Kearney v Amirbeaggi

[2025] NSWSC 196

Supreme Court

New South Wales

Medium Neutral Citation:

Kearney v Amirbeaggi [2025] NSWSC 196

Hearing dates:

7 March 2025

Date of orders:

7 March 2025

Decision date:

07 March 2025

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1.   The plaintiff's notice of motion filed 5 May 2024 seeking to set aside subpoenas issued to Carroll & O'Dea Lawyers, Mark Barbeliuk and Dr Donald Rowe is dismissed.

2.   The plaintiff is to pay the defendants' costs of his notice of motion filed 5 May 2024.

3.   The plaintiff's notice of motion filed 14 May 2024, seeking orders that a subpoena issued to the Commonwealth Bank be set aside, is dismissed.

4.   The plaintiff is to pay the defendants' costs of his notice of motion filed 14 May 2024.

5.   On the defendants' notice of motion filed 9 May 2024 order that the subpoenas issued by the plaintiff to Dr Antonella Ventura (dated 8 May 2024), and to the Proper Officer, Subpoena Team, Services Australia (dated 8 May 2024), be set aside and that the notice to produce addressed to the first and second defendants (dated 8 May 2024) be set aside.

   The plaintiff is to pay the defendants' costs of their notice of motion filed 9 May 2024.

7.   The plaintiff's notice of motion filed 25 February 2025 seeking to have set aside a subpoena issued to Dr Donald Rowe on 18 February 2025 is dismissed.

8.   The plaintiff is to pay the defendants' costs of their notice of motion filed 25 February 2025.

9.   Leave is granted to the plaintiff to issue a subpoena addressed to the Proper Officer, Commonwealth Bank of Australia in accordance with Subpoena filed in court dated today and placed with the papers.

10.   Grant general access to the parties to the documents produced under subpoena by The Commonwealth Bank contained in packets marked S44 and S45.

11.   The plaintiff is to file any affidavit evidence upon which he relies in support of his application that Fagan J should recuse himself by close of business on 13 March 2025.

12.   The plaintiff is to file written submissions in support of the recusal application by close of business on 20 March 2025.

13.   The plaintiff's application for recusal is listed for 9.30am on 21 March to hear any further oral submissions that the court may consider are required in order to determine that application.

14.   The subpoenas issued by the defendants to Mr Barbeliuk (dated 30 April 2024), to Carroll & O'Dea (dated 30 April 2024) and to Dr Donald Rowe (dated 29 April 2024) are stood over to 21 March 2025 at 9.30am.

16.   The listing of the plaintiff's notice of motion filed 25 February 2025 to set aside a subpoena addressed to Dr Rowe, which has previously been fixed for 11 March 2025, is vacated.

Catchwords:

CIVIL PROCEDURE

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Brian Kearney (Plaintiff)
Farshad Amirbeaggi (First Defendant)
Yates Beaggi Lawyers (Second Defendant)

Representation:

Counsel:
Mr B Kearney, self represented (Plaintiff)
Ms FT Roughley (Defendants)

Solicitors:
Self represented (Plaintiff)
YPOL Lawyers (First and Second Defendants)

File Number(s):

2019/96321

Publication restriction:

Nil

JUDGMENT (ex-tempore, revised)

1. Before the Court are notices of motion filed by the plaintiff on 5 and 14 May 2024 and 25 February 2025 seeking orders that certain subpoenas issued by the defendants should be set aside and a notice of motion filed by the defendants on 9 May 2024 claiming orders that subpoenas and a notice to produce that were issued by the plaintiff should be set aside. The plaintiff, Mr Kearney, appears in person and Ms Roughley of senior counsel appears for the defendants.

2. The Court has been referred to affidavit evidence and to the most recent form of pleading that the plaintiff proposes to rely upon. There is ample material before me to inform me of the issues in the case to identify any possible issues that the documents required to be produced under the subpoenas and notice could relate to. On that material I am able to determine whether the subpoenas should be enforced or set aside.

3. [At the outset of the hearing the plaintiff said that he had filed or proposed to file a notice of motion seeking that I recuse myself from hearing or deciding anything in relation to this case. He wanted to have that application listed three weeks hence, on 28 March 2025, for a hearing of one and a half days, with affidavits and submissions to be exchanged in the meantime, according to a timetable that he submitted. The plaintiff sought to have the hearing of the notices of motion regarding subpoenas deferred until a decision had been made on the recusal application. The plaintiff said the basis of the application was apprehension of bias and actual bias. I asked for particulars of his grounds but he refused, saying that the grounds would be in the affidavits. I am not aware of any arguable grounds for a recusal application. In the absence of any intimation from the plaintiff as to what he would argue, I refused to defer the hearing concerning subpoenas. As the plaintiff is aware, resolution of issues concerning the subpoenas is on the critical path to the final hearing of his claim, which has been fixed for 28 April 2025].

