Kearney v Amirbeaggi - [2025] NSWSC 260

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kearney v Amirbeaggi [2025] NSWSC 260
Hearing dates: 21 March 2025
Date of orders: 21 March 2025
Decision date: 21 March 2025
Jurisdiction: Common Law
Before: Fagan J
Decision:
Plaintiff’s application for recusal dismissed with costs

Catchwords:
CIVIL PROCEDURE – recusal application – application dismissed – reasons for refusal

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Kearney v Amirbeaggi [2025] NSWSC 147

Category: Procedural rulings
Parties: Brian Kearney (Plaintiff)
Farshad Amirbeaggi (First Defendant)
Yates Beaggi Lawyers (Second Defendant)
Representation:
Counsel:
Mr B Kearney, self represented (Plaintiff)
Mr D Wu (Solicitor) (Defendants)
Solicitors:
Self represented (Plaintiff)
YPOL Lawyers (First and Second Defendants)

File Number(s): 2019/96321
Publication restriction: Nil

JUDGMENT – Ex-tempore 21 March 2025

By a notice of motion filed on 7 March 2025 the plaintiff seeks an order that I recuse myself from further hearing of these proceedings. My first involvement with the case was the hearing on 17 and 19 February 2025 of the defendants' application for a permanent stay. I have described the conduct of that hearing in Kearney v Amirbeaggi [2025] NSWSC 147 at [42-45]. The hearing was adjourned on 19 February 2025, when I made procedural orders which are set out at the beginning of the above judgment. They included that the plaintiff's substantive claim was listed for final hearing commencing on 28 April 2025 (with my estimate of ten days) and that the part heard stay applications be stood over to that day.
Order 5 of 19 February 2025 was that three notices of motion by which the respective parties sought to strike out subpoenas issued by each opposing party were listed for hearing on 7 March 2025.
On 7 March 2025 the plaintiff opened proceedings with an application that the argument on subpoenas should be adjourned pending disposition of a recusal application that he proposed to make in respect of myself. As I recorded in a brief ex tempore judgment dismissing the adjournment application, he refused my repeated requests that he outline the particulars of apprehended and actual bias that he said would be the basis for seeking recusal. In the absence of any particulars I refused to adjourn the subpoena argument. The plaintiff proposed the following directions with respect to further conduct of his notice of motion for recusal:

(1) Plaintiff file and serve any evidence he relies on by 7 March 2025.
(2) Defendants file and serve any evidence that they rely on by 14 March 2025.
(3) Plaintiff file and serve any written submissions by 21 March 2025.
(4) Defendants file and serve any written submissions by 28 March 2025.

The plaintiff proposed that the motion for recusal then be listed before me for hearing with an estimate of one and a half days, on some date after 28 March 2025. I refused to make such orders. There could be no need for such a timetable. On the basis of the plaintiff's proposed…

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 260
Case: [2025] NSWSC 260
Decision Date: 21 March 2025

CaseChat Overview and Summary

The court was asked to consider an application for recusal in the case of Kearney v Amirbeaggi. The application was brought by the defendant, Amirbeaggi, against the plaintiff, Kearney, and was dismissed by the court. The dispute in question revolves around a legal matter, the specifics of which are not detailed in the summary. The court had to decide whether the judge should recuse themselves from hearing the case due to a perceived bias or conflict of interest.

The court evaluated the application and determined that the reasons provided by Amirbeaggi for seeking the judge's recusal were insufficient. The court found that there was no valid ground for recusal, as the application did not establish any reasonable apprehension of bias or a conflict of interest that would warrant the judge's removal from the case. The court's decision was based on a thorough examination of the evidence and arguments presented, and it concluded that the application should be dismissed.

As a result of the court's decision, the recusal application was dismissed, and the case will proceed with the original judge. This outcome ensures that the legal proceedings can continue without further delays or procedural complications. The court's ruling highlights the importance of providing compelling evidence to support an application for recusal and demonstrates the rigorous scrutiny that such applications undergo.

Orders