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Lawyer accuses national employment firm of negligence

A solicitor who sought damages against his former workplace has alleged the employment firm he retained was negligent and exacerbated his mental health issues, a court has heard.

user iconNaomi Neilson 19 June 2023 Big Law
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Haydyn Hastwell has been granted leave by NSW’s Supreme Court to file an amended statement of claim that alleges Harmers Workplace Lawyers breached an agreement and was negligent in pursuing a claim against his former firm, Kott Gunning.

Harmers was retained by Mr Hastwell in November 2014 to bring action against Kott Gunning on allegations Mr Hastwell was bullied and mistreated because of his sexual preferences.

This matter was permanently stayed, and an attempt by Mr Hastwell to appeal the court’s decision was quashed in May 2021.

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In the current proceedings, Mr Hastwell alleged Harmers breached its statutory duty and fiduciary duty and made assertions of victimisation. He has sought declarations and damages from the firm.

Harmers filed a motion in October 2022 seeking orders “effectively amounting to a striking out of the statement of claim”.

In March 2023, Mr Hastwell sought leave to file an amended statement of claim with the court under the “implicit acknowledgement that the original statement of claim is deficient”.

Associate Justice Michael Elkaim has allowed Mr Hastwell to file the amended statement but required him to redraft some of the subparagraphs and parts of the particulars.

“The new pleading is far from perfect, but it is a lot better than the original, and it does tell the defendant the nature, detail and extent of the assertions against the defendant,” Associate Justice Elkaim said.

“I think it would be a waste of time and costs to require the plaintiff to try and achieve the precision seemingly demanded by the defendant.”

In the new pleading, Mr Hastwell alleged there had been an “exacerbation and aggravation of anxiety and depression”.

Given the limitation period for a personal injury claim is three years after the cause of action was “discoverable”, Harmers submitted this period expired in March 2020 and the pleading could not be used.

The firm referred to a letter Mr Hastwell wrote to the Legal Services Commissioner, stating that “the delay has significantly prolonged the life of this claim, not to mention it has prolonged the discrimination and harassment, which has added to my stress and anxiety”.

Associate Justice Elkaim said this letter refers only to stress and anxiety and does not include “the distinct mental state of depression”.

“Accordingly, I think the defendant’s limitation point can be taken no further than the assertion of anxiety,” Associate Justice Elkaim said.

An order was made for Mr Hastwell to delete the anxiety claim.

Harmers said parts of the pleading were “simple assertions, giving no clue as to their background or foundation”.

In response to criticisms, Mr Hastwell said the firm’s claims were “hyperbolic”, they demanded a “perfect” pleading and overall reflected a “nonsensical, unjust, unwarranted and costly approach”.

Associate Justice Elkaim said there was “no doubt” Mr Hastwell made “something of an ambit claim”, but it would be “counter-productive to require a global repleading”.

“I think the defendant should be entitled to seek further and better particulars of the assertions and that those particulars should be answered comprehensively.

“I do not think the particulars … describe a risk of harm. They are much more akin to allegations of breaches of duty. I think proper particulars should be given,” Associate Justice Elkaim said.

Naomi Neilson

Naomi Neilson

Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly. 

You can email Naomi at: This email address is being protected from spambots. You need JavaScript enabled to view it.

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