4. In the course of hearing the notices of motion the plaintiff applied for my determination of them to be adjourned so he could file further evidence and put on further submissions and he sought an opportunity to cross-examine witnesses, including the recipients of the defendants’ subpoenas. I do not intend to adjourn the hearing of the notices of motion. There has been ample time for everything that could be relevant to the notices of motion to be placed before the Court on affidavit or by tender. All but one of the notices of motion was filed 10 months ago, in 2024. There has been plenty of time to prepare anything that the parties wanted to place before the Court upon their final determination. The parties were given notice on 19 February 2025 that I would proceed to deal finally with the notices of motion today and from that date to this there has been plenty of time for each side to review the material that is available for the Court to consider on these issues and to ensure that everything that is necessary is before the Court.

5. The plaintiff's indications to me of the further evidence that he wants to call viva voce from various witnesses does not indicate to me that there is anything further that he could sensibly adduce from those witnesses that would have a bearing upon the issues that I have to decide. He has listed to me, amongst other things, nearly 20 transcripts from various stages of the current proceedings and other proceedings in this Court and in the Federal Court. He has suggested that all of that material should be read as having some bearing upon the outcome of the notices of motion. He has also asked me to watch a one-hour video of himself speaking on topics concerning the current litigation. I have pressed Mr Kearney to explain what, if any, of that material could have anything to do with my resolution of the notices of motions. His attempts to explain will be on the transcript and may be reviewed. I find nothing coherent in anything that he has put in that regard. I do not need to review the transcripts to which he has referred or to watch the video of himself speaking for an hour in order to resolve these issues. I have been given no indication by the plaintiff of what I would be looking for in that material and there is no self-evident answer to that question .

6. I propose to deal with each of the subpoenas one by one. The first is a subpoena that was issued by the plaintiff to Dr Antonella Ventura on 8 May 2024. It calls for documents in the following categories:

2. A copy of any/all communications between you and YPOL Lawyers concerning your pending retirement and/or retirement in part from employment activities over the period 1 October 2021 to date.

3. A copy of any/all communications between you and the first or second defendant in these proceedings, Mr. Farshad Amirbeaggi and/or Yates Beaggi Lawyers, concerning your pending retirement and/or retirement in part from employment activities over the period 1 October2021 to date.

4. A copy of any/all communications between you and Experts Direct PTY LTD concerning your pending retirement and/or retirement in part from employment activities over the period 1 October 2021 to date.

5. A copy of any/all communications between you and YPOL Lawyers concerning your pending overseas trip and/or relocation over the period 1 October 2021 to date.

6. A copy of any/all communications between you and the first or second defendant in these proceedings, Mr. Farshad Amirbeaggi and/or Yates Beaggi Lawyers, concerning your pending overseas trip and/or relocation over the period 1 October 2021 to date.

7. A copy of any/all communications between you and Experts Direct PTY LTD concerning your pending overseas trip and/or relocation 1 October 2021 to date.

7. The defendants' notice of motion filed on 9 May 2024 is the process by which the defendants seek to have that subpoena set aside. Dr Ventura practised as a consulting psychiatrist in Sydney up until 2024. Her services for the purposes of the current proceedings were engaged in late 2021 by the defendants through an agency that operates under the name Experts Direct.

8. The defendants sought from Dr Ventura a report on the plaintiff's psychiatric condition and history. Expert evidence of Dr Ventura would be relevant to issues in the proceedings, namely:

1. whether the plaintiff suffers or has at any relevant time suffered any psychiatric disorder;

2. if so, whether such disorder was caused by personal stress resulting from the manner in which the defendants handled his legal affairs in 2013; and

3. whether any psychiatric disorder from which the plaintiff suffers, or has suffered, has impacted adversely on his earning capacity.

9. Dr Ventura examined the plaintiff by audiovisual link on 2 November 2021 and she provided to the defendants’ solicitors a report dated 12 November 2021. On 1 February 2022 Dr Ventura provided to the defendants' solicitors a supplementary report answering some questions that had been posed by those solicitors in a letter of instructions dated 21 January 2022. Both reports were annexed to an affidavit of Dr Ventura, which she affirmed on 4 March 2022 and which was filed and served on the plaintiff.

10. The proceedings were fixed for a final hearing to commence in August 2022. After that fixture had been vacated, the defendants' solicitors in late 2023 sought to update their preparation for a new fixture for final hearing in the following year. On 23 November 2023 the solicitors inquired of Experts Direct whether an appointment could be made for Dr Ventura to re-examine the plaintiff in March of the following year to update her reports.

