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[2025] NSWCA 234
procedural. Enforcement of Fagan J’s costs orders was stayed, subject to further order, until prayers 4, 5 and 6 of Kearney’s amended notice of motion were resolved, including by withdrawal or dismissal. If...
The Court of Appeal temporarily stopped enforcement of the costs orders while it dealt with whether Kearney was legally incapacitated and whether a tutor should take responsibility for proceedings. Although he had not filed a formal appeal from the final judgment, the Court considered his draft grounds because the capacity question was unresolved. It found an arguable issue about his ability to participate in the trial and accepted that enforcement could add to the risk to his mental health. The respondents showed no particular harm from a short delay. The stay was limited and could be revisited if the capacity and tutor issues remained unresolved after 11 December 2025. The ruling did not decide whether an appeal would succeed.
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2,306 words · generated 06/10/2026
The dispute began as a professional negligence claim by Brian Kearney against his former solicitor, Farshad Amirbeaggi, and an incorporated law firm associated with him ([1]). This judgment is not a decision on the underlying negligence claim. Free JA dealt with a procedural application in the Court of Appeal concerning temporary protection from enforcement of costs orders.
2 cited instruments linked from this judgment.
The substantive case was listed for hearing on 28 April 2025. Kearney did not attend. He notified the trial judge’s associate that he was experiencing acute mental distress and had been admitted to the Sydney Clinic. Fagan J treated the communication as an application to vacate the hearing, heard evidence from Kearney’s treating psychiatrist, Dr Grace, and dismissed that application. The hearing proceeded without Kearney or evidence supporting his claim, and his further amended statement of claim was dismissed. Judgment for the defendants was entered ([4]–[5]).
Fagan J made costs orders for the defendants and subsequently ordered relevant costs, including trial and earlier interlocutory costs, to be paid in the gross sum of $369,432 ([6]). Kearney then pursued relief in the Court of Appeal. His amended notice of motion sought a stay of costs enforcement and orders related to a proposed tutor, including an order appointing Keiran Stoneham, or alternatively permitting Stoneham to act as next friend and speak for Kearney in hearings ([7]–[10]).
The procedural difficulty was that Kearney had not filed a notice of appeal from the final orders. He had filed a notice of intention to appeal on 23 May 2025, but that did not commence an appeal. Earlier leave-to-appeal proceedings concerned interlocutory case-management orders that had been overtaken by the final hearing ([11]–[19]). Before the stay hearing, he provided draft appeal documents, which he said set out the grounds he proposed to pursue ([20]–[21]).
The Registrar referred only the request for a stay of costs enforcement for decision, and only pending resolution of the capacity and tutor issues ([16], [18]). Free JA therefore did not decide whether the claim should be reinstated, whether an appeal would succeed, or whether a tutor should ultimately be appointed. The operative orders stayed enforcement until prayers 4, 5 and 6 were resolved, with liberty for the respondents to apply if those issues remained unresolved by 11 December 2025 ([38]).
The Court applied the principles described in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128. As set out at [22], those principles are analogous to those governing interlocutory relief before trial. A person seeking a stay must show serious issues for determination and a real risk of prejudice or damage if the stay is refused. If those requirements are satisfied, the court considers the balance of convenience and competing rights. Free JA also cited Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163 for the proposition that the absence of arguable appeal grounds is likely to be determinative against a stay ([22]).
The Court did not disregard the missing appeal notice as an ordinary procedural detail. It accepted the respondents’ point that no appeal was on foot and that this would ordinarily be fatal to a stay application of this kind ([19], [23]). It nevertheless treated the circumstances as unusual. Kearney had filed extensive material about severe psychological distress, including hospitalisation and attempted suicide, and had raised whether he was, or had been, a person under legal incapacity within Pt 7 Div 4 of the Uniform Civil Procedure Rules 2005 (NSW) ([23]). The question whether a tutor could or should take carriage of the appeal remained unresolved.
That capacity question affected who should decide whether to appeal and what grounds to pursue. Free JA considered it inappropriate to require Kearney to convert his draft documents into a filed notice of appeal before the tutor question was resolved. If a tutor assumed responsibility, the appeal notice should reflect the tutor’s informed consideration of the issues ([24]). The Court also accepted that any appeal would require an extension of time, but found a seriously arguable basis for such an extension, having regard to the evidence of Kearney’s mental condition ([25]). These were interim assessments, not final rulings on capacity or an extension application.
