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Catchwords: CIVIL PROCEDURE – non-appearance by self-represented plaintiff – third occasion of non-appearance on purported psychiatric medical grounds – trial proceeded and claim dismissed in the absence of the plaintiff to prosecute his case

Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Daniel Walton v Terence George Hartmann as executor of the Estate of Wanda Resler [2017] NSWSC 1432
Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806
Kearney v Amirbeaggi [2025] NSWSC 147
Kearney v Amirbeaggi [2025] NSWSC 196
Kearney v Amirbeaggi [2025] NSWSC 260
Kearney v Amirbeaggi (No 2) [2025] NSWCCA 73
Re WS [2017] NSWSC 745
Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23
Slaveski v State of Victoria (2009) 25 VR 160

Category: Procedural rulings

Parties: Brian Kearney (Plaintiff)
Farshad Amirbeaggi (First Defendant)
Yates Beaggi Lawyers (Second Defendant)

Representation: Counsel:
No appearance (Plaintiff)
FT Roughley SC with Mr BW Smith (Defendants)
Solicitors:
Self represented (Plaintiff)
YPOL Lawyers (Defendants)

File Number(s): 2019/96321

Publication restriction: Nil

JUDGMENT

1. By order made on 19 February 2025 these proceedings were set down for final hearing before me, to commence on Monday, 28 April 2025 with an estimate of 10 days. The plaintiff’s claim is for damages in negligence arising out of alleged mishandling by the defendants of litigation that they conducted for the plaintiff as his solicitors in 2013. By an additional order also made on 19 February 2025, the defendants’ part heard notice of motion for a permanent stay of the proceedings was stood over to 28 April 2025 “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 defendant’s notice of motion may resume, taking into account the then circumstances and developments”.

2. The plaintiff has been self-represented from the commencement of the proceedings and he remained so at the date fixed for the hearing. At 7:06 pm on Saturday, 26 April 2025 a letter in the following terms was emailed to my Associate from Dr David M Grace:

I have been Brian Kearney's treating psychiatrist since July 2017.

Around 2:30 PM on Thursday 24 April 2025 I had an urgent consultation conducted via Zoom with Brian Kearney. He explained to me that earlier that day he had attended the Supreme Court of New South Wales. His experience there had a profound adverse effect on his mental state.

He was triggered by the court ruling on that day which now compels him to appear before Justice Fagan on Monday 28 April 2025. Brian had previously informed me that his anxiety was triggered whenever he appeared before Justice Fagan. When I spoke with him, he was highly distressed, anxious, hyperventilating and in a state of panic. In addition to his highly anxious state, he was tearful with a low mood and considering suicide. Fortunately, I was able to convince Brian to not act on his suicidal ideation but rather to present to the Accident and Emergency Department at the Prince of Wales Hospital in Randwick. They were sufficiently concerned about his presentation to admit him to their PECC (psychiatric emergency care centre) unit where he currently resides.

I conducted another consultation with Brian Kearney via Zoom earlier today. He remains in a highly anxious state and at risk of self-harm. I have arranged for Brian to be transferred to The Sydney Clinic (private psychiatric hospital) at Bronte on Monday, 28 April 2025 provided the psychiatric staff at the Prince of Wales Hospital are happy that Brian is well enough for this to occur. My plan is to have Brian Kearney admitted under me at The Sydney Clinic. My expectation is that he will require three weeks admission there.

Brian Kearney has explained to me that both the Supreme Court of NSW and the Court of Appeal can grant what he described as a "temporary stay"; without making any other orders until he is medically fit to make submissions on the events leading to the 24 April 2025 incident, and its aftermath. He is currently not medically fit to make those submissions.

To assist the Court, I anticipate providing a more detailed report after observing and managing Brian Kearney as an inpatient at The Sydney Clinic over the next three weeks. I expect that report will be issued prior to his discharge from there.

Brian Kearney will not be fit to participate in his scheduled hearing set down for 28 April 2025.

3. On 28 April 2025 when the proceedings were called for hearing at 10:00 am the plaintiff did not appear. The defendants submitted that the Court should nevertheless proceed with the final hearing and dismiss the plaintiff’s claim in the circumstances of his failure to appear to prosecute it. On 1 May 2025, after hearing the defendants’ submissions and oral evidence from Dr Grace, the Court noted the receipt of three further emails from the doctor and two from the plaintiff himself, and made the following orders:

1. Direct that the said communications be treated as an application by the plaintiff that fixture of the hearing commencing 28.4.25 be vacated.

2. Dismiss the plaintiff’s application to vacate the hearing and confirm the fixture, the Court to proceed with the trial pursuant to r 29.7(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

3. Upon the plaintiff failing to appear to tender any evidence or otherwise to prosecute his claim, dismiss the plaintiff’s claim for relief under his further amended statement of claim filed 13 October 2020 and enter verdict and judgment for the defendants.

4. Order the plaintiff pay the defendants’ costs of the proceedings.

5. Under r 98(4)(c) of the Uniform Civil Procedure Rules 2005 (NSW), such of the defendants’ costs as have been incurred in connection with the application for a permanent stay of proceedings heard on 17.2.25 and all costs of the proceedings thereafter are to be assessed as a gross sum, the quantum of which is to be determined on the papers.

6. The defendants’ costs are to be assessed on an indemnity basis in relation to the following aspects of the proceedings:

(a) The defendants’ costs of and incidental to notices of motion concerning subpoenas filed by the plaintiff and the defendants and concerning a notice to produce filed by the plaintiff, which were listed for hearing on 7.3.25, including costs of appearances and other work following upon the issue of the subpoenas.

(b) Costs of and incidental to the plaintiff’s application to the Duty Judge on 24.4.25 for a stay of the proceedings.

(c) Costs of the defendants’ preparation for the final hearing listed for 28.4.25 and costs of the hearing dates of 28.4.25; 29.4.25 and 1.5.25 and any costs thrown away by reasons of the matter having been set down for final hearing and the hearing dates not having been fully utilised.

7. Direct by 9.5.25 the defendants file and serve any evidence upon which they wish to rely in relation to gross sum assessment of costs in accordance with order 5.

8. Direct by 30.5.25 the plaintiff file and serve any evidence upon which he wishes to rely concerning the quantum of the gross sum assessments.

9. The Court’s reasons are reserved.

4. The Court’s reserved reasons for having made those orders are now given, as follows.

Basis of the defendants’ application that the final hearing proceed

5. Since the action was commenced in 2019 it has on two previous occasions been fixed for final hearing, in August 2022 and again in August 2024. Both times the fixture was vacated on the application of the plaintiff, each time because he claimed to be suffering acute psychiatric symptoms. Details of the circumstances in which those previous fixtures were vacated are recounted in my judgment of 5 March 2025: Kearney v Amirbeaggi [2025] NSWSC 147.

6. In support of their application that the hearing proceed as listed in the week commencing 28 April 2025 the defendants submitted that Dr Grace’s assessment of the plaintiff’s current unfitness to participate in the case should not be accepted and that the plaintiff’s failure to attend should be treated as unsupported by any excuse or reasonable justification. On that issue the defendants tendered a very large volume of documents, equivalent to 5 full lever arch folders, comprising affidavits, documentary exhibits to affidavits, transcripts, judgments and correspondence – all from earlier interlocutory stages of the proceedings. The defendants tendered the equivalent of one additional folder of documents that have been produced within the last two months under subpoenas issued to third parties.

