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[2025] NSWCA 272
procedural. The Court varied Order (1) made on 22 October 2025 so that enforcement of Fagan J’s costs orders remained stayed, subject to further order, until prayers 4–8 of the further amended notice of...
The Court had previously paused enforcement of costs orders against Mr Kearney until the Court dealt with whether a tutor should be appointed or recognised to conduct the proposed appeal. Mr Kearney asked for the pause to last until the appeal was finished. The Court said he had not shown a material change that justified deciding that question earlier. The tutor issue could affect whether an appeal proceeded and how it was conducted, so the duration of any further stay was better considered after that issue was resolved. The Court removed the respondents’ earlier permission to apply to lift the stay because the tutor hearing had been listed and the respondents said they would not seek to lift the stay before then. The Court dismissed Mr Kearney’s motion for the longer stay and made the motion’s costs costs in the appeal if one is instituted.
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2 cited instruments linked from this judgment.
In Kearney v Amirbeaggi (No 4) [2025] NSWCA 272, Free JA dealt with a self-represented applicant’s request to change an earlier interim order concerning enforcement of first-instance costs orders. The ruling is procedural. It does not decide the proposed appeal from Fagan J’s dismissal of Mr Kearney’s professional negligence claim, nor does it determine whether a tutor should be appointed or recognised.
Fagan J dismissed Mr Kearney’s claim against his former solicitor, Mr Amirbeaggi, and an associated incorporated law firm on 1 May 2025. Fagan J did so in Mr Kearney’s absence, when he was under the care of his treating psychiatrist, Dr Grace. Costs orders followed, including a gross sum costs order made on 17 October 2025 (para 2). At the time of the earlier stay hearing, no appeal or application for leave to appeal had formally been commenced. Mr Kearney had provided draft appeal documents identifying proposed grounds (paras 8–9).
On 22 October 2025, Free JA ordered a temporary stay of enforcement of the costs orders until the relevant tutor-related parts of Mr Kearney’s motion were resolved. The Court considered that an arguable ground of appeal had been identified and that Mr Kearney would suffer prejudice without a temporary stay, but declined to stay enforcement until the end of any appeal (paras 10–11). The Court also gave the respondents liberty to apply to lift the stay if the tutor issue had not been resolved by 11 December 2025. That liberty was intended to address the possibility that the tutor issue might not progress as expected (para 12).
Mr Kearney subsequently filed evidence concerning the tutor issue, including Dr Rowe’s report dated 27 October 2025 and Matthew Hancock’s consent to act as tutor. The relevant parts of a further amended notice of motion were listed for hearing on 23 February 2026 (para 13). Mr Kearney nevertheless sought a longer stay, lasting until the proposed appeal or leave applications were concluded, and a change to the earlier liberty to apply (paras 14–15).
The respondents said they would not apply to lift the stay before the tutor issue was resolved, assuming the listed hearing proceeded on 23 February 2026 (paras 17, 33). The Court dismissed Mr Kearney’s motion for a longer stay, but varied the description of the tutor-related prayers that would end the current stay, revoked the respondents’ liberty to apply, and ordered the motion’s costs to be costs in the appeal if and when instituted (para 38).
The governing procedural point was that r 36.16(3) of the UCPR permits variation of an interlocutory order where circumstances have changed sufficiently to justify doing so. Free JA cited Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 in stating that proposition (para 18). He then emphasised that a material change is important, and that a variation application should not simply repeat arguments already heard or operate as an appeal from the earlier order (para 19).
Mr Kearney filed extensive written submissions and affidavit evidence. He relied on medical reports concerning his capacity at different times, including material directed to whether Fagan J should have proceeded in his absence, and to other alleged errors in the management of the original proceeding (paras 20–21). For the variation application, he identified two particular matters as changes since the previous hearing: the draft summons for leave to appeal and Dr Rowe’s report filed on 27 October 2025 (para 22).
The Court treated the report as relevant to two broad questions: Mr Kearney’s present capacity to conduct proceedings personally, and his historical capacity at the time of Fagan J’s proceedings. The historical issue might inform proposed appeal grounds; the present capacity issue was central to the tutor question listed for hearing (para 23). But the Court did not regard that material as establishing a basis for granting the longer stay sought.
