Australia, June 11 -- New South Wales Land and Environment Court issued text of the following judgement on May 12:

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. 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. 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. 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

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.

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".

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:

"[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."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196a9644c48f720a4d2a4864)

Disclaimer: Curated by HT Syndication.