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[2025] NSWCA 73
General information, not legal advice.
Court of Appeal (NSW)
2025-04-14
Kirk JA
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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 2) [2025] NSWCA 73
Hearing dates: 14 April 2025
Date of orders: 14 April 2025
Decision date: 14 April 2025
Before: Kirk JA
Decision: (1) The applicant’s application for an adjournment of the hearing of his notice of motion filed on 1 April 2025 is refused.
(2) With respect to the applicant’s notice of motion filed on 1 April 2025:
(a) dismiss prayers 1 and 2;
(b) stand prayer 3 over to be heard together with the application for leave to appeal.
(3) The applicant is to pay the respondents’ costs of the motion incurred to date.
Catchwords: CIVIL PROCEDURE – hearings – application to expedite application for leave to appeal where final hearing below soon to commence – prolonged proceeding below with final hearing dates twice postponed on applicant’s application based on mental health arguments – applicant not yet filed materials on application for leave to appeal despite orders – application refused to avoid heavy burden on parties and interference in preparation for final hearing
CIVIL PROCEDURE – Court of Appeal – whether should be concurrent hearing of leave application and appeal is administrative decision generally made by President of Court of Appeal – not open to applicant to seek that the decision be made by a judge of appeal determining a motion
CIVIL PROCEDURE – hearings – adjournment – adjournment sought when very short period remains before commencement of final hearing
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58
Uniform Civil Procedure Rules 2005 (NSW), r 51.14
Cases Cited: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Kearney v Amirbeaggi [2022] NSWSC 130
Kearney v Amirbeaggi [2022] NSWSC 805
Kearney v Amirbeaggi [2022] NSWCA 130
Mohareb v Manly Local Court (2024) 115 NSWLR 229; [2024] NSWCA 233
Category: Procedural rulings
Parties: Brian Kearney (Applicant; self-represented)
Farshad Amirbeaggi (First respondent)
ACN 111 804 383 Pty Ltd t/as Yates Beaggi Lawyers (Second respondent)
Representation: Counsel:
B Smith (Respondents)
Solicitors:
YPOL Lawyers (Respondents)
File Number(s): 2025/64945
Publication restriction: Nil
The applicant, Brian Kearney, has filed a summons seeking leave to appeal from various interlocutory rulings made by Fagan J in the Common Law Division of the Supreme Court. The Supreme Court proceedings have been on foot for six years. They are listed for hearing in two weeks time commencing on 28 April 2025.
This morning I heard and determined a motion filed by Mr Kearney on 1 April 2025 seeking the following:
an order for expedition of the hearing of his application for leave to appeal and his appeal;
an order that “leave to appeal and the appeal be heard simultaneously”;
leave for him to adduce fresh evidence.
At the commencement of the hearing of the motion Mr Kearney sought an adjournment. After hearing his submissions on that application I rejected his request, indicating that I would give reasons in due course. When I said that I would then proceed to hear his motion Mr Kearney walked out of the courtroom without seeking to provide any evidence or submissions on the motion. Counsel appearing for the respondents then read an affidavit of the respondents’ solicitor, Mr Timothy Price, dated 4 April 2025. I noted that I had received the respondents’ short written submissions on the motion, filed on 4 April 2025. Counsel then made very short oral submissions.
At the end of the hearing I made the following orders:
The applicant’s application for an adjournment of the hearing of his notice of motion filed on 1 April 2025 is refused.
With respect to the applicant’s notice of motion filed on 1 April 2025:
(a) dismiss prayers 1 and 2; (b) stand prayer 3 over to be heard together with the application for leave to appeal.
The applicant is to pay the respondents’ costs of the motion incurred to date.
Reasons reserved.
What follows are my reasons for making those orders. I first summarise key aspects of the complicated procedural history of the matter, then deal in turn with the adjournment application, the expedition application, and prayers 2 and 3 of the motion.