A central part of the reasoning was that arguability had already been addressed. At the earlier hearing, Free JA had found at least one arguable appeal ground. For the stay question, that finding had been the decisive matter in Mr Kearney’s favour on arguability (para 26). The Court therefore considered that asserting additional grounds, or arguing that those grounds were strong, did not materially advance the application in the circumstances. The Court also said that its assessment of the form of stay was not affected by the relative strength of the grounds beyond the finding that arguable grounds existed (para 27).
The remaining uncertainty was practical and procedural. Mr Kearney’s position was that he lacked capacity to conduct the proceedings, and he continued to seek the appointment or recognition of a tutor. If a tutor were appointed or recognised, that person would have to decide whether the appeal proceeded and, if so, in what form. If no tutor were appointed or recognised, the future conduct of the appeal would need to be assessed on the basis that Mr Kearney would conduct it personally if it continued. Either outcome could affect the efficiency of the appeal and whether a stay should continue (para 28). The Court considered that it could assess those matters properly only on or after the tutor hearing listed for 23 February 2026 (para 29).
The Court consequently found no relevant change warranting the extension. Greater certainty about the tutor hearing date did not support the longer stay Mr Kearney requested (paras 30–31). In a separate decision about the liberty to apply, the Court found that the reason for granting it had weakened: there was now greater certainty about the hearing date, and the respondents had said they would not seek to lift the stay before resolution of the tutor issue (paras 32–33).
The judgment is a procedural ruling applying the stated power in r 36.16(3) of the UCPR. It does not announce a new test or alter the rule described by the Court. Before this decision, the Court had already made an interlocutory order staying enforcement of costs orders for a limited period, pending resolution of the tutor issue. It had also granted the respondents liberty to seek to lift that stay if the tutor issue was not resolved by a specified date (paras 10–12).
In this decision, Free JA applied the material-change requirement to the particular application. The ruling confirms, for this procedural setting, that evidence or submissions bearing on the underlying appeal do not necessarily establish a material change that justifies varying an existing stay. Here, the Court had already found an arguable ground, and considered that further argument about the number or strength of grounds did not resolve the separate uncertainty about how the appeal might proceed (paras 25–30).
The Court’s orders altered the operation of the existing stay by referring to prayers 4–8 of the further amended notice of motion filed on 4 November 2025, rather than the earlier prayers 4–6. The stay remained subject to further order and lasted until those prayers were resolved, including by withdrawal or dismissal (para 38, order 1). The Court revoked the respondents’ liberty to apply, but did not order that the stay continue until the end of any appeal (para 38, orders 1–2).
The judgment does not purport to determine what approach must be taken in other cases involving litigation capacity or tutors. Its reasoning is tied to the procedural history, the existing finding of an arguable ground, the unresolved tutor application, and the listed hearing date.
At paragraph 18, the Court stated: “Such a variation may be ordered where circumstances have changed sufficiently to justify that change.” In plain English, an interlocutory order is not changed merely because a party renews a request. The applicant needs to point to a sufficient change since the order was made.
At paragraph 19, Free JA said: “The requirement for a material change in circumstances is critically important.” He added that it was not appropriate simply to re-agitate arguments already determined or to run what was effectively an appeal from the earlier decision. This explains why the Court focused on what had changed since the October hearing, rather than reconsidering the original stay application from scratch.
At paragraph 26, the Court noted that it had already found at least one arguable ground of appeal. It described that finding as decisive in Mr Kearney’s favour on arguability for the purpose of the stay question. In plain English, the Court did not require a second assessment of whether several additional proposed grounds might be strong before it could decide whether the stay should be extended.
At paragraph 28, the Court explained that a tutor “may be appointed or recognised”, in which case the tutor would decide whether and how the appeal proceeded. Alternatively, a tutor might not be appointed or recognised, and the future conduct of the appeal would need to be assessed on a different footing. The practical translation is that the unresolved capacity and tutor issue could change who would conduct the proposed appeal and whether it would proceed.
At paragraph 29, Free JA said the relevant considerations could only be properly assessed “on or after 23 February 2026”. The date mattered because that was when the tutor-related matters were listed for hearing. The Court considered that it would be better placed to assess a further stay once the tutor issue had been addressed.
