Kearney v Amirbeaggi

LEEMING JA: The hearing of this application on 23 February did not complete in the time that was set down for it. It is unnecessary to explain in any detail the background to the application for the appointment of a tutor subject to unusual conditions, namely, that the tutor be dispensed from the obligation to act through a lawyer and to obtain an immunising costs order. Regrettably, the application has, to date, taken longer than the substantive appeal brought by Mr Kearney will take, if and when such appeal is progressed.

The present application was originally adjourned until 3 March, a date chosen to suit Mr Kearney’s convenience. However, he brought forward his admission into a place called The Sydney Clinic Bronte shortly before 3 March and that hearing was vacated. The Court invited Mr Kearney to continue the hearing on a range of dates, which included 8 or 9 April. He selected 2.15pm on 9 April. An afternoon start had been provided because Mr Kearney had said that was more convenient to him in terms of travelling time (he lives outside of Sydney).

The latest application for an adjournment is brought by Mr Kearney because of recent emails to the effect that he admitted himself to The Sydney Clinic Bronte at 1 o’clock this afternoon. He says –

APPLICANT: That’s, that’s not correct, your Honour. I didn’t admit myself, your Honour.

HIS HONOUR: He says that an opportunity became available earlier than anticipated. An email sent to him at 1.07pm, 7 April, advised that earlier availability had become available and he had been provisionally confirmed to be admitted at 1pm on 9 April. That email invited him to attend the clinic on time to facilitate a smooth admission. He has been admitted and appears today by AVL link from the clinic.

Mr Kearney’s application today was to adjourn the further hearing of his motion until some date after 14 May 2026. That application was opposed by the respondents, who referred to what on any view is an unsatisfactory procedural history of litigation in this Court and also referred to the absence of any evidence demonstrating that Mr Kearney’s position would be, in terms of being able to prosecute his motion, any better at some later period of time.

They also pointed to the fact that Mr Hancock, whom Mr Kearney has nominated to be his tutor, would be well-placed to assist Mr Kearney now that he is at The Sydney Clinic Bronte, but there was no evidence from Mr Hancock as to why he could not continue what was left of the motion.

There was also debate about precisely what is left of the motion, a matter which has been raised in email correspondence between the parties and my chambers over the last few weeks on a number of occasions. (Broadly speaking, the respondents say there is very little remaining, while Mr Kearney says a further 3 hours is required. It is neither necessary nor appropriate to resolve this debate regarding time, when the parties’ submissions have been focussed upon the adjournment application.)

In response, Mr Kearney said that he was unaware that Mr Hancock might be permitted to assist on this occasion. He also pointed to practical difficulties of communicating and getting Mr Hancock up to speed in terms of prosecuting this application. There is no evidence of either of those things, but I am prepared to proceed because they were matters that arose during the course of submissions, and which strike me as inherently probable.

On the more important point, namely, the risk of further adjournments given the unfortunate procedural history to date which is associated with applications for an adjournment brought the day before a hearing, Mr Kearney candidly acknowledged that the hearing of his motion could not be adjourned indefinitely and volunteered a regime which would, in effect, preclude any further adjournments.

I indicated that I was not prepared to impose so drastic a regime. There may be utterly unforeseen circumstances (the instance I gave was someone being seriously injured in a motor vehicle accident) that might preclude the completion of the hearing on the yet further adjourned date and the orders that I propose will accommodate that.

The principal reason for acceding to Mr Kearney’s application is my assessment of the practical, just, quick and cheap resolution of this application. Just like the parties and the respondents’ lawyers, I too am bound to, in a procedural application like this, do what I can to facilitate the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW). The likely reality is that if I accede to the respondents’ submission and reject the application for an adjournment, Mr Kearney will exercise his entitlement to review that decision before the Court of Appeal constituted by three Judges of Appeal, and he will do so on the basis that I have proceeded to resolve his application for the appointment of a tutor in circumstances where he has been unable to appear in person because he has become a resident of The Sydney Clinic, and his medical advice recommends against participating in legal activities.

In circumstances where the underlying application for leave to appeal in this Court (which is easy to lose sight of, but which is the only reason that we are focussing upon an application to appoint a tutor with unusual conditions) concerned a decision of a judge sitting in the Common Law Division to proceed in circumstances where Mr Kearney was in an institution to facilitate his mental health, I ought to be especially careful not to proceed on the same basis in relation to his part heard application for the appointment of a tutor on the basis that Mr Kearney lacks capacity.

Ordinarily, no such adjournment would be granted. However, it seems to me that, in the highly unusual circumstances of this case, it is appropriate to give Mr Kearney one further opportunity by way of adjournment to complete the preparation of his application. He says, and I agree, that it is a very important application for him. Pragmatically, bearing in mind the consequences of a review of a decision to refuse the adjournment, and the limited overall delay in the scheme of things, I consider the grant of the adjournment to Mr Kearney – who appears today in person by audio visual link from The Sydney Clinic – to accord with s 56 of the Civil Procedure Act.

That is the basis on which I indicated, during the hearing, that I would accede to the application for an adjournment.

After I announced that view and was about to articulate orders which would seek to encapsulate the unusual background, Mr Kearney raised a second order that he sought. There had been no mention of this in the oral submissions that I heard hitherto, but I have now heard what he has said in support of it. The order that is sought is as follows:

I shall proceed on the footing that the Court has power to make an order in those terms, but the threshold question is what is the basis of such an order being made by me, part heard as I am on the application for the appointment of a tutor. Mr Kearney maintains that during the hearing on 23 February I said, and it may very well be true, that I thought the costs orders involved were in the amount of some $600,000. I note that the orders which are the subject presently of a stay in this Court, being a gross sum costs order made by Fagan J in the Common Law Division of this Court on 17 October 2025 are in the smaller amount of $369,432: see [2025] NSWSC 1223.

It may be, as Mr Kearney maintains, that the total amounts incurred by the respondents are substantially higher; they often are. But whether the issue be the gross sum costs order made by Fagan J, or the total assessable costs incurred by the respondents, or the actual costs charged including disbursements which have been incurred by the respondents, I do not see that that is of any material relevance to the issues before me. Mr Kearney’s appeal is important, as is his application for a tutor, and that is so irrespective of how many hundreds of thousands of dollars turn on the outcome of the appeal.

There has been correspondence between the parties which has been directed to Mr Kearney’s request. There is nothing in what I have said that would preclude that correspondence continuing. But I do not see the basis for making the mandatory injunction that Mr Kearney seeks. I think it is likely that making any such order will give rise to further disputation, which will only cause expense and delay, to no useful end.

For those reasons, I will in substance accede to the first, which I had regarded as by far the principal, order sought by Mr Kearney, but dismiss his informal application for an order concerning the total legal fees incurred by the respondents.

[Further discussion concerning orders]

The Court’s orders are: