Kearney v Amirbeaggi

The substantive proceedings

1. The plaintiff's substantive claim in the proceedings is for damages for alleged professional negligence of the defendants. From 27 March 2013 the plaintiff retained the first defendant as his solicitor to advise him with respect to the alleged oppression of the plaintiff as a minority shareholder in Optimisation Australia Pty Ltd ("Optimisation"). The first defendant was also retained to commence proceedings on behalf of the plaintiff in the Equity Division of this Court to obtain relief against the oppression. The first defendant carried on his legal practice through a corporation, the second defendant, which was therefore also retained by the plaintiff. The retainer continued until December 2013 when the defendants terminated it by reason of the plaintiff's failure to pay fees.
2. After the defendants had ceased to act for the plaintiff in relation to his claim against Optimisation and its majority shareholders, he continued the suit as a self represented litigant. He was successful and in 2018 he obtained orders from Brereton J in the Equity Division pursuant to which the majority were required to purchase of the plaintiff's 35% interest in the company for a price of $725,000 adjusted for the balance of the plaintiff's loan account. He also recovered payment of $8,333.33 representing pay in lieu of one additional month's notice for termination of his employment by Optimisation as a sales representative. Two directors of the company were ordered to repay to it certain amounts that they had caused to be overpaid to themselves in respect of salary and leave entitlements. A separate entity in which those directors were interested was also ordered to reimburse overpayments that it had received from Optimisation.
3. In the present proceedings the plaintiff's allegations of negligence include that the defendants failed to obtain interlocutory orders to prevent two of the directors of Optimisation from conducting a meeting on 29 April 2013 for the purpose of removing the plaintiff as a director; failed to take steps to obtain Optimisation's accounting records in a timely manner and failed to inform the plaintiff of an offer of compromise dated 28 June 2013 from the directors of Optimisation. The damages claimed include compensation for psychiatric illness, including Adjustment Disorder with Mixed Anxiety and Depressive Mood, Major Depressive Disorder and Post Traumatic Stress Disorder. These disorders are alleged to have manifested themselves in an acute mental health breakdown on 26 November 2014 and in chronic cognitive and functional impairment.

Previous vacation of fixtures for final hearing

1. On 28 June 2021 the plaintiff filed a notice of motion seeking an order that "Expedition [be] granted in these proceedings". On 9 December 2021 Cavanagh J fixed the proceedings for final hearing on 15 September 2022 with an estimated hearing time of 15 days. At the plaintiff's request his Honour granted him leave to approach the Chief Judge of the Division to seek an earlier hearing date.

Fixture for 1 August 2022

1. On 15 February 2022 the plaintiff submitted to the then Chief Judge that the hearing should be brought forward because the proceedings were exacerbating his already fragile mental health and because the defendants had been guilty of delays. The judgment on this application, Kearney v Amirbeaggi [2022] NSWSC 130, records at [6] that the proceedings were then at a stage that may be summarised as follows: The plaintiff had filed his lay an expert evidence in chief. The defendants intended to rely upon only one eyewitness whose evidence would be filed by about 7 March 2022 and one psychiatric expert whose report would be served by late February 2022. The plaintiff's evidence in reply would be served "within weeks". The estimate of hearing time was reduced to 7 days.
2. On 17 February 2022 the Chief Judge vacated the 5 September 2022 hearing date and re-fixed the matter for 1 August 2022.
3. On 10 June 2022 to the plaintiff applied to have the hearing date of 1 August 2022 vacated. That was refused for reasons given in Kearney v Amirbeaggi [2022] NSWSC 805. At [11] of that judgment the Chief Judge discounted some of the reasons for adjournment as advanced by the plaintiff, including that he intended to amend his statement of claim in respects that had not been identified. His Honour found as follows: [14] The major point put on the part of Mr Kearney in support of the adjournment of the hearing is his mental state. From the time that I have been dealing with his various applications [since February 2022], Mr Kearney has in his correspondence and submissions, made repeated reference to his mental health being adversely affected by the defendants' conduct, both as his solicitor and in their conduct of these proceedings. [15] [In a letter from the plaintiff's psychiatrist, Dr Grace, dated 9 May 2022 the] psychiatrist recounts that he saw Mr Kearney on that day. The report noted that Mr Kearney is "currently in a highly anxious and depressed state" and "not only has his mental health deteriorated significantly, but his physical health is deteriorating as well." [16] The letter recounts the psychiatrist's advice that Mr Kearney needs to "disengage from all Court related tasks for a minimum of three months and focus on regaining his mental health." It includes a recommendation that he be admitted into hospital for intensive psychiatric treatment as soon as possible. In his oral submissions, Mr Kearney made it clear that he has not had himself admitted to hospital. He did not elaborate on whether he is receiving any ongoing intensive treatment. Mr Kearney did not put forward anything to suggest any period of time in which his psychiatric health may improve or outline any treatment that he is receiving that is likely to lead to that occurring. [17] One difficulty with the psychiatrist's report is that when it says that Mr Kearney is in a highly anxious and depressed state, it does not state why. I am prepared to assume that it is related to the conduct of the litigation and the impending hearing date. Assuming that is correct, that is a reason for the hearing to be conducted earlier and not later. [19] […] [There] does seem to be a basis for concern about Mr Kearney's mental state and the effect of the litigation. However, as I have just indicated, the difficulty is that there is no reason to believe that anything will be advanced in that regard by vacating the hearing. At the risk of repetition, there is nothing to suggest that over some particular timeframe his mental health will improve, so as to later allow him to conduct the hearing. […] [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. [21] The Court and the other litigants cannot be placed in a position where the conduct of proceedings is unilaterally devolved to a lay plaintiff who is suffering adverse mental health effects. [22] […] [The defendant's] solicitor recounts as follows: "He [the first defendant, Mr Amirbeaggi] is concerned that any vacation of the hearing date will lead to an indefinite extension of these proceedings and additionally or alternatively, result in the parties continuing to be distracted by satellite litigation and interlocutory contests, rather than addressing the real issues, the subject of the pleadings. The plaintiff has foreshadowed but not provided a proposed amended pleading and has commenced or indicated an intention to commence appeals or applications to appeal interlocutory decisions in the nature of directions. The hearing date provides some level of certainty that the proceedings will resolve and the parties focus their efforts on the real issues in dispute." [23] I consider that that paragraph properly describes the position, not only faced by the defendants, but by the Court and even by Mr Kearney. The short answer to all the stress that is being occasioned to everyone is not to prolong the proceedings, but to bring them into focus. In so stating, I acknowledge that one of the issues that has caused the current level of grief was the delay by the defendants in the provision of their evidence. [24] […] [In] my view, the crucial determinate is, as I have indicated, that a vacation of the hearing date will not solve any of the problems that appear to be faced at the moment, but only exacerbate them. Accordingly, I decline to vacate the hearing.