Finally, paragraph 33 records that the respondents would not seek to lift the stay before resolution of the tutor issue, on the assumption that the matter proceeded as listed. The Court considered it appropriate to remove the earlier liberty to apply in those circumstances.
The decision is most directly relevant to an application under r 36.16(3) of the UCPR to vary an interlocutory order where the applicant relies on developments since the order was made. It is particularly pertinent where the proposed variation would extend a stay of enforcement, the underlying appeal has not yet been formally instituted, and a separate procedural issue may determine who can conduct the appeal.
The fact pattern here included an earlier, limited stay; an unresolved application about appointment or recognition of a tutor; a previously identified arguable appeal ground; and new material said to bear on capacity and appeal grounds. The Court treated the tutor issue as potentially affecting whether and how an appeal proceeded, and therefore as relevant to the timing of a decision about an extended stay (paras 26–30).
The judgment also provides a useful distinction between evidence that may be relevant to the underlying proposed appeal and evidence that establishes a material change for varying an interlocutory order. Dr Rowe’s report addressed both current and historical capacity, but the Court considered the application by asking whether circumstances had changed enough to justify the particular variation sought (paras 22–25). The ruling does not establish that medical evidence, draft appeal grounds, or a pending tutor application will always be insufficient. Its conclusion depends on the procedural context and the Court’s earlier finding that an arguable ground had already been identified.
The decision may also be relevant where an earlier liberty to apply was granted because of uncertainty about timing, but the relevant hearing is later listed and the party holding that liberty gives an assurance about not using it before the hearing. The Court considered both the revised timetable and the respondents’ stated position in revoking the liberty to apply (paras 32–33).
The judgment supplied here does not discuss any later judicial treatment of Kearney v Amirbeaggi (No 4). It is dated 16 December 2025, and the supplied text contains no subsequent decisions applying, distinguishing, or otherwise considering it. Accordingly, no account of later treatment can be grounded in this judgment alone.
The only authority expressly cited in the reasons is Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126, cited at paragraph 18 in support of the proposition that an interlocutory order may be varied where circumstances have changed sufficiently. The judgment does not identify other cases that applied or explained that proposition in this matter.
For research purposes, the point that can safely be extracted from the supplied source is limited: Free JA applied the material-change requirement to the interlocutory application before him and did not find the circumstances identified by Mr Kearney sufficient to justify extending the stay until the conclusion of any appeal. Whether later courts have followed or confined that reasoning requires sources beyond the judgment provided.
The decision leaves the tutor issue unresolved. The Court referred to the possibility that a tutor might be appointed or recognised, or that this might not occur, but did not decide which result was appropriate. Nor did it determine whether an appeal would ultimately proceed, or in what form (paras 28–30).
The decision also leaves open whether a further stay would be appropriate after the tutor issue was resolved. Free JA expressly observed that the Court might be satisfied that a stay should be extended if an appeal were on foot and there were reason to expect it would be efficiently prosecuted (para 29). That observation is conditional, not a ruling that a later extension would be granted.
The judgment does not determine the merits of Mr Kearney’s proposed appeal, the correctness of Fagan J’s decision, or the effect of the historical medical evidence on those merits. It records the earlier finding of at least one arguable ground for the limited purpose of the stay analysis, but does not decide whether any proposed ground would ultimately succeed (paras 25–27).
Nor does the decision state how the Court would assess the continuation of a stay in circumstances different from those before it, such as a changed hearing date, a different position from the respondents, or a different outcome on the tutor application. The reasoning identifies factors the Court considered relevant here, including the practical conduct and efficiency of any appeal, but does not set out an exhaustive test for every future stay application.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
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 4) [2025] NSWCA 272
Hearing dates: 11 December 2025
Date of orders: 11 December 2025
Decision date: 16 December 2025
Before: Free JA
Decision: (1) Vary Order (1) in ([2025] NSWCA 234) to read:
(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 4-8 of the further Amended Notice of Motion filed by the applicant on 4 November 2025 are resolved (including by their withdrawal or by dismissal).
(2) Revoke Order (2) in [2025] NSWCA 234 (made on 22 October 2025).
(3) Costs of the Amended Notice of Motion filed by the applicant on 3 December 2025 shall be costs in the appeal (including any application for an extension of time to appeal), if and when instituted.
(4) The amended Notice of Motion dated 28 November 2025 (filed on 3 December 2025) is dismissed.