11. Mr Price, the partner with carriage of the litigation on behalf of the defendants, has deposed in an affidavit sworn 17 May 2024 that his firm received a response through Experts Direct on 7 December 2023 that Dr Ventura would be unavailable to prepare a report in the timeframe required by the current orders of the Court due to her intention to travel overseas and within Australia, but often to remote places, and her separate intention to retire.

12. In light of that information, in January 2024, the defendants' solicitors engaged Professor Glozier to assess the plaintiff and to prepare a report. Professor Glozier did not immediately conduct an examination. By early February 2024 the plaintiff had indicated an intention to seek from the Court an extension of time within which to file his evidence. I infer that the defendants' solicitors saw this as possibly presenting an opportunity to secure Dr Ventura's services within an expanded window for filing a supplementary report from her in reply.

13. The solicitors wrote to Experts Direct on 13 February 2024 in the following terms:

We have been advised by the plaintiff that he intends to seek an extension of time for his evidence. Could you please let us know of Professor Glozier's and Dr Ventura's availability in April and May 2024 for an appointment and preparation of a report.

14. Ms Sofia Cadiz, a case manager for Experts Direct, spoke with Mr Wu of the defendants' solicitors by phone that day and informed him that Dr Ventura remained unavailable. She followed up with an email later on 13 February 2024 which read in part as follows:

Thank you for your time on the phone just now. As discussed, Dr Ventura is retiring this 2024 with no capacity to take on new work.

15. The defendants have informed the Court and the plaintiff long ago [on 5 March 2024] that, in the circumstances, Dr Ventura's reports would not be relied upon. There is therefore no possible relevance for the present proceedings of any records that Dr Ventura may hold regarding her retirement in 2024 or her plans for travel during that year. The implication of the subpoena is that the plaintiff wishes to go behind the explanations that have emerged for the defendants' indication that Dr Ventura's evidence would not be used. It appears the plaintiff wishes to challenge the defendants' subsequent stated reasons for having him examined by yet another expert psychiatrist, Dr Yeates, and seeking to rely on that witness instead.

16. Any such challenge by the plaintiff would have no relevance to these proceedings. It could only bear upon an inquiry as to whether either Dr Ventura or Experts Direct or the defendants' solicitors have not fully or correctly stated the reasons for Dr Ventura's unavailability. But such an inquiry is completely immaterial to the conduct of the case. The question that, implicitly from the terms of the subpoena, is sought to be explored is entirely collateral. There is no prima facie indication of incomplete or incorrect information having been conveyed in this respect. There is no justification from any point of view for requiring Dr Ventura to produce the documents that are sought from her.

17. The next subpoena issued by the plaintiff that the defendants ask the Court to set aside was issued on 8 May 2024 addressed to "The Proper Officer, Subpoena Team, Services Australia". It seeks the following records:

2. All Medicare records, including, but not exclusive of, correspondence, notices of claim, notices of past benefits, schedules of payments, history statements for medical services rendered, any statutory declarations, Medicare Benefits Scheme summaries, Pharmaceutical Benefits Scheme summaries, and any other Medicare notices in relation to Mr Farshad Amirbeaggi, last known addresses 200 Edgecliff Rd, Woollahra 2025 and/or Level 25, 88 Phillip Street, Sydney NSW 2000, for the period 1 March 2013 to 1 July 2013.

18. The defendants' notice of motion filed on 9 May 2024 seeks to have this subpoena set aside.

19. On the current state of the pleading that the plaintiff apparently intends to rely upon there is no issue to which these records could be relevant. The current form of pleading is a second further amended statement of claim. That has not yet been filed and the plaintiff has been at pains to state that he proposes to amend it still further and to seek leave to rely upon yet a further iteration of the pleading at the final hearing. For the time being the Court can only proceed on the most recent version of the case that he pleads. If at the hearing there should be a change sought and allowed, and if that should give rise to some issue to which the documents claimed under this subpoena to Services Australia might be relevant, then the position can be reviewed and, if appropriate, leave might be granted to him to issue a fresh subpoena. But the present state of affairs is that the material sought is irrelevant.

20. The plaintiff has sought to support it by reference to some email correspondence from April 2013. A significant part of his case is that during April 2013 he instructed the defendants, in particular the first defendant, to take steps to prevent the shareholders of Optimisation Australia Pty Ltd (Optimisation) from holding a meeting on 29 April 2013. His case is that he apprehended that at that meeting the members of the company would vote to remove him as a director. Optimisation was a closely held private company and the plaintiff owned 35% of the shares in it. He had been a director for quite some time and was active in the affairs of the company. He was also employed by it as its principal sales representative. It is a part of the plaintiff's case that in April 2013 he also apprehended that the directors of the company would convene a meeting on 30 April 2013 at which they would terminate his employment as a sales representative.

