Lawyer didn’t tell couple about MH17 class action abandonment

A Sydney law firm acting for the parents of a woman killed in the MH17 disaster didn’t tell them they had been dropped from a class action.

Angela and Jerzy Dyczynski at home in Perth. Picture: Ross Swanborough

A Sydney law firm acting for the parents of a woman killed in the MH17 disaster didn’t tell them they had been dropped from a class action against Malaysia Airlines until after the case settled.

A ruling by the Federal Court’s appeal division delivered a scathing assessment of LHD Lawyers and the treatment given to Jerzy and Angela Dyczynski in their fight for compensation for the loss of their only child, Fatima.

The 25-year-old aerospace engineer was among 298 people killed when a Malaysia Airlines flight from Amsterdam to Kuala Lumpur was shot out of the sky over Ukraine on July 17, 2014.

Along with relatives of other Australian victims of the tragedy, the Dyczynskis signed up to join a class action against the airline, brought by LHD.

As the case progressed, it became apparent the Dyczynskis did not meet some of the criteria for a claim in Australia because Fatima’s airfare was for return travel from Amsterdam.

When they questioned their lawyer, Michael Hyland, about this snag after seeing a newspaper report, they were told the article was not well informed and they were entitled to claim damages.

In May 2018, Malaysia Airlines filed documents highlighting that some members of the class action including the Dyczynskis did not satisfy the definition of “class member”, which Mr Hyland accepted. This information was not shared with the Dyczynskis, even after they wrote to Mr Hyland in November 2018 seeking an update on developments in the class action.

“Bizarrely, rather than telling the Dyczynskis he had conceded they were not class members, Mr Hyland responded to the inquiry by stating that the mediation was unsuccessful and the proceeding would be listed for hearing in the second half of 2019,” Federal Court judges Bernard Murphy and Craig Colvin said in their ­ruling. 

It was not until after a settlement was reached with Malaysia Airlines in July 2019 that Dr Dyczynski again reached out to Mr Hyland seeking details of the deal.

Mr Hyland wrote back, informing Dr Dyczynski he was not part of the settlement and was not entitled to those details.

“His letter gave no indication that he was apologetic for commencing the Dyczynskis’ claim in a court which he later concluded had no jurisdiction, doing so after the two year limitation period had run, or for his repeatedly advising the appellants that they were class members and could recover through the class action, and then abandoning their claim without notice or instructions,” said the judgment.

When the Dyczynskis sought to be included in the class action in another federal court hearing last year, they were again told they did not qualify.

But the appeal division found the judge in that matter, Nye Perram, was not provided with the full picture by LHD and ordered his judgment be set aside.

Judges Murphy, Colvin and Michael Lee, who provided a separate judgment but reached the same conclusion, ruled the Dyczynskis should be given the opportunity to pursue a settlement with Malaysia Airlines on an individual basis.

Dr Dyczynski told The Australian he was very grateful to his new legal team of Sheila Kaur-Bains, assisted by Fiona McNeil, together with Amanda Banton and Kate Spratt.

“Justice is a process of consciousness and needs endurance and utmost courage,” he said.

LHD lawyers conceded they had seriously let down their client in this matter.

“LHD sincerely apologises to Dr and Mrs Dyczynski, who as Justice Lee noted ‘have suffered a tragedy beyond comprehension’,” said the firm’s managing director Matthew Berenger.

“LHD has also commenced a full review of the practice group responsible for this matter, including the actions of senior and junior counsel. The lawyer with primary carriage of this matter has been stood down until the review is complete.”