Catchwords: APPEALS – Procedure – Application for interim stay – Enforcement of costs orders – Proposed appointment of a tutor – Applicant’s legal incapacity unresolved – No material changes in circumstances justifying longer stay
Cases Cited: Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
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
FREE JA: By an amended notice of motion, filed 3 December 2025, the applicant, Mr Brian Kearney, seeks a variation of orders that I made on 22 October 2025, following a hearing on 20 October 2025. I published reasons for judgment on 22 October 2025, which set out the broader background to these proceedings. Reference should be made to that judgment to understand the more detailed factual and procedural context, which I will not repeat. The position as at 22 October 2025 can be summarised as follows.
First, Mr Kearney had indicated his intention to appeal from the judgment of Fagan J given on 1 May 2025, dismissing the claim that Mr Kearney brought against his former solicitor, Mr Farshad Amirbeaggi, and an incorporated law firm associated with Mr Amirbeaggi, for professional negligence. Fagan J determined the proceedings at first instance in the absence of Mr Kearney, who was at the time under the care of his treating psychiatrist, Dr Grace. Fagan J made cost orders against Mr Kearney, including a gross sum cost order on 17 October 2025.
Secondly, on 25 September 2025, Mr Kearney filed an amended notice of motion in the Court of Appeal. Prayer 2 sought a stay of proceedings in the Common Law Division. That had become redundant by 20 October 2025, as the making of the gross sum costs order three days earlier meant that proceedings in the Common Law Division were at an end. Prayer 3 of the amended notice of motion sought a stay of enforcement of all cost orders made by Fagan J pending the final judgments in the appeal proceedings.
Thirdly, Orders 4, 5 and 6 of the amended notice of motion of 25 September 2025 concerned the proposed appointment or recognition of a tutor on the basis that such a tutor would then take over from Mr Kearney in prosecuting the appeal, if the tutor determined it was appropriate to proceed.
Fourthly, the Registrar of the Court of Appeal had referred to me for hearing only paras 2 and 3 of the amended notice of motion. There had been a debate before the Registrar about whether it was appropriate to determine those parts of the amended notice of motion, in circumstances where there was an unresolved issue about whether Mr Kearney had capacity to run the proceedings on his own behalf. Mr Kearney pressed for an immediate hearing of his application for orders 2 and 3. Those paragraphs only were referred to me for hearing. That referral was on the basis that what was being sought was an interim stay only, pending the resolution of the tutorial issue.
I should deal immediately in that context with an issue which was raised today by the respondents, who were represented by Mr Smith of counsel. It was submitted that, as a matter of procedural fairness, the question of extension of the stay of enforcement of costs orders beyond the point of resolution of the tutorial issue had not been properly raised because the earlier referral to me by the Registrar was confined to the question of an interim stay only. I am not persuaded to confine the issues before me in that way, in circumstances where Mr Kearney had, at least in submissions before me on 20 October 2025 and certainly in submissions today, squarely raised the issue of whether the stay should extend beyond the point of resolution of the tutorial issue.
Returning to the description of circumstances that prevailed as of 22 October 2025, fifthly, the registrar had otherwise made directions to progress towards a hearing of the issue concerning a tutor as raised by what were then orders 4, 5 and 6 of the amended notice of motion. When the matter was heard before me on 20 October 2025, Mr Kearney was due to file his evidence in relation to those matters by 27 October 2025.
Sixthly, at the time of the hearing before me on 20 October 2025, no appeal or application for leave to appeal from the orders of Fagan J had been formally commenced. However, Mr Kearney relied on a draft notice of appeal and draft grounds leave to appeal which set out in considerable detail the grounds which Mr Kearney sought to rely on in demonstrating that Fagan J had erred. I note that Mr Kearney has for today’s purposes also filed a document styled as a draft summons seeking leave to appeal, which again sets out his proposed grounds for overturning the decision of Fagan J.
At the hearing of 20 October 2025, Mr Kearney indicated that, if necessary, he could proceed to file those documents to address the perceived formal deficiency. I concluded that this was not an appropriate step to procure, in circumstances where the issue of the proposed tutor remained unresolved. Mr Kearney’s own position was that the evidence demonstrated that he lacked the capacity to act on his own behalf, and if a tutor came to assume responsibility for the conduct of the appeal, it would be a matter for the tutor to decide how to proceed and what documents to file. In those circumstances, I proceeded instead on the basis that the draft grounds of appeal should be treated as indicating the grounds which Mr Kearney said showed error on the part of Fagan J.
