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

1. 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.

2. 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.

3. 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.

4. 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 order 1, he indicated that his evidence in support of recusal would be ready that day, 7 March. I ordered that the recusal application be listed for hearing on 21 March 2025 and I allowed the plaintiff up to 13 March 2025 (six days) to file any further evidence in support and up to 20 March 2025 for him to file written submissions.

5. By email to my associate on 13 March 2025 the plaintiff sought extension of time for affidavits out to 24 March 2025, and an extension for his submissions to 31 March 2025. He sought adjournment of the date for hearing the recusal application to sometime in April 2025. By that email the plaintiff asked that the proceedings be re-listed on 17 or 18 March 2025 for mention. The associate informed the plaintiff by return email of my position that none of the proposed variations to the existing orders would be made and that the proceedings would not be re-listed for mention.

6. On 20 March 2025 the plaintiff emailed to my associate 90 pages of written submissions with 376 pages of attached documents. He also sent by email an affidavit sworn by himself on 19 March 2025, which refers to 29 annexures as listed in a table said to comprise 4,874 pages. The annexures were not actually attached. However, all the documents referred to are items that are already on the Court file or within my associate's email records, with the exception of a few items. The items that I have not been able to locate are as follows:

F   an email from the plaintiff to the defendants' lawyers and Dr Grace of 16 February 2025 said to be copied to my chambers but not in fact received;

G   an email of 17 February 2025 from the defendants' solicitor to the plaintiff concerning courtroom 11C;

P   an email from the plaintiff to the defendants' solicitor dated 26 February 2025 regarding a white folder for the Court of Appeal;

BB   medical records of Sutherland Hospital mental health division;

CC   medical records of Gosford Hospital mental division.

7. I have not been able to examine those documents because they were neither attached with the affidavit as emailed nor otherwise within the Court's holdings. However, from the descriptions of the missing items it is apparent that they would be of no materiality to the recusal application which I am now called upon to determine. On the hearing of the application today the plaintiff indicated that he wished to rely upon the affidavit of 19 March 2025. He also relied upon an affidavit of 13 February 2025 which has 51 annexures covering 1,918 pages.

8. He also relied upon an affidavit of David Barbato sworn 10 March 2025. Mr Barbato describes himself as a videographer and teacher. Having reviewed some psychological and psychiatric reports concerning the plaintiff, some correspondence between the plaintiff and my associate, and some transcripts of proceedings on 17 and 19 February 2025, Mr Barbato has deposed at paragraph 9:

I certainly would reasonably apprehend that Fagan J might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide in these proceedings.

9. The test of apprehended bias is objective and Mr Barbato's opinion is irrelevant. I will therefore disregard it. In any event, it is not shown that Mr Barbato is reasonably informed about the course of the proceedings, or about the basis of my rulings in the matter, or the procedural rules and grounds for exercise of my discretions in performing my judicial duties in the case during the limited involvement I have had with it to date.

10. In addition to the submissions, annexures and affidavits that I have referred to thus far, the plaintiff also stated in the hearing on 7 March 2025 that he relied upon submissions dated 6 March 2025 comprising 12 pages with a subpoena annexed. I have read those submissions but I do not find that they have any relevance to the recusal application dealt with today.

11. I have received the plaintiff's evidence and annexures on the basis that I would consider such of it as I can identify as being relevant in light of the plaintiff's written and oral submissions. A very small proportion of the material tendered has proved to be of any materiality. The annexed and exhibited documents include case law judgments that were given in unrelated proceedings by judges who have also had interlocutory involvement in this case. Those decisions are not said to be relied upon as authorities, but as some sort of illustration of how hearing time estimates are made in cases generally. The tendered documents include extensive email and other correspondence, earlier affidavits, process and transcripts going back to the commencement of this case, extracts from the Equality Before the Law Bench Book, a video recording from the website entitled "You Be the Judge" which is maintained by the plaintiff, medical reports and treatment records, the entire court book that was prepared by the defendants for the 17 February 2025 hearing of their notice of motion for a stay, and assorted other documents.

12. During the hearing today, I have given the plaintiff full opportunity to elaborate his 90 pages of submissions. He did this by speaking to many paragraphs of the document over the course of two and a half hours. He selected the paragraphs to draw to my attention as he saw fit. At the conclusion of this process the plaintiff asked for time to adduce further evidence which I refused. Given that the orders that the plaintiff himself proposed on 7 March 2025 indicated that he was ready to file his evidence relating to recusal that very day, I considered that his further opportunity over the next 13 days preceding the hearing had been ample. The plaintiff took advantage of that interval to produce his affidavit of 19 March 2025. As it turns out that affidavit contains nothing that I can see to shed light upon his purported grievance of apprehended bias. The whole of the affidavit is simply a very large collection of documents already on the court file. The plaintiff could readily have simply referred to those documents in the course of hearing rather than assembling them all as annexures to an affidavit and tendering it.

