Kearney v Amirbeaggi - [2022] NSWCA 130

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi [2022] NSWCA 130
Hearing dates: 27 June 2022; 20 July 2022
Date of orders: 20 July 2022
Decision date: 20 July 2022
Before: Brereton JA
Decision:
(1) Grant leave to the applicant to amend the summons for leave to appeal, by adding a claim for leave to appeal from the orders of the Common Law Division made on 10 June 2022;
(2) Order that the amended application for leave to appeal be adjourned to 31 October 2022;
(3) Stay the proceedings in the Common Law Division pending the hearing of the application for leave to appeal.

Catchwords:
APPEALS – Leave to appeal – Appeal against multiple interlocutory orders, relevantly including an order declining to adjourn proceedings after applicant sought and was granted expedition – Where new psychiatric evidence suggests continuance of proceedings would adversely impact applicant’s mental health – Appellate court may interfere with case management decision of trial judge to prevent possible miscarriage of justice – In interests of justice, proceedings below stayed pending hearing of application for leave to appeal; hearing of application for leave to appeal adjourned

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 64(3)
Supreme Court Act 1970 (NSW), s 46(2)(b).
Supreme Court Rules 1970, Pt 51, r 10
Uniform Civil Procedure Rules 2005 (NSW), r 51.44

Cases Cited:
Kearney v Amirbeaggi [2020] NSWSC 1035
Kearney v Amirbeaggi [2022] NSWSC 130
Kearney v Amirbeaggi [2022] NSWSC 805
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674

Category: Principal judgment
Parties: Brian Raymond Kearney (Applicant)
Farshad Amirbeaggi (First Respondent)
ACN 111 804 383 Pty Limited (formerly Yates Beaggi Lawyers Pty Ltd) trading as Yates Beaggi Lawyers (Second Respondent)
Representation:
Counsel:
Mr B R Kearney, in person (Applicant)

Ms F T Roughley (Respondents 27.06.2022)
Ms M Hamdan (Respondents 20.07.2022)
Solicitors:
YPOL Lawyers (Respondents)

File Number(s): 2022/059224;
2022/100066
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2022] NSWSC 130;
[2022] NSWSC 805.

Date of Decision:

10 June 2022

Before:

Beech-Jones CJ at CL

File Number(s):

2019/96321;

Judgment

This application for leave to appeal comes before me upon referral from the Registrar for the applicant to show cause why the proceedings should not be dismissed for want of due despatch. The applicant Brian Kearney is the plaintiff in proceedings in the Common Law Division against the respondents Farshad Amirbeaggi and ACN 111 804 383 Pty Limited (formerly Yates Beaggi Lawyers Pty Ltd) trading as Yates Beaggi Lawyers, in which he sues lawyers who had acted for him in an earlier commercial dispute, for damages for professional negligence. To the extent necessary, the substance of Mr Kearney’s claim is explained by Ierace J in a judgment declining to dismiss it as an abuse of process.^[1]
1. Kearney v Amirbeaggi [2020] NSWSC 1035.

Background

In the proceedings below, Mr Kearney on or about 28 June 2021 filed a Notice of Motion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kearney v Amirbeaggi

Details

AGLC: Kearney v Amirbeaggi [2022] NSWCA 130
Case: [2022] NSWCA 130
Decision Date: 20 July 2022

CaseChat Overview and Summary

The applicant, Kearney, sought leave to appeal against interlocutory orders made in the Common Law Division, including an order refusing to adjourn proceedings. The dispute arose when new psychiatric evidence emerged suggesting that continuing the proceedings would adversely impact the applicant's mental health.

The primary legal issue before the appellate court was whether it should interfere with the trial judge's case management decision to refuse an adjournment, particularly in light of the new psychiatric evidence. This involved considering whether the refusal to adjourn risked a miscarriage of justice and whether a stay of proceedings was warranted pending the determination of the application for leave to appeal.

Brereton JA determined that an appellate court may intervene in a case management decision of a trial judge if it is necessary to prevent a possible miscarriage of justice. Applying this principle, and considering the interests of justice, the court granted leave to amend the summons to include an appeal from the orders of 10 June 2022, adjourned the hearing of the application for leave to appeal, and ordered a stay of the proceedings in the Common Law Division until that hearing.

Orders

Orders of the court

(1) Grant leave to the applicant to amend the summons for leave to appeal, by adding a claim for leave to appeal from the orders of the Common Law Division made on 10 June 2022;

(2) Order that the amended application for leave to appeal be adjourned to 31 October 2022;

(3) Stay the proceedings in the Common Law Division pending the hearing of the application for leave to appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kearney v Amirbeaggi [2022] NSWCA 130
Hearing dates:	27 June 2022; 20 July 2022
Date of orders:	20 July 2022
Decision date:	20 July 2022
Before:	Brereton JA
Decision:	(1) Grant leave to the applicant to amend the summons for leave to appeal, by adding a claim for leave to appeal from the orders of the Common Law Division made on 10 June 2022; (2) Order that the amended application for leave to appeal be adjourned to 31 October 2022; (3) Stay the proceedings in the Common Law Division pending the hearing of the application for leave to appeal.
Catchwords:	APPEALS – Leave to appeal – Appeal against multiple interlocutory orders, relevantly including an order declining to adjourn proceedings after applicant sought and was granted expedition – Where new psychiatric evidence suggests continuance of proceedings would adversely impact applicant’s mental health – Appellate court may interfere with case management decision of trial judge to prevent possible miscarriage of justice – In interests of justice, proceedings below stayed pending hearing of application for leave to appeal; hearing of application for leave to appeal adjourned
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 64(3) Supreme Court Act 1970 (NSW), s 46(2)(b). Supreme Court Rules 1970, Pt 51, r 10 Uniform Civil Procedure Rules 2005 (NSW), r 51.44
Cases Cited:	Kearney v Amirbeaggi [2020] NSWSC 1035 Kearney v Amirbeaggi [2022] NSWSC 130 Kearney v Amirbeaggi [2022] NSWSC 805 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674
Category:	Principal judgment
Parties:	Brian Raymond Kearney (Applicant) Farshad Amirbeaggi (First Respondent) ACN 111 804 383 Pty Limited (formerly Yates Beaggi Lawyers Pty Ltd) trading as Yates Beaggi Lawyers (Second Respondent)
Representation:	Counsel: Mr B R Kearney, in person (Applicant) Ms F T Roughley (Respondents 27.06.2022) Ms M Hamdan (Respondents 20.07.2022) Solicitors: YPOL Lawyers (Respondents)
File Number(s):	2022/059224; 2022/100066
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2022] NSWSC 130; [2022] NSWSC 805. Date of Decision: 10 June 2022 Before: Beech-Jones CJ at CL File Number(s): 2019/96321;