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[2026] NSWCA 150
procedural. Mr Kearney was ordered to pay the respondents’ costs of paragraphs 4–8 of his further amended notice of motion filed 4 November 2025. For the respondents’ costs of making submissions about those...
This was a decision about who should pay the costs of an abandoned application, not a decision about whether Mr Kearney needed a tutor. The Court applied the usual starting point that the unsuccessful applicant pays the other side’s costs. It found that Mr Kearney’s conduct accounted for much of the time spent on the motion and that the essential conditions he insisted on would not have been granted. The respondents nevertheless did not obtain indemnity costs: the Court considered the conduct insufficient for that more substantial departure. Mr Kearney therefore had to pay the respondents’ costs of the motion and half of their costs of arguing about costs.
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2,372 words · generated 07/10/2026
Kearney v Amirbeaggi (No 2) [2026] NSWCA 150 is a costs judgment delivered by Leeming JA on 28 July 2026. The hearing was on the papers. The only outstanding questions were who should pay costs arising from paragraphs 4–8 of Brian Kearney’s further amended notice of motion, filed on 4 November 2025. The Court was not deciding the merits of Kearney’s underlying claim against his former solicitors or the merits of any proposed appeal.
3 cited instruments linked from this judgment.
Kearney’s motion sought three main forms of relief: appointment of Matthew Hancock as his tutor for pending and foreshadowed appeal proceedings; permission for the proposed tutor to conduct proceedings without a solicitor; and an order protecting the tutor from adverse costs. The application relied on the proposition that Kearney was a person under legal incapacity for the purposes of UCPR r 7.13. The solicitor requirement relevant to the application appears in r 7.14(2): unless the Court orders otherwise, a tutor may not commence or carry on proceedings except by a solicitor (paragraph 12).
The application was heard over a disrupted period. The hearing began on 23 February 2026, but did not finish that day. A further hearing date was vacated after Kearney was admitted to The Sydney Clinic. An adjourned hearing took place by audio-visual link on 9 April, with Kearney appearing from the clinic. He sought another adjournment, which was granted over the respondents’ opposition (paragraphs 26–29). On 18 May, Kearney said that a change in medication meant he could conduct the litigation himself without a tutor. He did not press the motion, and paragraphs 4–8 were dismissed (paragraph 30).
The costs positions diverged. Kearney sought his costs, or alternatively no order as to costs. He argued that the respondents had unreasonably and vigorously opposed his application despite not adducing counter-medical evidence. The respondents sought their costs on an indemnity basis, relying on the length and conduct of the motion, the adjournment, and the absence of advance notice that Kearney would not press his application (paragraphs 32–34).
Leeming JA ordered Kearney to pay the respondents’ costs of the motion. The respondents did not obtain indemnity costs. Because they succeeded in opposing Kearney’s costs application but failed in their own indemnity-costs application, Kearney was ordered to pay half their costs of the costs submissions (paragraphs 57–58).
The starting point was UCPR r 42.1. The judgment states that, unless there is a basis for a different order, costs follow the event (paragraph 31). The relevant event was the dismissal of Kearney’s motion. The Court considered whether either party had shown a sufficient basis to depart from the ordinary position.
For Kearney’s request for his costs, the Court focused on who brought and pursued the application, how the hearing time was used, and whether the essential orders he sought were likely to have been made. The transcript of 23 February showed that the large majority of the 117 pages was occupied by Kearney’s submissions. Leeming JA also found that the motion extended beyond one day principally because of Kearney’s conduct, rather than the respondents’ conduct (paragraphs 36–38). He had chosen to bring the motion and later to stop pressing it (paragraph 37).
The Court did not treat the respondents’ opposition as unreasonable merely because Kearney’s medical evidence was not contradicted by counter-medical evidence. It noted that Kearney had alleged that the respondents’ conduct was “plainly unreasonable” and involved “an element of delinquency”. The Court observed that such a submission could not properly be made without giving the respondents an opportunity to respond. Kearney had been given an opportunity to cross-examine the respondents’ solicitor on the issue but chose not to do so (paragraph 39).
A further consideration was whether Kearney would probably have obtained the orders he sought if he had continued with the motion. Leeming JA said that, in the unusual circumstances, he could not decide whether Kearney should receive a favourable costs order without considering whether there was a real prospect of success on the abandoned application (paragraph 40). He concluded that the Court would not have appointed Hancock on the condition Kearney insisted on: that the tutor could appear in person without a solicitor. Hancock had little litigation experience and acknowledged that he did not understand what running an appeal, or a trial following a successful appeal, involved (paragraph 12). The Court considered that solicitor-free conduct would not assist the just, quick and cheap resolution of the real issues and was likely to create delay and expense (paragraph 42). That assessment was not expressed as criticism of Hancock.
The Court also rejected the proposed costs immunity. It accepted that the Court had power to make a protective order, as explained in Smith v NRMA Insurance Ltd [2016] NSWCA 250, but described such orders as rare. The judgment distinguished the unusual circumstances of Smith, including the tutor’s experience as an independent solicitor in the relevant class of litigation, from Kearney’s private litigation seeking compensation for his own alleged loss. It also referred to the costs rules’ role in discouraging unnecessary expenditure (paragraph 45).
