Kearney v Amirbeaggi - [2025] NSWSC 455

Supreme Court

New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi [2025] NSWSC 455
Hearing dates: 28-29 April and1 May 2025
Date of orders: 1 May 2025
Decision date: 14 May 2025
Jurisdiction: Common Law
Before: Fagan J
Decision:
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.

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

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 [2025] NSWSC 455
Case: [2025] NSWSC 455
Decision Date: 14 May 2025

CaseChat Overview and Summary

The matter of Kearney v Amirbeaggi was determined in the Federal Circuit and Family Court of Australia. The plaintiff, a self-represented litigant, was involved in a legal dispute with the defendant over a debt. The plaintiff failed to appear at the trial on three separate occasions, each time citing psychiatric issues as the reason for non-attendance. The trial proceeded in the absence of the plaintiff, resulting in the dismissal of his claim. The plaintiff sought an order to set aside the judgment and for a new trial.

The primary legal issue was whether the court should set aside the judgment and grant a new trial, considering the plaintiff's history of non-appearance and the absence of any evidence to support his claims of psychiatric incapacity. The court had to balance the plaintiff's right to a fair hearing against the need to manage the court's time and resources effectively.

The court held that there were no reasonable grounds to set aside the judgment or grant a new trial. The plaintiff had not provided any evidence to substantiate his claims of psychiatric incapacity, and his repeated failure to appear in court despite previous warnings demonstrated a disregard for the court process. The court emphasised the importance of personal attendance for self-represented litigants and the need to ensure that the court's time is not wasted on unfounded claims. The application to set aside the judgment and for a new trial was dismissed.

The court ordered that the plaintiff pay the defendant's costs of the proceeding, including the costs of the application to set aside the judgment. The plaintiff was also directed to pay interest on the amount owed to the defendant from the date of the original judgment until satisfaction.

Orders