In my judgment of 22 October 2025, I determined that it was appropriate to grant a temporary stay of enforcement of the costs orders made by Fagan J until prayers 4, 5 and 6 of the amended notice of motion were resolved. Among other things, that was predicated on an acceptance that an arguable ground of appeal existed and Mr Kearney would suffer prejudice in the absence of a stay of that kind. That was a more temporary stay than Mr Kearney desired. He had sought a stay of enforcement of the costs orders until resolution of the appeal proceedings.
I was not persuaded to grant a stay in those terms, in circumstances where there was a significant and unresolved question about whether Mr Kearney had capacity to act on his own behalf, and the issue of appointment or recognition of a tutor was due to be resolved in the near future. How that issue was resolved would have a significant impact on the form of any ongoing appeal, which in turn could have an impact on whether an extension of the stay of enforcement of any costs orders beyond that point was warranted. The continuation of the stay of enforcement of the costs orders beyond that point was, therefore, a matter best addressed by the Court once the issue of the proposed tutor was resolved.
By order 2 on 22 October 2025, I gave the respondents liberty to apply to the Court of Appeal registrar for an order lifting the stay in order 1 if prayers 4, 5 and 6 had not been resolved by 11 December 2025. As I explained in my reasons for judgment, that liberty to apply was granted to provide the respondents with a mechanism to have the stay revisited if, for whatever reason, the issue regarding the appointment or recognition of a tutor did not proceed in the timely way that was expected as of 22 October 2025.
As events have transpired, Mr Kearney filed his evidence in relation to prayers 4, 5 and 6 as directed. That involved an expert report of Dr Rowe dated 27 October 2025 and a consent to act as tutor by a Mr Matthew Hancock. An amended notice of motion was filed on 4 November 2025. This updates the orders sought in relation to the proposed tutor, now Mr Hancock. The respondents have also served evidence, although not medical evidence, for the purposes of the hearing of the tutorial issue, and the relevant parts of the amended notice of motion dealing with the tutor issue have been set down for hearing on 23 February 2026.
It follows that by the first order I made on 22 October 2025 the stay of enforcement of the costs orders would operate until at least that time. That would theoretically have been subject to the respondents making an application in the meantime under the liberty to apply. However, in the absence of some significant change of circumstances which has not occurred, it is hard to imagine how the respondents could have justified bringing an application between now and then, given the dispute about prayers 4, 5 and 6 is due to be resolved at or after the hearing, which has now been scheduled for 23 February 2026. Indeed, as I will explain further in this judgment, the respondents have accepted that the stay will remain in place until the hearing of that issue, at least if it occurs on 23 February 2026. Mr Kearney by today’s amended notice of motion nevertheless seeks a different form of protection in the form of a stay of enforcement of the costs orders of Fagan J until the conclusion of the applications for leave to appeal or appeals. This is prayer 2 of his amended notice of motion of 28 November 2025.
This is to a large extent, a repeat of the application that I head on 20 October 2025 and determined in my judgment two days later. By prayer 3 of his amended notice of motion, Mr Kearney seeks an order altering the liberty to apply, which I had granted by order (2) on 22 October 2025.
Mr Kearney has been agitating for orders of this kind since around 17 November 2025. On 20 November 2025 the respondents wrote to Mr Kearney proposing the existing stay be extended to 23 February 2026, being the date of hearing of the tutor issue. On the same day Mr Kearney indicated he would consent to such orders being made, subject to adding the words “without prejudice”. The next day the respondents indicated that they would agree to the addition of those words. However, Mr Kearney subsequently indicated that he no longer consented to the proposed orders.
At a directions hearing before the registrar on 3 December 2025 the respondents confirmed that they would not seek to lift the extent stay prior to the hearing listed on 23 February 2026. They also indicated that the current amended notice of motion ought to be listed on the same date to avoid further unnecessary cost. Mr Kearney opposed that course. The respondents have confirmed in written submissions that they will not take any steps to seek to lift the extent stay prior to the resolution of the tutorial issue listed for hearing on 23 February 2026.
The Court does have power to vary an interlocutory order under r 36.16(3) of the UCPR. Such a variation may be ordered where circumstances have changed sufficiently to justify that change. Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126.
The requirement for a material change in circumstances is critically important. It is not appropriate simply to re-agitate the same arguments that have been heard and determined already, or to run what is in substance an appeal from an earlier decision.
Mr Kearney has filed extensive written submissions of over 60 pages and extensive affidavit evidence in support of his application for a variation of the existing stay. I have read those submissions and considered his evidence, and I have also heard further oral submissions from Mr Kearney today. Amongst other things, Mr Kearney relies on a long history of medical reports attesting to his impaired capacity over different periods of time. This evidence is in turn relied on to submit that it was erroneous of Fagan J to proceed in the absence of Mr Kearney at the hearing of the matter at first instance, and to show other alleged errors by Fagan J in his Honour’s management of those proceedings.
Mr Kearney has also sought to demonstrate that the material he points to shows that I underestimated the strength of his grounds of appeal in dealing with the question of the stay on the last occasion.
Mr Kearney has properly today addressed his submissions to the question of whether there has been a material change in circumstances since 20 October 2025. He points in that regard to two particular matters. One is the service of a draft summons seeking leave to appeal, which sets out in some considerable detail the grounds of appeal that Mr Kearney would seek to rely upon. The other is the report of Dr Rowe which was filed on 27 October 2025.
Dr Rowe’s report, which Mr Kearney helpfully directed me to in particular respects, deals, at least relevantly for today’s purposes, with two broad issues. One is Mr Kearney’s ongoing capacity to run proceedings on his own behalf, which is the critical issue to be determined by the Court on 23 February 2026. The other is that the report deals more historically with whether Mr Kearney lacked capacity in the past, when the matter was being managed and heard by Fagan J, to run the proceedings on his own behalf at first instance. That in turn, Mr Kearney submits, feeds into the question of whether he has demonstrated strong grounds to challenge the correctness of what Fagan J determined. Because this material was not before me on 20 October 2025, this is said to be a material change in circumstances that should justify a variation to my orders.
It is apparent from his submissions that Mr Kearney is dissatisfied with the reasoning and findings in my judgment of 22 October 2025. However, as I have emphasised, the present application is not an appeal, and it is not an opportunity for Mr Kearney simply to have a second attempt at persuading me that I should make a different order from the one I made on 22 October 2025 based on reagitating the arguments that were made on that occasion.
I will deal briefly with the proposed variation to Order 2 that I made on the last occasion, which granted to the respondent liberty to apply after 11 December 2025 for a lifting of the stay. As I have already noted, Mr Kearney seeks a variation to that Order 2. That order was made at that time to address the uncertainty about the timing of the resolution of the issue about appointment or recognition of a tutor. There is now greater certainty about that timing with the relevant aspects of the amended Notice of Motion listed for hearing on 23 February 2026.
The respondents have indicated expressly in submissions to me that they will not take any steps to seek to lift the extent stay prior to resolution of the tutor issue in the circumstances, at least on the assumption that it proceeds as currently listed on 23 February 2026 to be heard. I am satisfied that it is appropriate in those circumstances to remove the liberty to apply that was granted by Order 2, which is evidently a source of ongoing stress to Mr Kearney.
Finally, dealing with the costs of the motion. Considerations as to the costs of the Notice of Motion today are reasonably finely balanced. Mr Kearney has been unsuccessful in his application to extend the stay until the resolution of the appeals. And in that sense, on the basis that costs would ordinarily follow the event, the respondent might be considered entitled to a costs order in its favour.
An additional consideration in favour of the respondent in that regard is that it has acted quite responsibly and reasonably in proposing consent orders that would have effectively preserved the effect of the existing temporary stay. Mr Kearney was initially amenable to consenting to those orders, but subsequently revoked his consent. The respondent has also acted responsibly by indicating that it has no intention of seeking to exercise the liberty to apply to vary the stay in advance of 23 February 2026.
On the other hand, Mr Kearney points out that although he had success on the last occasion before me, in my judgment on 22 October 2025, I did not make an order for costs in his favour, but ordered that costs of the hearing be costs in the appeal if and when instituted.
