MH17 class action … Plane shot down over Ukraine … Non-resident cannot sue under Montreal Convention … Family should not have been barred from the proceedings … Failure to inform … Insouciance … Conduct of lawyers fell “well short” of their obligations … Show cause why the lawyers should not pay the appellants’ costs … Mea Culpa … Janek Drevikovsky reports
In withering judgments, Justices Bernard Murphy, Craig Colvin and Michael Lee criticised Sydney personal injury shop LHD Lawyers and barrister John Rowe for withdrawing the parents’ claim without instructions.
LHD Lawyers bore special censure for their “disturbing” conduct and “insouciance”, failing to tell the parents they had been dropped from the action and then settling the case without their knowledge.
Perth couple Jerzy Dyczynski and Angela Rudhart-Dyczynsk lost their only daughter, 25-year-old Fatima Dyczynski, when Malaysian Airlines flight 17 was shot down over the Ukraine in 2014.
Fatima, a budding aerospace engineer, was living in the Netherlands at the time and was not an Australian permanent resident.
In 2016, the Dyczynskis joined a class action launched by LHD Lawyers against Malaysia Airlines, along with the relatives of several other Australians who died in the MH17 tragedy.
The action was brought under the Montreal Convention, as enacted in Australia, which allows family members of plane crash victims to sue the responsible airline for damages.
Clyde & Co lawyer Paul Freeman, representing Malaysia Airlines in the action, filed documents saying that the Dyczynskis did not qualify as members of the class. The reason given was that Fatima Dyczynski was not an Australian resident, a precondition for bringing a Montreal Convention claim in this country.
On this basis, LHD Lawyers decided to withdraw the Dyczynskis from the action, doing so in August 2018.
Soon after, the Dyczynskis asked their lawyer at LHD, Michael Hyland, for an update. “Bizarrely”, he replied that the matter would be listed in late 2018 – without mentioning the Dyczynskis had been withdrawn.
It was only in mid-2019, after reading an online news article, that the Dyczynskis learnt the action had settled.
Dr Dyczynski wrote to LHD. He was told to expect nothing from the settlement. But, other than that, LHD kept mum, saying the settlement details couldn’t be disclosed – even though the Dyczynskis were LHD’s clients in the matter. This was, as Justices Murphy and Colvin put it, “to add insult to injury”.
In August 2019, the Dyczynskis, representing themselves, applied to primary judge Nye Perram for reinstatement as class members. During that hearing, Justice Perram questioned barrister John Rowe for the class applicants, about the Dyczynskis’ withdrawal:
The appeal court thought it was “likely” Justice Perram was “misled” into thinking LHD had acted appropriately.
And because he suspected nothing untowards, Perram concluded it was fair to decide “then and there” whether the Dyczynskis met the definition of a group member, without any opportuntiy to make further submissions or put on evidence.
His Honour’s conclusion was that the Dyczynskis could not join the action.
The full court overturned Justice Perram’s decision.
The Full Feds found it confused the issue to say that, because the Dyczynskis might not have an arguable claim, they were not class members.
The full court also found the Dyczynskis were not bound by LHD’s concession that the court lack jurisdiction to hear and decide their claim.
The Dyczynskis did not instruct LHD to make the concession, nor were they told about it.
LHD and Rowe’s conduct fell “well short” of their professional obligations to advance their client’s interest – they could not act abandon the Dyczynskis’ claim without “conferring with them and explaining what was going on”.
The appeal judges ordered the Dyczynskis be reinstated as class members and be permitted to pursue their own claim against Malaysia Airlines. The settlement between Malaysia Airlines and the other class members was left undisturbed.
Costs went to the Dyczynskis, with Malaysia Airlines to pay on a party-party basis. However, their Honours also ordered LHD to show cause why it should not cover the Dyczynskis’ bill instead, in light of their bungling at first instance.
LHD and John Rowe have since publicly apologised for their mishandling of the case, and the law shop has stood down the lawyer responsible.