Solicitors:
Mr B Kearney, in person (Plaintiff)
YPOL Lawyers (Defendants)
File Number(s): 2019/96321
[2]
(Revised from transcript)
This is an application to vacate a hearing date of a matter that has an estimate of seven days hearing time and is fixed to commence on 1 August 2022. The plaintiff, Brian Kearney, commenced the proceedings in 2019 and seeks damages against his former solicitor, alleging that they were negligent. To address the application which is brought by Mr Kearney, it is necessary to outline at least some of the recent history of the matter.
[3]
Background
During 2021, the proceedings were given a hearing date in September 2022 based on a longer estimate. Mr Kearney, who at all relevant times has represented himself, filed a motion that sought "expedition" but in effect, sought that the matter be given an earlier hearing date. One of the matters that Mr Kearney relied on was a contention that his mental health was affected by ongoing delay in the litigation. One difficulty with the state of the proceedings, at least in 2021, was that the defendants were in breach of an order requiring the provision of his evidence.
Ultimately, Mr Kearney's motion was referred to me. I heard it on 15 February and made orders on 17 February 2022 (see Kearney v Amirbeaggi [2022] NSWSC 130; "Kearney (No 1)"). In light of a revision of the estimate of the hearing date, I was able to fix the matter for hearing on 1 August 2022. Further, I indicated that in light of Mr Kearney's assertions about his mental state, I would be amenable to seeking to minimise his appearances by allowing such matters as could be sorted out by correspondence between the parties and the Court to be so addressed. Apparently, Mr Kearney has sought leave to appeal from that decision.
At the time of Kearney (No 1) I did not make orders extending the time in which the defendants could file their evidence. At that stage they were already in breach of a guillotine order. I considered the appropriate course was that, when the material was ready, the defendants could then apply and Mr Kearney could consider his position. The matter came back before me on 12 April 2022. I stated then that the arrangement where Mr Kearney minimised his attendances by corresponding over non-contentious steps and advising the Court accordingly, had proven not to be feasible. He had engaged in a dialogue which assumed the Court's function was to respond to endless requests for various items of information (see Kearney v Amirbeaggi, 12 April 2022, unrep).
Ultimately, the defendants served an affidavit of the first defendant, Mr Amirbeaggi, affirmed on 29 April 2022. They moved on a motion seeking leave to rely on that affidavit. I heard and determined the motion on 20 May 2022. Even though I noted that Mr Kearney at that time did not oppose the application, given that what was concerned was a prolonged breach of Court orders, I granted that leave but made various costs orders against the defendant, including an order that the defendants be disentitled to recover costs of appearances in this Court in the matter for the period from 20 August 2021 to 31 December 2021.
At the time, I noted that orders had been sought by the defendants to take the matter up to the hearing in early August 2022. Mr Kearney submitted that those orders were best addressed by the judge to be appointed to hear the matter. At the time, I stated that I would advise the identity of that judge during the course of the following week. I advised that, in light of a revision in Court commitments, I might hear the matter myself. I stood the matter over to 27 May 2022. Further, it became clear during that directions hearing that the defendants had various objections to the admissibility of a psychologist's report relied on by Mr Kearney. To avoid him being unfairly disadvantaged as a lay person preparing his own case, I directed the defendants to notify him of the basis of the objection to that report on or before 5pm on 26 May 2022.
On this application, I was taken to correspondence between the parties around this time concerning potential orders that could be made to take the matter up to hearing. It seems that on 26 May 2022, Mr Kearney's position was that he would not respond to the defendant's proposed orders until he received notice of the objections to the psychologist's report. Further, on 26 May 2022, the parties were advised that I would be the trial judge for the hearing of the matter. When the matter came on, on 27 May 2022, there was before the Court a set of proposed orders from the defendants designed to take the matter up to hearing. In summary, they proposed a period of time by which Mr Kearney could file his evidence in reply and then the preparation of a court book by the defendants, as well as the exchange of opening submissions and objections to evidence.
As Mr Kearney addressed the Court on 27 May 2022, it became clear that he had various complaints about what had occurred in the matter over the previous months. Ultimately, what emerged was that Mr Kearney was seeking to vacate the hearing date. He made reference to a recent letter he had received from his psychiatrist. However, that letter was not before the Court and had not been sent to the defendant.
