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The tutor application was part-heard. Its hearing on 23 February had not finished within the time allocated. The application sought a tutor on unusual conditions, including dispensing with the usual obligation for the tutor to act through a lawyer and obtain an immunising costs order. The Court did not explain the background to those conditions in detail, and it did not decide the merits of the tutor application in this ruling. [1]

The matter had first been adjourned to 3 March, a date chosen to suit Kearney. That hearing was vacated after he entered The Sydney Clinic Bronte shortly before the date. The Court then offered further dates, including 8 or 9 April. Kearney selected 2.15pm on 9 April, with an afternoon start having been provided for his stated travel convenience because he lived outside Sydney. [2]

The immediate adjournment request arose after Kearney was admitted to the clinic at 1pm on 9 April. An email on 7 April had advised that an earlier place was available and that he was provisionally confirmed for admission at that time. He appeared at the hearing by audio visual link from the clinic. [3]-[5] Kearney sought to move the continued hearing until after 14 May. [6]

The respondents opposed the request. They relied on what the judge described as an unsatisfactory procedural history, including adjournment applications brought close to hearing dates. They also argued that there was no evidence that Kearney’s ability to prosecute the application would be better at a later time. They pointed out that Mr Hancock, whom Kearney had nominated as his tutor, might be able to assist him at the clinic, but there was no evidence from Hancock explaining why he could not do so. [6]-[8]

Kearney responded that he had not understood that Hancock might be permitted to assist, and referred to practical communication and preparation difficulties. The judge noted the absence of evidence but was prepared to proceed on those matters because they had arisen during submissions and seemed inherently probable. [9]

The Court granted an adjournment, fixing the continued hearing for 12pm on 18 May 2026. It also set out what could happen if the hearing did not proceed on that date. The Court dismissed the separate informal request for the respondents’ total legal fees and reserved the question of the respondents’ costs of the adjournment application. [20], [22]

Why the court decided this way

The central stated reason for granting the adjournment was the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW). Leeming JA described the relevant objective as the “practical, just, quick and cheap resolution” of the application. He emphasised that the Court, like the parties and the respondents’ lawyers, was bound to do what it could to facilitate that purpose in a procedural application. [12]

The ruling did not treat the history of adjournments as irrelevant. The respondents’ concern about delay was directly acknowledged, and the judge identified the risk of further adjournments as an important point. Kearney accepted that the hearing could not be adjourned indefinitely and proposed a regime that would, in effect, prevent further adjournments. The judge declined to impose that absolute limit, reasoning that unforeseen circumstances could prevent the hearing from being completed on a later date. A serious motor vehicle accident was given as an example. [10]-[11]

The more decisive consideration was the relationship between the present tutor application and the underlying appeal. The underlying appeal concerned a decision to proceed with a hearing while Kearney was in an institution for mental health reasons. The tutor application was itself based on his alleged lack of capacity. Leeming JA considered that he ought to be “especially careful” not to proceed with the part-heard tutor application on a similar basis when Kearney was again in an institution and his medical advice recommended against participating in legal activities. [12]-[13]

The judge also took account of the likely practical consequence of refusing the adjournment. He considered it likely that Kearney would seek review before a three-Judge Court of Appeal, arguing that the tutor application had been resolved while he was unable to appear in person. This was part of the judge’s assessment of what would best facilitate the overriding purpose, rather than a prediction about whether review would succeed. [12]

Leeming JA characterised the result as exceptional. He stated that ordinarily such an adjournment would not be granted, but concluded that Kearney should have “one further opportunity” in the highly unusual circumstances. The judge also accepted that the application was very important to Kearney and considered the overall delay limited in context. [14]-[15] The decision therefore balances the stated procedural history against the particular circumstances on the hearing date and the subject matter of the application.

The legal-fees request was treated separately. Kearney sought an order requiring the respondents to provide the total invoiced amounts for solicitors’ and barristers’ fees incurred in the Common Law proceedings between 27 March 2019 and 17 October 2025. [16] The judge noted that the costs order made by Fagan J on 17 October 2025 was a gross sum order for $369,432, while acknowledging that total costs incurred might be higher. [17]-[18]

The judge distinguished between the gross sum costs order, assessable costs, and the actual costs charged, including disbursements. He considered none of those amounts materially relevant to the issues before him. The importance of the appeal and tutor application did not depend on how many hundreds of thousands of dollars turned on the appeal. [18] He also considered that a mandatory order was likely to generate further disputation, expense and delay “to no useful end”. [19] The request was therefore dismissed. [20]

Before and after state of the law

The judgment identifies s 56 of the Civil Procedure Act 2005 (NSW) as the statutory source relevant to the adjournment reasoning. It describes the Court’s obligation in a procedural application as doing what it can to facilitate the practical, just, quick and cheap resolution of the application. [12] The ruling does not set out the text of s 56 or analyse its legislative history.

The decision does not purport to establish a general new rule that admission to a clinic, or an asserted inability to participate, will require an adjournment. It expressly says that ordinarily no such adjournment would be granted, and places the result in the “highly unusual circumstances” of this case. [14] Those circumstances included the connection between the underlying appeal and the circumstances in which the tutor application was being heard, as well as the likely consequences of refusing an adjournment. [12]-[14]

The ruling also does not determine the legal criteria for appointing a tutor, the evidence required to establish incapacity, or the conditions on which a tutor may be appointed. Those matters remained before the Court. Nor does the judgment articulate a general rule governing disclosure of an opponent’s total legal fees. It rejects the requested order on the basis given in this case: the information was not materially relevant to the issues before the judge, and disclosure risked further expense and delay. [17]-[20]

Accordingly, the “before and after” significance that can be grounded in this judgment is limited. The ruling applies the overriding-purpose consideration to a particular adjournment application; it does not identify a previous conflicting rule or claim to alter settled law. Its practical contribution is its explanation of why the circumstances of this part-heard tutor application warranted a further hearing date despite the procedural history.