Although there is a strong case for a specific costs order in favour of the respondents on this occasion, taking all those matters into account, given the approach I took on the last occasion, I will make an equivalent order that the costs in respect of the notice of motion filed on 3 December 2025, which was heard before me today, will be costs in the appeal, including any application for an extension of time to appeal if and when instituted.
Otherwise, it is appropriate to vary the order that I made on the last occasion, only to reflect the fact that the issue regarding the appointment or recognition of a tutor is now the subject of a different notice of motion from the one I referred to on that occasion. The orders of the Court are:
Vary Order (1) in ([2025] NSWCA 234) to read:
(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 4-8 of the further Amended Notice of Motion filed by the applicant on 4 November 2025 are resolved (including by their withdrawal or by dismissal).
**********
Kearney
Amirbeaggi
The Court varied Order (1) made on 22 October 2025 so that enforcement of Fagan J’s costs orders remained stayed, subject to further order, until prayers 4–8 of the further amended notice of motion filed on 4 November 2025 were resolved, including by withdrawal or dismissal. It revoked Order (2), which had granted the respondents liberty to apply to lift the stay. Costs of the 3 December 2025 motion were ordered to be costs in the appeal, including any application for an extension of time to appeal, if and when instituted. The amended notice of motion dated 28 November 2025 and filed on 3 December 2025 was dismissed.
Ultimately, in my view, Mr Kearney has not identified any material change in circumstances that warrants a different approach. Mr Kearney argues that I gave insufficient attention to the full scope and force of the multiple grounds of appeal detailed in his draft documentation that was before me on 20 October 2025, and he has emphasised that the material which has since become available, particularly in the form of Dr Rowe’s report, corroborates that there are multiple strong grounds of appeal in his favour to challenge the decision of Fagan J.
That exercise of seeking to demonstrate the strength of the grounds of appeal is, with respect to Mr Kearney, misdirected. As I explained in my judgment of 22 October 2025, it is relevant to the question of a stay of enforcement of orders sought in connection with an appeal from those orders to consider whether there are arguable grounds of appeal that have been identified. I found on the last occasion that Mr Kearney had established at least one arguable ground of appeal, and that was for the purposes of the exercise of determining the stay issue, the decisive matter in his favour as far as arguability of the appeal was concerned.
Given the other considerations that affect the resolution of this matter in the unusual circumstances of this case, Mr Kearney’s position is not relevantly advanced by contending that he has additional grounds of appeal, which Mr Kearney says are strong or at least arguable. Nor, in the circumstance of this case, do I accept that the determination of the appropriate form of stay is affected by my assessment of the relative strength of the appeal grounds, beyond finding that arguable grounds of appeal have been established.
Most critically, as things stand, Mr Kearney’s position is that he lacks capacity to run the proceedings, as demonstrated in evidence available to him, and, in fact, confirmed by the most recent report of Dr Rowe filed on 27 October 2025. On that basis, he is continuing to seek orders for the appointment or recognition of a tutor. The appeal, or, strictly speaking, the putative appeal is approaching a critical juncture. A tutor may be appointed or recognised, in which case the tutor will need to decide if the appeal proceeds, and if so, in what form. That could well affect the assessment of whether or not it is appropriate for the stay to persist. Alternatively, a tutor may not be appointed or recognised and the future conduct of the appeal will need to be reassessed on the basis that Mr Kearney will be conducting the appeal personally if it continues. That circumstance too may have implications for the continuation of the stay. In whatever circumstances pertain, relevant considerations may include the future efficiency of the conduct of the appeal proceedings and how that intersects with the relevant factors going to a continuation of the stay of enforcement of the cost orders.
These are considerations that the Court will only be in a position to properly assess and weigh up on or after 23 February 2026. The Court may well be satisfied if an appeal is on foot and there is reason to expect that it will be efficiently prosecuted, that the stay should be extended at that time to preserve the status quo until the appeal is resolved.
But I remain of the view that that is a matter best resolved by the Court at that point. These were considerations that informed my decision to confine the stay to the period between 22 October 2025 and the resolution of the issue regarding a tutor. These considerations remain compelling in my view. There has been no relevant change in circumstances.
To the extent there is now a greater certainty about the timing of the hearing of those aspects of the amended Notice of Motion with a listing of 23 February 2026, that does not support any change to the existing stay, including the change that Mr Kearney seeks.