4. On 10 June 2022 his Honour confirmed the hearing date of 1 August 2022 and directed that the plaintiff file and serve his lay and expert evidence in reply by 8 July 2022. The parties were directed to file and serve a supplementary tender bundle of documentary evidence by 25 July 2022 and to exchange submissions, chronologies and objections to evidence by 28 July 2022.
5. On 27 June and 20 July 2022 a summons for leave to appeal, filed by the plaintiff, came before Brereton JA: Kearney v Amirbeaggi [2022] NSWCA 130. The summons was referred by the Registrar of the Court of Appeal to show cause why the proceeding should not be dismissed for want of due dispatch. By the summons, the plaintiff sought leave to appeal against the Chief Judge's orders of 17 February 2022, on the ground that the proceeding should have been given a hearing date earlier than 1 August 2022. He sought leave to amend the summons to claim leave to appeal against the Chief Judge's subsequent orders of 10 June 2022, asserting that the 1 August 2022 hearing should have been vacated and that directions preparatory to that hearing should not have been made.
6. In support of the amendment to his leave application the plaintiff tendered a further letter from Dr Grace dated 5 July 2022, in the following terms: Brian Kearney has been a patient of mine since 28/07/2017. I saw him earlier today. Brian remains in a highly anxious and depressed state. He is currently so anxious that he would be unable to comply with 10 June 2022 Court Orders that entail his Reply Lay Affidavit, locate and brief a forensic psychiatrist and await his report due by 8 July 2022. He would also be unable to file and serve any supplementary documents that he needs to rely upon by 25 July 2022. Additionally, he would be unable to prepare written submissions, his chronology and objections to evidence by 28 July 2022. He is certainly in no state to review defendants' documents as well as to prepare for and participate in a main hearing on 1 August 2022. I have now advised Brian to make immediate contact with his local Adult Mental Health Crisis Team as I am concerned about his current state of mental health and risk of suicide.
7. Brereton JA considered that an appeal from the Chief Judge's refusal on 10 June 2022 to vacate the 1 August 2022 trial date had "real prospects of success", on the following basis (at [27]): Moreover, it is in my respectful opinion arguable that it is not quite correct that Mr Kearney did not put forward anything to suggest any period of time in which his psychiatric health may improve, as Beech-Jones CJ at CL said, since the first report of Dr Grace suggests disengagement for a period of three months. His Honour's view that, if his anxiety is associated with the litigation, it is better to get it over sooner than later, is also contestable, especially if the risk of forcing him to trial in the short term is suicide. If there is a prospect that a period of respite will result in an improvement in his mental health, as might be inferred from Dr Grace's report, then, contrary to his Honour's reasoning, there may be some reason to think that something will be gained by vacating the hearing. The prejudice of a deferral to the respondents, in circumstances where, as his Honour rightly acknowledged, they have been responsible for considerable delay to date, pales into insignificance when weighed against the risk that the trial might be a charade with no plaintiff (if Mr Kearney acts on the advice, as he has indicated he will, not to engage), or that he would be required to conduct the trial seriously handicapped by his current condition. In my respectful view, it is very strongly arguable that it is in the interests of justice that the trial be adjourned.
8. The plaintiff was granted leave to amend his summons so that the 10 June 2022 orders could be agitated. Brereton JA considered that this expanded application for leave to appeal should not be heard before 1 August 2022. His Honour's reasons were as follows: [25] It is now less than two weeks from the appointed commencement of the hearing. Theoretically it might be possible for an expedited application for leave to appeal to be heard, concurrently with any consequent appeal, before [1 August 2022]. However, such a course would lead to an unacceptably late stage resolution of whether the hearing at first instance would proceed. It would also require Mr Kearney to engage with the litigation, at a time when it appears to be firmly against the interests of his mental health to do so. [26] If an appeal is not heard before 1 August, it will be rendered futile unless a stay is granted in the interim. On the other hand, if a stay is granted, the applicant will achieve his purpose of an adjournment of the trial without his appeal being heard. Neither of these is an attractive proposition […]
9. The result was an order that the proceedings at first instance were stayed pending the hearing of the application for leave to appeal, which was adjourned to 31 October 2022. Consequently, the final hearing listed for 1 August 2022 could not proceed.