Given the history of the matter and the potential significance of an application to vacate the hearing date, I adjourned the directions hearing until today. I made directions for the filing of a formal application for the hearing to be vacated. No formal application was filed. However, there was a stream of correspondence in which Mr Keraney made it clear that he was seeking to vacate the hearing date. He also provided to the Court and to the defendants a copy of the letter from the psychiatrist, to which I will shortly return. In addition, at least some of the correspondence that he exchanged with the defendants, indicated he could comply with an order that he file his affidavit evidence in reply by around 8 July 2022.
The defendants filed an affidavit from its solicitor in support of its position, opposing the vacation of the hearing date. I will also return to consider some aspects of that affidavit. When the matter was called on today, Mr Kearney indicated that, of the material that had been sent to the Court in the recent days, the only document he sought to rely on was the letter from the psychiatrist.
[4]
The Application to Vacate the Hearing
Mr Kearney put forward a number of disparate and, in some respects, incoherent reasons for why he contended the matter should be vacated. One of the reasons that appeared to be put forward was that the matter was not or at least could not be made ready by early August 2022. He made reference to a potential amendment to his statement of claim. A possible amendment by a plaintiff is not a reason to vacate a hearing. The amendment needs to be crystallised and brought before the Court and considered. Otherwise, his submissions ranged across various complaints he had about the matter including such matters as the fact that the two unreported judgments have not yet been placed on case law. All those matters can be put aside.
Counsel for the defendants contended that at least one of the matters that appears to be motivating the adjournment is a concern by Mr Kearney that I am the trial judge. Counsel pointed to what appeared to be an apparent change in attitude on the part of Mr Kearney to the impending hearing, once he was notified on 26 May 2022, that I would be the trial judge. This appears to have support, from what Mr Kearney told the Court. He made various complaints about my conduct, although I should note they were put in a respectful manner.
Whether or not this is ultimately either the motive or the stated reason for the adjournment, it is of course irrelevant. No litigant gets to choose the identity of a trial judge. Even if I were to vacate it, the assumption that I would vacate it so it could be heard by another judge is misconceived.
The major point put on the part of Mr Kearney in support of the adjournment of the hearing is his mental state. From the time that I have been dealing with his various applications, Mr Kearney has in his correspondence and submissions, made repeated reference to his mental health being adversely affected by the defendants' conduct, both as his solicitor and in their conduct of these proceedings.
In Kearney (No 1), I noted that the state of Mr Kearney's mental health was in fact a substantive issue in the proceedings. I stated that I would not make any final assessment of that matter, but would accept, for the purposes of that application, that he was subject to significant psychological stress and his condition was fragile. The psychiatrist letter to which I have referred is dated 9 May 2022. The psychiatrist recounts that he saw Mr Kearney on that day. The report noted that Mr Kearney is "currently in a highly anxious and depressed state" and "not only has his mental health deteriorated significantly, but his physical health is deteriorating as well."
The letter recounts the psychiatrist's advice that Mr Kearney needs to "disengage from all Court related tasks for a minimum of three months and focus on regaining his mental health." It includes a recommendation that he be admitted into hospital for intensive psychiatric treatment as soon as possible. In his oral submissions, Mr Kearney made it clear that he has not had himself admitted to hospital. He did not elaborate on whether he is receiving any ongoing intensive treatment. Mr Kearney did not put forward anything to suggest any period of time in which his psychiatric health may improve or outline any treatment that he is receiving that is likely to lead to that occurring.
One difficulty with the psychiatrist's report is that when it says that Mr Kearney is in a highly anxious and depressed state, it does not state why. I am prepared to assume that it is related to the conduct of the litigation and the impending hearing date. Assuming that is correct, that is a reason for the hearing to be conducted earlier and not later.
In her submissions, counsel for the defendants noted that Mr Kearney has placed the Court, her client, and her instructing solicitors in a difficult position by his continued stream of correspondence that repeatedly refers to his difficult mental state and asserts that his position is particularly grave, perhaps potentially "fatal". These statements are made in the context of Mr Kearney making some request, bordering on a demand, concerning the conduct of the litigation. This difficulty is compounded by the fact that those requests, sometimes demands, are often inconsistent, as demonstrated by the fact that he so passionately sought an earlier hearing date, yet now seeks to vacate it.