21. The plaintiff's case is that the first defendant, in breach of his duty of care and contractual obligations as the plaintiff’s solicitor negligently failed to take steps or adequate steps to prevent those meetings of the members and the directors of Optimisation from going ahead. It is pleaded that, as a result, the meetings did proceed; that on 29 April 2013 he was removed as a director and that, on 30 April 2013, the directors terminated his employment as sales representative. A significant part of the case is that he says that he thereby suffered significant loss of financial benefits that he would have gained by remaining a director and principal sales representative, and that is part of the measure of damages he claims against the defendants.

22. In that setting, with reference to this subpoena addressed to Services Australia, the plaintiff has referred the Court to an email of 11 April 2013 that he sent to the first defendant pressing the first defendant to prepare a letter addressed to the other two directors and shareholders of Optimisation warning them not to proceed with the proposed meetings. In that email of 11 April 2013 the plaintiff asked if he could expect to have the letter that was to be sent to the directors by the next day, Friday 12 April, and he asked whether he could be assured of a phone conference with the first defendant on the next day.

23. The first defendant replied less than half an hour later, on the evening of 11 April 2013, as follows:

Yes and yes. Sorry - I tore my hernia on the weekend and have been trying to placate it. I am now operational.

24. There is no present pleading that raises any issue for determination by the Court on final hearing about this medical explanation that the first defendant offered for his delay up to the evening of 11 April 2013 in providing to the plaintiff the letter that the plaintiff had asked him to draft.

25. In paragraph 30 of the draft second further amended statement of claim, to which I have referred as the most recent form of proposed pleading, the plaintiff has alleged that, from early in his retainer of the defendants, he instructed them to take steps in court to stop the other directors and shareholders of the company from passing the resolutions that he perceived to be intended for 29 and 30 April 2013. At para 30(g)(1) he pleads as follows:

On 11 April 2013 the first defendant emailed the plaintiff asserting he suffered a medical event, alleging he had "torn his hernia" contributing to the delays.

26. It is not alleged in the pleading that this was untruthful. It is not apparent on the current form of the pleading that it would have any relevance for the plaintiff to allege that it was untruthful. His case simply is that he had given instructions from earlier in April that the letter should be written and that other steps should be taken in order to head off the proposed members’ and directors' meetings and that the instructions were not promptly and competently carried out.

27. On his case, it does not and would not matter if the plaintiff made a misleading statement about a medical reason for not having attended to the matter, or if the statement was truthful. On his case, there was a failure to carry out his instructions and that was negligent. On his case, although he doesn't plead this expressly, it would follow that, if the first defendant was unwell, having regard to the instructions that he had received, it was incumbent upon him in discharge of his professional duty to secure somebody else to attend to the matter. On the plaintiff's case, action with respect to the impending meetings was time critical.

26. In any event, there was a significant lapse between 11 April, on which date the first defendant said he was in recovery, and 29 April when the first of the meetings occurred. There does not appear in the matters pleaded any suggestion that the first defendant advanced, as a reason for his failure during that further interval to take steps to stop the meeting, that he continued to suffer or had recommenced suffering from a hernia.

27. The evident purport of the subpoena to Services Australia is to try to gather records of the first defendant's medical history, to eliminate any contention that he actually had the medical condition of which he spoke as at 11 April 2013. But there is no issue raised by either party about that on the current state of the pleadings. I speak of the “evident purport”, of the subpoena on the basis of what appears in correspondence that has been exchanged by email during the course of the current case, as follows.

28. On 5 December 2021, the plaintiff wrote to a solicitor of the firm representing the defendants stating this:

During critical times in April 2013, your client Mr Amirbeaggi made various contentions, one of those contentions seeking to justify delays was that he had ' torn his hernia'. I intend on issuing subpoenas for the first defendant's medical records for the period 1 July 2012 to 1 July 2013, [to] see if a history of a torn hernia does in fact exist.

31. The defendants' solicitors replied on 7 December 2021, stating that they did not see any legitimate purpose for the foreshadowed subpoena. Considerably more correspondence ensued of a repetitive nature.

32. I do not see any legitimate purpose for the subpoena, on the basis of what is alleged in the case as I have outlined to this point.

33. In the current form of the plaintiff's pleading, at para 32 sub paras (j1) and (k), the plaintiff alleges that, on 29 April 2013, the first defendant amended his advice to the plaintiff concerning the 29 April 2013 meeting by sending an email stating that he thought it was better to allow the meeting to proceed, and that if at the meeting of members he was removed as a director, that would show "further oppressive conduct and their disregard to you/your position".

34. Although not entirely clear, it may perhaps be divined from the pleading, or otherwise inferred, that the plaintiff will allege that that amended advice was negligent. Any such further pleading about the conduct of the defendants with respect to failing to prevent the company meetings from going ahead would not alter the position that there is no issue in the proceedings to which the first defendant's medical records, as sought in the subpoena for the period 1 March to 1 July 2013, could be material.