7. The defendants argued that the plaintiff has in the past deliberately withheld from Dr Grace information that would have been relevant to diagnosis of his mental state and to the opinions expressed in approximately 12 reports that the doctor has issued, on various dates between 9 May 2022 and the present. The plaintiff has tendered Dr Grace’s reports to the Court on numerous occasions in support of extensions of time within which to comply with procedural directions and to justify vacation of final hearing dates on the two previous occasions earlier referred to. The defendants submitted that Dr Grace’s past and current diagnoses and assessments of the plaintiff are founded upon unreliable and insufficient history and that the Court should not accept his opinion that in the week of 28 April 2025 the plaintiff was genuinely unfit, on psychiatric medical grounds, to conduct his case.

8. The Court tested the defendants’ submissions, including by discussion of whether justice could be done, with adequate protection of the defendants, if the final hearing should be vacated and re-fixed for a later date accompanied by orders that the plaintiff pay the defendants’ costs thrown away. Testing and evaluation of the defendants’ submissions extended to consideration of whether an order might be made that the plaintiff appoint a tutor to conduct his case, with a solicitor retained by the tutor, and whether further proceedings by the plaintiff might be stayed unless and until he should pay the costs thrown away and appoint a tutor.

Plaintiff’s application to vacate the hearing date

9. I infer that the plaintiff requested Dr Grace to send his letter of 26 April 2025, or at least that he authorised the doctor to send it, thereby implicitly asking the Court to vacate the hearing that was to commence on 28 April 2025. Consideration of the extensive documentary evidence tendered by the defendants and discussion between the bench and defence counsel continued for most of Monday, 28 April 2025. The proceedings were then adjourned to 29 April 2025, without a decision having been made as to whether the hearing should be vacated or should continue to judgment in the absence of the plaintiff.

10. At 2:59 pm on 28 April 2025 Dr Grace emailed my Associate to advise that the plaintiff had been admitted to the Sydney Clinic earlier that day. Dr Grace had not seen him in the clinic by the time that email was sent. At 8:00 pm Dr Grace sent a further email to my chambers, advising that he had just seen the plaintiff at the clinic. He wrote this:

I think it is likely that he will remain an inpatient for the next three weeks.

11. Hearing of the defendants’ submissions in support of proceeding with the trial in the absence of the plaintiff resumed on 29 April 2025. At 10:27 am that day the plaintiff sent an email to my Associate and to the defendants’ solicitors, as follows (errors as in original):

Objected and action will be taken should any proceedings continue while I am in The Sydney clinic mental health hospital. Ie Justice Fagan will be removed from the bench*(Many experts agree/will be involved).

I am waiting to hear from Dr Grace about his cross examination on his 26 April medical report which should be the only thing to occur.

The defendants a dully on notice about their criminal actions concerning provoking serious psychiatric harm.

12. I infer from this communication that the plaintiff was aware the Court was continuing to hear submissions regarding what course should be taken in his absence and that he sought that the final hearing should not proceed.

Subpoena to Dr Grace; plaintiff’s further email to the Associate

13. On the afternoon of Tuesday, 29 April 2025, on the defendants’ application I granted leave for a subpoena to be issued for Dr Grace to attend by audio visual link on 1 May 2025 to give evidence of his opinion regarding the plaintiff’s mental condition and capacity to participate in the final hearing. I deferred my decision as to whether the hearing should be vacated or should proceed in the absence of the plaintiff, pursuant to r 29.7 of the Uniform Civil Procedure Rules, until the defendants had the opportunity to cross-examine Dr Grace concerning his certification of the plaintiff’s unfitness. The subpoena was served and the proceedings were scheduled to resume at Dr Grace’s earliest availability, being 11:00 am on 1 May 2025.

14. In the meantime, at 8:25 pm on Wednesday, 30 April 2025, the plaintiff sent an email to my Associate, to the defendants’ solicitors, to the chambers of the Chief Justice and the President of the Court of Appeal and to various registrars. The email was in the following terms (errors and emphasis as in original):

Dear All Concerned Judges/Judicial Officers,

I am sending this email out of necessity.

1. I will not be participating in the hearing tomorrow in accordance with medical advice which I firmly agree with.

2. I refer to the email below from defendants lawyers. I have not opened or reviewed the submissions for the same reasons above.

3. I have not opened or read any other emails/documents sent by the defendants for the same reasons above.

4. I note all of Justice Fagan orders and judgments are under appeal, including his refusal to recuse himself.

5. Also just Fagan had granted access to thousands and documents including 10-years of bank statements of myself and my partner and also Carrol & O’Dea Lawyers breaching all legal principles regarding subpoenas making judgments before I completed my evidence. In relation to Carrol & O’Dea Lawyer, Mark Barbeliuk was falsely purported to the court I “set up and email address in his name” and “exclusively communicates with Carrol & O’Dea Lawyers” independant of him. That evidence was heard/accepted by the court Justice Fagan has prevented me from replying to that evidence. I reserve my rights to put on my reply evidence that will expose Mr Barbeliuk falsehoods. The bank statements and Carrol & O’Dea Lawyers documents also under appeal. Such documents including all under appeal plainly cannot be admitted until (1) I reply to the evidence and (2) the court of appeal proceedings conclude. I reserve my rights.

6. If Justice Fagan elects to continue breaching his judicial oath and fails to grant the adjournment that is plainly in the interest of justice pending resolution of the appeal, I proceedings I am heavily reliant on the court of appeal judges copied to make orders consistent with Justice Breretons 20 July 2022 judgement Kearney v Amirbeaggi [2022] NSWCA 130 - whilst my appeal evidence is. It completely, the court of appeal have ample evidence supporting to same.

7. Obviously a temporary stay of the court of appeal proceeding will also be required pending Dr Graces management and assessment of me during my stay in The Sydney Clinic, over the next three weeks and/or his updated medial report his has advised he will prepare upon my departure.

8. Obviously I reserve my rights to re-cross examine Dr Grace when I am deemed medical fit to do so. That would occur after review of the court transcripts, particularly if any adverse orders are made tomorrow.

9. Obviously I reserve my rights to respond to any/all submissions and evidence the defendant put to the court when hearings have proceeded knowing I was in mental health hospitals, that will include three court hearings including tomorrow.

10. I ask the defendants and court refrain from emailing me until after my discharge and/or receipt/review of Dr Graces updated medical report.

11. Obviously I will be forced to check the online registry to see what orders are made tomorrow. For the record, historically, Justice Fagan has delayed publishing orders for a couple of days. To the contrary, other judicial officers in my 10+ years experience always publish them the same days. I jointly and severally request to all judicial officers copied the orders be published tomorrow. Absent of this, it will be added to the long list of examples supporting my opinion has Justice Fagan has actively and knowingly provoked my mental health and/or has aided and abetted or been an accessory to the defendants six years strategy to destroy my mental health, and win proceedings by that method. I am firmly of the view the said conduct represents criminal conduct and absolutely reserve my rights.

15. Paragraph 2 in the above email refers to an email sent to the plaintiff by the defendants’ solicitor at 11:56 am on 29 April 2025 enclosing copies of defence counsel’s written submissions (MFI 8 and 9) that had been provided to the Court that morning. Those submissions concerned whether the Court should proceed with the hearing and the extent of the Court’s power to order that the plaintiff appoint a tutor in the event of the hearing being vacated.