In March 2019 Mr Kearney brought proceedings in the Supreme Court against the first respondent, Mr Farshad Amirbeaggi, and the second respondent, a law firm with which Mr Amirbeaggi was associated, by way of a statement of claim alleging professional negligence. He sought indemnity of certain legal costs, expenses and alleged losses arising from a litigation matter in which he retained the second respondent in pursuit of an oppression claim against his then business partners.
In June 2021 the applicant filed a motion seeking, amongst other things, that the proceedings be expedited.
In December 2021 the matter was first listed for final hearing for 15 days commencing on 5 September 2022, with liberty granted for Mr Kearney to seek an earlier hearing date, which he then did.
In February 2022 Beech-Jones CJ at CL brought the hearing date forward to 1 August 2022 with an estimate of seven days: Kearney v Amirbeaggi [2022] NSWSC 130.
In June 2022 Mr Kearney applied to have that hearing date vacated. That application was refused by Beech-Jones CJ at CL: Kearney v Amirbeaggi [2022] NSWSC 805.
On 20 July 2022 Brereton JA, sitting as referrals judge in this Court, made orders which had the effect of preventing the hearing from proceeding: Kearney v Amirbeaggi [2022] NSWCA 130. His Honour took into account evidence of Mr Kearney’s mental health that had not been provided to the Chief Judge at Common Law.
In November 2023 Weinstein J listed the matter for final hearing commencing on 26 August 2024 with an estimate of 15 days.
On 7 August 2024, on Mr Kearney’s application, McNaughton J vacated the hearing set to commence less than three weeks later based upon Mr Kearney’s mental health.
On 26 August 2024 Harrison CJ at CL granted the parties liberty to approach the list manager to obtain a hearing date.
On 27 August 2024 Mr Kearney filed a motion seeking that Harrison CJ at CL recuse himself from the proceedings.
On 12 September 2024 the respondents filed a motion seeking that the proceedings be permanently stayed or alternatively dismissed. The application is based in part on allegations that Mr Kearney has misled the court about his medical circumstances.
On 13 September 2024 the matter was listed before Harrison CJ at CL. The parties had not obtained a new date for the final hearing by then. Mr Kearney sought, at the hearing, a three-month medical respite period. His Honour did not formally determine that application but adjourned the proceedings until 17 February 2025, thus in substance granting Mr Kearney the respite he had sought, with a view that both the recusal application and the permanent stay application be heard on that day.
- Vacate the listing 14 April 2025 2:30pm [being a directions hearing before the Registrar of the Court of Appeal].
- Extend time for the Applicant’s Written Submissions on his Motion, together with evidence in support of such Motion, to 18 April 2025.
- Extend time for the Applicant’s Written Submissions in relation to any such Motion, pursuant to paragraph 9 of Practice Note SC CA 01, be filed and served by 18 April 2025.
- The parties file and serve any written submissions not to exceed 20-pages as to their position as to a concurrent leave and appeal hearing and/or separate leave and appeal hearings by 18 April 2024.
- List the Motion for Hearing on _______ April 2025.
- Extend time for the applicant to file and serve any supplementary white folder together with his summary of argument not exceeding 20 pages, but otherwise pursuant to UCPR r 51.12, by 21 April 2025.
- Liberty to apply on 24 hours’ notice.
Mr Kearney tendered no evidence in support of his adjournment application. I marked his draft grounds of appeal document as MFI1. I asked if he wished to tender Dr Rowe’s report. He responded in the negative.
In support of his adjournment application Mr Kearney noted that my associate had drawn a case to the parties’ attention by email on Friday, and he wished to seek legal advice on that point. He said he had “booked a conference” on Wednesday afternoon of this week with a “consulting barrister” who had been assisting him “spasmodically”. He was not prepared to identify the barrister. The case in question was Mohareb v Manly Local Court (2024) 115 NSWLR 229; [2024] NSWCA 233, which is relevant to prayer 2 of the motion which seeks a concurrent hearing of the application for leave to appeal and the appeal (as discussed below).