35. The position would be different if some issue about that were raised by the first defendant, for example if he asserted in a pleading or affidavit some fact concerning treatment or lack of treatment. There is no such assertion in the case at present.

36. It is not warranted to allow the subpoena to issue in a vacuum with respect to any material issue, in circumstances where the plaintiff is self represented and, as can be seen from other aspects of his conduct at the proceedings, he does not feel any of the restraints that are expected of a party who is utilising the processes of the Court. Without legal representation, the plaintiff has proceeded in the case without exercising restraints that a professional representative, a solicitor or barrister, would bring to bear. This is shown in part by his maintenance of a website entitled You Be the Judge, on which he publicises unsubstantiated views concerning corruption of the judiciary and personal criticisms of individual judges who have heard aspects of the case.

37. The defendants have expressed a legitimate concern that, if the Court should allow this subpoena to be enforced, calling for personal information regarding the first defendant, where there is no sufficient indication of its utility for the purposes of the proceedings, there is a significant risk that that personal information will be misused by the plaintiff. I accept that there is a risk in that regard. That causes the Court to exercise caution to ensure that the subpoena should not be enforced unless there is demonstrated that it has a legitimate forensic purpose. None has been shown.

38. The next relevant process that has been issued by the plaintiff is a notice to produce, addressed to both defendants, filed on 8 May 2024, calling for the following documents:

1. A copy of the council rates for the first and/or second defendants Northern NSW residence referred to in the email to the Supreme Court NSW on 11 March 2022 Annexure hereto and marked "A", for the period 1 October 2021 to 31 March 2022.

2. The copy of the council rates for the first and/or second defendants Blue Mountains residence referred to in the email to the Supreme Court NSW on 11 March 2022 Annexure hereto and marked "A", for the period 1 October 2021 to 31 March 2022.

39. The plaintiff contends that the production of documents concerning the defendants' holdings of real property in northern New South Wales and/or in the Blue Mountains is relevant to the truthfulness or otherwise of an explanation that was given by a solicitor in the firm representing the defendants for lateness in compliance with one of the Court's directions.

40. The direction, it appears, required the filing of the defendants' evidence by some date in March 2022. On 11 March 2022, Ms Joelene Luu, solicitor, wrote to the associate of the judge who was managing the proceedings at that stage in the following terms:

Dear Associate

Thank you for your email.

We apologise for not responding earlier but we and the first defendant have been occupied on developments in another matter in which we act for the first defendant which is listed for hearing commencing on 14 March 2022 before Stevenson J (see further below).

Unfortunately, our clients' evidence has not been able to be advanced as quickly as we had previously indicated to the Court for the following reasons:

1. Our client has residences in northern NSW and the Blue Mountains;

2. After 15 February 2022 (when our clients' indication as to timing was given to the Court) our client was at his northern NSW residence and unfortunately was significantly impacted by the extreme flooding events in that part of NSW. In particular, our client did not have access to phone or internet for a substantial part of the week of 28 February 2022 and was not able to provide instructions or significantly progress his evidence;

3. Once our client was able to leave his residence in northern NSW, he moved to his residence in the Blue Mountains which unfortunately was then impacted by the recent extreme weather including hail damage and a landslide;

4. Whilst dealing with the above unexpected events, our client has also been occupied with a number of issues leading to the preparation of the hearing he is involved in next week. Those matters have included interlocutory hearings leading to that hearing. We expect that we and our client will be occupied substantially in relation to the conduct of the hearing which is scheduled to conclude on 22 March 2022; and

5. Whilst we expect to continue to advance the preparation of our clients' evidence during the course of the hearing, in our view it is unlikely that he will now have an opportunity to review and finalise his evidence until after the conclusion of the hearing. In those circumstances we expect that his evidence will be finalised and served before 6 April 2022.

Please let us know if the Court requires further information in relation to the above.

41. The plaintiff contends it is legitimate for him to seek the documents described in the notice to produce to enable him to explore whether or not it was true to say that the first defendant owned or occupied a home in northern New South Wales which had been significantly impacted by extreme flooding events in February 2022, resulting in the interruption to phone and Internet connections for a substantial part of the week commencing 28 February 2022.

42. He says the documents sought would also be relevant to any inquiry whether it was true that after the first defendant had left his residence in northern New South Wales, he moved to a residence in the Blue Mountains, and that that was then impacted by extreme weather, including hail damage and a landslide.

43. Exploration of the background to the justifications that were provided to the Court for delay in filing affidavits has nothing to do with the final determination of this case. If the plaintiff were permitted to explore those things, it may reveal, at best, if he finds some contradiction of what is asserted in Ms Luu’s letter, that either the defendants or their solicitor or both were deceitful or not entirely frank with the Court in providing reasons for delay in providing affidavits.