The draft grounds were described as voluminous, repetitive and sometimes unclear. Even so, Free JA identified a seriously arguable issue about the trial judge’s treatment of Kearney’s capacity to appear at the hearing ([26]). Kearney had been hospitalised because of apparently acute psychological distress at the time of the hearing. Fagan J had rejected the claim of incapacity, relying in part on Kearney’s previous appearances and the Court’s longitudinal observation of him ([27]). Free JA acknowledged obstacles to a successful appeal, including the trial judge’s assessment of Dr Grace’s evidence after cross-examination and the question of what would have happened if the hearing had been adjourned. Those matters did not eliminate the arguable issue for the limited stay application ([28]).
On prejudice, Kearney did not contend that enforcement would cause financial hardship or impair his ability to fund litigation ([32]). Instead, he relied on evidence that enforcement procedures could add to the psychological burden of ongoing litigation and create a serious danger to his mental health and welfare ([33]). Free JA found a reasonable evidential basis for that connection. The potential worsening of his condition was described as possibly marginal, but still real and identifiable ([34]).
The respondents’ claimed prejudice was different in character. They wanted to be able to start enforcement, but identified no specific steps they intended to take in the short period, no risk of dissipation of assets, and no downstream consequence from a brief delay in obtaining the benefit of the costs orders ([31], [35]). The Court characterised the comparison as a real but marginal psychological impact on Kearney against a short delay for the respondents. On that temporary footing, the balance favoured Kearney ([36]).
The judgment does not purport to change the law on stays pending appeal. It applies the existing approach stated in Michael Hill Jeweller and refers to Di Liristi on the significance of arguable grounds ([22]). The principal legal framework in this decision is therefore the familiar sequence: identify serious issues, assess whether refusal creates a real risk of prejudice or damage, and then weigh the balance of convenience and competing rights.
What is notable is the application of that approach to an unusual procedural setting. The Court considered draft appeal documents notwithstanding that the final orders were not under a formally instituted appeal. It did so for the limited purpose of deciding a short interim stay, in the presence of a live capacity issue and a possible tutor ([23]–[25]). The judgment does not establish that draft documents will generally substitute for a notice of appeal, or that a stay may routinely be obtained without an appeal on foot. Free JA expressly recognised that the absence of an appeal would ordinarily be considered fatal, then confined the departure to these unusual circumstances ([23]–[24]).
The decision also illustrates the relevance of non-financial prejudice. Kearney did not rely on inability to pay or on financial consequences for conducting an appeal. The Court accepted, on the evidence before it, that the prospect of enforcement could contribute to psychological harm ([32]–[34]). The judgment does not announce a general rule that psychological distress will establish prejudice. Its assessment depended on the evidence and the short duration of the requested protection.
The UCPR provisions identified in the judgment were rr 7.14, 7.15 and 7.16, within Pt 7 Div 4. Free JA noted that a tutor need not always be appointed by formal court order: under r 7.15(1), a person may become tutor without a formal instrument or court order, and the process may involve filing the notice of consent and certificate mentioned in r 7.16 ([9]). The central threshold remained whether Kearney was a person under legal incapacity. The Court did not resolve that threshold question in this judgment.
At [22], the Court stated that a stay applicant must show “serious issues for determination” and “a real risk” of prejudice or damage if the stay is refused. In plain English, an applicant must identify a genuinely arguable matter for the appeal and show a concrete risk from allowing the relevant step to proceed before the appeal process is addressed. Even then, the court must compare the practical effects on both sides.
At [24], Free JA said it was appropriate, for the short interim application, to “look past the formal deficiencies”. This did not mean that filing requirements were irrelevant or permanently excused. The Court’s reason was that capacity and representation remained unresolved and a tutor might need to make informed decisions about any appeal. It would not require the applicant to settle the appeal’s form before resolving who should make those decisions.
At [28], the Court made clear that identifying an arguable ground was not a finding that the appeal would succeed. Free JA acknowledged the respondents’ points about the trial judge’s credibility assessment and the evidence given under cross-examination. The narrower conclusion was that those obstacles did not prevent an arguable issue from arising about capacity at the hearing.