The email drawing the case to the attention of the parties was sent by my associate at 1:27pm on Friday afternoon. Then at 1:59pm that day my associate forwarded a copy of the case to the parties after Mr Kearney requested that it be sent. The judgment is short (21 paragraphs) and clear. Mr Kearney has had two and a half days to consider it. And prayer 2 is a minor matter compared to the significance of Mr Kearney’s application for expedition.
Mr Kearney also indicated that he wanted further time to file the supplementary white folder and to put on his written submissions in support of his application for leave to appeal. As noted above, on 31 March 2025 the Registrar had ordered him to take those steps by 7 April 2025. He has thus now had two weeks to provide those materials. Moreover, Mr Kearney has been able to prepare his 45 page draft grounds of appeal document. I do not accept that he has had insufficient time or capacity to prepare a white folder and written submissions on his application for leave to appeal, even allowing for the facts that he is a litigant in person and one who may be subject to significant stress as a result of the litigation.
Mr Kearney also submitted that he had not yet reviewed the respondents’ three page written submission opposing his motion, nor the affidavit of Mr Price. That affidavit consists of 12 paragraphs spread over four pages of text, with 130 pages of annexures constituted of documents which related to events which have occurred, documents served or judgments given, in the Supreme Court proceedings. If Mr Kearney has not read this very limited material then that is his own choice. I do not accept it results from any disability or limitation.
Mr Kearney’s justifications did not offer any significant support to his adjournment application. And there are substantial factors which militated against granting it. The proceeding in the Common Law Division is listed for hearing commencing in two weeks time. As I pointed out to Mr Kearney, given the upcoming public holidays there are only six business days remaining after today prior to the commencement of the final hearing.
The following considerations might be said to favour an expedition order:
Mr Kearney has claimed on previous applications to be suffering mental health problems which are exacerbated with the stress of the litigation.
If this matter is not determined prior to the final hearing of the proceedings in the Common Law Division then in practical terms there is a significant chance, and perhaps likelihood, that the application will not be heard prior to the determination of those proceedings.
As to the first of these, Mr Kearney has not provided me with any medical evidence in support of those claims, and I note that the respondents do not accept his claims of medical difficulties. However, for the purpose of determining this motion I am prepared to assume that there is some basis to his past claims on this issue. Even so, as noted, Mr Kearney has not applied for the hearing before Fagan J to be adjourned.
Moreover, as Beech-Jones CJ at CL said in Kearney v Amirbeaggi [2022] NSWSC 805 at [20]:
[20] 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.
His Honour went on to say that “[t]he short answer to all the stress that is being occasioned to everyone is not to prolong the proceedings, but to bring them into focus” (at [23]). That statement is even more forceful now, in circumstances where the proceedings have now been on foot for six years, have been listed for final hearing a number of times before, and orders for final hearing have twice been overturned on Mr Kearney’s application based on arguments made as to his mental health.
In my view it would only add to the stress on Mr Kearney were he to have to both prepare for trial and for a very quick hearing in this Court (even if that were possible). It can be assumed that doing so would pose a heavy burden on both sides, and interfere in their preparation for the final hearing.
In that regard it is necessary to consider the effect that taking that course, or making some order which might delay the proceedings, would have on the respondents. The respondents’ solicitor, Mr Price, has given the following evidence, which I accept:
I am instructed by Mr Amirbeaggi and verily believe that:
a. these proceedings have been hanging over his head since 27 March 2019 and are a source of worry for his reputation and professional standing. He desires that any trial occur as soon as possible such that there might be a resolution to the proceedings;
b. these proceedings cause stress and distraction from Mr Amirbeaggi’s professional activities and in his personal life. That is exacerbated by the nature and volume of the plaintiff’s inter-partes communications and communications with the Court, which continue to make serious allegations against the defendants (amongst others);
c. Mr Amirbeaggi is from time to time asked by members of the profession, including senior counsel, what the proceedings concern, and why a former client has commenced proceedings against him; and
d. Mr Amirbeaggi has had to explain himself and the circumstances of the claim on at least several occasions since the proceedings were commenced to new clientele of his law practice.