44. But that is not a matter under enquiry in these proceedings. The evidence is now complete and ready for a hearing which has been set down to commence on 28 April this year. In fact, after the date of Ms Luu’s letter, the case was ready for hearing in August 2022 and then again two years later when it was listed for 26 August 2024. The delay in provision of the defendants' evidence, in February and March 2022, is ancient and irrelevant history. Whether there was any wrong doing in terms of frankness with the Court or with Mr Kearney about that, it is by this stage immaterial to the progress of and final disposition of the case. There is no justification for enforcing the notice to produce.

45. That brings me to the subpoenas that have been issued by the defendants. On 30 April 2024, they issued a subpoena to Mark Barbeliuk seeking the following documents:

2. A copy of all communications between you and Brian Kearney and/or Kylie McGill dated, received, or sent between 1 January 2022 and 30 April 2024 referring to or concerning any legal proceedings in which Philip Doyle is a party (Doyle Proceedings).

3. A copy of all documents dated between 1 January 2022 and 30 April 2024 referring to the conduct of the Doyle Proceedings, including documents referring to either Brian Kearney or you having conduct of the Doyle Proceedings, either directly, or by some other means.

4. A copy of all documents referring to or recording arrangements for Brian Kearney having conduct of the Doyle Proceedings directly or by some other means.

5. A copy of all documents dated, received, or sent between 1 January 2022 and 30 April 2024 referring to or recording the use of any email account with address bearing or including “Barbeliuk” by Brian Kearney in respect of the Doyle Proceedings.

6. A copy of all communications between you and Brian Kearney and/or Kylie McGill dated, received, or sent between 1 January 2022 and 30 April 2024 referring to or concerning these proceedings and/or any dispute between Brian Kearney and Farshad Amirbeaggi and/or Yates Beaggi Lawyers.

7. A copy of all documents dated, received, or sent between 1 January 2022 and 30 April 2024 referring to Brian Kearney’s mental health.

8. All documents referring to or recording the website including, but not limited to, screenshots, printouts and photographs.

46. The plaintiff's notice of motion filed on 5 May 2024 seeks to have this subpoena set aside.

47. The issue to which the documents sought by the plaintiff would be relevant is the nature and extent of damage allegedly suffered by the plaintiff as a result of the alleged negligence of the defendants in their conduct of the case concerning Optimisation in 2013. As earlier noted, a significant part of the plaintiff’s present action is that the mishandling of his case in 2013 caused him psychological stress and disorder, resulting in an inability to work and a consequent compromise of his earning capacity and financial loss.

48. The defendants have given notice in the proceedings that they intend to call Mr Mark Barbeliuk and expect him to give evidence that, in 2022, 2023, and up to April in 2024, the plaintiff actively assisted Mr Barbeliuk in the defence of proceedings that were brought by three claimants against a defendant named Doyle. Mr Barbeliuk has provided information to the effect that he paid the plaintiff a total of $425,000 for the lay assistance that the plaintiff provided in the defence of those claims.

49. All the documents referred to in the seven paragraphs that I have quoted from the schedule to the subpoena would have a bearing upon confirmation or otherwise of the assertions by Mr Barbeliuk that the plaintiff acted in this way and that he thereby demonstrated an earning capacity and derived income in consequence.

50. This appears to me to be a legitimate subpoena directed to a significant issue in the case, indeed, an issue that is likely to occupy a substantial part of the hearing time.

51. In the course of the hearing before me of the defendants' notice of motion for a stay, on 17 February 2025, the defendants called Mr Barbeliuk to give evidence. He confirmed that he had documents relating to the subject matter and it appears to me from what he said on that occasion that the schedule to the subpoena would capture documents of the kind that Mr Barbeliuk indicated he would be able to produce. Mr Barbeliuk indicated no difficulty about complying with a requirement to produce such documents. The Court has no basis for setting aside this subpoena.

52. The next subpoena issued by the defendants that the plaintiff seeks to have set aside is addressed to Carroll & O'Dea lawyers, on 1 May 2024. It calls for documents in the following categories:

2. A copy of all correspondence (including any attachments or annexures) dated or received between 1 January 2022 and 30 April 2024 received from Mark Barbeliuk or a person purporting to be Mark Barbeliuk referring to or concerning court proceedings in which Philip Doyle is a party (Doyle Proceedings).

3. A copy of all communications dated or received between 1 January 2022 and 30 April 2024 from or referring to Brian Kearney.

4. A copy of the email received from Mark Barbeliuk referred to by counsel for the respondents at the directions hearing in the Doyle Proceedings in the NSW Court of Appeal on 8 April 2024.

5. One copy of any screenshot or content of any part or whole of the website while the website was active prior to 15 April 2024.

