Hedair v Shine Lawyers

1. [1]

   HIS HONOUR: By his amended notice of motion filed on 27 September 2024, Dean Hedair seeks leave to file and serve a further amended statement of claim and to join a third defendant. That motion was originally listed for hearing on 10 December 2024, when I made orders that Mr Hedair provide yet another draft of the proposed further amended statement of claim. That document was served on the defendant on 5 February 2025. However, on 13 February 2025, Mr Hedair conceded that the document could not withstand scrutiny and discarded any reliance upon it. Orders were then made requiring Mr Hedair to provide a proposed second further amended statement of claim by 27 February 2025. It was served the following day.

2. [2]

   The matter returned to me on 7 March 2025. On this occasion, Mr Hanrahan of counsel appeared for Mr Hedair. The proceedings were once again adjourned, this time to 14 April 2025. By the time of that appearance, Mr Hedair had provided the parties with a further proposed amended statement of claim, solemnly characterised at my urging as the final version of his pleaded case.

3. [3]

   Kheir Lawyers has consistently maintained that no version of the proposed pleading, including its latest iteration, can survive scrutiny. They maintain that view, effectively citing the final version as merely the most recent example of Mr Hedair’s several flawed attempts to amend. I am therefore asked by Kheir Lawyers, in response to this latest edition, to refuse the leave that is sought and to dismiss the proceedings.

4. [4]

   In my opinion, the application to amend is indefensible. The proceedings against Kheir Lawyers should be dismissed. My reasons for forming that view are as follows.

Background

1. [5]

   Mr Hedair pleads his cause of action against Kheir Lawyers in his further proposed amended statement of claim. A brief outline of that document is necessary for present purposes.

2. [6]

   Mr Hedair alleges that he was injured as long ago as 9 June 2011 in the course of his employment with JHA Formwork Pty Ltd. He particularises the circumstances in which he was injured as occurring “when he tripped and fell and was then struck on his back, neck and head by a falling length of metal”. Mr Hedair alleges that, from 20 August 2015 to 24 July 2017, he retained Kheir Lawyers in “relation to his claim for compensation, to advise generally and if possible, to commence and prosecute a claim for compensation”.

3. [7]

   Paragraph 8 of the proposed further amended statement of claim pleads that on 7 December 2015, Kheir Lawyers wrote to Mr Hedair advising him that he had no common law cause of action. However, somewhat curiously, on 18 February 2016, Kheir Lawyers advised Mr Hedair that in fact he “had a good cause of action”. That change is particularised in his further proposed amended statement of claim as follows:

4. [8]

   Paragraph 8 thereafter contains the following:

5. [9]

   Paragraph 10 then pleads that a statement of claim was filed on 21 October 2016. It was in identical terms to the version current when the matter had previously been unsuccessfully mediated.

6. [10]

   Paragraph 12 of the statement of claim alleges that “the statement of claim made allegations that could not be established”. That allegation is particularised at some length in the following terms:

7. [11]

   Paragraph 13 of the statement of claim then asserts that Kheir Lawyers filed an amended statement of claim on 24 November 2016. Paragraph 14 of the statement of claim alleges that they did so without first seeking leave. That allegation is followed by reference to the relevant risk:

8. [12]

   Paragraph 24 alleges that Mr Hedair suffered damage as the result of Kheir Lawyers’ negligence, particularised as a “failure to properly investigate the circumstances accident [sic] before advising [Mr Hedair] and commencing proceedings on his behalf”.

9. [13]

   Finally for present purposes, paragraph 26 is in these terms:

10. [14]

    The statement of claim elsewhere alleges against the solicitors who succeeded Kheir Lawyers that they settled Mr Hedair’s claim against the employer for $140,000 clear of workers compensation payments he had previously received but that he never gave informed instructions to them to do so as he could not read English and was intoxicated at the time. It is also alleged that the pleaded claim that he compromised did not fully or accurately represent a correct recitation or compilation of the facts upon which he wished to rely.