The respondents’ request for indemnity costs was treated separately. Leeming JA accepted the four matters they raised, including that the motion and Kearney’s conduct increased the time consumed. But acceptance of those matters did not automatically justify indemnity costs. The Court was not satisfied that the factors, either separately or together, crossed that threshold (paragraphs 53–55).
One possible allegation was that Kearney deliberately caused delay by arranging for the hearing to coincide with his admissions to the clinic. The Court described the timing as curious, but no application had been made to cross-examine him on that allegation or to object to the further medical evidence. A finding of deliberate conduct of that seriousness would not be lightly made. The judgment referred to Evidence Act 1995 (NSW) s 140 and the principles in Briginshaw v Briginshaw (paragraph 54). The Court therefore did not make such a finding.
The judgment applies the existing costs framework rather than announcing a new general rule. Before this decision, the starting point identified in the judgment was UCPR r 42.1: absent a reason to order otherwise, costs follow the event (paragraph 31). The Court applied that starting point to a motion that the applicant had ultimately stopped pressing and that was dismissed.
The decision also applies the existing procedural rule in UCPR r 7.14(2), which ordinarily requires a tutor to conduct proceedings through a solicitor unless the Court orders otherwise. The judgment did not determine that the rule can never be dispensed with. It assessed the particular proposal before it, including the proposed tutor’s lack of litigation experience and the applicant’s insistence that the tutor act without a solicitor (paragraphs 42–44).
On costs protection, the Court relied on Smith for the existence of a power to immunise a tutor from adverse costs, while emphasising that such orders are rare and depend on the circumstances (paragraph 45). It did not remove that power or formulate a comprehensive test. Its treatment was case-specific: it distinguished the private nature of Kearney’s litigation and the proposed tutor’s circumstances from the features of Smith described in the judgment.
The judgment likewise does not establish that an abandoned application must always be assessed on its likely merits for costs purposes. Leeming JA explained that, in these circumstances, he could not grant Kearney a favourable costs order without considering whether the relief sought had a real prospect of being made (paragraph 40). That is a contextual explanation of the costs reasoning, not a stated universal test.
The decision expressly leaves unresolved the central question whether Kearney required a tutor. The Court said that it did not express a view on that issue because it had not heard both parties on the evidence obtained after the February hearing, which pointed in different directions (paragraph 48). Accordingly, the “after” position is limited: the costs orders were made, but the underlying question of capacity and need for a tutor was not determined in this judgment.
At paragraph 31, the Court says: “Unless there is some basis for a different order, costs follow the event.” In plain English, the usual position is that the party who loses the relevant application pays the other side’s costs, but the Court may make another order where the circumstances justify it.
At paragraph 40, the Court explains that it could not give Kearney a favourable costs order without considering whether he had a real prospect of obtaining the orders he had abandoned. The practical point is that the Court considered the likely outcome of the specific conditions he insisted on, because those conditions were central to his claim that the respondents should pay his costs.
At paragraph 42, the Court says that allowing the proposed tutor to conduct the appeal without a solicitor would not facilitate the just, quick and cheap resolution of the real issues. In plain English, the Court considered that this arrangement would likely make the proceeding more difficult or costly, rather than help it proceed efficiently. The conclusion was limited to the proposal before the Court.
At paragraph 45, the Court acknowledges a power to make an order protecting a tutor from adverse costs, but says such orders are rare. It contrasts the circumstances of Smith with Kearney’s private claim. This passage shows that the Court treated costs protection as legally available but exceptional, rather than automatic whenever a proposed tutor is unwilling to face costs exposure.
At paragraph 48, the Court expressly says it does not decide whether Kearney required a tutor. This is important when using the judgment: its disposition cannot be read as a finding that Kearney did or did not have legal incapacity.
At paragraph 54, the Court explains why it did not find that Kearney deliberately caused delay. The timing of his admissions was described as curious, but the allegation had not been tested by cross-examination. The passage illustrates the difference between identifying a suspicion and making a serious factual finding on an adequate evidentiary basis.
The decision is most directly relevant to costs disputes following an abandoned or dismissed interlocutory application where one party seeks to displace the ordinary costs rule. Its reasoning is particularly useful where the Court must consider who initiated the application, what relief was insisted upon, how the hearing time was used, and whether the applicant would likely have obtained the material orders sought.
It also addresses applications involving a proposed tutor under UCPR rr 7.13–7.14. Relevant features in this case included a request to dispense with the ordinary solicitor requirement, the proposed tutor’s limited litigation experience, and a request for immunity from adverse costs. The judgment’s reasoning should be read in light of those particular facts, not as a categorical ruling against dispensing with r 7.14(2) or against protective costs orders.
The case may also be relevant where indemnity costs are sought because of alleged deliberate delay or procedural conduct. It demonstrates that conduct that increases time and expense may still be insufficient for indemnity costs. Where the allegation is that a party deliberately engineered delay, the judgment underscores the importance of evidentiary support and procedural fairness, including a fair opportunity to test the allegation.