There is considerable force in counsel's contention. It leads me to be in a position where there does seem to be a basis for concern about Mr Kearney's mental state and the effect of the litigation. However, as I have just indicated, the difficulty is that there is no reason to believe that anything will be advanced in that regard by vacating the hearing. At the risk of repetition, there is nothing to suggest that over some particular timeframe his mental health will improve, so as to later allow him to conduct the hearing.
All litigation is stressful. Litigation conducted by a lay person on their own behalf is particularly stressful. Complex litigation of the kind initiated here by a lay person on their own behalf, is especially stressful. The simple conclusion is that there is no likelihood of the position improving at any point if the hearing is vacated. This is all in the context, of course, where Mr Kearney is the plaintiff, ie, the party who chose to bring the proceedings. It was his choice to sue the defendant. It is his case.
The Court and the other litigants cannot be placed in a position where the conduct of proceedings is unilaterally devolved to a lay plaintiff who is suffering adverse mental health effects.
In considering an adjournment, a significant matter is to consider the prejudice that would be occasioned by the vacation of the hearing to the defendants. The affidavit sworn on the defendants' behalf that I have referred to, outlines a series of matters which concern Mr Amirbeaggi's position personally and which would not otherwise be compensated by a costs order. They include the fact that the proceedings have been "hanging over his head" since 2019, and concerns over his reputation and professional standing. The affidavit notes that the proceedings are a distraction from his professional activities and his professional life. The affidavit states that the proceedings are often the subject of inquiries by other members of the profession, given that they involve relatively serious allegations about his conduct. His solicitor recounts as follows:
"He is concerned that any vacation of the hearing date will lead to an indefinite extension of these proceedings and additionally or alternatively, result in the parties continuing to be distracted by satellite litigation and interlocutory contests, rather than addressing the real issues, the subject of the pleadings. The plaintiff has foreshadowed but not provided a proposed amended pleading and has commenced or indicated an intention to commence appeals or applications to appeal interlocutory decisions in the nature of directions. The hearing date provides some level of certainty that the proceedings will resolve and the parties focus their efforts on the real issues in dispute."
I consider that that paragraph properly describes the position, not only faced by the defendants, but by the Court and even by Mr Kearney. The short answer to all the stress that is being occasioned to everyone is not to prolong the proceedings, but to bring them into focus. In so stating, I acknowledge that one of the issues that has caused the current level of grief was the delay by the defendants in the provision of their evidence.
To this time, I have not considered the position of the Court in terms of the interests of justice for the positions of the parties. The vacation of the hearing date will affect the position of other litigants. However, in my view, the crucial determinate is, as I have indicated, that a vacation of the hearing date will not solve any of the problems that appear to be faced at the moment, but only exacerbate them. Accordingly, I decline to vacate the hearing.
[5]
Further Directions
As I have indicated, the parties have from time to time exchanged correspondence about proposed directions designed to take the matter up to hearing. Mr Kearney has prevaricated. At some point, he indicated he could provide his evidence in reply by 8 July 2022. On the hearing of this application, Mr Kearney simply refused to engage at all with any question of what the appropriate directions are, in the event that his application to vacate was refused. That is his right, but equally, the application having now been refused, I must consider it without any further input from him.
The defendants' proposed directions involve generally what could be best described as a minimalist regime. They seek to minimise costs and disputatious engagement between the parties, but still allow the matter to be ready for hearing. Acknowledging that there may be an application from one party or another in relation to various interlocutory steps, I consider that the most appropriate orders are the most recent form provided by the defendant. I will make those orders as follows:
(1) The plaintiff's lay and expert evidence in reply is to be filed and served by 8 July 2022.
(2) The defendants are to serve a court book consisting of all pleadings and evidence, the exhibits to all affidavits to be dismembered and placed in chronological sequence by 15 July 2022.
(3) The parties to file and serve any further documentary material to be relied upon at the trial by way of supplementary tender bundle by 25 July 2022.
(4) The parties to exchange submissions not exceeding 15 pages, chronologies and objections to evidence by 28 July 2022.
(5) The defendants deliver the court book and supplementary tender bundles to my associate by 29 July 2022.
[Defendants sought costs of the application].
(6) Costs of today are reserved.
[6]
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Decision last updated: 24 June 2022