At [34]–[36], the Court compared the practical prejudice. It accepted a real, identifiable possibility of psychological harm to Kearney, while the respondents faced a short delay in beginning enforcement. The Court did not say the costs orders were invalid or that the respondents would never be able to enforce them. It decided only that, pending resolution of the identified issues, the balance supported a temporary stay.
At [37], the Court addressed the possibility of a longer delay. It provided liberty to apply if the capacity and tutor prayers remained unresolved by 11 December 2025. That provision allowed the respondents to raise the delay concern again; it did not predetermine whether a stay would then be lifted.
The judgment’s reasoning is most directly relevant to a temporary stay application where a proposed appeal concerns orders that may be enforced before questions about the appellant’s capacity and representation have been resolved. The distinctive features were not simply that the applicant was self-represented or that an appeal notice was missing. They included extensive evidence of severe psychological distress, a live question about legal incapacity, a proposed tutor, draft grounds identifying an arguable issue, and a request for only short-duration relief ([23]–[30]).
It may also be relevant where the claimed harm from enforcement is non-financial. Here, the applicant did not say that he could not pay or that enforcement would prevent him funding the appeal. His case was that enforcement activity itself could worsen his psychological condition. The Court assessed that claim against the evidence available and the limited period of the proposed stay ([32]–[36]).
The decision’s limits are equally important. The Court relied on a temporary application referred on a narrow basis. It did not determine whether Kearney was legally incapacitated, whether a tutor should be appointed, whether an appeal should be permitted out of time, or whether the final judgment was correct. It also did not decide the appropriate outcome of any later stay application. At [37], it expressly contemplated that the respondents’ delay concerns could carry different weight later.
The supplied judgment contains no decisions issued after Kearney v Amirbeaggi (No 3) [2025] NSWCA 234 and therefore provides no basis to describe later judicial treatment of this ruling. It was decided on 22 October 2025, and the source text identifies no subsequent cases applying, distinguishing, approving or criticising it.
The judgment itself refers to earlier authorities. It applies the stay approach explained in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 and cites Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163 on the likely significance of absent arguable appeal grounds ([22]). It also refers to earlier decisions in Kearney’s own proceedings to outline procedural history and the trial outcome ([2], [5]–[6]). Those references do not establish how later courts have treated the present ruling.
The central open question was whether Kearney was, at relevant times, a person under legal incapacity within Pt 7 Div 4 of the UCPR. The judgment records that evidence had been filed and that the respondents had not yet decided whether to respond with their own evidence ([9], [15]). The Court did not determine capacity.
A related question was whether Stoneham, or another person, would become or be recognised as Kearney’s tutor, and whether the proposed procedural arrangements were appropriate. The application included requests for appointment, alternative permission to act as next friend, and dispensation from the ordinary requirement that a tutor commence or carry on proceedings through a solicitor ([8]). Those requests were not decided in this ruling.
Any appeal from the final orders also remained uncommenced and out of time. Free JA found a seriously arguable basis for an extension, but did not grant one or decide whether an appeal should proceed ([25]). The content and scope of any eventual appeal, including whether a tutor would institute it and what grounds would be advanced, remained unsettled.
Finally, the length and effect of any continued stay were left open. The order lasted until the specified prayers were resolved, subject to further order, and gave the respondents liberty to apply if they remained unresolved by 11 December 2025 ([37]–[38]). A later application would require an assessment of the circumstances then existing, including the effect of delay on the respondents and whether the capacity and representation issues had been resolved.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kearney v Amirbeaggi (No 3) [2025] NSWCA 234
Hearing dates: 20 October 2025
Date of orders: 22 October 2025
Decision date: 22 October 2025
Before: Free JA
Decision: (1) Subject to further order of the Court, enforcement of the costs orders made in the proceedings by Justice Fagan in the Common Law Division is stayed until prayers 4, 5 and 6 of the amended notice of motion filed by the applicant on 25 September 2025 are resolved (including by their withdrawal or by dismissal).
(2) If prayers 4, 5 and 6 of the amended notice of motion filed by the applicant on 25 September 2025 have not been resolved by 11 December 2025, the respondents have liberty to apply to the Court of Appeal Registrar for an order lifting the stay in order 1.
(3) Costs of the hearing in respect of orders 2 and 3 of amended notice of motion filed by the applicant on 25 September 2025 shall be costs in the appeal (including any application for an extension of time to appeal), if and when instituted.