16. Paragraph 4 of the plaintiff’s email refers to a summons for leave to appeal filed by the plaintiff in the Court of Appeal on 18 February 2025. The summons sought leave to appeal against my order made of 17 February 2025 refusing the plaintiff’s application for adjournment of the defendants’ notice of motion for a permanent stay that was listed before me that day. On 2 April 2025 the plaintiff filed an amended summons seeking leave to appeal against the procedural orders made by me on 19 February 2025 (set out in Kearney v Amirbeaggi [2025] NSWSC 147), including the order listing the case for final hearing on 28 April 2025, and against my rulings of 7 March 2025 upon applications to set aside subpoenas (Kearney v Amirbeaggi [2025] NSWSC 196) and against my order of 21 March 2025 dismissing the plaintiff’s application that I should recuse myself (Kearney v Amirbeaggi [2025] NSWSC 260). On 14 April 2025 the plaintiff’s notice of motion for expedited hearing of his expanded leave application came before Kirk JA. Expedition was refused on 14 April 2025 (Kearney v Amirbeaggi (No 2) [2025] NSWCCA 73) and it is yet to be heard.

17. Paragraph 5 of the plaintiff’s email of 30 April 2025 refers to documents produced under subpoenas issued by the defendants, which I upheld on 7 March 2025. Mark Barbeliuk gave evidence before me on 17 February 2025 during the hearing of the defendants’ notice of motion for a stay. The plaintiff was absent having left the hearing after I refused his application for adjournment. Mr Barbeliuk’s evidence was to the effect that, in connection with three unrelated proceedings in this Court against a defendant referred to as PD, the plaintiff sent emails to the solicitors acting for the claimants in those matters pretending to be Mr Barbeliuk. Mr Barbeliuk was at the time acting as next friend for PD in the three matters. The defendants intended to rely upon the evidence of Mr Barbeliuk and upon the documents that he produced under subpoena to prove, in the present case, that the plaintiff is not psychiatrically disabled from earning an income – as he alleges in support of his damages claim.

18. Upon the Court receiving the plaintiff’s email of 30 April 2025, the defendants’ submission that the Court should not accept the genuineness of his claimed psychiatric indisposition during the week of 28 April 2025 was strengthened very considerably. Dr Grace was questioned about the email in oral evidence on 1 May 2025. Taking into account his responses (to which I will return later in these reasons), I find that the email is comprehensively inconsistent with the plaintiff being under any psychiatric disability with respect to participation in the proceedings from 28 April 2025. To explain why that is so it is necessary to recount some important events in the plaintiff’s conduct of his case and of his leave application to the Court of Appeal over the 2½ months since I commenced to manage the proceedings from 17 February 2025.

Plaintiff’s conduct of proceedings from 17 February to 21 March 2025

19. An outline of events in the proceedings from 17 February 2025 up to 21 March 2025, when I rejected the plaintiff’s application that I recuse myself, may be gathered from the three judgments cited earlier in these reasons. The first notable feature of the plaintiff’s conduct of his case is that he has routinely sought an adjournment of each interlocutory proceeding that has been listed before me. The defendants’ notice of motion for permanent stay was listed with five months’ notice, from 13 September 2024, for hearing on 17 February 2025. Nevertheless, the plaintiff commenced on that day by seeking, unsuccessfully, an adjournment of the hearing, which was refused.

20. On 19 February 2025 I appointed 7 March 2025 for the hearing of several notices of motion to set aside subpoenas and a notice to produce. All but one of those applications had been filed in May 2024. The plaintiff commenced the scheduled hearing on 7 March 2025 with an application for adjournment of the subpoena argument, on the basis that he proposed to advance an application that I recuse myself on grounds that he could not, or would not, specify. The adjournment was refused.

21. The recusal application was heard on 21 March 2025. The plaintiff relied upon 90 pages of written submissions and his affidavit of 13 February 2025, with three folders of exhibited documents. That affidavit had been prepared for an application that Harrison CJ at CL should recuse himself, which had been listed for hearing on 17 February 2025 but did not have to be determined when management of the proceedings was allocated to myself. The plaintiff re-purposed his affidavit, apparently on the premise that the vast number of documents exhibited to it could as well be brought to bear against myself as against the Chief Judge, whose only involvement had been two mentions of the proceedings in August and September 2024. The deployment of this evidence to support disqualification of whichever judge happened to be dealing with the case at any given time proved to be a fair indication of how cogent it might be; that is to say, not at all cogent. At the conclusion of argument on 21 March 2025 the plaintiff applied for his application to be adjourned so that he could file yet more written submissions and evidence. The adjournment application was refused, as was the substantive application for recusal.

22. A second feature of the plaintiff’s conduct in interlocutory proceedings, which is material for present purposes, is that in the six years since the action was commenced and particularly in the four weeks from 17 February to 21 March 2025 the plaintiff has shown himself well able to participate both in the preparation of documents and in oral presentation. The plaintiff has behaved in an extremely difficult and abrasive manner at all times and he may well suffer from Major Depressive Disorder, Anxiety Disorder and Complex Post-traumatic Stress Disorder, as Dr Grace has diagnosed. However, in the conduct of interlocutory proceedings he has exhibited no impediment from mental disorders. On 17 February 2025 his oral submissions in support of an adjournment were presented forcefully and persistently. On 19 February 2025, when the plaintiff chose to return to the hearing of the defendants’ stay application, he had no difficulty questioning Dr Grace in the witness box or in presenting his submissions to oppose the appointment of a final hearing date. He also made oral submissions regarding interlocutory steps that he said should be undertaken before setting the case down for final determination and he advanced arguments for allowing a hearing time of 35 days, rather than the 10 days that I proposed.

23. On 5 March 2025 the plaintiff responded in writing, in a detailed fashion, to a request from my chambers that the parties should nominate which of the affidavits on file were to be read at the final hearing. On 6 March 2025 the plaintiff filed and served 12 pages of written submissions upon which he relied for the subpoena argument that was to take place the next day. On 7 March 2025, after the Court had refused to adjourn the various notices of motion concerning subpoenas, the plaintiff argued his case without inhibition or impairment.

24. Shortly prior to hearing the plaintiff’s recusal application on 21 March 2025 the Court received from him the 90 pages of written submissions concerning alleged judicial bias, as earlier referred to. At the hearing he reiterated and to some extent elaborated his written submissions, orally, for half a day. In that application, as at all times during my management of the case, the plaintiff’s written and oral submissions were expressed in combative, accusatory and needlessly provocative terms. Much of what he put to the Court was irrelevant and misconceived. However, in the hearings before me in February and March this year the plaintiff did not at any stage exhibit any disability or reticence about saying or writing whatever he wished to put before the Court.

25. Between 17 February 2025 and 21 March 2025, the defendant sent to my Associate a stream of emails in which he complained about the conduct of proceedings before me and about orders made. In those emails the plaintiff notified his intention to appeal my interlocutory decisions, critiqued the expression of the orders made and purported to identify uncertainties and contradictions in them, demanded that reasons for decision be delivered in circumstances where reasons had been reserved or transcripts of ex tempore reasons were awaiting revision. By way of those emails the plaintiff agitated for listing arrangements to suit his convenience, such as late commencement times and appearance by audio visual link. The emails were intemperate and unreasonable but they did not reveal any difficulty or inhibition on the plaintiff’s part in expressing clearly what he wanted.