Key passages with plain-English translation

At [12], Leeming JA said that the principal reason for granting the adjournment was his assessment of the “practical, just, quick and cheap resolution” of the application. In plain English, he approached the adjournment not only as a question of whether the listed hearing could technically continue, but also as a question of whether proceeding in those circumstances would help resolve the application fairly and efficiently.

At [13], the judge connected the tutor application to the underlying appeal. Because that appeal concerned a decision to proceed while Kearney was in an institution for mental health reasons, the judge considered it important to avoid proceeding in a similar way with the part-heard application alleging lack of capacity. This passage explains the case-specific significance of the clinic admission. It does not decide that a person in a clinic is necessarily unable to participate or that an adjournment must follow.

At [14], the judge stated: “Ordinarily, no such adjournment would be granted.” He then said that the unusual circumstances justified “one further opportunity” to complete preparation of the application. The words “ordinarily” and “highly unusual” are important qualifications. They indicate a confined ruling rather than an automatic entitlement to adjournment.

At [18]-[19], the judge explained why he would not order disclosure of total legal fees. He saw no material connection between those figures and the issues he had to determine. He also considered that a mandatory order could lead to more argument and expense without a useful result. In plain English, the Court did not consider the requested fee information necessary to decide the tutor application or the adjournment issue then before it.

The orders at [22] are also significant. If the 18 May hearing did not proceed, the parties could file and serve further submissions within seven days. An application for more hearing time had to be made by notice of motion and supporting affidavit by 25 May, explaining both why the hearing did not occur and why an oral hearing remained necessary despite the opportunity to file further submissions. The Court reserved the respondents’ costs of the adjournment application to the next occasion.

What fact patterns trigger this precedent

The ruling is most directly relevant to a procedural situation resembling its own: a part-heard application, a request for another adjournment, an applicant who is in a mental health clinic on the hearing date, and an underlying proceeding in which the circumstances of participation or capacity are themselves material. The judgment’s reasoning depends on the combination of those matters, not on clinic admission alone. [12]-[15]

Other features that shaped the decision included the stated importance of the tutor application to Kearney, his appearance by audio visual link, the advice that recommended against participation in legal activities, and the likelihood that refusal would prompt a review application concerning the fairness of proceeding in his absence. [5], [12]-[14] The judge also considered the limited overall delay in the scheme of the matter, while acknowledging the earlier procedural difficulties. [6], [10], [14]

The judgment itself cautions against treating the result as routine: “Ordinarily, no such adjournment would be granted.” [14] It does not establish that an applicant’s admission to a clinic, without more, requires an adjournment. It also does not decide what evidence is generally sufficient to establish incapacity or inability to participate. Indeed, the Court noted the lack of evidence from Mr Hancock and the lack of evidence supporting some of Kearney’s practical concerns, while deciding that those concerns were inherently probable in the circumstances of the submissions. [7]-[9]

For the fee-disclosure issue, the relevant fact pattern was a request for total legal fees in underlying proceedings when the judge considered those figures unrelated to the issues before him. The judgment does not establish a general right to, or prohibition on, obtaining such figures in other proceedings. [17]-[20]

How later courts have treated it

The supplied judgment contains no information about later judicial treatment. It was decided on 9 April 2026 and refers to no later cases. It would therefore be unsupported to say that a later court has followed, distinguished, approved or otherwise applied this ruling.

The judgment does refer to Fagan J’s gross sum costs order in the Common Law Division, citing Kearney v Amirbeaggi [2025] NSWSC 1223. [17] That reference identifies the earlier costs order and its amount, $369,432. It is not a discussion of that decision as a precedent for the adjournment or fee-disclosure questions.

The ruling’s own account of its scope is the safest guide to its likely significance: it describes the adjournment as appropriate in “the highly unusual circumstances of this case” and says that ordinarily no such adjournment would be granted. [14] Any broader account of how later courts have treated the decision requires material beyond the judgment supplied here.

Still-open questions

The Court did not decide the application for appointment of a tutor. It adjourned the hearing of paragraphs 4-8 of the further amended notice of motion, leaving the substantive question of appointment and the unusual conditions sought for later determination. [1], [22] The judgment therefore leaves open what evidence and submissions would ultimately support or oppose appointment, and how the Court would address the requested conditions.

The Court also did not resolve the parties’ disagreement about how much hearing time remained. The respondents said little remained, while Kearney said a further three hours was required. Leeming JA considered it unnecessary and inappropriate to resolve that debate while the submissions were focused on the adjournment. [8] The directions address what might happen if the next hearing date did not proceed, but do not settle the amount of time required.

The ruling does not specify what medical material or other evidence would be required at the eventual tutor hearing. It records that medical advice recommended against participation in legal activities, but does not reproduce or assess that advice in detail. [12] It also does not determine whether Mr Hancock could act as tutor or assist Kearney in the manner discussed by the respondents. [7]-[9]

Finally, the question of the respondents’ costs of the adjournment application was reserved to the next occasion. [22] The Court did not decide whether any such costs should be awarded or in what amount. The potential for the 18 May hearing not to proceed was also addressed conditionally, rather than resolved: the orders provided a process for further submissions and a possible application for more hearing time, with reasons to be supplied. [22]

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.