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Kearney v Amirbeaggi

Kearney v Amirbeaggi

Case [2020] NSWSC 1035 6 August 2020

Abuse of Process

Pleadings

Striking Out

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi [2020] NSWSC 1035
Hearing dates: 19 and 21 August 2019; further written submissions received 1 and 8 October 2019
Decision date: 06 August 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) The defendants’ notice of motion filed on 20 June 2019 is dismissed.
(2) No order as to costs.
(3) Any remaining issues in respect of the production of documents by the second defendant to the plaintiff be referred to the Registrar’s list on 17 August 2020 for directions.

Catchwords:
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — whether proceedings are an abuse of process – whether plaintiff seeks to re-litigate issues decided in earlier proceedings in this Court
CIVIL PROCEDURE — pleadings — form and content of pleading — defects — striking out the amended statement of claim — whether no reasonable cause of action or defence disclosed

Legislation Cited:
Corporations Act 2001 (Cth)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
In the matter of Optimisation Australia Pty Limited (2018) 362 ALR 374; [2018] NSWSC 31
In the matter of Optimisation Australia Pty Limited [2014] NSWSC 275
In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
Jones v Bradley (No 2) [2003] NSWCA 258
Rippon v Chilcotin Pty Limited (2001) 53 NSWLR 198; [2001] NSWCA 142
Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28

Category: Procedural and other rulings
Parties: Brian Kearney (Plaintiff)
Farshad Amirbeaggi (First Defendant)
ACN 111 804 383 Pty Ltd t/as Yates Beaggi Lawyers (Second Defendant)
Representation:
Counsel:
In person (Plaintiff)
F Roughley (First and Second Defendant)
Solicitors:
YPOL Lawyers (First and Second Defendant)

File Number(s): 2019/96321

Judgment

HIS HONOUR: On 20 June 2019, the first and second defendants, Farshad Amirbeaggi and ACN 111 804 383 Pty Ltd trading as Yates Beaggi Lawyers, filed a notice of motion seeking orders that proceedings initiated by the plaintiff, Brian Kearney, by an amended statement of claim filed 17 April 2019, be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), or alternatively, that the amended statement of claim be struck out pursuant to r 14.28 of the UCPR.
The matter was also listed before me to resolve an issue that had been requested by the plaintiff, relating to the production of documents by the second defendant. I understand that there are, effectively, two aspects to that request, being production sought by the plaintiff in order to rebut the defendants’ application in the motion and, if the motion is unsuccessful, production for the purpose of the continuing proceedings. I note that the first purpose was satisfied…

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 [2020] NSWSC 1035
Case: [2020] NSWSC 1035
Decision Date: 06 August 2020

CaseChat Overview and Summary

The case involved the plaintiff, Mr Kearney, suing the defendant, Mr Amirbeaggi, in the Federal Circuit and Family Court of Australia. The dispute related to claims of breach of contract and defamation. The court was tasked with considering whether the proceedings should be summarily dismissed due to being an abuse of process, and if the amended statement of claim disclosed no reasonable cause of action or defence.

The primary legal issues the court needed to address were whether the proceedings constituted an abuse of process, specifically if the plaintiff was attempting to re-litigate issues already decided in the same court, and whether the amended statement of claim disclosed any reasonable cause of action or defence. The court had to determine if the plaintiff's claims were essentially the same as those previously decided and dismissed, and if the new claims were substantially different or merely a repackaging of the old ones.

The court found that the proceedings were indeed an abuse of process, as the plaintiff was essentially attempting to re-litigate the same issues that had already been decided in a previous proceeding. The court held that the plaintiff's amended statement of claim did not disclose any reasonable cause of action or defence, as the claims were not substantially different from those previously dismissed. Consequently, the court dismissed the proceedings and struck out the amended statement of claim.

The court ordered that the proceedings be dismissed with costs. It also directed that the plaintiff pay the defendant's costs of the application, including the costs of two counsel, to be taxed on an indemnity basis if not agreed upon.

Orders