26. Following his last appearance before me on 21 March 2025, the plaintiff prepared a very detailed 15 page brief addressed to his psychologist, Dr Donald Rowe, seeking answers to numerous questions designed to elicit support for the proposition that my conduct of the interlocutory proceedings since 17 February 2025, including the terms of orders that I had made, was detrimental to his psychiatric well-being. The brief had attached to it transcripts of interlocutory proceedings in which I had presided in February and March 2025, copies of email correspondence between the plaintiff and my Associate, copies of affidavits, a copy of a report by another psychologist engaged by the plaintiff, Dr Melinda Mulley, Section 10 of the Equality Before the Law Bench Book and a copy of Practice Note SC CL 7 concerning usual orders for hearing. The plaintiff’s process of briefing Dr Rowe was manipulative, the questions asked of him being heavily loaded, but the exercise was consistent with the plaintiff’s capability in the litigation, as demonstrated in all aspects.

Plaintiff’s proceedings in the Court of Appeal from 31 March 2025

27. The plaintiff has pursued in the Court of Appeal an application for leave to appeal against all the orders that I have made. In doing so he has not shown any impairment of his ability to prepare Court documents, including submissions, or to advance oral arguments. It has been mentioned above that the original summons for leave was filed on 18 February 2025, in respect of my refusal of an adjournment on 17 February. On 31 March 2025 Court of Appeal Registrar Onisforou pointed out to the plaintiff that the defendants/respondents would have 28 days to respond to his summary of argument in support of the leave application, when filed. That would mean that the application could not be ready for hearing by 28 April 2025, the date for which the matter was listed for trial in the Common Law Division. The Registrar invited the plaintiff to consider an application at first instance to be to vacate the trial. When the plaintiff said he did not think that would succeed, the Registrar directed that, if he wished instead to apply for the leave application to be expedited in the Court of Appeal, any motion in that behalf should be filed by 5:00 pm the next day.

28. The transcript of proceedings before the Registrar on 31 March 2025 shows that the plaintiff was well capable of conducting the proceedings in his interest. Further, he was able to prepare and file a notice of motion for expedition within the time allowed. He also prepared a summons that was extensively amended to claim leave to appeal against all my interlocutory orders. The plaintiff had that ready to file by 2 April 2025.

29. On 3 April 2025 the plaintiff sent to the Registrar a three page email concerning his history of mental disorders, attaching four of Dr Grace’s past reports dating from 9 May 2022. In that email the plaintiff complained at length about the Registrar’s management of the proceedings on 31 March 2025, citing Court of Appeal Practice Note No 1. The email was couched in the accusatory terms in which the plaintiff habitually addresses judicial officers. He asserted his status as “an SRP” (self represented person). He claimed that the Registrar had failed to “follow correct Court process” and was guilty of “misguiding” the plaintiff.

30. The plaintiff did not file or serve written submissions in support of expedition when due. The result was that that application could not be dealt with on 7 April 2025. In the hearing before the Registrar that day he said he could not be ready by Wednesday, 9 April and claimed entitlement to “some greater deal of flexibility” by reason of his self represented status and “an active suicide attempt in 2022”. The plaintiff asserted that fixing his expedition application for 9 April 2025 “would force unnecessary psychiatric harm”. The time for the plaintiff to file his submissions was extended to 10 April 2025 and the expedition application was stood over to Monday 14 April.

31. On Sunday 13 April 2025 the plaintiff circulated by email to the defendants and to Kirk JA (who was to hear the expedition application), amongst others, draft grounds of appeal. There were 96 grounds, with sub grounds and argumentative material incorporated, extending over 45 pages. As earlier mentioned, when the expedition application was called on before Kirk JA on 14 April 2025 the plaintiff asked that it be adjourned. He said he wanted time to obtain advice and prepare argument on whether his leave application and the appeal should be the subject of a concurrent hearing. A further ground was that “there is some mental health issues” and “as a self litigant” he needed more time to go through the defendants’/ respondents’ submissions and prepare a summary of argument.

32. Kirk JA noted that with only six business days remaining to the listed commencement of the final hearing in this Division, if the claim for an expedited hearing of the leave application could not be advanced on 14 April 2025 there would never be an opportunity for it to be advanced. Accordingly, the adjournment was refused. The plaintiff then asserted to Kirk JA that it was “a complete breach of one’s judicial oath” for his Honour to proceed in those circumstances to a decision as to whether the leave application should be expedited. He left the courtroom. In his absence, expedition was refused. The volume and detail of the draft grounds of appeal, together with the manner in which the plaintiff argued his position in the hearing before Kirk JA on 14 April 2025, show that at that date he was not impeded by mental disorder from advancing such arguments and applications as he wished to advance. There is no aspect of the plaintiff’s conduct of his leave application in the Court of Appeal that betrays any impairment of his capacity to pursue his own ends, unmeritorious as they may have been. There is no hint of psychiatric disablement in any of this.

Plaintiff’s stay application to Common Law Duty Judge

33. On 16 April 2025 at 4:25 pm the plaintiff sent by email to the defendants’ solicitors a letter notifying that he would file a notice of motion, to be heard on an urgent basis, seeking a stay of the Common Law Division proceedings, pending resolution of his leave application in the Court of Appeal. He specified several affidavits, which had been deposed on various dates between 27 May 2024 and 20 March 2025, upon which he would rely. The letter included the following (errors as in original):

5 I formally request that your clients cease and desist in engaging in conduct knowingly causing me mental harm. The conduct has been ongoing since at least November 20 June 2020 to date.

6 Involvement in civil proceedings does not provide immunity from criminal prosecution. The repeated breaches of section 56 of the Civil Procedures Act along with the supporting medical evidence before your clients and their habitual actions indicate potential criminal conduct.

34. The plaintiff simultaneously sent a copy of his letter to the Court registry. By email of 17 April 2025 the defendants’ solicitors replied to the plaintiff noting that only four business days remained until the scheduled commencement of the final hearing on 28 April 2025. The defendants’ solicitors proposed that any notice of motion for a stay should be made returnable on 28 April “so that preparation for the hearing is not unduly disrupted”. On Easter Monday, 21 April 2025, the plaintiff sent an email to the Court of Appeal Registrar attaching a notice of motion for stay of the proceedings in the Common Law Division, accompanied by supporting material. That material included written submissions 104 pages in length, an affidavit of the plaintiff sworn 16 April 2025 and numerous attachments to the affidavit.

35. Registrar Onisforou replied on 22 April 2025 at 9:11 am as follows:

The appropriate course is that you make any stay application in the Common Law Division.

Your re-cast Motion should be sent to … the Associate to Fagan J, enquiring whether his Honour will deal with the application or whether it should be considered by the Duty Judge.

If you are directed to approach the Common Law Duty Judge, you first need to contact the [Duty Registrar – email supplied].

36. The plaintiff disregarded that direction. He made no contact with my Associate and instead emailed the Common Law Duty Registrar at 9:58 am on 22 April 2025, requesting that his stay application be listed before the Duty Judge on 24 April or 25 April 2025 (Anzac Day). He attached the notice of motion, supporting affidavit, annexures and submissions as previously sent to the Court of Appeal Registrar. In his email the plaintiff expressly drew attention to a report of Dr Rowe, dated 8 April 2025, which was one of the annexures to his affidavit. The report contained answers by Dr Rowe to questions that had been formulated by the plaintiff in the brief earlier referred to. Dr Rowe’s answers concerned the alleged psychiatric effects upon the plaintiff of various aspects of the conduct of the proceedings. Dr Rowe purported to express opinions that were both irrelevant and outside his expertise, such as whether he considered that an apprehension of judicial bias arose.