Catchwords: APPEALS – Procedure – Application for interim stay – Enforcement of costs orders – Proposed appointment of a tutor – Applicant’s legal incapacity unresolved – Evidence of applicant’s psychological condition apt to deteriorate – Balance of convenience favours applicant
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 7.14, 7.15, 7.16, Pt 7 Div 4
Cases Cited: Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163
Kearney v Amirbeaggi (No 2) [2025] NSWCA 73
Kearney v Amirbeaggi [2025] NSWSC 1223
Kearney v Amirbeaggi [2025] NSWSC 455
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128
Category: Procedural rulings
Parties: Brian Kearney (Applicant) (Self-represented)
Farshad Amirbeaggi (First Respondent)
ACN 111 804 383 Pty Ltd (Formerly Yates Beaggi Lawyers Pty Ltd) t/as Yates Beaggi Lawyers (Second Respondent)
Representation: Counsel:
Applicant (Self-represented)
B Smith (Respondents)
Solicitors:
YPOL Lawyers (Respondents)
File Number(s): 2025/64945
Publication restriction: Nil
FREE JA: This matter arises from a professional negligence claim that the applicant, Mr Brian Kearney, brought against his former solicitor, Mr Farshad Amirbeaggi and an incorporated law firm associated with Mr Amirbeaggi.
The matter has a long and troubled procedural history. The procedural history up to April 2025 was summarised by Kirk JA in Kearney v Amirbeaggi (No 2) [2025] NSWCA 73 at paragraphs [6]-[30]. It is unnecessary to repeat that history here or attempt to summarise it again.
It is sufficient to point to important developments since April 2025.
The substantive proceedings were listed for hearing before Fagan J on 28 April 2025. Mr Kearney did not attend that hearing, but notified the associate to Fagan J that he was experiencing acute mental distress that had led to an admission at the Sydney Clinic. His Honour treated Mr Kearney as having made an application to vacate the hearing. He received evidence from Dr Grace, who was the psychiatrist treating Mr Kearney. Dr Grace was cross-examined. Fagan J dismissed the application to vacate the hearing. The hearing proceeded without the plaintiff being represented or evidence being received in support of his case. His Honour proceeded to dismiss Mr Kearney’s further amended statement of claim filed 13 October 2020 and entered judgment for the defendants.
These matters were dealt with in orders that were made by Fagan J on 1 May 2025 and reasons for judgment delivered on 14 May 2025: Kearney v Amirbeaggi [2025] NSWSC 455.
His Honour also made orders for costs in favour of the defendants and gave directions to allow part of the costs to be dealt with by way of a gross sum costs order. The costs in question included costs associated with previous interlocutory events, as well as the costs of the trial. The defendants provided evidence and submissions to facilitate the making of a gross sum costs order. On 17 October 2025, Fagan J handed down judgment in Kearney v Amirbeaggi [2025] NSWSC 1223, ordering that the relevant costs be paid in the gross sum of $369,432.
On 25 September 2025 Mr Kearney filed in the Court of Appeal an amended notice of motion. It seeks a number of orders. Relevantly for present purposes, by prayer 2 Mr Kearney seeks a stay of proceedings in the Common Law Division pending the final judgments in “the appeal proceedings”. By prayer 3, he seeks a stay of enforcement of all costs orders made by Fagan J in the Common Law Division pending the conclusion of “the appeal proceedings”. That would include the gross sum costs order made on 17 October 2025.
By prayer 4 Mr Kearney seeks the appointment of Mr Keiran Stoneham as his tutor under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). In the alternative, by prayer 6 of the amended notice of motion, Mr Kearney seeks an order that Mr Stoneham be allowed to act as his next friend and be permitted to speak on his behalf during court hearings. Prayer 5 seeks an order dispensing with the default requirement in r 7.14(2) that a tutor must commence or carry on proceedings through a solicitor.
While Mr Kearney seeks an order for appointment of a tutor it is not essential for this to occur in order for him to be replaced by a tutor. As recognised expressly in r 7.15(1), a person may become the tutor of a person under a legal incapacity without the need for any formal instrument of appointment or any order of a court. This may be achieved by the filing of the notice of consent and certificate referred to in r 7.16. The critical requirement in this respect is that Mr Kearney must be a person under a legal incapacity. Mr Kearney has filed evidence which he contends establishes that he has at relevant times lacked capacity to act on his own behalf, and he maintains that this is still the position as of today. As Mr Kearney pointed out at the hearing on 20 October 2025, this is not so much a matter of Mr Kearney’s own self-assessment but rather a position which he advances based on the professional judgments of qualified experts, including his treating psychiatrist Dr David Grace and consulting expert Dr Donald Rowe. I will return to this issue because it has important implications for resolving the matter that is before the Court.