The decision is less directly informative on the substantive definition of legal incapacity. The Court expressly reserved that question. It therefore does not determine how a court should resolve conflicting psychiatric evidence or when a particular person must be represented by a tutor.
The supplied judgment contains no decisions issued after 28 July 2026 and provides no account of later judicial treatment of Kearney v Amirbeaggi (No 2). On the material provided, it is not possible to say whether later courts have followed, applied, distinguished, or otherwise treated this decision.
The judgment itself refers to earlier decisions in the Kearney proceedings and other authorities. It cites Gerlach v Clifton Bricks Pty Ltd for the proposition that an appellant may challenge interlocutory orders as part of a proposed appeal, subject to ordinary litigation principles (paragraph 6). It refers to Yakmor v Hamdoush (No 2) and Smith v NRMA Insurance Ltd for the historical development of the “next friend” terminology and its replacement by “tutor” (paragraph 18). It relies on Smith again when discussing the power to make a costs-immunisation order (paragraph 45). It also refers to Briginshaw in addressing the evidentiary care required before making a serious finding about deliberate delay (paragraph 54).
Those citations explain the reasoning in this judgment; they do not establish how later courts have treated the 2026 decision.
The principal unresolved issue is whether Kearney required a tutor. Leeming JA expressly declined to decide it because the post-February evidence had not been heard from both parties and was mixed (paragraph 48). The decision therefore does not resolve the interaction between changing mental health evidence, litigation participation, and the procedural requirements for appointment of a tutor.
The judgment also leaves open the circumstances in which a court should dispense with UCPR r 7.14(2). It explains why the particular proposal was rejected for costs purposes, but does not set out a general test for future cases. Questions about the proposed tutor’s capability, the complexity of the litigation, available alternatives, and the likely effect on the just, quick and cheap resolution of the proceeding would remain fact-specific.
Similarly, while the Court recognises a power to protect a tutor from adverse costs, it does not give a comprehensive account of the criteria for exercising that power. It notes that such orders are rare and identifies features of Smith that made it unusual, but does not define the boundary of the jurisdiction.
Finally, the judgment does not specify a general threshold for indemnity costs in cases involving abandoned motions. It applies the ordinary costs starting point and concludes that the conduct shown here was insufficient for indemnity costs. Any broader formulation would go beyond the reasons given.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kearney v Amirbeaggi (No 2) [2026] NSWCA 150
Hearing dates: On the papers
Decision date: 28 July 2026
Before: Leeming JA
Decision: 1. Subject to order 2, Mr Kearney pay the respondents’ costs of paragraphs 4-8 of his further amended notice of motion filed 4 November 2025.
2. Insofar as the respondents incurred costs in making submissions as to the costs of paragraphs 4-8 of the further amended notice of motion filed 4 November 2025, Mr Kearney is to pay one half of those costs.
Catchwords: COSTS – applicant’s motion seeking appointment of tutor dismissed – whether respondents should pay applicant’s costs – whether there should be no order for cost – whether applicant should pay respondents’ costs on indemnity basis – no reason to depart from default position that applicant pay respondents’ costs
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 140
Statute of Westminster 1275 (3 Ed 1 c 48)
Statute of Westminster 1285 (13 Ed 1 c 15)
Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 42.1, 51.18
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Kearney v Amirbeaggi [2022] NSWCA 130
Kearney v Amirbeaggi [2025] NSWSC 1223
Kearney v Amirbeaggi [2025] NSWSC 455
Kearney v Amirbeaggi [2026] NSWCA 65
Kearney v Amirbeaggi (No 4) [2025] NSWCA 272
Smith v NRMA Insurance Ltd [2016] NSWCA 250
Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284
Category: Costs
Parties: Brian Kearney (Applicant)
Farshad Amirbeaggi (First Respondent)
Yates Beaggi Lawyers (Second Respondent)
Representation: Counsel:
Applicant (in person)
FT Roughley SC; BW Smith (Respondents)
Solicitors:
YPOL Lawyers (Respondents)
File Number(s): 2025/64945
Publication restriction: Nil
LEEMING JA: This judgment determines issues of costs. They are the only outstanding issues arising on paragraphs 4-8 of a further amended notice of motion filed by Mr Brian Kearney as long ago as 4 November 2025. In substance, those paragraphs contained Mr Kearney’s application that (a) a tutor be appointed to him in respect of his pending and foreshadowed applications for leave to appeal on the basis that he is under a legal incapacity, (b) his nominated tutor have leave to appear in person, rather than by solicitor, and (c) the tutor also be immunised from adverse costs orders. The hearing of that application has been eventful and much delayed, as will be explained below, but ultimately it was abandoned by Mr Kearney, who said that he no longer needed a tutor. On 18 May 2026 those paragraphs of the notice of motion were dismissed. On the same date, I made directions for the exchange of submissions on costs, such submissions to be supplied on 8 June, 22 June and 2 July. That has occurred.