13. The plaintiff has not adduced any evidence extraneous to what is documented and recorded on the Court file, apart from Mr Barbato's irrelevant opinion the video from the plaintiff’s website and the Bench Book extracts. The plaintiff did not submit that, with further time, there would be any additional evidence extraneous to the Court file that he would wish to place before me on the recusal application. It would be quite fruitless to allow a further adjournment within which the plaintiff might produce yet another affidavit annexing another group of documents already within the Court's holdings. If he wished to identify any such documents, he could have done it in the course of the hearing on 21 March 2025.

14. At the conclusion of the hearing the plaintiff also sought further time within which to make additional submissions. I rejected that application. The oral submissions that he made on 21 March 2025 were simply selected readings of what he had put in writing. They added nothing to my understanding of his complaints. At 90 pages, I cannot see that he requires an opportunity to put together additions, particularly as his written submissions to this point have demonstrated no grasp of what might have to be shown in order to demonstrate a basis for recusal.

15. During the course of what took place over two and a half hours on 21 March 2025, I had exchanges with the plaintiff to try to disabuse him of some of his misconceptions about procedure upon which he relied to construct allegations of bias. Those exchanges unfortunately descended into dogged repetition by the plaintiff, and I found it necessary to abbreviate them in order to avoid rancour. Mr Kearney's manner of presenting his submissions was provocative and not constructive, encompassing accusations that I had "orchestrated" procedural outcomes that he perceived as disadvantageous to him; that I "set up" such outcomes; that I had not read relevant materials; that I was "aiding and abetting a strategy" and so on. Continuation of oral submissions in that vein would not assist resolution of the application the plaintiff brought before me.

16. To the best of my understanding, the plaintiff's points of complaint are as follows.

17. First, he says that he was denied an adjournment of the defendants' notice of motion for a stay on 17 February 2025 and that he was not given a fair hearing on that day. I stand by the reasons that I gave at that time for refusing an adjournment. They are recorded on the Court file in the transcript of an ex tempore judgment. The plaintiff had ample notice and opportunity to be ready for the hearing of the defendants' notice of motion that day. When I refused the adjournment he walked out of the courtroom and, so far as he was not heard on 17 February, that was his own doing, not mine.

18. The hearing of the notice of motion continued on 19 February 2025 and the plaintiff was present and took part to the extent that he wished. The notice of motion was adjourned part heard to the same date as the final hearing, namely, 28 April 2025, and if it proceeds, there will be further opportunity for the plaintiff to be heard then.

19. Secondly, the plaintiff complains that my refusal to amend and extend the timetable and hearing date for the recusal application exhibits bias against him. For reasons already given, I consider the time allowed to him to be ready to proceed today was ample.

20. Thirdly, the plaintiff alleges that I have "withheld" judgments. That is not true and he has no basis for suggesting it. On 17 February 2025 my judgment with respect to the plaintiff’s adjournment application was pronounced ex tempore so that the plaintiff had my reasons immediately. The revised transcript of the judgment was sent out to the plaintiff very shortly after that day. My reasons for having made the procedural orders that I did on 19 February 2025 were reserved and were sent out to the plaintiff promptly after they had been settled on 5 March 2025.

21. The delivery of those reasons, comprising 28 pages, took some time, because it was necessary that I review and then summarise the procedural steps in the case up to that point. Provision of reasons within two weeks after a hearing of that nature was not an inordinate delay.

22. My reasons for the decision to refuse an adjournment of the subpoena argument on the morning of 7 March 2025 were delivered ex tempore. The plaintiff was present in court and, thus, received those reasons immediately. Again, the transcribed form was settled promptly and sent out to him shortly afterwards.

23. With respect to my rulings given on 7 March 2025 regarding the subpoena argument, they were given ex tempore late in the afternoon and were forwarded to Mr Kearney during the following week as soon as I had an opportunity to settle the draft received from the Reporting Services Branch. There has been no withholding and no significant delay in any of these respects.