53. The plaintiff's notice of motion filed on 5 May 2024 seeks to have this subpoena set aside.

54. Carroll & O'Dea were the solicitors for three plaintiffs who each brought separate proceedings against Doyle. Mr Barbeliuk has informed the first defendant and the defendants' solicitors that communications that he sent to Carroll & O'Dea in connection with the Doyle litigation were drafted by the plaintiff and that in some instances there were communications sent by the plaintiff to Carroll & O'Dea and/or documents lodged with the Court directly by the plaintiff in which he pretended to be Mr Barbeliuk.

55. For the purpose of ascertaining whether Mr Barbeliuk's evidence to that effect can be sustained, and to corroborate it, the documents that are sought in the four paragraphs of the schedule that I have quoted would be directly material. There is no suggestion that the scope or extent of the documents sought is excessive and there has been no objection by Carroll & O'Dea to production of the documents on that or any other basis. In my view there is no ground for setting aside that subpoena.

56. The third subpoena issued by the defendants is addressed to the proper officer of the Commonwealth Bank. It was issued on 9 May 2024 and in para 2 of the schedule it seeks the following documents:

2. Copies of all bank statements or other documents recording all payments into and out of the following accounts for the period 1 January 2013 to 9 May 2024:

(a) any account in the name of Brian Kearney (date of birth: 6 July 1973);

(b) any account in the name of Kylie McGill (date of birth: 11 November 1968);

(c) the account numbered 0160404 with BSB 302-965.

57. The plaintiff's application to set this subpoena aside is in a separate notice of motion filed by him on 14 May 2024. The defendants' justification for seeking these documents is that the plaintiff claims his finances have been seriously eroded as a result of the alleged mishandling of his case against Optimisation by the defendants. He asserts that his capital has been run down through compromise of his earning capacity, which in turn has been significantly affected by psychiatric disorders that have their origins in the alleged negligence of the defendants.

58. The plaintiff has alleged that his financial position has so far diminished that he has had to sacrifice a significant portion of his interest in real property and transfer a portion that he formally owned to his partner, Ms Kylie McGill. He claims that he has had to borrow substantial funds from Ms McGill.

59. The scope of the bank statements as sought in the subpoena extends over a range of 11 years from 1 January 2013 to 9 May 2024. Although that is a long period, and there would be a significant number of records required to be produced in order to answer the subpoena, there has not been any objection from the Bank and the documents had have in fact been produced. However, access has not been granted to them for the time being, pending resolution of the notice of motion to set aside the subpoena.

60. The extensive run of statements that is sought is justified on the basis that the period over which the plaintiff claims to have sustained his loss is from April 2013, at the end of which he lost his position as a director and sales representative of Optimisation, right through to the present time. Examination of statements of account from January 2013 to April 2013 would be legitimate on the basis of reviewing any changes of position from before the engagement of the defendants until afterwards and then through to the conclusion of the oppression suit concerning Optimisation and into the conduct of the present proceedings.

61. In my view, the requirement for production of these documents is legitimate.

62. The next relevant subpoena was issued by the defendants to Dr Donald Rowe on 29 April 2024. It seeks the following documents:

2. A copy of all communications (including any attachments or enclosures) between you and Brian Kearney.

3. A copy of all documents recording or referring to instructions or information provided to you in respect of the corrected version of your report dated 19 April 2024, being the document annexed to this Subpoena (Your Report).

4. A copy of all drafts of Your Report.

5. A copy of all documents referred to in Your Report.

6. A copy of all notes and clinical notes pertaining to Brian Kearney.

63. The plaintiff seeks to have that set aside by a further claim for relief in his notice of motion of 5 May 2024. Dr Rowe was engaged by the plaintiff to undertake a psychological assessment with respect to himself and to furnish a report for utilisation in the proceedings. Dr Rowe's professional qualifications are those of a clinical psychologist and neuropsychologist. He prepared a report dated 19 April 2024. In section 2 on p 4 of that report he listed 25 sources of information that he examined in order to prepare his report. The defendants wish to ensure they are fully aware of all materials upon which Dr Rowe's opinions are based.

64. A number of items within the list of 25 that Dr Rowe has set out are affidavits that have been filed in these proceedings and letters from the plaintiff's treating psychiatrist, Dr David Grace. Dr Rowe was also provided with Dr Ventura's reports of 12 November 2021 and 1 February 2022. The defendants are well familiar with that material but there is other material upon which Dr Rowe has relied, the contents of which the defendants have not seen. This includes a letter of instructions of 3 April 2024, an additional letter of instructions of 19 April 2024, medical records from Sutherland Hospital, a St George Hospital discharge summary and something that is described as an "expert brief dated 3 April 2024". There are also medical records of Miranda Medical Centre, Caringbah Medical and Dental Centre and MyHealth Hurstville, all of which the defendants have not seen and of which they do not know the contents.

