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[2025] NSWSC 441
General information, not legal advice.
Supreme Court of NSW
2025-05-12
Harrison CJ at CL
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hedair v Shine Lawyers [2025] NSWSC 441
Hearing dates: 14 April 2025
Date of orders: 12 May 2025
Decision date: 12 May 2025
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision: Proceedings against Kheir Lawyers dismissed with costs.
Catchwords: CIVIL PROCEDURE – pleadings – application to amend – proceedings initiated against law firm previously retained by plaintiff regarding a personal injury matter – where law firm is alleged to have been negligent – whether proposed amended statement of claim reveals existence of viable cause of action – where there has been several attempts to amend the pleadings – where proposed pleadings are not in proper form and do not clearly plead allegations against the lawyers
Legislation Cited: Work Injury Management and Workers Compensation Act 1988 (NSW), s 318
Category: Procedural rulings
Parties: Dean Hedair (Plaintiff)
Shine Lawyers Pty Ltd t/as Shine Lawyers (First Defendant)
Kheir Lawyers Pty Ltd t/as Kheir Lawyers (Second Defendant)
Representation: Counsel:
R Hanrahan (Plaintiff)
C Coventry (Second Defendant)
Solicitors:
M J Woods & Co (Plaintiff)
Mills Oakley (Second Defendant)
File Number(s): 2022/266623
Publication restriction: Nil
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.
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.
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.
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.
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.
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”.
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:
“[Kheir Lawyers] wrote to [Mr Hedair] on 18 February 2016 informing him that advise [sic] had been sought from a ‘more senior counsel’ and asserted that ‘the main point is that the issue that gave rise to the injury came from the act of the senior foreman who was drop stripping. In other words, the cause was work related and the actions of the senior foreman were directly related to the cause of action’.
The letter refers only to [Mr Hedair] tripping over debris and ignores the injury [he] received to his back and neck.”
“Risk
(a) There was a material risk that the defendant’s advice given without fully investigating the matter and speaking to potential witnesses would be accepted by [Mr Hedair] and that he would therefore proceed with the claim without understand [sic] the risk that the matter could be lost or compromised.
(b) There was a material risk that [Mr Hedair] by proceeding with the claim in reliance on the letter dated 18th February 2016 particularly in the absence of advice in relation to the potential for the claim to be lost and a consequential order that [he] pay the defendant’s costs.
(c) There was a material risk in relying upon an intentional tort in a claim against [Mr Hedair’s] employer, without pleading notice.
(d) There was a material risk that if proceedings were commenced the obstacles to amending the claim would be insurmountable.
(e) Those risks were known or should have been known to the 2nd defendant.
Precautions
1. [Mr Hedair] should have been advised of the possibility that the case should be lost and the costs implications of losing the case.
2. The second defendant should not have provided any advice without fully investigating the matter.
3. In the alternative the second defendant should have explained that the advice was subject to the necessity of obtaining further evidence.”
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.
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:
“Particulars
The statement of claim relied upon the allegation that [Mr Hedair] ‘tripped and fell on building debris then was struck in the head by a metal jack thrown by Hassan Malla’.
In [Mr Hedair’s] unsigned statement, [he] instructed ‘I was hit over the head with an iron bar…I am not aware whether it was Hassan or Mahmoud that [sic, who] hit me over the head. I think it was Hassan that [sic, who] hit me over the head as he was very aggressive, however I cannot be sure’.
[Mr Hedair] did not in fact see anyone hit him over the head. He did not know how he was struck over the head. The only way to ascertain the correct facts was by contacting witnesses to the incident.
The statement of claim did not reflect the advice contained in the 2nd defendant’s letter dated 18th February 2016.
The statement of claim relies upon allegations that [Mr Hedair] slipped and fell and further that he was struck on the head by an object a fellow worker had thrown at him, whilst the 18th February 2016 letter refers to a claim being based on a claim simply that the plaintiff tripped in debris.
Risk
(a) It was a material risk to institute proceedings in terms that did not reflect the 2nd defendant’s advice as set out in its letter dated 18th February 2016.
(b) It was a material risk to commence a claim that did not accord with [Mr Hedair’s] instructions, such that the allegations could not all be established in evidence.
(c) It was a material risk to commence proceedings without obtaining corroborating evidence of the facts alleged in the claim in circumstances where [Mr Hedair] was not clear about all the facts relating to the cause of his injuries.
(d) It was a material risk to plead an intentional tort without evidence that the assault was related to the alleged perpetrator’s work duties or that the employer had notice of a risk that [Mr Hedair] would be assaulted.
(e) It was a material risk to file a statement of claim in identical terms to a document which the 2nd defendant must be taken to have advised, in its letter dated 7th December 2016, did not establish a cause of action.
(f) These risks were known or should have been known by the second defendant.
Precaution
The second defendant should not have commenced an action without obtaining further evidence of the details of the accident.”