By prayers 7 and 8 Mr Kearney seeks an order dispensing with the requirement to file a notice of appeal, and an order that his application for leave to appeal and the appeal be heard concurrently.
The amended notice of motion has come before the Registrar of the Court of Appeal for directions on at least two occasions. On 24 September 2025 counsel for the respondents pointed out that the amended notice of motion was problematic in circumstances where there was no appeal on foot challenging the final judgment of Fagan J (noting that as of 24 September 2025 the gross sum costs order remained outstanding). The same point had been raised in correspondence sent by the solicitors for the respondents to Mr Kearney on 23 September 2025.
The formal deficiencies with Mr Kearney’s position were correctly identified by the respondents. Although there were proceedings on foot in the Court of Appeal, they had become redundant by September 2025. On 18 February 2025 Mr Kearney filed in the Court of Appeal a summons seeking leave to appeal from certain orders made by Harrison CJ at CL on 13 September 2024 and Fagan J on 17 February 2025. The orders in question were interlocutory orders relating to the case management of the substantive proceedings in the Common Law Division.
On 2 April 2025 Mr Kearney filed an amended summons seeking leave to appeal. He withdrew his challenge to the orders made by Harrison CJ at CL on 13 September 2024, and sought instead to challenge various orders made by Fagan J on 17 February, 19 February, 7 March and 21 March 2025. Again, these were procedural orders relating to the case management of the matter in the Common Law Division.
By 24 September 2025, the amended summons seeking leave to appeal had been rendered out of date by developments in the substantive matter in the Common Law Division. The various procedural orders that were ostensibly under challenge no longer had operative force. They had been overtaken by the final hearing and the resolution of the matter by Fagan J on 1 May 2025 (subject only to the formulation of the gross sum costs order). As counsel for the respondents submitted to the Registrar on 24 September 2025, if Mr Kearney wished to challenge the correctness of the final orders by Fagan J Mr Kearney needed to take the formal step of filing not only a notice of appeal but also an application for an extension of time to appeal from those orders.
On 24 September 2025 the Registrar made orders for the filing of evidence and the relevant forms in relation to a tutor assuming responsibility for the proceedings, whether by way of appointment or otherwise. On 15 October 2025 the applicant was granted an extension of time until 27 October 2025 for filing of that material. The respondents have yet to determine if they will file evidence on the question of Mr Kearney’s capacity and the role of a tutor in carrying on the appeal proceedings. The respondents have understandably taken the position that they will make that determination after they have had an opportunity to review the material filed by Mr Kearney.
The amended notice of motion was listed for further directions on 15 October 2025 before the Registrar. In the course of that directions hearing Mr Kearney indicated his desire to press for stay orders pursuant to prayers 2 and 3 of his amended notice of motion in advance of the resolution of the balance of the prayers (including resolution of the issue regarding the proposed tutor). The Registrar referred prayers 2 and 3 only of the amended notice of motion for hearing by a Judge of Appeal, on the express basis that the referral was confined to the question of whether there ought to be an interim stay imposed pending resolution of the issue regarding the proposed tutor. That is the referral that came before me for hearing on 20 October 2025.
It follows that the only issue before the Court on 20 October 2025 was prayer 3 of the amended notice of motion, seeking a stay of enforcement of all costs orders made by Fagan J “pending final judgments and conclusion of the appeal proceedings”. Because of the terms on which the matter was referred by the Registrar, the debate was further confined to the question of whether such an order ought to be made pending the resolution of prayers 4, 5 and 6 of the amended notice of motion.
The respondents opposed the granting of such a stay. The respondents emphasised that Mr Kearney has still not filed any notice of appeal seeking to challenge the final orders made by Fagan J on 1 May 2025. This makes the reference in the amended notice of motion to “the appeal proceedings” somewhat misleading. On 23 May 2025 Mr Kearney filed a notice of intention to appeal from the judgment of 1 May 2025, but nothing has since been filed to commence an appeal. This is despite the respondents having raised the need for the formal position to be rectified by filing a notice of appeal and an application for an extension of time to file a notice of appeal. The respondents submit that in circumstances where Mr Kearney has not regularised the position in the Court of Appeal, despite fair warning to do so, his application for a stay is not properly in aid of any ongoing appeal process and should be rejected.