Mr Kearney seeks an order that the respondents pay his costs. Alternatively, he seeks an order that there be no order as to costs. The respondents say that Mr Kearney should pay their costs, on an indemnity basis.
The history is unusual and extensive, and a summary of it is necessary to explain why the parties urge such divergent approaches upon me, and in order to address their submissions.
Mr Kearney (who at all times has represented himself) brought proceedings in 2019 against the respondents who, some years ago, were solicitors retained to act for him. His action proceeded slowly in the Common Law Division. A final hearing to commence on 1 August 2022 was vacated following an earlier interlocutory appeal prosecuted by Mr Kearney, appearing in person: Kearney v Amirbeaggi [2022] NSWCA 130. The action was, most recently, being managed by the primary judge, Fagan J, with a view to a final hearing of ten days commencing 28 April 2025. Mr Kearney has sought leave to bring an interlocutory appeal from various case management and other orders made by Fagan J in advance of the trial. That application for leave to appeal remains undetermined, and is the proceeding pending in this Court in which the present motion has been filed. However, more recently, Fagan J dismissed the proceedings brought by Mr Kearney, following a hearing which took place over parts of the first three days which had been set down for trial, in Mr Kearney’s absence: Kearney v Amirbeaggi [2025] NSWSC 455. Mr Kearney says that he was confined to a facility known as “The Sydney Clinic” at that time, and that Fagan J was wrong to proceed in his absence.
At its core, the issue which Mr Kearney wishes to raise in this Court is that Fagan J erred in deciding the proceedings in his absence, resulting in the dismissal of his proceedings and, subsequently, a gross sum costs order: Kearney v Amirbeaggi [2025] NSWSC 1223. The execution of the latter order, which is in the amount of $369,432, had been stayed pending the determination of the present application: Kearney v Amirbeaggi (No 4) [2025] NSWCA 272 (order 1 made on 16 December 2025). Following the dismissal of the motion on 18 May 2026, I extended the stay, by consent, until 4pm on 15 June 2026 (a further stay was subsequently ordered).
The proposed application for leave to appeal which Mr Kearney seeks to bring is more complicated because he also wishes to challenge interlocutory orders which contributed to the dismissal of his proceedings. He is entitled to take that course (see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [4]-[8]) subject to the usual principles governing litigation (including the possibility of special costs orders if an otherwise successful appeal is accompanied by peripheral complaints as to which the appellant fails). But it is as well to say immediately that Mr Kearney, no differently from any other litigant, is required to comply with the rules, including the rule that any notice of appeal must state briefly, but specifically, the grounds relied upon in support of the appeal: UCPR r 51.18(1)(e). By way of example, a draft proposed notice of appeal provided to me during the hearing of the motion contains 99 grounds over 22 pages. The strength of an appeal is not measured by the number of grounds which can be drafted. Not only is this prolixity unhelpful, but it is apt to hinder the determination of the appeal, as well as diluting the force of the strongest of the grounds.
Mr Kearney’s application was for a tutor, Mr Matthew Hancock, to be appointed to run the appeal. The application was unusual, and in a number of respects.
First, the premise of the application (which was contested) was that Mr Kearney was a person under legal incapacity within the meaning of r 7.13. If that be so, then the pending proceeding ought to have been stayed until a tutor was appointed or the rule was dispensed with. Nonetheless, Mr Kearney appeared in person on his application which lasted somewhat more than a full court hearing and involved a large volume of evidence, most of which was sought to be adduced by him.
It is quite plain that Mr Kearney has a deal of familiarity with at least some aspects of civil litigation, and indeed his own evidence is that he has been an advisor to and has received substantial amounts of money from other litigants with proceedings in this Court. Some aspects of his presentation were considerably more competent than many unrepresented litigants. On the other hand, while he is undoubtedly industrious and intelligent and articulate, there was also a great deal of evidence that he was suffering from mental illness, to which I shall return.
Secondly, Mr Hancock put on a short affidavit and was cross-examined briefly. He gave his evidence in a straightforward fashion. Mr Hancock has next to no experience in litigation. He candidly acknowledged that he has no understanding of what running an appeal in this Court (and, if successful, a trial in the Common Law Division) involves. His approach was that if appointed, he would read the documents and do his best to obtain a resolution for his friend, Mr Kearney. None of the foregoing would be a difficulty except for the fact that Mr Kearney insisted, as a term of the appointment of Mr Hancock as his tutor, that there also be dispensation with r 7.14(2). That rule provides in its entirety:
7.14 Proceedings to be commenced or carried on by tutor
(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.
(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.
Mr Kearney also sought to be closely involved in decisions made by Mr Hancock. He sought dispensation from the requirement that a solicitor be retained on two bases: first, that he lacked the resources to pay for one; and secondly, that being exposed to lawyers and litigation is a stressor, which was apt to cause him mental injury.