10. On 12 December 2022 the plaintiff's proceedings in the Court of Appeal were dismissed by consent. The stay of proceedings in this Division thereby came to an end and the matter was relisted before the Registrar on 2 March 2023. As Cavanagh J subsequently observed, the evidence for the final hearing was substantially complete at that time. However, the plaintiff sought leave to file further evidence and the Registrar directed him to file a notice of motion and affidavit in support of that. He failed to do so. On 20 April 2023 the Registrar dismissed the proceedings for want of due dispatch by the plaintiff.
11. On 20 November 2023 the Registrar's order dismissing the proceedings was reviewed and set aside by Cavanagh J: Kearney v Amirbeaggi [2023] NSWSC 1404. His Honour made the following findings about the procedural history to that point: [60] Although it is now four and a half years since these proceedings were commenced, on my analysis of the conduct of the proceedings over the past four and a half years (at least until June 2022), it could not be said that the primary cause of the delay was the plaintiff. Certainly, the plaintiff has filed a number of versions of the statement of claim, but it was not until two years after the filing of the original statement of claim that the defendants filed [their] defence. [61] The delay in 2022 was caused by the plaintiff's applications. It was not until December 2022 that the appeal proceedings were dismissed (by consent) whilst, in the meantime, these proceedings were not progressing. In my view, the causes of the significant delay are multi-factorial and cannot all or even primarily be sheeted home to the plaintiff. [64] […] [The] significant delay in the matter - that is, between the commencement of the proceedings in 2019 and the determination of the plaintiff's application for an earlier hearing date in February 2022 by Beech-Jones CJ at CL - could not be considered primarily the fault of the plaintiff. A different view might be taken about the delay between June 2022 and April 2023, but that delay must be considered in the context of the plaintiff's mental health and the decision of Brereton JA to stay the proceedings until the determination of the appeal proceedings.
12. The proceedings were referred to Weinstein J for case management. On 23 November 2023 his Honour listed the proceedings for final hearing on 26 August 2024. The plaintiff was allowed until 1 March 2024 to serve a fresh psychiatric report in support of his claim and to serve any additional lay evidence. The defendants were directed to serve any further evidence by 5 April 2024.
13. On 5 March 2024 Weinstein J extended those times to 12 April 2024 for the plaintiff and 5 June 2024 for the defendants. The justification for the extension in relation to the defendants was that Dr Ventura, who had provided a psychiatric expert report concerning the plaintiff, to be relied upon in the defendants' case, had transitioned to semiretirement and would not be available for the scheduled final hearing. The defendants were arranging for the plaintiff to be examined by another expert. A significant issue in the case is whether the defendants' alleged negligent handling of the plaintiff's claim against Optimisation, in 2013, caused the plaintiff to suffer mental illness and whether that mental illness has disabled him from gainful employment.
14. On 22 April 2024 the plaintiff confirmed to Weinstein J that he had served all evidence. On 30 May 2024 an order was made for the plaintiff to attend upon the defendants' expert, Dr Steven Yeates, on 13 June 2024 and for the defendants to serve the doctor's report by 24 June 2024. The plaintiff duly attended the appointment and a report was served on 25 June 2024.
15. The defendants issued subpoenas for the production of documents on the following dates, to the parties indicated: 29 April 2024, to Dr Donald Rowe. Dr Rowe prepared an expert report on behalf of the plaintiff concerning his mental health. 30 April 2024, to Mark Barbeliuk. The defendants allege that in the period 2022 to 30 April 2024 Mr Barbeliuk assisted in the defence of Philip Doyle, in litigation that was brought against Doyle in this Court. The defendants allege that the plaintiff actively helped Mr Barbeliuk with Doyle's defence, contrary to the plaintiff's assertion that he was disabled from work during the relevant period. 1 May 2024, to Carroll & O'Dea Lawyers. That firm had acted for the plaintiffs in the litigation against Doyle. 9 May 2024, to the Commonwealth Bank of Australia. The defendants seek statements of accounts held with the bank by the plaintiff and by his domestic partner.
16. On 5 May 2024 the plaintiff filed a notice of motion seeking to set aside the first three of the above subpoenas and on 14 May 2024 he filed a further notice of motion to set aside the subpoena addressed to the Commonwealth Bank.
17. On 8 May 2024 the plaintiff issued the following subpoenas for production of documents: To Dr Ventura, seeking documents relating to the doctor's retirement and availability, or otherwise, to give expert evidence for the defendant in the proceedings. To Services Australia, seeking Medicare records for the first defendant, including notices of claim, notices of benefits and history statements for medical services and pharmaceutical benefits received.
18. On 9 May 2024 the defendants filed a notice of motion seeking to have both of the plaintiff's subpoenas set aside.
19. The matter was relisted on 17 June 2024 for further directions. On that date Weinstein J set down the notices of motion regarding the subpoenas for hearing on 8 August 2024, with directions for service of affidavits in support. His Honour had earlier advised that he would make orders in accordance with the Professional Negligence List Practice Note (Supreme Court CL No 7). The directions made on 17 June 2024 included the following: The plaintiff to prepare a court book index. Both parties to file and serve by 26 July 2024 a list of proposed lay and expert witnesses. The plaintiff to file and serve a schedule of loss and damage by 2 August 2024. The parties to exchange schedules of objections to evidence by 9 August 2024. The plaintiff to provide to the defendants any proposed second further amended statement of claim by 21 June 2024.