37. The 104 pages of submissions that the plaintiff had sent to the respective Registrars on 17 and 22 April 2025 contained extensive and detailed references to medical evidence, extracts from transcripts of various interlocutory applications before me, chronological listings of earlier interlocutory hearings before other judges of the Division and a narrative with commentary on the course of proceedings. That content was interspersed with the plaintiff’s submissions regarding perceived unfairness and impropriety in the conduct of interlocutory hearings and in procedural orders made. The submissions quoted, paragraph by paragraph, the Court’s reasons for some of the procedural decisions, accompanied by the plaintiff’s criticisms of those reasons. Albeit that the submissions contain many misconceptions and are unreasonable and unpersuasive, they constitute a comprehensive written argument of the matters of concern to the plaintiff. He was clearly well able to compose a voluminous argument, quoting selected passages of transcript recording his exchanges with me.

38. The plaintiff’s application for a stay of proceedings was listed at 11:00 am on Thursday, 24 April 2025 before Rothman J sitting as Duty Judge. The plaintiff did not appear when the application was called on at the appointed time and Rothman J stood it over to the commencement of the hearing listed before me on 28 April 2025. His Honour left the bench after making that order. Shortly afterwards the plaintiff attended the courtroom. He emailed the judge’s chambers to advise that he was present. Rothman J did not restore the matter to the list. Those events were of no significance as the only practical course available to his Honour was that which he had taken in the plaintiff’s absence. Had the plaintiff contacted my Associate, as directed by Registrar Onisforou, he would have been told that his application would be listed before me on 28 April 2025. His disregard of that direction was an attempt to circumvent my management of the case and my rejection of his earlier application that I recuse myself. Efficient application of Court resources would not permit that proceedings with such a protracted and wasteful history would be referred to yet another judge of the Division, to familiarise himself or herself with the background, on the last sitting day before the trial was to commence.

Reasons for rejecting the plaintiff’s claim of unfitness to appear

39. A combination of circumstances causes me to infer that the plaintiff was not genuinely affected by disabling psychiatric symptoms when he presented to Dr Grace on 24 and 26 April 2025 and that he was not unfit to participate in the scheduled hearing on 28 April 2025 and subsequent days.

40. First, the plaintiff demonstrated his fitness actively to conduct interlocutory aspects the case, in writing and orally, right up to the point of readiness to argue his stay application at 11:00 am on 24 April 2025. The plaintiff’s prosecution of interlocutory and appellate procedures over the preceding 2½ months was industrious. His efforts were highly directed, to his own ends. The plaintiff was prolific in the production of paperwork and email correspondence. Taken with all other circumstances, his purported instantaneous decline into psychiatric incapacity on the afternoon of 24 April 2025, when the trial which he did not wish to proceed was listed to commence on the next sitting day, is not credible. The decline is only supported by the plaintiff’s self-report and presentation to Dr Grace, combined with the opinions formed by the doctor on the basis of accepting the plaintiff’s genuineness.

41. Secondly, the plaintiff’s emails to my Associate on the morning of 29 April 2025 and, more particularly, late on the evening of 30 April 2025 show that the plaintiff was at those times fully cognisant of the state of the proceedings. He was able to refer in those emails to recent events in the case and he was sufficiently rational and attuned to what he thought would achieve vacation of the hearing fixture to recite those events and call them in aid of his argument. The email of 30 April 2025 exhibits the plaintiff’s thought processes, grievances, and capacity for argument in seamless continuity from what he had exhibited in his written and oral communications with the defendants and with the Court right up to the morning of 24 April 2025. The 30 April email refers to the same subjects as those that recur in several of his detailed submissions and emails prepared over the preceding 2½ months. That continuity of directed thought and capacity for argument is inconsistent with the plaintiff’s purported presentation to Dr Grace on 24 April 2025 and following as a patient who had suddenly been overwhelmed by anxiety and apprehension concerning the conduct of his case.

42. Thirdly, while I accept that Dr Grace honestly formed his opinion that the plaintiff needed to be hospitalised, the doctor had a strong predisposition, as the plaintiff’s treating specialist, to take him at his word. The exercise of reasonable care may well have required him to accept the plaintiff as truthful when he claimed to be contemplating self-harm. Dr Grace, naturally, did not have available to him the documented history of the plaintiff’s energetic prosecution of his various applications in the Court of Appeal over the preceding four weeks, from 31 March 2025. Nor could he have known about the plaintiff’s resourceful preparation, during the week from 17 to 24 April 2025, of detailed submissions and other documentation upon which to claim a stay of the hearing.

43. The plaintiff’s active steps in the Court of Appeal and then in the Duty Judge’s list right up to the morning of 24 April 2025 cannot be reconciled with his purported decompensation later that day. In oral evidence Dr Grace could offer no satisfactory reconciliation of that sequence of events with his conclusion the plaintiff was unfit to conduct the trial. Dr Grace could do no more than report what the plaintiff had asserted to him, including that the prospect of having to conduct the final hearing before me, in particular, caused him acute anxiety. That proposition is belied by the plaintiff’s forceful conduct of applications before me on four hearing days during February and March 2025, including the recusal application on 21 March 2025, which he conducted without any sign of trepidation and instead in a very assertive manner and at length.

44. Fourthly, in oral evidence on 1 May 2025 Dr Grace could not explain how the plaintiff was able to compose his detailed argumentative email of 30 April 2025 consistently with the doctor’s assessment that he was at that time psychiatrically disabled and in need of hospital care. The email is concrete evidence of the plaintiff’s capacity at that time to conduct legal arguments. Having read the whole of it to Dr Grace and provided him with background of developments in the proceedings to which it refers, I sought Dr Grace’s opinion on this communication and elicited answers as follows:

Q. Doctor, having regard to the length of that correspondence sent at 8.25 last night, the detail in reference to past features of these proceedings and current issues on Mr Kearney's mind, I'm finding it difficult to understand how it can be assessed that he is not medically fit to take part in the proceedings, and that he might need to remain in the Sydney Clinic for as much as another two weeks. Are you able to explain how those views can be reconciled to this sort of communication, or would that communication cause you to change your view?

A. Sure. Obviously I'm surprised to learn that he sent that because I did ask him to not engage in further contact with the Court to stop himself being triggered. I am surprised, yes. It was very long, I agree, and you're asking me to reconcile it, and at this point I cannot. I would have to talk to him about it because I didn't know that that was what he was doing, but I do know that these matters are constantly on his mind. I wonder whether this is his way of trying to get rid of it, but I don't know. I wasn't aware of that and I need to speak to him about it. So at this point, no, I don't think I can reconcile those views. I can only say that based on what I see when I see him I don't think he is capable of appearing in court, but I do note one of the things, I think, you said, but I know he said to me before he can much better deal when he's writing things rather than when he has to appear in court and speak, and maybe it reflects that in some way, but I'm not trying to justify that and say that that's consistent with his mental state. I just don't know. I'm going to have to talk to him about that.