Over the course of the weekend before the hearing Mr Kearney provided to the Court a 25 page document described as a “draft notice of appeal”. He also provided a 22 page document described as “draft grounds leave to appeal”. Mr Kearney confirmed at the hearing on 20 October 2025 that these documents set out the grounds on which he would propose to challenge the decisions made in the Common Law Division that have led to the dismissal of his claim and the making of adverse costs orders. This includes, but is not limited to, the judgment of Fagan J of 1 May 2025.
Mr Kearney indicated that if the absence of a properly filed document is the decisive impediment to obtaining a stay, he would seek an adjournment to enable him to regularise the position by filing a notice of appeal incorporating the proposed grounds.
In Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5] Payne JA explained that the principles governing the granting of a stay pending appeal are analogous to those governing the grant of interlocutory relief before trial. A party applying for a stay must show that the appeal raises serious issues for determination and that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If those matters are established, it becomes necessary to consider the balance of convenience and the competing rights of the parties. The absence of arguable grounds of appeal is likely to be determinative against a stay application: see D**i Liristi v Matautia Developments Pty Ltd [2021] NSWCA 163 at [5].
The respondents are right to point to the problematic status of the current position in the Court of Appeal. Mr Kearney is seeking a temporary stay of adverse costs orders ostensibly in support of his challenge to the correctness of the judgments that have given rise to those orders, but he does not have an appeal on foot challenging the relevant decisions. Ordinarily that might be considered fatal to a stay application of this kind. However, the circumstances of the current case are unusual. Mr Kearney has filed extensive evidence which demonstrates that, at the very least, he has been suffering from severe psychological distress over many months, to the point of hospitalisation and attempted suicide. Mr Kearney has expressly raised a question about whether his condition reaches the level, and/or has at relevant times in the past reached the level, that he is and/or has been a person under legal incapacity within the meaning of Pt 7 Div 4 of the UCPR*.* There is a related extant issue, scheduled to be addressed in coming weeks, about whether a tutor can and should now take carriage of the appeal and any applications on behalf of Mr Kearney (including any further stay of enforcement of the costs orders against him).
In these unusual circumstances, for the purposes of dealing with the application for an interim stay of short duration, it is appropriate to look past the formal deficiencies and proceed on the basis that the draft documents that have been filed by Mr Kearney serve to identify the grounds of appeal that he seeks to rely on to challenge the relevant decisions of Fagan J and (to the extent relevant) other judicial officers who made case management decisions leading to the final hearing and judgments of Fagan J. Given the unusual combination of circumstances, it is not appropriate to require, as a prerequisite to treating the documents in this fashion, that Mr Kearney file documents to institute an appeal in these terms. For the same reasons I did not consider it appropriate to adjourn the hearing of the stay application to allow Mr Kearney to convert the prolix draft appeal documents into a filed notice of appeal. There is an unresolved issue about whether Mr Kearney currently has the capacity to act on his own behalf and there is a real prospect that it may soon be the responsibility of a tutor to make decisions as to what form the appeal may take, if the tutor decides to formally institute the appeal. It is in the interests of all parties, and conducive to the proper administration of justice by the Court, that if a tutor takes responsibility for commencing and maintaining the appeal the notice of appeal should reflect the informed consideration of the tutor about the real issues to be agitated on the appeal.
**********
Kearney
Amirbeaggi
Enforcement of Fagan J’s costs orders was stayed, subject to further order, until prayers 4, 5 and 6 of Kearney’s amended notice of motion were resolved, including by withdrawal or dismissal. If unresolved by 11 December 2025, the respondents had liberty to apply to the Court of Appeal Registrar for an order lifting the stay. Costs of the hearing were to be costs in the appeal, including any extension-of-time application, if and when instituted.
This is not to overlook the fact that any appeal that is sought to be instituted is also out of time. Whether instituted by Mr Kearney or by a tutor, any notice of appeal will now need to be accompanied by an application for an extension of time. It is sufficient for present purposes to find, as I do, that there is a seriously arguable basis for such an extension of time being granted, having regard to the same evidence about Mr Kearney’s mental condition that I have referred to above.