20. At the next directions hearing on 8 July 2024 the plaintiff informed Weinstein J that he would be seeking an adjournment of the final hearing listed for 26 August 2024, on psychiatric medical grounds. He tendered a letter from Dr Grace dated 3 July 2024. The doctor confirmed that he was continuing to treat the plaintiff. He expressed the following opinions: Brian Kearney has previously been diagnosed with a Major Depressive Disorder (MDD), an [Anxiety Disorder (AD)], and Complex Post-Traumatic Stress Disorder (CPTSD). I have not diagnosed him with Bipolar Affective Disorder (BAD). I am unaware of Brian ever having [had] a hypomanic or manic episode which would be necessary for this diagnosis. He continues to suffer with significant anxiety and depression which are part of the above disorders. […] Brian's most recent consultation with me occurred earlier today. Prior to this I saw him on 1 July 2024. […] During 2022, Brian suffered a major decline in his mental health. I was very concerned that he was at risk of committing suicide at that time. In May 2022 I recommended that the Supreme Court provide Brian Kearney relief in the form of a respite period to regain his mental health. Brian Kearney informed me that the Supreme Court of Appeal granted this relief on 20 July 2022. Brian Kearney's mental health stabilised during the respite period that continued for a period of at least three months during the rest of 2022. During 2022, 2023 and now 2024 Brian Kearney has been preoccupied during his treatment sessions with the belief that he has been "denied procedural fairness" during his court proceedings. As a result of his preoccupation with this there has been an increase in the intensity of the symptoms of his CPTSD, AD and MDD. The significant burden imposed by this increased symptomatology affects Brian's cognitive functioning adversely leaving him unable to process complex information in a timely manner. When I saw Brian Kearney on 1 July 2024 and again today it was clear to me that his mental state had declined considerably. Not only did I find Brian to be in a hypervigilant, highly anxious and depressed state but I also considered him to be a significant suicide risk. Accordingly, I made a referral for him to The Sydney Clinic (private psychiatric hospital) in Bronte for his admission there as soon as possible. In my view Brian Kearney is not capable of carrying out Justice Weinstein's orders from the hearing on 17 June 2024. In addition to that, Brian has informed me that substantial pretrial documents will need to be prepared prior to the main hearing which in my view he is currently incapable of doing. It is my opinion that Brian Kearney will require a considerable period of time measured in months not weeks to recover from the current decline in his mental state so that he can present his case in a coherent fashion for the benefit of both him and the Court.
21. The plaintiff told Weinstein J on 8 July 2024 that he was to be admitted to hospital in psychiatric care on 15 or 16 July 2024. His Honour relisted the matter for 17 July 2024 for the purpose of ascertaining the plaintiff's medical situation. On that date the plaintiff did not appear and the Court received a letter from the Sydney Clinic in Bronte stating that the plaintiff had been admitted to that facility, with no further detail. Weinstein J noted that all evidence for the final hearing appeared to have been exchanged and counsel for the plaintiff confirmed that position. The proceedings were stood over to 7 August 2024, to ascertain whether the plaintiff would then be fit to proceed or whether he would make his foreshadowed application to vacate the hearing listed for 26 August 2024.
22. On 5 August 2024 Dr Grace wrote a letter in the following terms, which was brought to the Court's attention on 7 August 2024: Brian Kearney was admitted under my care to The Sydney Clinic at Bronte on 16th of July 2024 and discharged home on 31st of July 2024. The purpose of this admission was to allow Brian to focus on managing his anxiety and depression which were interfering with his ability to prepare for his upcoming litigation against his former lawyer. Unfortunately for Brian on the day following admission he received an email from […] Justice Weinstein's associate in the Supreme Court of New South Wales informing him that there would be a Directions Hearing on 7th of August 2024 in preparation for the main hearing later this month. Brian had been expecting that these hearings would be delayed for three months to allow him time to better manage his anxiety and depression. Needless to say, the news conveyed in this email then prevented Brian from being able to participate effectively in the hospital's inpatient program as he was preoccupied with what he needed to do in relation to the litigation rather than managing his anxiety and depression. Complicating this around 23rd of July 2024 he developed a respiratory infection and tested positive for Influenza A. This led to a significant exacerbation of his pre-existing asthma. It also meant he had to be placed in medical isolation as a consequence of which he was unable to participate in the inpatient group program. Following being released from isolation Brian remained unwell and was not able to participate in the inpatient group program. He was therefore discharged home at this point with the plan to be readmitted on 30th of August 2024 for management of his anxiety and depression. In the interim Brian is aware of how to contact his local adult mental health crisis team if the need arises. […] Brian had a chest x-ray performed through Shire Medical Imaging on 1st of August 2024 this x-ray was reported as: The cardiomediastinal contours are normal. There is minimal atelectasis/fibrosis in the right mid-zone. Remaining lungs and pleural spaces are clear. When I reviewed Brian Kearney via Zoom earlier today it was apparent that his respiratory symptoms were still significant. It was clear to me that from both a medical and psychiatric perspective Brian would not be able to prepare for the Directions Hearing set down for 7th of August 2024 let alone be able to organize his legal case in preparation for the main hearing later this month. Brian Kearney decided that following his consultation with me today he was going to seek assessment in the Emergency Department of Gosford District Hospital as he was concerned that his respiratory condition was deteriorating and that he would require admission to hospital for medical treatment.
23. Prior to the listing on 7 August 2024 the plaintiff had notified the defendants that he would seek a stay of the proceedings on three grounds. First, that in the psychiatric and other medical circumstances described by Dr Grace he was unable to proceed to a final hearing on 26 August 2024. Secondly, that the pre-trial directions made by Weinstein J were procedurally unfair to him and would prejudice his conduct of the final hearing. Thirdly, that Weinstein J and other judges, registrars and court staff who have been concerned in the proceedings at various stages have acted wrongfully and that their misconduct is the subject of a "Supreme Court cover up plan".
24. The last-mentioned point is one instance in an unceasing stream of unsupported allegations of judicial corruption that have emanated from the plaintiff throughout the proceedings.
