence in the respondent's documents of numerous emails with police to have charges amended and/or withdrawn, contemporaneous handwritten notes of instructions that the respondent was given by the appellant and copies of police fact sheets with amendments arising from the respondent's communications with police based on the appellant's instructions. By contrast, there was no evidence showing an instruction to seek to change the amount to be pleaded to apart from a note on 26 March 2024 "some charges - out - some in amount of $3,520".
3. In the absence of evidence about the "industry standard" for duties of a legal practitioner to clients relevant to the issues in the primary proceedings, the primary member referred to the NSW Law Society's online document "Solicitors' duties to clients in NSW" with its requirement that a practitioner "follow a client's lawful, proper and competent instructions".
4. At PR [42]-[43] the primary member said that there was no evidence that the appellant expressly or by implication disclosed a purpose or result that he sought from provision of the services other than the sentence would be non-custodial and that there was no document or other express or implied disclosure to show an instruction that any sentence he received must be at the lower end of the non-custodial scale. It was also not reasonably foreseeable at any point from the commencement of the retainer contract that a conviction and sentence at the lower end of the scale would be provided in the face of numerous serious charges. In those circumstances:

"Ultimately, the service supplied resulted in a product, being the sentence, which was reasonably fit for the 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."

1. Further, at PR [44] the primary member said that the appellant was not able to state what his reasonably foreseeable loss was in relation to the non-custodial mid-to-high-range sentence he was given: "For example, no evidence was given of monies he may have lost due to community service hours he had to engage in at the mid to higher end of the sentencing discretion".
2. At PR [45]-[46] the primary member pointed to the matters already discussed about the communications between the respondent and the police and amended fact sheets, together with the absence of reference to reducing the amount pleaded to. In relation to the mention of a lesser amount, the primary member said that the appellant had many opportunities, after the 26 March 2024 mention of that amount, to give further specific instructions and instead signed the fact sheet containing the much-higher amount. The primary member said he did not give significant weight to the appellant's contention that he signed the sheet not knowing what he was doing or not consenting to the higher amount. He also was not satisfied that the appellant so instructed solicitor and counsel in court. He said that the solicitor would have known that it was much more probable than not that, if the barrister had tried to reduce the amount on the agreed fact sheet so substantially, the prosecution would not have agreed to accept the plea.
3. At PR [47] the primary member was satisfied that the barrister acted reasonably in not allowing the appellant to give evidence - it was a "very risky venture if he were to allow his client to give evidence at either of such hearings that may, at best, demur to what had been agreed to in the facts and the charges laid". The primary member was further satisfied that at a sentence hearing "it is highly improbable, in fact it would be almost negligent, for a barrister to put the accused in the witness stand to give evidence demurring from the facts and charges as to the amount that was defrauded. I note that this amount was also agreed to in a scenario where police did not claim restitution for victims. In other words, [the respondent] had been successful in ensuring with police that no attempt was made to recoup illegal gains the [appellant] obtained from the criminal conduct. This was a supply of services that was very advantageous to the appellant".
4. At PR [48] the primary member found that the respondent more probably than not did advise the appellant to have family members present at the sentence hearing, not to give evidence but, rather, to impact on the magistrate when exercising sentencing discretion to take into account family support and that it was just as probable that was a factor in a non-custodial sentence. The primary member emphasised "It is highly risky at a sentence hearing where one has pleaded guilty to charges to adduce evidence from family members that could possibly throw the agreed facts and guilty plea into disarray".

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."

1. Clause 12 of Schedule 4 to the NCAT Act states:

An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
2. In summary, internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel.
3. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40] esp at [30]-[32], the Appeal Panel set out at [13] a non-exclusive list of questions of law:

(1) Whether there has been a failure to provide proper reasons where they are required;

(2) Whether the Tribunal identified the wrong issue or asked the wrong question;

(3) Whether a wrong principle of law had been applied;

(4) Whether there was a failure to afford procedural fairness;

(5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations;

(6) Whether the Tribunal took into account an irrelevant consideration;

(7) Whether there was no evidence to support a finding of fact; and

(8) Whether the decision is so unreasonable that no reasonable decision-maker would make it.