The draft grounds of appeal filed by Mr Kearney are voluminous, repetitive and in some cases unclear. It is sufficient to observe that Mr Kearney has identified a seriously arguable issue about the correctness of the decision under appeal as it relates to Mr Kearney’s capacity to appear at the hearing. When the matter came on for final hearing before Fagan J and Mr Kearney failed to appear, he was at the time hospitalised because of apparently acute psychological distress. That presented a difficult question for the trial judge to resolve, in circumstances where the respondents disputed that Mr Kearney lacked mental capacity to act and pressed for the hearing to proceed in his absence. This was also not the first time that Mr Kearney had allegedly become incapacitated when he was required in court to advance his case.
Fagan J was not persuaded to accept that Mr Kearney was lacking the capacity to appear. His Honour inferred that Mr Kearney was not genuinely affected by disabling psychiatric symptoms when he presented to Dr Grace in the days prior to commencement of the hearing: J[39]. His Honour placed particular weight on the fact that Mr Kearney had demonstrated through a number of appearances a capacity to advance his cause with apparent vigour which Fagan J perceived to be inconsistent with the later claim of incapacity. His Honour concluded that the Court’s longitudinal exposure to Mr Kearney’s conduct and state of mind over a number of hearings gave the Court a significant advantage over Dr Grace when it came to assessing whether Mr Kearney’s claimed pathological panic prior to the final hearing was genuine: J[46].
It is sufficient for the purposes of this stay application to observe that the evidence before his Honour raised a serious question about Mr Kearney’s mental capacity to participate in the hearing, which in turn gives rise to an arguable ground of appeal about his Honour’s treatment of that evidence. As the respondents correctly pointed out at the hearing of the stay application, Mr Kearney will face significant obstacles in overturning the findings of Fagan J on the factual question in circumstances where those findings turned in part on cross-examination of Dr Grace and his Honour’s assessment of the reliability of Dr Grace’s evidence in light of the cross-examination. There are also issues to be confronted by Mr Kearney about what would have occurred if the hearing was adjourned, given the indications of Fagan J about the orders that he would have made if persuaded that Mr Kearney’s claimed psychiatric indisposition was genuine: J[58]. While these matters are relevant to the ultimate prospects of Mr Kearney succeeding, they do not in my view go so far as to avoid the conclusion that in light of the evidence before Fagan J there are arguable grounds of appeal going to the correctness of the conclusion that Mr Kearney did not lack capacity.
The respondents also point out, correctly, that the gross sum costs order related not only to the final hearing but also to interlocutory orders at earlier stages. The respondents submit that to the extent that Mr Kearney seeks to impugn those interlocutory orders, it will be necessary for him to demonstrate error at those anterior points. While this is accurate, I do not consider it necessary to determine if there is a seriously arguable issue about the correctness of each of those interlocutory orders. It is sufficient to focus on the intended challenge to the orders of 1 May 2025, in circumstances where the gross sum costs order was at least partly dependent on the validity of those orders.
The next question that arises is whether Mr Kearney has established that there is a real risk that he will suffer prejudice or damage if the stay is not granted. Here it is necessary to say something about the practical effect of the stay order, given its temporary nature. On the current timetable, the issue regarding whether Mr Kearney lacks capacity and the associated appointment or recognition of a tutor is likely to be heard and resolved by the Court in early November (if the respondents do not decide to adduce evidence on the matter) or a matter of weeks thereafter (if the respondents require time to file evidence). Mr Kearney is subject to a direction to file his evidence by 27 October 2025, which is a date that already reflects an extension requested by Mr Kearney. I have determined the present application on the assumption that Mr Kearney will comply with that court deadline, as he assured me he can. Any delay in that regard could be a factor relevant to any later application to lift the stay.
It follows that an interim stay order precluding the enforcement of the costs order would only be in place for a short period of time. There is no evidence to suggest that, absent a stay, this process would move at such a pace as to enable enforcement to be achieved within that timeframe, so as to visit financial consequences on Mr Kearney during the period for which the interim stay would otherwise apply. The respondents have not indicated by evidence or otherwise any specific plans to commence enforcement action. They have merely indicated that they wish to be at liberty to start the process of enforcement.