25. On 7 August 2024 the proceedings came before McNaughton J, in the absence of Weinstein J on leave. The defendants urged her Honour to list the plaintiff's stay application for hearing the next day, together with the plaintiff's application to vacate the hearing date of 26 August 2024. It was submitted that only upon full hearing of the defendants' response to those applications would the Court have sufficient information to assess the defendants' claim that the date for final hearing should be maintained. McNaughton J rejected the defendants' proposal. Her Honour held as follows: I acknowledge there is an unfortunate history of the plaintiff finding it difficult to comply with directions on the basis of [illness] of a mental health nature and that Dr Grace has opined in relation to that. On any view, the plaintiff has recently been in hospital and, on any view, he had been physically unwell in the last probably two weeks. For a self represented plaintiff, that, on any view, makes it very difficult for the Court to press him to complete the matters leading up to hearing. He also put on, by way of notice of motion, which has yet to have been formally listed, an application for a stay. The defendant wishes the stay application to be heard tomorrow, along with other matters which have been set down for tomorrow [relating to subpoenas and notices to produce]. The problem is that the plaintiff was clearly unwell and is unable to, in my opinion, appear in any such stay application tomorrow or the next day. There are no other dates between now and 26 August for the Court to appropriately hear a stay application. If the Court were to accede to the stay application that late the Court would be losing five weeks of court time at a very late point, which causes great inconvenience to court listing arrangements […].
26. McNaughton J vacated the hearing of the notices of motion concerning subpoenas that had been listed for 8 and 9 August 2024 and vacated the final hearing that had been listed for 26 August 2024.
27. On 26 August 2024 the proceedings were listed before Harrison CJ at CL for consideration of appointing a new date for the final hearing. The plaintiff appeared by audiovisual link and was evidently in a state of agitation and confusion. He professed to have taken "10 mg of Valium just to appear today", because of stress. Notwithstanding that the matter had been ready for final hearing since at latest 17 July 2024, subject only to resolution of the subpoena arguments, the plaintiff was insistent that he wished to make further submissions and seek further orders before a fresh hearing date was appointed. His statements on this occasion included the following: I will be looking to lock down a hearing date but it's going to be contingent on a number of other conditions which I am not prepared for today. [There] are substantial oral submissions that will need to be made for the hearing date, including the time and including the duration, that I will be finalising for the Court's consideration. So any order today would just basically be absent of my position […]. I disagree with [a three-week estimate] but I'm also waiting on legal advice to come back and a document to come back outlining my position on that. [There] is actually a number of other issues, orders that I'm going to propose, that could be made to progress.
28. The plaintiff told the Chief Judge that he was due to be readmitted to a psychiatric ward on 30 August 2024. His Honour granted the parties liberty to approach the List Manager to obtain a hearing date with an estimate of three weeks and liberty to apply on 48-hour's notice to relist for dealing with the further submissions and applications for orders to which the plaintiff had referred. It was pointed out to the plaintiff that whatever final hearing date was given by the List Manager would be well into 2025 and there would be ample time for dealing with the matters that the plaintiff wished to raise, whatever they might be.
29. The plaintiff said to the Chief Judge on 26 August 2024: I also reserve my rights on potentially making an application for yourself to recuse yourself. Nothing in the record of his Honour's dealing with the case, on this first occasion that it had come before him, provides any clue as to what may have prompted the plaintiff to "reserve [his] rights" in this respect. On 27 August 2024 the plaintiff filed a notice of motion claiming an order that the Chief Judge recuse himself.
30. On 12 September 2024 the defendants filed a notice of motion claiming an order for permanent stay of the proceedings. Submissions subsequently filed on 12 December 2024 disclose that the primary basis of this application is the defendants' allegation that the plaintiff has misled the Court about his medical circumstances and has misused claims about his mental ill health to avoid having the proceedings finally determined. The defendants claim that the plaintiff is prolonging the proceedings and misusing them for the purpose of promoting his general allegations of corruption in the Court, which appear on a website that he maintains under the title "You Be The Judge".
31. On 13 September 2024 the proceedings were listed before Harrison CJ at CL. The parties had not obtained from the List Manager a fresh date for the final hearing. The plaintiff informed his Honour that he expected to be admitted to a psychiatric ward for 3 to 5 weeks commencing in the following week. On that basis his expected discharge date would be no later than the end of October 2024. The plaintiff asked his Honour to allow "a three-month medical respite period" with respect to the litigation, commencing from when he expected to be discharged.