1. A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the relevant facts are jurisdictional in nature or do not require the appellate tribunal to resolve disputed facts relevant to the matter in dispute, or the question of law does not depend on facts not found: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Cobar Management PL [2020] NSWCCA 202 at [48], [109]; Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]- [23]; Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [43]. However, as noted by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33], this general requirement for purity does not stand in the way of an Appeal Panel making necessary findings of fact about the composition of the primary tribunal or conduct of the primary hearing when the question of law concerns a denial of procedural fairness.
2. Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.
3. Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 esp at [77].
4. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by para 12(1) of Sch 4 to the NCAT Act. In such cases, as already set out, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) the decision of the Tribunal under appeal was not fair and equitable; or

(b) the decision of the Tribunal under appeal was against the weight of evidence; or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where:

"[76] ...there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. ...

[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]."

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [32]. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said:

"[77] As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:

1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]."

1. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in cl 12(1)(c) to the NCAT Act was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]:

"37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act:

'In order to fall within this paragraph the appellant must be able to point to evidence which:

(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'

38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:

'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:

'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.

24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'

39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:

'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"

1. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]:

"An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

1. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 at [13]:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."

1. Nevertheless, the appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: Damico at [45].
2. The appellant provided an 11-page notice of appeal (with a further one-page attachment). The notice was highly repetitive.
3. Distilling grounds as best we can, the following emerge:
4. Errors of law:

(1) The primary member did not exercise jurisdiction to determine the appellant's claim for a refund of $10,000. If the matter had been determined, on the evidence it would have been found that the respondent was paid $15,000 in total, not $10,000, and the primary member would not have accepted the respondent's explanation that the second receipt was for the total of payments to him which effectively duplicated the receipt for the initial cash of $5,000 in two payments in December 2023. Further, the disclosure agreement and bill of costs would not have been accepted as having been provided which meant a breach of the disclosure requirements and the appellant's evidence of the respondent's alleged misrepresentations would have been accepted. This was irrespective of whether it was in the appellant's best interests not to be cross-examined.

(2) The primary member gave inadequate reasons in that he did not consider, in the Law Society's list of duties, the duty to act in the client's best interests, to deliver legal services competently, diligently and as promptly as reasonably possible and to provide clear and timely advice to assist clients.

(3) The primary member did not adequately address the issue that the respondent did not bring to the court's attention not only the lower amount of financial advantage involved but also that the appellant did not deceive anyone because the recipients of the fraudulent roadworthy certificates knew the certificates were not genuine and so were not deceived. This, the appellant contended, could have resulted in no conviction or a lower sentence.

(4) The primary member did not adequately address the issue that it was represented by the respondent to the appellant that he would be able to hand up documents in his defence about how he hadn't deceived anyone and be cross-examined on it and how cross-examination of family members would build a good character reference.

(1) An interlocutory ruling that allowed the respondent to rely upon what the appellant said were 70 pages of disorganised emailed documents as served on him that did not comply with directions for an ordered written copy.

(2) In PR [42], the primary member erred in putting weight on an absence of instructions to seek a sentence at the lower end of the scale since it was part of the solicitor's duty to act in the client's best interests by seeking such a sentence.

(3) The Tribunal ought to have found that the respondent did not act in the client's best interests because he did not read the police brief.

(4) Contrary to PR [18]-[19] and [29], the respondent was alleged to have brought up the relevant amendments to the agreed facts too late, resulting in a wasted court appearance and adjournment.

(5) Contrary to PR [21] and [34], the primary member ought to have found that the decrease in plea amount was raised on several occasions with the respondent.