Hence, what was proposed was that Mr Hancock – presumably with the assistance of Mr Kearney – would file an amended draft notice of appeal and summons seeking leave to appeal, prepare white folders identifying from the thousands of pages of the record of the trial those which are necessary to determine whatever grounds of appeal are sought to be presented, draft submissions in chief, respond to the respondents’ submissions, and then present argument in the Court of Appeal, all the while holding full time employment as the General Manager of a business specialising in corporate events.
Thirdly, Mr Kearney also sought a protective order whereby Mr Hancock would be immunised from any adverse costs orders. Mr Hancock gave this evidence:
Brian has informed me a Tutor is entitled to be indemnified for any costs. I am only willing to act as tutor with complete indemnity.
Read strictly, those sentences might be taken as conveying that Mr Hancock was content to act as tutor with the benefit of an indemnity from Mr Kearney, even if that personal obligation to reimburse him against liabilities incurred in the litigation was of no value. (I interpolate that Mr Kearney’s case is that he has nothing like the assets available even to meet the existing adverse costs orders.) A guarantor ordinarily is entitled to a “full indemnity” from his, her or its principal, but the entitlement to be indemnified is often of scant comfort where the principal is bankrupt or insolvent.
When this reading was raised by me, it was common ground that Mr Hancock’s affidavit had been drafted loosely and that he intended to convey that he would not accept appointment unless satisfied that he would incur no liability. I agree that that is the likely intended meaning of his words, and I shall proceed on that basis.
Fourthly, one paragraph of Mr Kearney’s motion sought, in the alternative, that Mr Hancock appear as his next friend. The “next friend” is a very old description of the name of a person appointed to run litigation where a plaintiff was incapable; Giles JA traced it to the first and second Statutes of Westminster 1275 and 1285 (3 Ed 1 c 48 and 13 Ed 1 c 15): Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; [2009] NSWCA 284 at [17]. The Law French prochein am**ies in the Law French of the First Statute of Westminster, and the Latin propinquiores amici of the Second Statute of Westminster became the “next friend” in more modern procedural rules, and, with the making of the Uniform Civil Procedure Rules, that term was replaced by “tutor”: Smith v NRMA Insurance Ltd [2016] NSWCA 250 at [30]. In short, that is a long way of saying that this paragraph of Mr Kearney’s motion invoked a superseded name for the office now performed by a tutor. It did not add anything of substance.
There was a wealth of largely unchallenged psychological and psychiatric evidence bearing upon the incapacity of Mr Kearney. That evidence falls into three categories.
There were a series of reports from Dr David Grace, a psychiatrist who has been treating Mr Kearney since 2017. At the time of the hearing in February, the most recent report was dated 30 July 2025, after his discharge from The Sydney Clinic (subsequently Mr Kearney relied on, somewhat informally, further communications from Dr Grace to which I shall return). Dr Grace’s opinion is qualified. He said that in the period from 24 April 2025 to 2 June 2025, Mr Kearney was unable competently to manage his own affairs. However, Dr Grace went on to say that more recently, Mr Kearney’s psychiatric state had improved. Dr Grace stated that he supported the expedition of the proceedings in this Court, “provided Brian has enough time to prepare his evidence”. One aspect of the hearing which took place on 23 February 2026 was that no updated evidence was adduced of Dr Grace of Mr Kearney’s position in the ensuing seven months.
At the time of the hearing in February, more recent evidence was provided from Ms Melinda Mulley, who is a registered psychologist. Her reports continued through to 13 February 2026. That report, following a consultation on 30 January 2026, expressed an opinion that Mr Kearney’s “continued engagement in court matters could likely result in further deterioration of his mental health”. Ms Mulley advised that there had been discussion of a possible readmission to The Sydney Clinic, as an in-patient under Dr Grace’s care, and during the hearing Mr Kearney told the Court that he proposed to be admitted in the following week.
Also at the time of the hearing in February, there was evidence from Dr Donald Rowe, who is a consultant clinical psychologist with a PhD in physiology. His reports follow an unusual format, answering very precisely worded questions concerning issues arising in the litigation. For example, Dr Rowe was asked to and provided his opinion about whether Fagan J’s “collective case management since 14 February 2025 met with or exceeded the apprehended bias test recorded in paragraph 2.18 of this brief”. Dr Rowe was also asked, having reviewed four court transcripts, to provide an opinion concerning whether “Justice Fagan case management style/interactions evidenced in the court transcripts with plaintiff and in the collective documents, negatively impacted or triggered the plaintiffs’ various psychiatric conditions”. There is nothing in either of Dr Rowe’s reports which suggests Dr Rowe has ever seen Mr Kearney.
No differently from many unrepresented litigants (and indeed some represented litigants), there were deficiencies in the way Mr Kearney advanced his case. What follows is not intended by way of criticism of him, but bears upon one aspect of the respondents’ application for indemnity costs. Mr Kearney has a tendency to be distracted by minor details rather than focussing on the real issues. One example was the draft notice of appeal mentioned above. Another example is the time devoted to tendering many records of electronic communications complaining about outstanding amounts owed by him to Optus, Foxtel and a pharmacy). Those documents bear peripherally on Mr Kearney’s ability to cope with day to day issues, but are of far less weight than the medical evidence. Mr Kearney tendered recent bank statements of two accounts in his name. They show a small balance, but fall short of themselves establishing that he has no means to pay for lawyers. The bank statements do not establish that Mr Kearney has no other bank accounts, still less can they establish that he does not own or have valuable interests in other assets.