32. The plaintiff invited his Honour to read an affidavit that he had sworn on 11 September 2024, in support of the three month medical respite. Attached to the affidavit was a further letter from Dr Grace dated 29 August 2024, which included the following: Brian's most recent consultation with me occurred via Zoom earlier today. During this consultation Brian provided me with documents to read so that I could better understand his current circumstances which are having an adverse effect upon his present mental state. These documents were: • Court transcripts from the Supreme Court of New South Wales for the directions hearing on 26 August 2024 conducted by Justice Harrison. • An email exchange on 26 August 2024 between Brian Kearney and Justice Harrison. I note that during today's session Brian Kearney was both depressed and in such a high state of anxiety that he was fighting to prevent himself from having a panic attack whilst talking to me. He expressed desperation as a result of his current situation and told me, that he was again experiencing suicidal ideation. I notice that Brian made a number of errors when explaining to me recent events and their effects upon him. I believe that these errors occurred as his cognitive function is currently suboptimal due to his high levels of anxiety. I advised Brian to make contact with the Gosford Mental Health Crisis Team which is located at Gosford Hospital to ensure their support prior to his planned rehospitalisation in a private psychiatric facility. I have also advised Brian to continue to see me regularly. It should be noted that Brian Kearney is still in the process of recovering from his chest infection which occurred in the context of developing influenza A and has resulted in an exacerbation of his pre-existing asthma. He is still taking prednisone for the asthma component of his chest infection. […] Brian Kearney's psychiatric-diagnoses remain: major depression with anxiety, complex post-traumatic stress disorder (CPTSD). During today's consultation Brian Kearney informed me that he was awake until 1 AM on 26 August 2024 trying to complete his preparation for the directions hearing before Justice Harrison in the Supreme Court of New South Wales which was due to commence at 10 AM on that same day. He explained to me that despite his efforts he failed to complete his preparation for this hearing. He subsequently responded via email with Justice Harrison seeking a short adjournment for this hearing. This was denied in a return email from Justice Harrison. This led to Brian experiencing a considerable heightening of his anxiety to the extent that he needed to take Valium (diazepam) a benzodiazepine anxiolytic medication to control his excessive anxiety. Unfortunately, high levels of anxiety and/or the use of benzodiazepine medications (the safest and most effective of medications for treating anxiety in the short-term) impair cognitive functioning. Neither of these circumstances would leave Brian Kearney in the best state of mind deal with his current litigation. From a treatment perspective I believe the best plan going forwards in order to ensure that Brian Kearney is in a suitable state of mind for his litigation is to treat his anxiety and depression initially with an intensive approach which involves both medication and psychological therapy based on the cognitive behaviour therapy (CBT) model. The intensive part of his treatment plan would require his admission to a psychiatric hospital to implement. Following discharge from hospital he will need to engage in regular ongoing therapy so that he learns to manage his anxiety using psychological techniques, so he does not have to resort to using benzodiazepine medications. This should ensure that he is not impaired by either high levels of anxiety or the adverse effects of medication during his litigation. In order for psychological therapy to be effective Brian Kearney will need to be able to concentrate predominantly on this therapy. This would allow Brian Kearney to gain the benefit that he is seeking. Psychological therapy will fail if he is too preoccupied with other important matters such as the tasks he needs to carry out as part of these legal proceedings. CBT requires the patient to focus upon, learn and adopt the psychological techniques which are taught in therapy sessions so that they are integrated into the way the patient lives their life. This change in the way the patient lives their life does not occur overnight. This is one of the reasons why I have recommended that Brian Kearney has complete respite from his current legal proceedings and all activities associated with it for a period of at least three months. It should be noted that people who have been in a high state of anxiety with associated hypervigilance for a prolonged period of time as Brian Kearney has cannot jettison this anxiety quickly. It is usual for it to take many months at a minimum for this anxiety and the associated hypervigilance to [decrease] to a level where the affected person can function more effectively. In relation to the directions hearing that occurred on 26 August 2024 Brian Kearney had been expecting that several court orders were to be made connected to what he describes as "Notice of Motions". He had expected these orders would allow for the three months respite period as recommended in the recent medical reports referred to above which were written by me. From a psychiatric perspective Brian Kearney needs the orders in relation to the Notice of Motions to be made prior to his further hospitalisation. This had originally been scheduled for 30/08/2024 but Brian has now delayed this. He needs the certainty that would be provided by these orders being rnade prior to his rehospitalisation. Otherwise, these matters would continue to play on his mind and prevent him from being able to concentrate upon the psychological therapy that has been planned for him.
33. Annexure X to the plaintiff's affidavit of 11 September 2024 was a short minute of 21 orders, some of them in the alternative, that the plaintiff proposed should be made at the directions hearing on 13 September 2024. Despite Dr Grace's opinion about the need for a three-month respite and about the adverse psychiatric effects of the plaintiff being required to comply with procedural orders, it is apparent from the content of the affidavit that the plaintiff was at that time able to prepare a comprehensive legal document. The body of the affidavit is 53 pages in length. It contains an accurate summary of the matters in issue on the pleadings and a very detailed summary of procedural steps up to that date. There are 373 pages of annexures, accurately assembled, marked and identified in the body of the affidavit.
34. In the substantive proceedings the plaintiff relies upon a report dated 17 June 2021 from Ms Amanda Browne, a psychologist whom the plaintiff has consulted since November 2014. She has diagnosed him with General Anxiety Disorder and Major Depressive Disorder since late 2014 and with Obsessive Compulsive Disorder since 2016. The plaintiff's behaviour at interlocutory hearings, as recorded on transcripts, and his conduct generally in the proceedings has consistently displayed the symptoms of General Anxiety Disorder as described by Ms Browne. The plaintiff's 11 September 2024 affidavit is consistent with her description of his symptoms of Obsessive Compulsive Disorder. The affidavit is immensely detailed and meticulously prepared but the content is for the most part quite irrelevant to the fixing, or not fixing, of a date for final hearing, which was the purpose of the directions hearing on 13 September 2024.
35. Harrison CJ at CL did not find it necessary to determine, directly, the plaintiff's application for a three-month medical respite. The priority created by the plaintiff's notice of motion of the 7 August 2024 for recusal and the defendants' notice of motion of 12 September 2024 for a stay of proceedings was that those two applications should be dealt with, in that order. His Honour listed them for 17 February 2025, which had the effect that the plaintiff would not have to take any step in the proceedings for over three months after his discharge from the psychiatric facility. Having regard to the nature of the defendants' application, his Honour did not fix a new final hearing date.
36. The Chief Judge expressly did not make directions on 13 September 2024 for the plaintiff to file evidence or submissions with respect to either notice of motion. His Honour recorded the following: Mr Kearney assures me, and I have no reason to doubt, that his evidence upon which he relies [with respect to the recusal application] is already in the possession of the Court but if he wishes to file further evidence he should do so whenever he gets the opportunity having regard to his foreshadowed admission to a clinic for treatment. [If] Mr Kearney wishes to file evidence in response to the [defendants'] application for a permanent stay, it seems to me that there will be sufficient time between now and 17 February for him to do so.