Consideration

1. [15]

   It seems reasonably apparent, although it is by no means certain, that Mr Hedair asserts that he had a viable cause of action against his employer which, if correctly pleaded, would have had reasonable prospects of success but that by reason of the negligence of Kheir Lawyers, he lost the opportunity to recover damages. The negligence that is alleged would appear to be that Kheir Lawyers commenced proceedings that did not disclose a viable cause of action and, in a related sense, that they were at fault for not themselves investigating the circumstances that would have come to light, and accordingly would have formed the basis of that allegedly viable cause of action, if they had done so.

2. [16]

   It is common ground that on 6 November 2020, her Honour Judge Gibson in the District Court dealt with an application by Mr Hedair, who at that time instructed Kheir Lawyers to appear for him, in which he sought leave pursuant to s 318 of the Work Injury Management and Workers Compensation Act 1988 to rely upon certain documents and material: the dispute related to whether he should be entitled to do so and whether the material was in fact reasonably available earlier. In the events that occurred, the application eventually became one to vacate the hearing which was scheduled to commence on 2 December 2020. Her Honour dismissed both applications. She found that it was a clear case where the material concerned was in fact reasonably available and where granting leave would create not merely prejudice but substantial prejudice conformably with s 318(2) of the Act.

3. [17]

   Her Honour’s judgment is extremely instructive for present purposes. It deals at some length and in detail with the circumstances in which Mr Hedair came to be injured in the workplace on 9 June 2011. It is apparent from her Honour’s consideration of that issue that those circumstances were by no means clear or certain. Part of her Honour’s judgment includes the following:

4. [18]

   Mr Hedair wishes to contend that his latest proposed amended pleading legitimately clarifies the case he wishes to propound. That necessarily means in the circumstances of this application, among other things, that an uninstructed reader, such as me, of the proposed pleading would understand and appreciate, without reference to extraneous material or the benefit of some background information or knowledge of the history of the matter, precisely what Mr Hedair’s instructions to Kheir Lawyers were, including the time and place and terms and form of those instructions, in accordance with which they allegedly should have “investigated” the circumstances that gave rise to his injuries, and which supported the allegation that Kheir Lawyers negligently failed to do so.

5. [19]

   Nothing in the proposed amended pleading provides anything approaching a satisfactory or comprehensible explication of those matters. Nor is it apparent on the face of the proposed pleading what it is precisely that Kheir Lawyers would have discovered if they had carried out the “investigation” that Mr Hedair alleges they negligently failed to conduct. This is not in my opinion surprising when one has regard to the summary contained in Judge Gibson’s judgment. It is obvious to me that Mr Hedair did not know what happened to him and was unable to give instructions to Kheir Lawyers telling them what happened. The allegation that Kheir Lawyers were retained by Mr Hedair and so had a contractual duty to “investigate” what happened, or alternatively that they failed in breach of some putative duty to do so, cannot survive as a pleaded allegation in proper form when details of what Mr Hedair instructed them to do is entirely absent from the pleaded case.

6. [20]

   In summary, the statement of claim fails entirely to plead in clear terms what instructions Mr Hedair gave to Kheir Lawyers concerning the circumstances in which he says that he was injured or the respects in which the previous pleadings failed properly to reflect those instructions. The further complaint that Kheir Lawyers were obliged to, and therefore should have, investigated these circumstances but failed to do so is also necessarily a function of some specific instruction, but the fact or terms of any such instruction are not specified.

7. [21]

   In my opinion, Mr Hedair has not, and quite clearly cannot, formulate his case against Kheir Lawyers in accordance with the most fundamental requirements of the rules despite several attempts to do so. The present attempt was uncontroversially accepted to be the last opportunity that Mr Hedair should have. Accordingly, the proceedings against Kheir Lawyers should be dismissed with costs.