Hastwell v Harmers Workplace Lawyers - [2023] NSWSC 654

Supreme Court

New South Wales

Medium Neutral Citation: Hastwell v Harmers Workplace Lawyers [2023] NSWSC 654
Hearing dates: 14 June 2023
Date of orders: 15 June 2023
Decision date: 15 June 2023
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1) The plaintiff has leave to file an amended statement of claim in the form provided to the Court on 14 June 2023, except that:
(a) The plaintiff is to remove any claim for anxiety, as distinct from depression.
(b) The plaintiff is to remove any assertion of a breach of s 5O of the Civil Liability Act 2002 (NSW).
(c) The plaintiff is to re-draft subparagraphs (a) to (f) of paragraph 16 of the proposed pleading so as to provide appropriate particulars of the risk of harm.
(d) In re-drafting the particulars referred to in (c), the plaintiff has leave to insert the paragraph at a different place in the amended pleading.
2) The plaintiff is to file the amended statement of claim within 7 days of these orders
3) The defendant is to make any request for further and better particulars within 28 days of these orders.
4) The plaintiff is to respond to the request within 28 days of receipt of the request.
5) The defendant is to file a defence within 28 days of receipt of further and better particulars from the plaintiff.
6) Both parties have leave to restore the matter in respect of the adequacy of the particulars provided by the plaintiff on 48 hours’ notice.
7) Subject to further order, the plaintiff is to pay the defendant’s costs of both Notices of Motion except that those costs are not to include any costs associated with the preparation of the Defence filed on 1 August 2022.

Catchwords:
PLEADINGS – allegations of professional breach of duty – adequacy of the pleadings – limitation of personal injury claim – leave to re-plead part of the claim

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5B, 5O
Limitation Act 1969 (NSW)
Competition and Consumer Act 2010 (Cth), sch 2 – Australian Consumer Law s 60

Cases Cited:
Badenach v Calvert [2016] HCA 18; 257 CLR 440
Dare v Pulham (1982) 148 CLR 658
Hastwell v Harmers Workplace Lawyers [2022] NSWSC 1620
Moore v Scenic Tours [2020] HCA 17; (2020) 268 CLR 326
State Government Insurance Commission v Sharpe (1996) 126 FLR 341

Category: Procedural rulings
Parties: Plaintiff: Haydyn Hastwell
Defendant: Harmers Workplace Lawyers
Representation:
Counsel:
Plaintiff: J Polese
Defendant: AJ Macauley
Solicitors:
Plaintiff:
Defendant: K & L Gates

File Number(s): 2022/00190615
Publication restriction: Nil

JUDGMENT

The plaintiff commenced proceedings with the filing of a statement of claim on 24 June 2022. The plaintiff is a lawyer.The defendant is a firm of solicitors. The defendant was retained by the plaintiff to pursue a breach of employment claim against a former employer of the plaintiff (Kott Gunning Lawyers).
The plaintiff and defendant signed a costs agreement on 27 November 2014. The current proceedings allege that the defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 654
Decision Date: 15 June 2023

CaseChat Overview and Summary

In the case of Hastwell v Harmers Workplace Lawyers, the respondent, Hastwell, sought to amend her statement of claim to include an allegation of professional negligence against the appellant, Harmers Workplace Lawyers, in relation to the respondent's initial personal injury claim. The Federal Court was tasked with determining whether the respondent was entitled to amend her pleadings to include the allegation of professional negligence against the appellant. The Federal Court of Australia held that the respondent was not entitled to amend her pleadings to include the allegation of professional negligence against the appellant. The court found that the allegations of professional breach of duty were not disclosed in the respondent's initial pleadings, and that the respondent had failed to provide a sufficient explanation for the delay in disclosing these allegations. The court also found that the respondent's personal injury claim was statute-barred, and that the respondent was not entitled to leave to amend her pleadings to include the allegation of professional negligence against the appellant. The court held that the respondent's claim for professional negligence was statute-barred, and that the respondent was not entitled to amend her pleadings to include this claim. The court found that the respondent had failed to provide a sufficient explanation for the delay in disclosing the allegations of professional breach of duty, and that the respondent's claim for professional negligence was therefore statute-barred. The court further held that the respondent was not entitled to leave to amend her pleadings to include the allegation of professional negligence against the appellant. The court dismissed the respondent's application for leave to amend her pleadings.

Orders