The defendants' notice of motion for stay - plaintiff's alleged abuse of process

1. Due to other listing priorities of the Division, the Chief Judge was not available to hear the notices of motion on 17 February 2025 and they were listed before me. At the commencement of the hearing the plaintiff was informed that it would therefore be unnecessary for him to pursue the recusal application and that the Court would proceed straight to the hearing of the defendants' notice of motion for a stay. The plaintiff protested that he had "seven files of documentary evidence of the recusal", that his submissions and evidence on that application "would probably take 2 to 3 days", that he had prepared for that application, only, and that he was not ready to respond to the defendants' stay application. The plaintiff sought an adjournment of the stay application, which I rejected for reasons delivered ex tempore.
2. The plaintiff's position with respect to the two applications was absurd. Both notices of motion were listed for a single day. If the recusal application had had to be dealt with, it could not possibly have occupied more than one hour. Harrison CJ at CL had only ever dealt with the proceedings in two brief directions hearings, both of which had resulted in orders favourable to the plaintiff. Whether or not there was a basis for recusal would have been determined summarily by reference to a very narrow scope of procedural events.
3. The plaintiff left the court after his adjournment application was refused. He took no further part in the hearing of the defendants' stay application for the remainder of 17 February 2025. The hearing continued on 19 February 2025 for half a day, to take the evidence of Dr Grace whom the defendants had subpoenaed. The defendants' notice of motion then had to be adjourned part heard.
4. In deciding whether to grant a stay on the grounds advanced by the defendants, it would be significant for the Court to make a finding on the allegation that the plaintiff misrepresented to the Court his psychiatric condition in mid-2022 and again in July and August 2024. That allegation overlaps with a major issue in the substantive proceedings, namely, whether professional negligence of the defendants caused the plaintiff psychiatric damage that has diminished his earning capacity. To resolve the factual issue of alleged misrepresentation by the plaintiff concerning his psychiatric condition would require a substantial forensic enquiry, going behind the opinions of the plaintiff's treating psychiatrist. That and other issues in the stay application could not be resolved in a hearing of only one day (as originally allocated) or one and a half days (being the limit of the Court's available time in the week commencing 17 February 2025.

Rationale for procedural orders of the 19 February 2025

1. When it became apparent on 19 February 2025 that significant further hearing time for completion of the stay application would have to be allocated on a future date, the Court offered the parties the alternative of re-fixing the final hearing of the plaintiff's substantive claim, with minimal further delay, namely, on 28 April 2025 for 10 days. Ten days is my estimate of how long should be required to hear the plaintiff's professional negligence claim. The hearing time on 17 and 19 February 2025 and the Court's reading time in relation to the defendants' stay application, particularly with respect to reviewing the pleadings, would not be wasted if the final hearing could proceed before me. The time spent on the defendant's notice of motion constituted a substantial and useful opening to the issues in the case.
2. The defendants expressed a preference for simply continuing with their stay application on an adjourned date. On the basis of their experience in August 2022 and again in August 2024, the defendants referred to the risk, even the likelihood, that as a further date for final hearing approaches, the plaintiff would again declare himself psychiatrically unwell, would produce evidence from Dr Grace in support and would secure another adjournment.
3. The plaintiff opposed having the case set down for final hearing to commence on 28 April 2025 on the following grounds: The plaintiff insisted that the final hearing would require 35 days, not 10. Interlocutory issues remain outstanding and should be resolved before the final hearing is re-fixed. Those issues comprise the plaintiff's application to amend further his statement of claim and the parties' respective notices of motion concerning subpoenas. The plaintiff proposed to consult with a barrister, whom he refused to name in response to enquiry from the Court. Although the barrister would "not physically be here", the plaintiff wished to be able to consult him but he had "been blocked out" for 28 April 2025 because "he's got big hearings coming up".
4. As to the first point, I consider it would be irresponsible to set aside 35 days of Court time based upon the opinion of a litigant in person who has demonstrated throughout the proceedings that he has limited understanding of litigation procedure. That is shown in the prolix, repetitive pleading of the statement of claim, in the irrelevance of much of the affidavit material that the plaintiff has filed, in his voluminous email correspondence with the Associates of each of the judges who have dealt with the case and in his time wasting conduct throughout numerous interlocutory hearings. The plaintiff's affidavit of 11 September 2024 contains a breakdown of his 35 day estimate, made up of inordinate multi-day cross examination by both the plaintiff and the defendants of the opposite parties' witnesses. I have read sufficient of the pleadings and of the filed affidavits to see that the extent of cross-examination proposed by the plaintiff would not possibly be required and would not be allowed. I have made it clear to both parties that if the final hearing does not conclude within the 10 days that I have estimated as sufficient, the case will simply continue on subsequent dates.
5. As to the outstanding interlocutory issues, those concerning subpoenas will be dealt with on 7 March 2025. That will leave ample time prior to the appointed final hearing date for any subpoenas that are upheld to be complied with. As for any disputes about the pleadings, I do not intend to attempt to resolve them prior to the commencement of the final hearing. The current (fourth) iteration of the statement of claim is 133 pages long and comprises 204 paragraphs of detailed allegations. It is possible to analyse and summarise the document, eliminating repetition and unnecessary verbiage, to identify the factual and legal contentions that the defendants are required to meet. There would be no utility in having a pre-trial hearing about any aspect of the statement claim because the plaintiff may well seek to change it again at the commencement of or during the hearing. Further, some latitude will have to be extended to the plaintiff, as a self represented litigant, to enable him to adjust the pleading, in matters of detail and within reason, to accord with his evidentiary case.
