Kearney v Amirbeaggi

[2022] NSWSC 130

Supreme Court

New South Wales

Medium Neutral Citation:

Kearney v Amirbeaggi [2022] NSWSC 130

Hearing dates:

15 February 2022

Date of orders:

17 February 2022

Decision date:

17 February 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1)   The hearing date of 5 September 2022 be vacated.

(2)   The matter be fixed for hearing on 1 August 2022 with an estimate of seven days.

(3)   There be liberty to apply to the Associate to Beech-Jones CJ at CL on one day’s notice.

(4)   The plaintiff’s notice of motion filed 28 June 2021 be otherwise dismissed.

(5)   The costs of the motion be reserved.

Catchwords:

PRACTICE AND PROCEDURE – no question of principle

Cases Cited:

In the matter of Optimisation Australia Pty Ltd (2018) 362 ALR 374; [2018] NSWSC 31

Kearney v Amirbeaggi [2020] NSWSC 1035

Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
Mr B Kearney, in person (Plaintiff)
Ms FT Roughley (Defendants)

Solicitors:
Mr B Kearney, in person (Plaintiff)
YPOL Lawyers (Defendants)

File Number(s):

2019/96321

Judgment

1. In 2019 the plaintiff, Brian Kearney, commenced these proceedings against his former solicitors. He seeks damages for their alleged negligence in acting for him around the time of the breakdown of his relationship with his co‑owners and directors of Optimisation Australia Pty Ltd (“Optimisation”), and his subsequent commencement of oppression proceedings. Those proceedings culminated in a judgment of Brereton J (as his Honour then was): In the matter of Optimisation Australia Pty Ltd (2018) 362 ALR 374; [2018] NSWSC 31.

2. The issues arising in these proceedings were described in the judgment of Ierace J in Kearney v Amirbeaggi [2020] NSWSC 1035 in which his Honour dismissed the defendants’ application to have them summarily dismissed. It is apparent from that judgment, and a perusal of the pleadings, that this case involves a number of relatively complex issues including breach, causation, advocate’s immunity, abuse of process and “Anshun” estoppel (Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45).

3. On or about 28 June 2021, Mr Kearney filed a notice of motion seeking, inter alia, an order that “[e]xpedition is granted to these proceedings”. His application came before the Court on various occasions in the second half of 2021. On 9 December 2021, the matter came before Cavanagh J who case manages a significant proportion of the Common Law Division’s civil hearings that occupy more than five days. Based on an estimate of 15 days’ hearing time, his Honour fixed the matter for hearing on 5 September 2022. On 16 December 2021, his Honour made provision for Mr Kearney to apply to pursue an application for an earlier hearing date. He did this before me on 15 February 2022.

4. The Common Law Division does not grant “expedition” in the sense of conferring on some matters the particular status of being “expedited” as opposed to others that are not. Nevertheless, it is common for notices of motion to be filed seeking “expedition” or an “urgent hearing”. Such motions facilitate consideration being given by the Court to whether some particular feature(s) of the case warrants it being heard earlier than otherwise having regard to the interests of the parties and other litigants. This latter consideration is particularly acute at present as the Court seeks to address the consequences of the vacation of a number of criminal trials due to the pandemic in 2020 and 2021.

5. Mr Kearney has filed detailed submissions and a number of affidavits in support of his motion seeking expedition. In short, his submissions emphasise the psychological impact of the proceedings on him as exacerbating his already fragile mental health. The submissions also point to the delays by the defendant in the provision of evidence. Ultimately, the defendants did not oppose expedition but submitted that consideration should be given to the availability of counsel who has been briefed in the matter for some time.

6. The current state of the proceedings is that Mr Kearney has filed his lay and expert evidence in chief. Guillotine orders have been made against the defendants requiring the service of the expert evidence by 22 December 2021 and their lay evidence by 11 February 2022. On 15 February 2022, counsel for the defendants, Ms Roughley, advised the court that, subject to a relaxation of the guillotine orders, she anticipated her client’s expert evidence would be filed within days and the lay evidence within two to three weeks. The expert evidence will be provided by a psychiatrist and there would be one lay witness called. Mr Kearney indicated that if that timetable was maintained then he did not anticipate opposing the lifting of the guillotine orders and he could file evidence in reply within weeks. Mr Kearney indicated that he anticipated briefing counsel to conduct the hearing. On the assumption that those matters are attended to, and the briefing of counsel does not result in a recasting of Mr Kearney’s case or evidence, and allowing for the other steps necessary to have the matter prepared, I anticipate that this case could be ready for hearing by early May 2022.

7. In relation to the expedition of the hearing, I accept for the purposes of deciding the notice of motion that the conduct of these proceedings is causing Mr Kearney significant psychological stress and his present condition is “fragile”. As explained to Mr Kearny, it is not appropriate on an interlocutory application to determine whether the defendant is somehow responsible for this. However, in considering the position of Mr Kearney, vis‑a‑vis the defendants and other litigants, four related matters should be borne in mind. First, almost all litigation is stressful for the parties and often extremely so. Second, Mr Kearney is the moving party to the litigation; he has commenced and is conducting, in his own right, complex civil litigation. Third, numerous other litigants in the Common Law Division have experienced and continue to experience physical and psychological harm and many of them suffer more extreme harm than Mr Kearney. Fourth, as noted, the interests of other litigants in this Division include persons facing trial on serious criminal charges, some of whom have been awaiting trial in custody for some years.

8. Were it not for one matter, these considerations would have compelled me to decline to advance Mr Kearney’s hearing date. However, it emerged at the directions hearing on 15 February 2022 that the estimated length of the hearing for the matter had reduced to seven days. In those circumstances, it can be allocated an earlier hearing. In fixing that date I have had some regard to the availability of counsel for the defendants, even though Mr Kearney submitted that little weight should be afforded to that factor given the impact of the proceedings on him. However, on this issue the second point just noted is of significance. Mr Kearney has commenced this litigation and not the defendants. A decision to alter a hearing date must also consider their interests. Otherwise, the parties should understand that, if the hearing of the matter exceeds the seven day estimate, then it will be a matter for the presiding judge as to whether the hearing will continue or be adjourned to another date.

9. With the future conduct of the matter, given his psychological state, Mr Kearney has requested ongoing case management that minimises court attendances prior to the hearing. The defendant does not oppose this course. On 15 February 2022, I made directions to facilitate this occurring although I will list the matter before me if it becomes necessary.

10. Accordingly, the Court orders that:

1. The hearing date of 5 September 2022 be vacated.

2. The matter be fixed for hearing on 1 August 2022 with an estimate of seven days.

3. There be liberty to apply to the Associate to Beech-Jones CJ at CL on one day’s notice.

4. The plaintiff’s notice of motion filed 28 June 2021 be otherwise dismissed.

5. The costs of the motion be reserved.

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Decision last updated: 17 February 2022