1. In relation to the alleged failure to put the appellant's instructions on the content of agreed facts, at PR [19]-[20] the primary member pointed to an email in the appellant's documents where the respondent requested, with reasons, the police to change two factual sequences which was done. There were no other instances particularised of failure to put instructions apart from the lower amount, to which we turn.
2. In relation to the alleged failure to follow instructions to plead guilty only to $3,520 of the financial advantage received for falsification of roadworthy certificates, not $128,394, at PR [21]-[22] the primary member recorded that the appellant accepted that he signed a new fact sheet still containing the higher figure but said that should not be construed as his not having instructed to agree to a different amount in conference on 28 March 2024 and at the plea hearing on 10 April 2024. He said that the respondent had told him that he could talk to the judge at the hearing but that he was told by the barrister at the hearing "Shut up and I'll keep you out of gaol".
3. On the documents that we have been provided there is no basis for saying that the reasons given were inadequate or that a ground for a grant of leave in respect of an error of fact is made out. The primary member relied upon the emails which showed that the police removed the sequences requested. Even if the file note of 26 March 2024 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.
4. There was no evidence drawn to our attention which gave weight to the appellant's reason for persisting in signing the fact sheet despite its allegedly not representing his final instructions. It is counterintuitive that a submission at hearing against a recently-signed agreed fact sheet presented to the court, upon which sentencing was proceeding, would carry any weight. It is not credible that a long-experienced and competent legal representative would think otherwise or would put a client in that position of jeopardy. The primary member addressed the unlikelihood of cross-examination of the appellant and family members on sentence given the potential to embarrass the agreed basis on which sentencing was to proceed.
5. It is very difficult, bordering on impossible, to see how the appellant's claim that the respondent and counsel did not bring to the court's attention that the recipients of certificates' knowing they were participating in a fraud on the State transport system would have assisted the appellant's sentencing plea and been an exercise of due care and skill. If the appellant had insisted, one would expect there to be a requirement for instructions in writing to do so and/or a withdrawal from representation.
6. The primary member accordingly dealt with the matters said to constitute the alleged breach of duty to act in the client's best interests. In the circumstances that encompassed the duty to deliver legal services competently and diligently which were the other relevant formulations of duty for the content of the consumer guarantees in question. The services under the retainer were delivered with due care and skill and were fit for purpose.
7. We do find it curious that the respondent issued two receipts for the same amount of cash being the first $5,000 which also appears in part to have been a payment in advance of provision of services.
8. However, the primary member correctly found that the fairness or reasonableness of costs was outside the Tribunal's jurisdiction under FTA s 79M. 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; such assessment would include examining the basis on which payments in advance of work were made and had been accounted for. Part of that assessment may determine how much has already been paid, or that issue will be determined in any further proceedings to enforce the required refund or further payment.
9. A costs assessment process will also determine disputes concerning issue of the alleged costs agreement and bill of costs and, if they were issued, their effect, noting that (although the costs agreement letter is not signed as to acceptance by the appellant) further work was requested and performed after its date of 4 December 2023: refer s 180(3) of the Legal Profession Uniform Law (NSW).
10. There was accordingly no error of law.
11. For substantially similar reasons there was no error of fact justifying a grant of leave to appeal. The solicitor and counsel acted in the client's best interests to achieve the lowest sentence in terms of form and nature that was consistent with the instructions with which they had to work. There was no evidence apart from the appellant's assertion, supported in generalised terms by his brother's assertions, that the respondent did not read the police brief and the respondent's communications with the police would not have been possible without reading the brief.
12. Similarly, there was no evidence apart from the appellant's assertion, supported in generalised terms by his brother's assertions, that the respondent's alleged conduct resulted in a wasted court appearance; indeed, the evidence was to the contrary. What flowed from any such alleged conduct in terms of the relief sought was not made clear and does not justify a broader finding of breach of consumer guarantees.
13. Again, there was no evidence apart from the appellant's assertion, supported in generalised terms by his brother's assertions, that the decrease in plea amount was raised on several occasions with the respondent.
14. We do not accept that the appellant should be allowed leave to raise an interlocutory matter being the alleged disordered and in part unreadable state of the respondent's documents that he received for the primary hearing. The appellant had received the allegedly defective documents about two months before the final hearing. He had not raised the allegations with the respondent or the Tribunal or attempted before the hearing to articulate the prejudice he alleged. As already said, no transcript of the primary hearing was provided so the primary member's reasons for permitting the proceedings to continue with the respondent's documents included were not before us.
15. Leave to appeal will be refused and the appeal dismissed.

(1) Leave to appeal refused.

(2) Appeal dismissed.

(3) Make no order as to costs of the appeal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.