“Risk
(a) There was a material risk in relying on an amended statement of claim but failing to seek leave to rely upon it, [Mr Hedair] would not be given leave to rely upon the amended claim at the hearing.
(b) There was a material risk that [Mr Hedair] may have had to rely upon the original statement of claim which [Kheir Lawyers] must be taken as determining did not disclose a cause of action.
(c) There was a risk that [Mr Hedair] would be unsuccessful as the pleading was filed without [Kheir Lawyers] investigating the circumstances of the accident.
(d) [Kheir Lawyers] was aware or should have been aware of this risk.
Precaution
1. [Kheir Lawyers] should have sought leave to rely upon the amended statement of claim.
- [Kheir Lawyers] should have fully investigated the matter before commencing and amending the action, including seeking to obtain statements from [Mr Hedair’s] fellow workers who were on duty and working with [Mr Hedair] at the time [he] was injured.
3. In the alternative, if it is found that [Kheir Lawyers] did not require leave of the court to rely upon the amended statement of claim [Mr Hedair] repeats paragraph 14 in relation to the amended statement of claim.”
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”.
Finally for present purposes, paragraph 26 is in these terms:
“26. As a result of the negligence of the 2nd and 3rd defendants [Mr Hedair] suffered the loss of an opportunity to seek proper compensation for the injuries and disabilities he had suffered as a result of the negligence of his employer, that he could reasonably have expected to obtain if he had been able to present to the court, the facts outlined in the statements of Hassan Mouala and Joe Tamar.”
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.
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.
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:
“I should first note what is set out in the statement of claim in these proceedings to identify the cause of action and then, noting that it is identical to the pre-filing statement which is exhibit 1. The amended statement of claim (which differs only in terms of renaming the defendant following the defendant going into liquidation in 2011) describes the cause of action as follows:
‘4. On 9 June 2011, after spending the morning stripping formwork, the plaintiff was attending on fellow employees to bring an end to a physical altercation when he tripped and fell on building debris and was struck in the head by a metal jack thrown by one of the employees occasioning injury to the plaintiff.
Particulars
(a) The plaintiff had been ‘drop stripping’ the formwork on instructions from Houssain his supervisor.
(b) The practice of drop stripping involved a large amount of formwork crashing to the ground in a short space of time.
(c) Houssain and Hassan Malla, a [sic] fellow employee, began a physical altercation over the wisdom of using the drop stripping method of removing formwork and Mahmoud Malla, another fellow employee, joined the altercation in support of the latter.
(d) While attending on the employees to stop the fight the plaintiff tripped and fell on building debris then was struck in the head by a metal jack thrown by Hassan Malla.
It is then asserted in the pre-filing draft statement of claim which is exhibit 1 that the injury occurred as a result of the defendant’s negligence and the usual general particulars apply, one of which I note is a failure to have dispute resolution procedures and failing to have a procedure for dealing with physical altercations on the building site. There are several others to the same effect.
Now the amended statement of claim gives a slightly different version although it is not underlined. The version appearing at paras 8 to 15 is as follows:
‘8. The plaintiff and his fellow workers were hand picking the formwork which is a slower method of stripping formwork.
- While the plaintiff was performing his duties he overheard a heated argument about the use of drop stripping. The senior foreman/supervisor wanted the workers to commence drop stripping of formwork to complete the job quicker.
- Houssain, the senior foreman, was drop stripping which is a hazardous method of stripping formwork. This method involved a large amount of formwork crashing to the ground in a short space of time and debris being scattered.
- This is why Hassan, the worker, was concerned about his safety and this is the reason the argument developed with Houssain over [sic] drop stripping.
- The plaintiff went over to Houssain and Hassan to try to settle them down however by the time he arrived the situation escalated to a physical altercation with both men throwing punches at each other. A third man Mahmoud who is Hassan’s brother also joined the fight striking Houssain.
- The plaintiff called out for help when he noticed that Houssain was crouching down while still being hit with punches. The plaintiff was concerned for the safety of Houssain who was showing signs of struggling to breathe.
- The plaintiff became concerned for the safety of Houssain, went to his rescue, trying to shield Houssain and yelling at the other men to stop.
- While trying to protect Houssain and break the fight up the plaintiff tripped and fell over the building debris that was strewn all over the ground. When the plaintiff fell Houssain fell on top of him and then the plaintiff was struck in the head by a metal jack that was thrown.
- As a result the plaintiff suffered significant personal injuries, loss and damages.’
The solicitor on record who signed that on 24 November 2016 is a Mr Adra, of Kheir Lawyers who has sworn some affidavits in these proceedings which are exhibit 2. It can be seen that when one looks at this material and I note there is also a report by a building safety expert, that what is asserted is that there was a melee at the building site in which the plaintiff intervened and in the course of which he was struck by the item in question, namely a metal jack, being thrown at him. That has been the state of play since 2016.” [Emphasis added]
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.
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.
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.
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.
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Hedair
Shine Lawyers [2025] NSWSC 441