[…]

Q. […] [Unless] there is something further you can say to address my concern about this letter, I have to say that it is a very great concern tending to suggest that the state in which he has presented himself to you must be something that is self‑induced or at least quickly recovered from, and yet he is relying upon it to be absent from the Court. Is there anything further that you can tell me about that, which would help me to decide the matter?

A. Obviously I don't think I can justify what's happening. I can only tell you what I have observed and what my opinion is, and that is that his condition is genuine and that it certainly has become exacerbated […].

45. Fifthly, Dr Grace has had very limited contact with the plaintiff over the past three months and he has virtually no knowledge of the plaintiff’s active participation in the proceedings over that period. That has left Dr Grace with insufficient knowledge of the circumstances to be able to judge reliably the genuineness of the plaintiff’s presentation to him on the eve of the trial. Dr Grace consulted with the plaintiff on the morning of 19 February 2025, in anticipation of the doctor giving evidence before me that day. There was another consultation on 3 April 2025 for a period of 50 minutes. Then on 24 April 2025 Dr Grace spoke with him via a Zoom meeting, when the plaintiff was in his vehicle en route from Sydney to his home on the Central Coast. That occupied about one hour, during a significant part of which the doctor was communicating with the Prince of Wales Hospital to arrange for the plaintiff to be seen in the Emergency Department. The next consultation was one hour and 15 minutes at the Hospital on 26 April 2025. Dr Grace stated in cross-examination that after 19 February 2025 up to the preparation of his report of 26 April 2025 he had seen the plaintiff for a total of only two hours. There were subsequent shorter consultations at The Sydney Clinic on 28 and 30 April 2025.

46. In contrast, I have had that opportunity to observe the plaintiff during the hearing on 17 February 2025 and again on 19 February, for a total of three hours across the two dates, and in a full day hearing that continued into extended sitting hours on 7 March 2025 and a ½ day hearing on 21 March 2025. In addition, I have reviewed, on a nearly continuous basis since 17 February 2025, email correspondence from the plaintiff to my Associate, long written submissions from him, transcripts of his appearances in the Court of Appeal and extensive correspondence, written submissions and appeal grounds in connection with his leave application. This longitudinal exposure to the plaintiff’s conduct and state of mind has given the Court a significant advantage over Dr Grace in assessing whether his claimed pathological panic on 24 April 2025 and subsequent days is genuine.

47. Dr Grace was handicapped in his formation of opinion by lack of even second-hand or reported information about the plaintiff’s actions in the proceedings, which have included preparation of long documents over many days and several vigorous oral presentations. Dr Grace said he knew that the plaintiff had been appearing before me but he “didn’t know the specifics”, he “wouldn’t have known the extent of time he would have spent in court” and he did not think he had seen “any of the correspondence” with the registrars and judges’ associates. In assessing the plaintiff on 24 and 26 April 2025 Dr Grace said he deliberately did not inquire into the extent of the plaintiff’s recent participation in the proceedings because he understood that the litigation was what was upsetting him and he did not want to exacerbate the plaintiff’s distress.

48. Sixthly, the coincidence of psychiatric hospital admissions with appointed final hearing dates is highly suspicious. Dr Grace was unable to allay the suspicion. He said that he had considered, on 24 and 26 April 2025 and on past occasions, whether he was being manipulated but he concluded that the plaintiff’s “anxiety, distress and desperation are all real”. The doctor answered questions from the bench as to how he would reconcile the plaintiff’s ability to continue with the case, during and after confrontational interlocutory appearances, with his sequential claims of incapacitating anxiety when it came to final hearing dates. The following are extracts from the doctor’s answers:

Q. […] [How] is it that he is able to appear before the Court on any number of interlocutory applications, take a very combative and belligerent stance, provoke quarrels with the presiding judge, accuse the presiding judge, with not the least justification, at every possible opportunity, of bias, corruption - how is [it] that he is able to do all of that in very confrontational court scenes, confrontational from his side, and be able to sail out of the Court at the end of the day and carry on, but when it comes to his final hearing the thought of it puts him into a psychiatric facility? How can these be reconciled, doctor?

A. The condition that he has is ongoing. It's not intermittent, but the severity of the symptoms varies over time, depending on what's happening […] it's a matter of degree he tries to function but then there's a point where he can no longer think clearly and then that then leads to him making an appointment to come and see me […].

[…]

Q. […] [Can] you think of any reason why that should always be with respect to the date when the matter is finally to be decided in a hearing, why he should always get to that state when the case has been listed and the Court has set aside many days for the hearing and it is about to be finally determined on its merits - it's always then that he reaches the point where he can't go on?

A. Okay, and that's not something that I knew, but this is something you've told me today. I don't have a specific answer to that beyond the fact - my guess is that a lot […] rides on the outcome of such a case, so I can see that that would be associated with a further increase in anxiety, pushing him beyond whatever the threshold of anxiety he can take before he decompensates. That's the only thing I can say, because he certainly hasn't given me specific reasons why that was the case. In fact I didn't even know that was the case you've told me that.

49. In further answers Dr Grace acknowledged that, over the years in which this litigation has been on foot, the plaintiff’s appointments to see him have been initiated by him when he has wanted a certificate of unfitness. The doctor acknowledged the limitations upon his formation of opinion about genuineness, arising from limited knowledge of the plaintiff’s activities and dependence upon history provided. Some important answers to questions from counsel are as follows:

Q. You have said in answer to his Honour's questions that over the years you have thought about whether Mr Kearney might be trying to manipulate you to get favourable reports that he could deploy in his court proceedings, and can we take it, when he may not actually be as medical compromised as he wishes to present to you or to the Court?

A. So certainly, particularly the fact that it seemed to be a temporal relationship between him making an appointment to come and see me, and as part of that there would be a request for me to provide a certificate. I've, of course, had to consider that, but there's nothing that I saw like, nothing I've become aware of that has convinced me that is the case, and I think how he's presented on all the occasions I have thought, no, this man is truly distressed, is not coping, and he's not going to be able to deal with whatever it was that was due to occur, but of course, I thought about it because it did seem to be quite often well, I can't remember how many I've done. It could have been ten I think, and that's a lot [referring to medical certificates provided both during the proceedings against the defendants and during the previous oppression suit]. […] I certainly questioned it in my mind, because I thought, I need to make sure that this is true. And I have no way of checking the facts, but I have a you know, I can observe someone, and see if it's consistent with what I would expect for someone who was claiming that they were unable, at that point, to proceed in a legal hearing. And I must say, when I thought about it, I've always been satisfied, yes, it's true. But I understand why the suspicion would arise in others. And as I said, I also considered that, in relation to myself. I was worried that maybe that was the case. I never actually saw evidence that that was the case.

[…]

Q. But you've satisfied yourself on the evidence available to you, that he was not manipulating you?

A. Correct. But the evidence available to me is what I see, and obviously what he tells me. I don't have any outside source. Apart from when he's been in hospital, because there's nursing staff around, and doctors write notes. But apart from those situations, I don't have a separate source of information in relation to Mr Kearney. […]

Q. […] You don't have any information about what's going on in the litigation, aside from what Mr Kearney has told you, or what his Honour or I have told you during the course of your appearances in court. Correct?