Mr Price also testified to significant work that he anticipates will be required to be done by and on behalf of the respondents in order to prepare for the final hearing. I accept that evidence.
As for the second consideration possibly favouring an expedition order, it is relevant to note that this Court “rarely interferes with case management decisions of trial judges”: Kearney v Amirbeaggi [2022] NSWCA 130 at [23] (Brereton JA). That fact throws some light on the likely utility of ordering a quick hearing in this Court. Further, working on the assumption that Mr Kearney’s application for leave to appeal will not be determined prior to the determination of the Supreme Court proceedings, it would remain open to him to pursue challenges he wishes to make to the impugned orders of Fagan J at least insofar as any of the interlocutory orders affected the final result: note eg Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [4]-[8].
Finally, there is a further factor which of itself is enough to reject the expedition application. There is now no practical prospect of the application for leave to appeal being heard and determined prior to the commencement of the hearing in a manner that would be consistent with the requirements of procedural fairness given the following: the limited number of days remaining before the hearing in the Common Law Division; the fact that Mr Kearney has not yet filed the white folder or his submissions on the application for leave to appeal; the fact that in light of Mr Kearney’s non-compliance with directions of this Court to date there is reason to doubt he would comply with any orders made for provision of the necessary materials; and the necessity to allow the respondents time to file submissions in response.
In all the circumstances, and taking account of the imperatives set out in ss 56-58 of the Civil Procedure Act 2005 (NSW), Mr Kearney’s application for expedition would impose too great a burden on all parties and in any event is made too late.
As for prayer 2 of Mr Kearney’s motion, whether or not an application for leave to appeal is heard separately or concurrently with the hearing of the appeal involves an exercise of power pursuant to r 51.14 of the Uniform Civil Procedure Rules 2005 (NSW). It is an administrative decision which generally is made by the President of the Court of Appeal: see Mohareb at [11]. In general that decision is not justiciable: ibid. It would subvert that administrative process were it to be open to an applicant to seek that the decision be made by a judge of appeal determining a motion. It is not necessary to consider whether there might be exceptional circumstances in which it might be appropriate to determine the matter by way of motion. This is not such a case. Prayer 2 was thus dismissed.
With respect to prayer 3, it is not clear what evidence is the subject of the application. In any event, I consider it appropriate that any such application in this matter be addressed by the Court at the same time as considering the application for leave to appeal. I therefore stood prayer 3 of the motion over to be heard together with that application.
**********
Kearney
Amirbeaggi
(2002) 209 CLR 478
(2024) 115 NSWLR 229
On 17 February 2025 Harrison CJ at CL was unavailable and the two applications came before Fagan J. His Honour informed Mr Kearney that it was unnecessary for him to pursue the recusal application against the Chief Judge. Mr Kearney applied for an adjournment of the stay application, saying that he had only prepared for the recusal application. It seems he left the courtroom after his application for adjournment was refused.
The next day, on 18 February 2025, Mr Kearney filed in this Court a summons seeking leave to appeal from the orders of Harrison CJ at CL made on 13 September 2024 (save for order 1 which granted an adjournment) and from the orders made by Fagan J on 17 February 2025, presumably referring to the refusal of his application for adjournment of the stay application.
The hearing below continued before Fagan J on 19 February to receive and hear certain evidence. The hearing of the application then had to be adjourned part heard, as the hearing had exceeded both the time allocated and any further time which his Honour had available in that week.