Mr Kearney does not seek to rely on any financial prejudice or damage that he would suffer in the absence of an interim stay by reason of having to meet the costs liabilities. Nor, relatedly, does he say that his ability to prosecute the appeal would be impaired in the absence of a stay because of financial impacts that would affect his ability to pay for the litigation.
Instead, Mr Kearney points to evidence that his psychological condition is apt to deteriorate in a substantial way to the extent that he has to engage in litigious procedures. Mr Kearney accepts that any further prosecution of an appeal will necessarily impose a psychological burden of this kind, including to resolve the issue about a tutor. However, he says that any steps to enforce the costs orders over the coming weeks will add to the psychological burden in a way that presents a serious danger to his mental health and welfare. The evidence does provide a reasonable basis for making that asserted connection.
In circumstances where it seems inevitable that Mr Kearney will have to endure a psychological burden if he wants to persist with the litigation, the exacerbation of his mental ill-health might be considered to be somewhat marginal. However, it is a real and identifiable consequence of allowing the respondents to proceed with action to enforce the costs orders against Mr Kearney. Although there was no evidence about specific measures likely to be taken in the coming weeks by the respondents in this regard, the premise of the respondents’ opposition to the interim stay was that they wish to have the option of starting the process of enforcement. In the circumstances, there is a real risk that in the absence of a stay Mr Kearney will suffer prejudice or damage of the kind he fears.
As to the balance of convenience, this is a situation where neither side can point to substantial prejudice from either the grant or refusal of the stay. I have described above the position of Mr Kearney. As for the respondents, they are not in a position to show that they will suffer any particular prejudice, beyond a short delay in starting the process of enforcement. Beyond a short delay, that is not said to have any downstream consequences in terms of the respondents ultimately obtaining the fruits of the costs orders, if they remain entitled to them. The respondents cannot point to any evidence that there is a risk of dissipation of relevant assets by Mr Kearney, such that there is a pressing need to commence enforcement of the costs orders immediately to avoid frustration of the respondents’ rights.
In the circumstances, this is a situation where the balance of convenience involves comparing two relatively weak claims of prejudice, namely a real but nevertheless marginal psychological impact on Mr Kearney and a short delay in the respondents being able to commence the process of enforcement. The balance of convenience favours Mr Kearney in this regard.
The respondents have expressed concern about the prospect of an extended delay in being able to commence enforcement proceedings. Informed by the troubled procedural history of the proceedings in the Common Law Division, the respondents legitimately point to a risk that the Court of Appeal proceedings, if they are maintained, will become similarly protracted. That in turn could give more weight to a concern about delay in enforcing extant costs orders. However, the application before me is confined to an interim stay only. As matters stand, it is likely to be in place for only a matter of weeks. That assumes, among other things, that Mr Kearney proceeds to file the evidence that is currently due on 27 October 2025 and that there is no other unexpected impediment to a resolution of the issues concerning incapacity and representation of Mr Kearney’s interests through a tutor soon thereafter. To address the possibility that the Court is not in a position to resolve those issues as efficiently as is presently anticipated, I will grant liberty to apply to the Court for a lifting of the stay if those issues are not resolved by 11 December 2025. That is not to assume that it would necessarily be appropriate to lift the stay in those circumstances. Rather, the order is intended to provide a mechanism for the respondents to seek to reagitate their concerns if that situation arises. As for the position after the Court has resolved the issues raised by prayers 4, 5 and 6, if Mr Kearney or his tutor makes an application for a further stay and the respondents maintain their opposition on the basis of concerns about delay in enforcement, the Court will need to assess the impact on the respondents in that different context.
The orders of the Court will be:
Subject to further order of the Court, enforcement of the costs orders made in the proceedings by Fagan J in the Common Law Division is stayed until prayers 4, 5 and 6 of the amended notice of motion filed by the applicant on 25 September 2025 are resolved (including by their withdrawal or by dismissal).
If prayers 4, 5 and 6 of the amended notice of motion filed by the applicant on 25 September 2025 have not been resolved by 11 December 2025, the respondents have liberty to apply to the Court of Appeal Registrar for an order lifting the stay in order 1.
Costs of the hearing in respect of orders 2 and 3 of amended notice of motion filed by the applicant on 25 September 2025 shall be costs in the appeal (including any application for an extension of time to appeal), if and when instituted.