A. That's correct, yes.

50. Seventhly, the plaintiff’s conduct of the litigation from the commencement of my management of it in February this year has revealed his determined opposition to bringing the case to final determination. This provides an explanation of why the plaintiff should have taken the extraordinary step of feigning psychiatric illness on 24 April 2025 in an endeavour to sabotage the hearing of his own claim.

51. When the trial date of 28 April 2025 was first offered by me on 19 February 2025, the plaintiff opposed it on the spurious grounds that 35 days, rather than 10, would be required and that there were numerous interlocutory steps yet to be completed. Although the Court is in a better position than a self-represented litigant to estimate required hearing time and although the plaintiff was reassured repeatedly that if the trial should exceed 10 hearing days then the extra time would be found, he has continued to harp upon the unsuitability of a fixture of that length on numerous subsequent occasions. He invoked this on 21 March 2025 as a ground upon which I should recuse myself and he invoked it again as a ground for a stay in his 104 page submissions of 17 April 2025.

52. As to the interlocutory steps that were alleged to be outstanding at 19 February 2025, there were in fact no such obstacles to setting down the case for a final determination. Only the subpoena issues needed to be resolved and that task was completed within a single day. As pointed out to the plaintiff on 19 February 2025 and many times since, the case has been accepted by the Court as fully ready for hearing on two previous occasions, for the August 2022 and August 2024 listings.

53. The plaintiff’s leave application in the Court of Appeal has been a mechanism by which, from 31 March 2025 up to 14 April 2025, he has sought to prevent his case coming to trial in the Common Law Division. The plaintiff no doubt recalls that he was able to secure vacation of the August 2022 trial date by having a pending application in the Court of Appeal for leave to appeal against the fixing of that date.

54. I find that the plaintiff has conducted this case for an ulterior abusive purpose, which explains his desire to avoid a final hearing. While the proceedings have been progressing through their interlocutory stages, the plaintiff has maintained a website and YouTube channel entitled “You Be The Judge”. He has used his apparently considerable skills in video production to record several episodes of himself in the role of a news presenter, making generalised allegations of corruption concerning the Supreme Court. The website displays the names and still photographs of each of the judges who have dealt with parts of his case. The plaintiff’s video presentations have been uploaded to the website and YouTube channel. During my management of the proceedings the plaintiff has updated the YouTube channel with video recordings containing allegations against myself.

55. I find that the plaintiff is fixated upon an idea that the Court is corrupt and unjust. I find that he has deliberately sought to multiply interlocutory procedures for the purpose of taking opportunities to instigate conflict between himself and judicial officers. He has thereby sought to generate events around which he can formulate complaints in furtherance of his obsessive hostility to the Court. This modus operandi can be seen in the plaintiff’s incessant protests about the Court’s conduct of interlocutory procedures. In the course of each hearing he has issued a stream of complaints, followed up after the hearings in emails addressed to Associates and Registrars.

56. The plaintiff has registered complaint in these ways with respect to every minute detail of the Court’s management of the case. He has taken issue with the formulation of orders and with the time taken for publication of reserved reasons. He has corresponded with my Associate to demand relisting of the proceedings for mention and to complain and argue when told that relisting was considered unnecessary. He has requested special sitting times and audio visual links to suit his convenience and, when declined, he has sent further argumentative emails demanding reconsideration, accompanied by assertions of unfair treatment. The plaintiff has recycled some of his complaints over and over, in submissions supporting adjournments, then again in submissions for recusal based upon failure to grant adjournments, then again in written argument for a stay of the final hearing.

57. Over the 2½ months of my pre-trial management of the case the plaintiff has scarcely said, or written, a word about his substantive negligence action against the defendants. To the contrary, he has revealed a desire that his claim should not be brought to a final hearing. He has sought to keep the proceedings on foot as an ongoing platform within which he can express to judges and registrars in open court his sense of grievance and from which he can construct complaints to air on his website. On 24 April 2025, the last business day before the final hearing was to commence, these abusive purposes for which the plaintiff has been conducting the case constituted a strong motive for him to fabricate a medical incident in order to avert the finality of a trial.

The futility of vacating the trial

58. Although the following observations are not necessary to my conclusion that the plaintiff’s application to vacate the trial should be rejected, I record them for completeness in view of the amount of hearing time spent in exploring alternative orders. If I had concluded that the plaintiff’s claimed psychiatric indisposition for the trial was genuine, or at least that the contrary had not been shown, the fixture would have been vacated on 1 May 2025 but it would have been necessary to make orders for the protection of the defendants. The minimum requirement would have been orders (1) that the plaintiff pay the defendants’ costs thrown away as a result of the trial being vacated, to be assessed forthwith on the indemnity basis in a gross sum assessed pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW); (2) that those costs be paid within 28 days of assessment of the gross sum; (3) that the plaintiff appoint a tutor, who would be required to retain a solicitor and (4) that the proceedings be stayed until payment of the costs and appointment of a tutor and that the proceedings be dismissed if those steps had not been carried out within a limited period, perhaps 90 days.

59. If the trial had been vacated upon a finding that the plaintiff’s mental illness was not disproved orders to the above effect would have been required to prevent the unjust infliction on the defendants of further unreasonable burden and wasted costs arising from the litigation. I am sceptical of the genuineness of the acute psychiatric symptoms that the plaintiff professed to be suffering in 2022 and 2024, on the basis of which he obtained reports from Dr Grace as to his unfitness for a final hearing. The doctor’s reports were dated 9 and 26 May 2022, 5 July 2022, 1, 3 and 10 July 2024 and 5, 22 and 29 August 2024. However, assuming that he was genuinely unfit to proceed to trial in August 2022, in August 2024 and for a third time in April 2025, no fault for any of those events could be attributed to the defendants. Their wasted costs of preparation for final hearing and reservation of hearing dates would have to have been reimbursed before the plaintiff could be permitted to proceed.

60. The Court’s inherent jurisdiction to order that a party appoint a tutor has been recognised in cases such as Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806 at [20]-[21] and Daniel Walton v Terence George Hartmann as executor of the Estate of Wanda Resler [2017] NSWSC 1432. Those authorities show that the power may be exercised notwithstanding the absence of clear proof of legal incapacity. On the premise that the plaintiff has psychiatrically collapsed three times in three years, in each case at a time when a final hearing was imminent, the Court would exercise the power in respect of the plaintiff in this case. In any event a finding that the plaintiff lacks legal capacity, for the purposes of r 7.14, would be open if the Court should accept that on three out of three occasions the approach of the trial fixture has caused the plaintiff pathological anxiety and disablement. There is authority for taking a broad view of what is sufficient to constitute legal incapacity in a self-represented litigant: Slaveski v State of Victoria (2009) 25 VR 160; [2009] VSC 596 at [32]; Re WS [2017] NSWSC 745 at [31].

61. No doubt an order staying proceedings pending appointment of a tutor with solicitor, including provision for dismissal if such an appointment should not be made, is a form of relief that should only be granted as a last resort, where nothing less could protect an innocent litigant against damage and oppression from procedural default or misconduct of the opposing party: Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23 at [34] (Kiefel CJ and Bell J). In that case Gordon and Edelman JJ held that when applying the test of whether there is no fair and practical way of ensuring justice between the parties other than granting a stay of proceedings, a court must have regard to the fact, if it be established, that a stay would have the effect of permanently halting the claim of the party in default.

