Bushfire lawsuit ‘abuse of process’

Bushfire lawsuit ‘abuse of process’

19 February 2011

published by www.theage.com.au

Australia — A LAW firm that started a class action over the 2003 alpine bushfires has been accused of ”flagrant abuse of process” after lodging the lawsuit in the name of a Melbourne doctor without his permission.

The state government wants the case thrown out and its lawyers say Oldham Naidoo Lawyers acted deliberately when they listed Dr Hershal Cohen as the lead claimant.

In an unrelated case, the law firm launched one of Victoria’s largest class actions two years ago over the Kilmore East-Kinglake bushfire on Black Saturday.

At a hearing over the 2003 class action yesterday, Supreme Court judge Jack Forrest said Dr Cohen had said that ”he never gave authority … it never extended to being a representative plaintiff”.

Ian Waller, SC, for Dr Cohen, said his client did not own any property listed in the lawsuit.

Justice Forrest said any findings he might make about the conduct of the case could have consequences for Oldham Naidoo lawyers Daniel Oldham and Jordana Dymond and they should be given a chance to defend any allegations.

The 2003 bushfires destroyed more than 1 million hectares of land. The class action accused the government of negligence over failing to adequately backburn and reduce forest-floor litter in state parks, which allowed the fire to escape on to private property.

Dr Cohen’s solicitor, Henrik Lassen, said in a sworn statement that since his client first learnt of the class action in October 2010, he had asked to be removed as plaintiff, ”not having ever instructed any firm to issue the proceeding or any proceedings in his name”.

The government wants the case dismissed, with its counsel Peter Riordan, SC, describing it as a ”flagrant abuse of process”.

Oldham Naidoo Lawyers wants to replace Dr Cohen as plaintiff with Melbourne property developer Robert Arnold. Mr Oldham claims the government had leased the Mount Buffalo Chalet and several surrounding areas and properties to companies owned by Mr Arnold. Government lawyers dispute that Mr Arnold was the lessee.

Justice Forrest stayed the class action until further order and set a hearing for next month.

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