63. It would be reasonable to limit the requirements of the subpoena to exclude those of the items referred to in Dr Rowe’s report that have already been seen or can be located and examined by the defendants. The defendants have taken the view that it would be more straightforward for the recipient of the subpoena simply to bundle together all of the material that has been provided to him for the purpose of preparing his report and deliver that up to the Court in one lot, through which the defendants can combe to isolate the material that they have not previously seen.

64. In requesting Dr Rowe to comply with this subpoena, he ought to be given the option of limiting his reply to exclude those items of which the defendants are already aware, on the basis that that will be regarded as sufficient compliance with the subpoena. If he finds, as the defendants expect, that it is more convenient just to deliver the lot, he may do so.

65. Further paragraphs of the subpoena seek copies of all drafts and notes and clinical notes pertaining to the plaintiff. It is commonplace and reasonable for a party who has been served with an expert medical report to seek to examine such material. It is relevant to the basis upon which the expert has arrived at his opinions. I find nothing objectionable in those parts of the subpoena, and I see no reason why it should be set aside.

66. The defendants have served a further subpoena on Dr Rowe, which they issued on 18 February 2025, arising out of his provision of a supplementary report. The schedule to that subpoena calls for the following documents:

2. A copy of all documents recording or referring to instructions or information provided to you in respect your Supplementary Report dated 16 February 2025 (Supplementary Report), including by Brian Kearney or his “legal team” referred to in the first paragraph on page 1 of your Supplementary Report.

3. A copy of all documents recording communications (including any attachments or enclosures) between you and Brian Kearney or his “legal team” referred to in the first paragraph on page 1 of your Supplementary Report.

4. A copy of all drafts of your Supplementary Report.

5. A copy of all documents referred to in your Supplementary Report.

6. A copy of all notes and clinical notes pertaining to Brian Kearney.

7. All retainers, invoices, fee notes and other itemisation of time relating to all reports prepared at the request of or on behalf of Brian Kearney (including but not limited to your report dated 19 April 2024 and your Supplementary Report) and any other work performed at the request of or on behalf of Brian Kearney.

69. The plaintiff’s notice of motion filed on 25 February 2025 seeks an order to set that subpoena aside. It is concerned with Dr Rowe’s supplementary report dated 16 February 2025, prepared at the request of the plaintiff. The report sets out, in section 1 on p 3, the "new information [that] was examined and/or utilised in writing this report." There is a list of items from (a) to (m). In addition, at par 3 of the report, it is made clear that Dr Rowe has had regard to a video which records the presentation and conduct of the plaintiff on undisclosed occasions. The doctor has evidently relied upon that in order to form his opinions. Again, the request for information, as set out in the schedule to this subpoena, is legitimate. It is open to the defendants to seek the material upon which the expert has relied. Once again he may be given the option that it would be sufficient compliance if he should, in producing documents to the Court, exclude those that the defendants can nominate as material they already have, such as six reports from Dr Grace that are listed as part of the "new information." Once again, the recipient of the subpoena may prefer simply to send all the material as listed in the schedule.

70. I do not propose to set the subpoena aside.

71. I also have before me an application by the plaintiff to issue a subpoena to the Commonwealth Bank. He seeks the following documents:

2. Copies of all “Transaction details” verifications, as per example Annexure hereto and marked “A” for all payments into and out of the following accounts for the period 1 January 2013 to date

(a) any account in the name of Brian Kearney (date of birth: 6 July 1973);

(b) any account in the name of Kylie McGill (date of birth: 11 November 1968);

(c) the account numbered 0160404 with BSB 302-965.

72. In order to explain what he means by "transaction details" the plaintiff proposes to attach to this subpoena when issued a pro forma document entitled "Transaction Details" which would set out the amount of a transaction, the person from whom the money was transferred, a description of the transaction and the number of the account to which it was transferred. The transaction details document would also state the date of the transaction; the status of it, as to whether it has been completed and posted; identification of any reference and nomination of any intermediary system that has been utilised for effecting the transfer.

73. I see no reason why the plaintiff should not issue this subpoena. I do not understand what it would achieve for him, in view of the fact that the documents sought would contain data concerning transactions on his own accounts and those of Ms McGill. As account holders, the plaintiff and Ms McGill could request the data directly from Bank and probably could attain it online. Further, the documents already produced to the Court under the subpoena issued by the defendants to the Commonwealth Bank comprise statements of account that will show the transaction data. The provision of the transaction details records as now sought by the plaintiff may not add anything to the information available off the statements. That remains to be seen when the documents are produced. For present purposes my determination is that the plaintiff should have leave to issue his proposed subpoena.

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Decision last updated: 13 March 2025