62. The plaintiff has made it clear throughout my management of the proceedings that he would not appoint a tutor with a solicitor. I referred to the availability of this procedure in my judgment of 5 March 2025 (Kearney v Amirbeaggi [2025] NSWSC 147 at [56]-[59]). I explained this more fully to the plaintiff during the recusal application on 21 March 2025, in the following passages:

At T 13.7-.39:

HIS HONOUR: […] All I have seen is since 17 February, when it came to 19 February and I said look I'll give you a hearing date, 28 April, you resisted it, you didn't want it to come on. I said to you then I am getting the impression you really just want this dispute to go on and on and on because you wish to participate in controversy rather than get it to a resolution, and I have been seeking to urge you on to deal with things in an expedited manner throughout the period in which I have been conducting the case.

PLAINTIFF: That position is actually negligible, in my respectful opinion, against medical evidence that has been uncontested by Dr Grace.

HIS HONOUR: I don't accept that.

PLAINTIFF: That is a factual position which I respectfully submit.

HIS HONOUR: Mr Kearney, can I point this out. I don't accept that Dr Grace has expressed any direct opinion upon adverse mental health effects of any orders that I have made.

May I make it clear to you that if we do have mental health opinions to the effect that you simply can't carry on with this case within normal timeframes, then, I will have to make the determination that you are legally incapacitated, and I will have to take the choice in the matter out of your hands and I will have to stay the proceedings until you appoint a tutor.

If I continue to receive medical - if I do in the future, I should say, receive medical opinions that you are just not able to go ahead with this because of your mental ill health, then this being the third occasion, after August 22 and August 24 when that has happened, it will be apparent that you are legally incapable of running the case. You are under a legal incapacity because of your mental health and the position will emerge that the proceedings will just have to be stayed until you appoint a tutor.

At T 26.38-27.2:

HIS HONOUR: […] paragraph 94 [of the plaintiff’s submissions on recusal] also states that:

“Dr Grace recommends a three month mental health stabilisation period prior to the main hearing".

Now there isn't time for that, the main hearing will take place in approximately five weeks from now. If you can't stabilise your mental health within that period you need to appoint a tutor because if we come to 28 April and you are not in a fit state to proceed, your claim against the defendants will have to be stayed until such time as you have a tutor and may I also point out to you that you would have to pay the costs thrown away of the defendants being ready for that hearing but not going ahead.

PLAINTIFF: I understand you are structuring that to happen but that has been dealt with elsewhere so I won't comment any further on that.

At T39.31-40.4:

HIS HONOUR: […] you have sought to emphasise to me time and again and to other Judges by tendering reports and so on, the adverse effects on your mental health of trying to conduct this case. They [psychiatrists] are in a better position to judge that than I am, but if it be the case, then in the interests of your mental health you should appoint a tutor […] with a solicitor, or appoint a solicitor and if you don't do either of those things you may finish up with the if you can't go on with the hearing you may finish up with the proceedings being stayed permanently.

PLAINTIFF: That won't happen, your Honour. You may make that but I can assure you that won't happen. There will be an intervention well before then.

HIS HONOUR: Please do be aware of the costs exposure of going to this further hearing if you are unable to proceed with it because it has been listed for five weeks’ time and the defendants will have reserved the time of their counsel to be available to conduct the case. They won't simply be able to go on to other cases on short notice if it is vacated due to your mental health. They will incur costs of an aborted hearing.

PLAINTIFF: I understand what you are setting up.

HIS HONOUR: I am not setting anything up, I am trying to forewarn you of problems that will result if your mental health interferes with the conduct of these proceedings.

63. I find that if the hearing of 28 April 2025 had been vacated and if an order had then been made, as would inevitably have followed, for appointment of a tutor with a solicitor retained, the plaintiff would not have complied. He would therefore have suffered a stay, and eventually dismissal, of his proceedings. The plaintiff’s responses in the second and third passages quoted above, accusing the Court of “structuring” and “setting up”, are in conformity with his pattern of imputing bias and base motives to the Court, as a reflex, without foundation or consideration. His mindset to carry on the proceedings in person is apparent from the transcript and is further demonstrated in questions that he posed to his psychologist, Dr Rowe, in the brief referred to at [26] above. The plaintiff proposed to deploy Dr Rowe’s report in the stay application that he had listed for 24 April 2025 but which did not proceed that day.

64. The plaintiff instructed Dr Rowe that the proceedings were initiated against the defendants due to their “negligent actions” as his former solicitors (in the oppression suit in 2013) and that this had “led to Mr Kearney's deep-seated concerns and mistrust regarding the prospect of engaging a new solicitor and/or barrister whom he does not know”. Dr Rowe expressed the opinion that the plaintiff’s decision to represent himself “appears motivated by two principal factors”, as follows:

39 Firstly financial constraints. Mr Kearney has experienced significant financial hardship as a direct consequence of the original negligent conduct of the defendant.

40 Secondly, a lack of trust or confidence in legal representation. […]

65. Dr Rowe completed par 40 of his report with opinions, well outside his expertise, concerning general public mistrust of lawyers, the basis for that mistrust and the extent to which the basis has coincided with the plaintiff’s own experience in relation to the defendants’ alleged negligence.

66. The plaintiff’s brief sought Dr Rowe’s opinion on the following further question:

Would the plaintiff engaging a "next friend" pose less psychiatric risks and/or assist in avoiding any mental health distress if you have opinioned in questions 2.1 (a) [sic].

Dr Rowe gave this answer:

44 Yes, engaging a friend that can be trusted, as Mr Kearney has been doing, especially given that friend's [sic] who have assisted him in the past have specific understandings of Mr Kearney's proceedings. This would overcome the above issues.

67. In that paragraph, again, Dr Rowe exceeded his area of expertise, with no recognition of factors that would make it unacceptable, in the interests of justice, for the plaintiff to continue self-represented with the assistance of a next friend. The Court would not have exercised its discretion in favour of such an arrangement in this case. The addition of a next friend would have left decisions about conduct of the case still in the hands of the plaintiff, who has disrupted and delayed the proceedings to date, at very significant financial cost and personal stress to the defendants, at great expense to the public by impeding the Court’s efforts to progress its lists and to the detriment of other litigants who seek access to justice.

68. In oral evidence on 1 May 2025 Dr Grace confirmed that the plaintiff would not engage a solicitor, in the following answers:

A. […] I've always ‑ Mr Kearney's aware of this ‑ been of the opinion that he would be better having legal representation, and whenever I've said that to him he's always said that he cannot trust a legal representative given his past experience, because clearly if a legal representative was doing most of the work during that time there'd be less reason to be triggered, so I certainly agree with that argument it would be good to have a legal representative. The other thing he's told me when I've talked to him about this, apart from the fact that he has mistrust of the legal profession, is cost. He says he just, financially, is not in a position to do it […] So the two reasons against well, that he sorry presents against legal representation are cost and a distrust of the legal profession. My own view has always been he needs a lawyer and he's aware of that, but I told you what his response is.

69. Over the six years since these proceedings commenced the Court has made countless allowances to the plaintiff in an endeavour to accord him a hearing and determination of his claim. The record shows that had the claim not been dismissed on 1 May 2025, when the plaintiff failed to attend, the Court could not have secured future progress without the interposition of a solicitor retained by a tutor. Only through the agency of a trained lawyer with professional and ethical obligations could the Court have managed continuance of the litigation fairly to all interests. Engagement of a solicitor is a condition that the plaintiff would never have been willing to satisfy.

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