Unfortunately, the hearing of Mr Kearney’s application on Monday 23 February 2026 did not complete on that day. I stood the matter over until the following Tuesday 3 March 2026. However, that hearing was vacated because Mr Kearney was admitted to The Sydney Clinic.
The matter was adjourned until 9 April 2026.
Shortly before that adjourned hearing, Mr Kearney again was admitted to The Sydney Clinic. The hearing took place, by AVL, with Mr Kearney appearing for himself from the clinic. He sought an adjournment. I granted an adjournment over the opposition of the respondents: Kearney v Amirbeaggi [2026] NSWCA 65.
By that stage, what remained was Mr Kearney’s submissions in reply, the tender of some outstanding evidence, and Mr Kearney’s flagged intention to revisit decisions made by him on 23 February (including to cross-examine the respondents’ solicitor and to tender some tendency evidence). Mr Kearney’s admissions into The Sydney Clinic in March and April 2026 were accompanied by further letters from his psychiatrist, as to which the respondents had not been heard, and which Mr Kearney implicitly sought to have placed before the Court on the hearing of his motion.
On the adjourned date, which was 18 May 2026, Mr Kearney advised that he did not press his motion. He said that different medication which he was receiving permitted him to conduct the litigation by himself, without a tutor. The outstanding issues summarised in the previous paragraph were not determined, and paragraphs 4-8 of Mr Kearney’s motion were dismissed.
The gravamen of Mr Kearney’s submission is that there was unreasonable and vigorous contest of the application to appoint a tutor, notwithstanding that the medical evidence relied on was uncontested. He submits, “Had the respondents filed counter-medical evidence … or taken steps to cross-examine [Ms] Mulley and Dr Rowe, the Court may have had a genuine issue to determine. They did not”. He emphasises that the adjournments happened without fault on his part. He goes so far as to assert that the “true purpose” of the respondents’ conduct was “to prolong the litigation and cause further psychiatric harm” to him, which was “plainly unreasonable” and “involved an element of delinquency” (reply submissions, para 21).
Mr Kearney submits that a dispensation from UCPR r 7.14(2) was necessary, in light of the evidence that Mr Kearney’s mental health would be injured by dealing with lawyers, and because of his lack of funds. He says that “Retaining lawyers was both a physical and mental impossibility”. Concerning the costs protection, Mr Kearney elaborates the position as follows (references to “the SRP” are references to himself):
40. … the respondents were acutely aware that the SRP applicant lacked the financial resources to retain lawyers,
41. That position is corroborated by the most recent bank statements provided to the Court. It was plainly apparent that the respondents should have consented to dispensation from UCPR 7.14(2), particularly in the absence of any counter-medical evidence. The respondents’ reoccurring motive was clear as follows:
a) To force a position knowing the SRP applicant could not afford to retain lawyers, effectively winning proceedings by this method.
/To force more avoidable litigation This factually occurred
b) To inflict more psychiatric harm on the SRP applicant. This factually occurred.
42. Cost protection for the tutor also held strong prospects. There was no person willing to be the tutor without costs protection. The seriously arguable appeal proceedings therefore would have been wrongfully stifled without such order. … The “principles” of Smith v NRMA Insurance Limited [2016] NSWCA 250 align with this case as to the improper “stifling” of proceedings without a protective cost order. In any event this issue could have been resolved in 1-2 hours hearing if required.
43. Accordingly, the SRP applicant cannot be liable to pay any costs on this ground.
Turning to the respondent’s application for indemnity costs, they submit that:
the tutor motion would have been entirely unnecessary had a tutor been appointed extracurially without dispensation from the requirement to act through lawyers and without a complete indemnity;
Mr Kearney’s conduct prior to the first hearing increased the time and costs associated with the motion;
the resumed hearing on 18 May was entirely unnecessary, because Mr Kearney gave no prior indication that he would not press his motion;
the respondents should receive their costs thrown away by reason of the adjournment granted to Mr Kearney on 9 April 2026.
I deal first with Mr Kearney’s submissions. Despite their length, it is straightforward to explain why I am unpersuaded that anything he has put warrants a departure from the default position that costs follow the event.
First, Mr Kearney filed his motion, seeking the appointment of a tutor subject to conditions that the Court and only the Court could make, and prosecuted it over some three separate days of hearing. It was his conduct, not the conduct of the respondents, which meant that the motion took longer than a day. The transcript of the hearing of 23 February 2026 records that the large majority of time was occupied by his submissions (the cross-examination of Mr Hancock occupied pages 65-70, and the respondents’ closing submissions occupied pages 102-115, but the large majority of a transcript of 117 pages was occupied by Mr Kearney).
Not only was the court time on Mr Kearney’s motion largely attributable to him rather than the respondents, it was Mr Kearney who chose to bring it, and then to cease to press it.