In that context his Honour made orders fixing the final hearing before him on 28 April 2025, and adjourning the respondents’ stay application to that date “with the intention that if the final hearing is not able to proceed on that date or soon after due to default of the plaintiff, then the hearing of the defendants’ notice of motion may resume, taking into account the then circumstances and developments”. His Honour also made various procedural orders, including in relation to how some disputes about subpoenas were to be addressed. His Honour listed notices of motion of each side relating to subpoenas for hearing before him on 7 March 2025. Fagan J subsequently published reasons for making those orders on 5 March 2025: Kearney v Amirbeaggi [2025] NSWSC 147.
On 7 March 2025 Mr Kearney filed a motion seeking that Fagan J recuse himself from the proceedings. His Honour declined Mr Kearney’s application for an adjournment of the hearing of the subpoena motions in a short ex tempore judgment in which he noted that, despite repeated requests, Mr Kearney had not provided him with any particulars of matters said to warrant his recusal. His Honour then heard and determined the subpoena motions, delivering an ex tempore judgment: Kearney v Amirbeaggi [2025] NSWSC 196. One of the orders he made was to list the hearing of Mr Kearney’s recusal application before him on 21 March 2025, with an associated order that Mr Kearney was to file written submissions in support of the recusal application by close of business on 20 March 2025.
On 21 March 2025 Fagan J heard and dismissed Mr Kearney’s recusal application, again giving an ex tempore judgment: Kearney v Amirbeaggi [2025] NSWSC 260.
On 31 March 2025 Mr Kearney’s summons seeking leave to appeal filed on 18 February 2025 came before the Registrar of this Court. Mr Kearney was granted leave to amend his summons by 2 April 2025. He was required to file and serve any supplementary white folder, together with written submissions not exceeding 20 pages on his application for leave, by 7 April 2025. As regards expedition, Mr Kearney was directed that any motion for expedition be filed and served by 5pm on 1 April 2025 and returnable on 7 April 2025, with written submissions in relation to any such motion to be filed and served by midday on 4 April 2025.
On 1 April 2025 Mr Kearney filed the motion which is currently before me.
On 2 April 2025 Mr Kearney filed an amended summons seeking leave to appeal. He no longer challenges the orders of Harrison CJ at CL made on 13 September 2024. He seeks to challenge orders made by Fagan J on 17 February, 19 February, 7 March and 21 March 2025.
The respondents provided written submissions on Mr Kearney’s motion on 4 April 2025.
On 7 April 2025 the matter came back to the Registrar. Mr Kearney sought that the motion not be sent to the referrals judge for determination on that day. The Registrar acceded to that application. The time for Mr Kearney to file written submissions on his motion for expedition together with any supporting evidence was extended to 10 April 2025. The motion was listed for hearing today.
On the evening of Sunday 13 April 2025 – last night – Mr Kearney sent by email a 45 page document titled “Draft grounds of appeal as of 13 April 2025” in which he set out 96 proposed grounds of appeal. That document ends with these words: “Additional grounds exist and will be added with adequate time”. Also attached to his email was a “supplementary report” dated 8 April 2025 by Dr Donald Rowe, who describes himself as a “Consultant Clinical Psychologist, Neurophysiologist”.
Mr Kearney still has not provided:
the supplementary white folder he was directed to provide by a week ago, on 7 April 2025;
the written submissions on his application for leave to appeal which were due on the same date (noting that his draft grounds of appeal document includes some material in the nature of submissions);
any written submissions on his motion, which were originally due on 4 April 2025, as then extended to 10 April 2025.
Since filing his amended summons seeking leave to appeal Mr Kearney has not sought an adjournment of the commencement of the Common Law Division hearing. Nor has he sought any order from this Court that would have the effect of preventing that hearing from going ahead (which is not to suggest that any such application would readily have been granted).
Given the very short period available prior to the final hearing it is self-evident that any expedition application must be pursued expeditiously. That has not occurred to date, as shown by Mr Kearney’s failure to comply with the directions made in this Court by the Registrar, and his opposition to his motion being heard last Monday. The delay cannot be permitted to continue. The respondents are entitled to know now whether or not they will have to address Mr Kearney’s application for leave to appeal in the next six business days.