24. Fourthly, the plaintiff complains that fixing the trial date of 28 April 2025 manifests bias on my part. That date was fixed on 19 February, so it provides nine weeks' notice. It is material that this case has been assessed as fully ready for trial on two previous occasions. The first was for a trial to commence in August 2022 and the second for a trial in August 2024. In each case the hearing dates were vacated. It is reasonable to fix a hearing date with nine weeks' notice where the case has been assessed by the Court as ready on two previous occasions going back 2½ years. The plaintiff complains that his psychiatric medical conditions make it difficult for him to be ready to run the case on nine weeks' notice. However, he has been corresponding with the defendants since November 2024 pressing them with a claimed desire to have the case set down for final hearing. The Court is entitled to assume that since then he has perceived it as ready and has been in a fit state to proceed; that is, from a date at least five months prior to the new hearing date that has now been appointed.

25. Further, as I explained to Mr Kearney, a fixture with nine weeks' notice is reasonable according to the usual procedural standards of the Court and he simply has to be able to meet those standards. If his psychiatric condition disables him from being able to do so, then, as I explained, he may come to be regarded as under a legal incapacity to conduct this litigation. I urged him to consider whether it would be in his own interests to appoint a tutor with a solicitor or simply to appoint a solicitor directly himself.

26. I have had regard to a report of the plaintiff’s current treating psychologist, Ms Melinda Malley that is annexed to his affidavit of 19 March 2025. That report is dated 20 March 2025. Ms Malley expresses the view:

Current court timelines and pressures appear to be exacerbating psychological symptoms creating a cycle of increased stress and impeding his daily function. Brian becomes visibly distressed when discussing details of court requirements and perceived unrealistic time constraints. Brian reports that further time to prepare written court documents and for the main hearing scheduled April 28, 2025, would be beneficial. Brian also reports that his psychiatrist, Dr Grace, has recommended a minimum three month period of disconnection from legal activities prior to the main hearing. Brian has indicated that he would utilise this time to practise various mindfulness activities to ready himself for the main hearing. Based on the information available to me, this appears to be an appropriate recommendation.

27. As explained to the plaintiff more than once during the recusal application on 21 March 2025, those personal preferences cannot be accommodated to the Court's duty to act reasonably towards both parties. In this case that calls for holding him to a timetable which is reasonable according to the ordinary procedural standards of the Court in the interests of enabling the defendants to have the case brought to finality.

28. The above reasons were delivered orally at 2:00 pm on 21 March 2025 and have been revised. In accordance with them, I do not accept that a reasonable person, properly informed about the case, might apprehend that I might fail to determine any aspect of the proceedings in an impartial manner. Orders have therefore been entered that the plaintiff’s notice of motion filed 7 March 2025 be dismissed and that he pay the defendant’s costs thereof.

29. I add the following observations to the reasons that were given orally.

30. The plaintiff has now appeared before me, unrepresented, in three separate interlocutory applications since 17 February 2025. He has commenced the hearing of each interlocutory matter with an unmeritorious adjournment application, notwithstanding that some of the motions have been his own. In between each hearing my Associate has received a stream of emails from the plaintiff requesting that orders be made in chambers to extend time for compliance with procedural directions already given, or that I defer dates that have been fixed for the hearing of further interlocutory applications. His emails have requested unnecessary relisting of the proceedings. In respect of one hearing he persistently sought a mid-day starting time that would have suited his personal convenience but would have prevented the hearing from completing in the day.

31. The complaints upon which the plaintiff alleges judicial bias, or a reasonable apprehension thereof, are no more than expressions of disgruntlement with rulings that have not upheld his various applications and submissions. If the plaintiff were not constrained by firm procedural orders and time limits, to keep the matter progressing towards final determination, and if his unreasonable applications for adjournments and extensions were not rejected, his time-wasteful conduct would cause significant injustice to the defendants. Further, the Court must utilise judicial time and other resources in a way that minimises the cost to the public of administering justice. The Court must conserve its capacity, so as to be able to hear all litigants who claim its attention.

32. The plaintiff takes no account of those considerations. Being entirely focused on his own immediate goals, he transforms the Court’s endeavours to advance the case efficiently towards its conclusion into purported manifestations of bias. The Court, seeking to discharge all of its duties, cannot indulge the plaintiff’s unreasonable endeavours to slow the case down. The Court cannot endlessly review irrelevant material that the plaintiff insists should be read. Nor can the Court read line by line, or listen to, interminable submissions from the plaintiff that are not directed to material points.

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Amendments

25 March 2025 - Paras [28]-[32] added

Decision last updated: 25 March 2025