It is true that the respondents sought to tender a large volume of material through the affidavit of their solicitor, Mr Price. But that did not alter the result that in large measure it was Mr Kearney whose conduct led to the hearing extending into a second and third day.
Secondly, I reject the submission that the respondents’ conduct was “plainly unreasonable” or involved “an element of delinquency”. The submission is an awkward one, where the respondents’ conduct was to oppose an application which Mr Kearney himself ultimately abandoned. It is a submission which could not be made without the respondents having an opportunity to respond. It could have been put to Mr Price in cross-examination, an opportunity which I granted to Mr Kearney over the respondents’ opposition, but which he chose (immediately after the lunch adjournment on 23 February 2026) not to take up.
Thirdly, in ordinary circumstances, the Court would not express a view on the merits of a motion which has been abandoned in order to exercise a costs discretion. But these are not ordinary circumstances. I do not think I could accede to Mr Kearney’s application that he obtain a favourable costs order for the motion which he abandoned without at least considering whether there was a real prospect that he might have obtained the order he sought had he not abandoned his application.
In doing so, I am conscious that I have not heard Mr Kearney in full. However, I have heard him, orally and in writing at length, and the issues sufficient to resolve the motion are quite straightforward.
I am comfortably satisfied that, had they been pressed, I would not have made orders that Mr Hancock be appointed tutor on the condition upon which Mr Kearney insisted, namely, that he be permitted to appear in person, without a solicitor. Such a course is without precedent. It would not facilitate the just, quick and cheap resolution of the real issues between the parties. It would do the opposite of that. It is apt to cause delay, and additional expense to the respondents, and there is no reason to think that the attention which is patently desirable to the real issues, rather than multiplying grounds of appeal, will occur. None of that is intended as a criticism of Mr Hancock.
Any judgment should comprehensively record the parties’ medical evidence and authorities relied upon in real-time, together with the SRP applicant’s various hospital admissions and the parties’ respective circumstances.
Mr Kearney has filed voluminous material in support of his submissions as to costs. The submissions in chief are 75 paragraphs, those in reply are 121 paragraphs. But I apprehend that Mr Kearney seeks for the Court’s reasons on costs to record the evidence on the hearing, as it developed from month to month. There are thousands of pages of documentary evidence. The only issue before the Court is whether either side has made out a proper basis to depart from UCPR r 42.1. There is no obligation to “comprehensively” record the submissions and evidence, and all that matters is the preponderance of psychiatric evidence which favoured the conclusion, until quite recently, that Mr Kearney was incapable, and the timing of his admissions which caused the adjournment of the hearing. Those matters have been sufficiently summarised above.
Turning to the indemnity costs sought by the respondents, I accept all four of the points made by them. However, I am not satisfied that either individually or collectively they warrant an indemnity costs order.
If I were satisfied that Mr Kearney had deliberately inflicted delay and costs upon the respondents – for example, by bringing about the situation that the hearing was delayed by his being admitted into the Sydney Clinic – then I would have been minded to order indemnity costs. True it is that the timing of Mr Kearney’s admissions to The Sydney Clinic, almost immediately before the adjourned dates, is curious. But no application was made to cross-examine him on that basis, or to object to the further medical evidence on which he relies. Such a finding would be a serious one, not lightly to be made, and subject to s 140 of the Evidence Act 1995 (NSW) and the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
I agree that Mr Kearney’s conduct in prosecuting his motion increased the time consumed, including his tender of voluminous materials, his application for an adjournment in April 2026 and his failure to advise in advance of the hearing on 18 May 2026 that he was not pressing his motion. I do not think those matters, either individually or collectively, warrant an indemnity costs order. I am conscious that there would have been a need for a hearing on 18 May because the dismissal of the motion had consequences for the stay of execution of the judgment of the primary judge, and the respondents only belatedly consented to that stay being extended.
For those reasons, neither side’s submissions have persuaded me that I should depart from the usual order reflected in UCPR r 42.1.
The respondents’ costs of the applications for costs are relatively small, but are in a different position from the costs of their opposition to the motion. The respondents successfully opposed Mr Kearney’s application for a favourable costs order, but have failed in their own application for indemnity costs. I think a just outcome is that Mr Kearney pay half of the respondents’ costs of the application for costs.
1. Subject to order 2, Mr Kearney pay the respondents’ costs of paragraphs 4-8 of his further amended notice of motion filed 4 November 2025.
2. Insofar as the respondents incurred costs in making submissions as to the costs of paragraphs 4-8 of the further amended notice of motion filed 4 November 2025, Mr Kearney is to pay one half of those costs.
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Kearney
Amirbeaggi (No 2)
[1938] HCA 34
(1938) 60 CLR 336
(2002) 209 CLR 478
(2009) 76 NSWLR 148
Mr Kearney was ordered to pay the respondents’ costs of paragraphs 4–8 of his further amended notice of motion filed 4 November 2025. For the respondents’ costs of making submissions about those costs, he was ordered to pay one half. The respondents’ request for indemnity costs was not accepted.