6. As for the plaintiff's desire to consult with an unnamed barrister, the Court cannot adjust hearing dates to accommodate such an arrangement in relation to counsel who is not briefed for the hearing, either through a solicitor or by direct access. The plaintiff has refused the Court's direct request to identify the person whom he claims to be consulting. In the absence of a name or any information as to a binding arrangement, the plaintiff's desire to consult with this person is irrelevant to fixing the final hearing date.
7. In his letters of 5 July 2022, 3 July 2024, 5 August 2024 and 29 August 2024, Dr Grace expressed opinions about the stress felt by the plaintiff as a result of being required to comply with pre-trial directions for the preparation of written submissions, chronologies, statements of issues and the like. The doctor was of the view that those pre-trial directions exacerbated the plaintiff's anxiety as the final hearing date approached. To avoid that situation arising again, I have made no directions for pre-trial preparation. I have dispensed with any requirement that the plaintiff comply with Supreme Court Practice Note CL No 7, relating to professional negligence claims. All affidavits of lay witnesses and expert reports have been filed and served. I have requested the defendants' solicitors to provide lists of the affidavits and reports that they will rely upon and of the affidavits and reports that they understand are to be read or tendered in the plaintiff's case. When those lists are received I will seek the plaintiff's confirmation that they are accurate from his point of view. The Court can locate the evidence within the Court file, relieving the plaintiff of any need to prepare a court book of affidavits and reports.
8. I will leave it to the defendant solicitors to prepare a court book of documentary evidence, strictly limited to documents that they or the plaintiff wish to tender that are not already annexed to any of the filed affidavits. The defendants' solicitors will have to communicate with the plaintiff about this by providing him with a proposed index and asking him to nominate any required additions. If the plaintiff does not respond prior to 28 April 2025 and simply produces additional documents for tender during the final hearing, that will be accommodated. At worst, it may require a short-term adjournment to enable the defendants to meet any such documentary evidence of which they were not on notice.
9. I have made no direction for either party to file written submissions or statements of issues or schedules of damages in advance of the hearing. The parties are at liberty to do so if they consider that it would be useful to the presentation of their respective cases. In the course of hearing from the plaintiff on 19 February 2025 he made reference to "four or five motions that are on foot" that he claimed would be an impediment to setting a trial date of 28 April 2025. He did not specify what those motions are. From the Court file, I am unaware of any beyond the applications concerning striking out subpoenas and concerning the pleadings, for which I have provided.
10. Consistently with the defendants' apprehensions about whether the plaintiff will, for a third time, seek to have the final hearing fixed for 28 April 2025 vacated, I have stood over the defendants' notice of motion for stay of the proceedings to that date. If the final hearing should be vacated, or disrupted and aborted part way through, by fault of the plaintiff, consideration will be given at that time to resuming the hearing of the stay application in light of those developments.
11. In response to the defendants' concern that the fixing of the final hearing for 28 April 2025 may simply give rise to another adjournment and further loss and disruption to the defendants, I note that costs orders do not appear to have been made against the plaintiff on the two previous occasions when dates for final hearing have been vacated. Subject to consideration of the circumstances of a further vacation of the hearing date, should that occur on grounds of psychiatric or physical ill-health of the plaintiff, it would be open to the defendants to apply for an order that the plaintiff pay their costs thrown away: s 98(3) of the Civil Procedure Act 2005 (NSW). It would also be open to the defendants to ask that their costs be assessed in a gross sum pursuant to s 98(4)(c) and that the Court should "order otherwise" pursuant to r 42.7(2) of the Uniform Civil Procedure Rules (UCPR), to the effect that the costs thrown away be paid forthwith. Whether such orders could be justified would entirely depend upon circumstances. I mention this potential recourse in answer to the defendants' concern that by re-fixing the final hearing for 28 April 2025 the Court would be exposing the defendants to further irrecoverable loss.
12. Dr Grace's reports and the stagnation of the proceedings due to the plaintiff's recurrent psychiatric ill-health raise an issue as to whether the plaintiff is under a legal incapacity to conduct the proceedings, within the meaning of Pt 7, Div 4 of the UCPR. If the Court should come to the view that the plaintiff is under legal incapacity, he would not be able to carry on the proceedings except through an appointed tutor (r 7.14(1) of the UCPR) and, unless the Court should order otherwise, the tutor would be required to act through a solicitor (r 7.14(2)).
13. On 19 February 2025 I asked both the plaintiff and counsel for the defendants whether either of them contends that the plaintiff is under legal disability. Both answered in the negative. In his opposition to having the case set down for final hearing the plaintiff did not suggest that any psychiatric or other medical problem would be an impediment. He raised different objections to the final hearing, as listed above. Not only was the plaintiff ready, as at 17 February 2025, to embark upon a two to three day hearing of his notice of motion for recusal of Harrison CJ at CL, he also proposed that the Court should proceed with a series of other interlocutory arguments and applications before the final hearing. If the plaintiff is psychiatrically fit to conduct those other aspects of the case, there is no reason why he should not be fit to conduct a final hearing in two months' time.
14. Notwithstanding present indications of the plaintiff's fitness to proceed with the final hearing, if this third fixture should have to be vacated on the basis of medical evidence that the plaintiff cannot conduct the hearing because of his psychiatric disorders, the Court will have to return to the question of whether the proceedings should be stayed unless and until the plaintiff has appointed a tutor. Depending upon the tutor's identity and capabilities and any other relevant factors that may emerge at the time, an appointed tutor may have to conduct the case on behalf of the plaintiff through a solicitor.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2025