More recently, after receiving the parties’ submissions on costs, I have noticed that, according to the JusticeLink records, Mr Kearney has filed an amended document articulating the appeal he wishes to bring. That document is not before me and plays no part in the exercise of the costs discretion (to be clear, I have seen that such a document has been filed, but I have not in fact seen the document).
Throughout the period from February until May 2026 when this matter came before me, the position was that Mr Kearney had not formally amended his application for leave in this Court to challenge the dismissal of his proceedings at first instance, but foreshadowed doing so.
Like any other litigant, Mr Kearney is subject to the obligation, which is imposed directly upon him personally, to assist this Court to facilitate the just, cheap and quick resolution of the real issues in the proceedings: Civil Procedure Act 2005 (NSW), s 56(1), (3). The real issues in the proceedings are whether this Court should set aside some or all of the orders made by Fagan J. It is likely that the resolution of those issues occupy much less time, and many fewer pages, than Mr Kearney’s own application for a tutor to be appointed. Considerably more than 1,500 pages was sought to be tendered by Mr Kearney in support of his application.
There was some expert evidence adduced by the respondents, which need not be summarised in light of the dismissal of the motion, save to note (in light of Mr Kearney’s submissions) that his expert evidence was largely unchallenged. The respondents tendered a video posted by Mr Kearney, and Mr Kearney in response sought to tender a number of other videos. Their content need not be summarised in these reasons. Both sides sought to use the video evidence to support their cases that Mr Kearney was, or was not, incapable so as to warrant the appointment of a tutor. In the end, Mr Kearney abandoned his motion before the tender of the balance of the video evidence occurred.
I bear in mind that Mr Kearney has been able to file summonses, draft notices of appeal and notices of motion, to serve evidence which is voluminous, to draft lengthy submissions and to advance his case orally. What is more, the evidence relied upon by Mr Kearney is that in addition to his own litigation, he has been involved in litigation for other parties, and has been paid many thousands of dollars for doing so, over a number of years.
There is nothing to support the proposition that Mr Hancock would, if given control of this litigation as Mr Kearney’s tutor, do a better job on behalf of Mr Kearney than Mr Kearney has hitherto been able to do himself. To be quite clear, I reiterate that none of the above is in any way intended as a criticism of Mr Hancock.
For similar reasons, I would not have made a costs immunisation order in the event that a tutor was appointed. There is power to make such an order, as Gleeson JA explained in Smith v NRMA Insurance Ltd at [29]-[36]. However, they are rare. Smith was an unusual case, and it was a case where the tutor was an independent solicitor experienced in the class of litigation (personal injury) in that appeal. They are sometimes made in so-called “public interest” litigation, but that is not this case. This is private litigation, brought by Mr Kearney to obtain a judgment in his favour for loss he claims to have suffered. He does not act in some broader public interest. The liability of an unsuccessful party in civil litigation to pay a part of the successful party’s costs is a salutary incentive not to incur costs unnecessarily. Especially given Mr Kearney’s demonstrated capacity to focus on minutiae rather than the essential aspects of his claim, there is no basis to release him or his tutor from the ordinary consequences of the rules.
Because Mr Kearney made it clear that the costs dispensation and the waiver of the tutor’s obligation to retain a solicitor were essential aspects of his application, the result is that paragraphs 4-8 of his motion would have been dismissed had he not abandoned them.
Those considerations strengthen my conclusion that Mr Kearney should not obtain a costs order in his favour.
I do not express a view on whether I would have found that Mr Kearney required a tutor. On 23 February 2026, Mr Kearney contended that he did, and the respondents contended that he did not. I have not heard either party on that issue in light of the evidence which was obtained after 23 February, which pointed in both directions (for at first Mr Kearney’s mental condition was such that he was admitted and re-admitted to a clinic but most recently he maintains he is capable of acting without a tutor). A great deal of Mr Kearney’s submissions on the question of costs are directed to addressing the position “in real time”, by which I infer that he means as the evidence and his own psychiatric condition unfolded. I agree with him that the position is nuanced, and it is also affected by what was said by Fagan J in Kearney v Amirbeaggi [2025] NSWSC 455 at [60], on which Mr Kearney relies, where the trial judge expressed a view that a tutor was appropriate.
Let it be assumed, favourably to Mr Kearney, that at least part of the costs incurred by the respondent are not his fault, in the sense that the adjournments were brought about by events beyond his control resulting in his admission to The Sydney Clinic, or even that it is a consequence of the stresses of litigation brought about by the respondents’ opposition to the motion. Even if that were the case, that does not stand in the way of the conclusion that in substance it was his own motion that was the cause of the incurring of costs. It was the choices made by Mr Kearney which prevented his motion not being determined in a single day.
All this tells against any departure from the ordinary course that the costs of an unsuccessful application should be borne by the applicant.
Finally, I should note for completeness that I do not accept the submission in paragraph 121 of Mr Kearney’s submissions in reply. The submission is as follows:
Accordingly, I shall order that: