Kearney v Amirbeaggi (No 4)

1. [1]

   FREE JA: By an amended notice of motion, filed 3 December 2025, the applicant, Mr Brian Kearney, seeks a variation of orders that I made on 22 October 2025, following a hearing on 20 October 2025. I published reasons for judgment on 22 October 2025, which set out the broader background to these proceedings. Reference should be made to that judgment to understand the more detailed factual and procedural context, which I will not repeat. The position as at 22 October 2025 can be summarised as follows.

2. [2]

   First, Mr Kearney had indicated his intention to appeal from the judgment of Fagan J given on 1 May 2025, dismissing the claim that Mr Kearney brought against his former solicitor, Mr Farshad Amirbeaggi, and an incorporated law firm associated with Mr Amirbeaggi, for professional negligence. Fagan J determined the proceedings at first instance in the absence of Mr Kearney, who was at the time under the care of his treating psychiatrist, Dr Grace. Fagan J made cost orders against Mr Kearney, including a gross sum cost order on 17 October 2025.

3. [3]

   Secondly, on 25 September 2025, Mr Kearney filed an amended notice of motion in the Court of Appeal. Prayer 2 sought a stay of proceedings in the Common Law Division. That had become redundant by 20 October 2025, as the making of the gross sum costs order three days earlier meant that proceedings in the Common Law Division were at an end. Prayer 3 of the amended notice of motion sought a stay of enforcement of all cost orders made by Fagan J pending the final judgments in the appeal proceedings.

4. [4]

   Thirdly, Orders 4, 5 and 6 of the amended notice of motion of 25 September 2025 concerned the proposed appointment or recognition of a tutor on the basis that such a tutor would then take over from Mr Kearney in prosecuting the appeal, if the tutor determined it was appropriate to proceed.

5. [5]

   Fourthly, the Registrar of the Court of Appeal had referred to me for hearing only paras 2 and 3 of the amended notice of motion. There had been a debate before the Registrar about whether it was appropriate to determine those parts of the amended notice of motion, in circumstances where there was an unresolved issue about whether Mr Kearney had capacity to run the proceedings on his own behalf. Mr Kearney pressed for an immediate hearing of his application for orders 2 and 3. Those paragraphs only were referred to me for hearing. That referral was on the basis that what was being sought was an interim stay only, pending the resolution of the tutorial issue.

6. [6]

   I should deal immediately in that context with an issue which was raised today by the respondents, who were represented by Mr Smith of counsel. It was submitted that, as a matter of procedural fairness, the question of extension of the stay of enforcement of costs orders beyond the point of resolution of the tutorial issue had not been properly raised because the earlier referral to me by the Registrar was confined to the question of an interim stay only. I am not persuaded to confine the issues before me in that way, in circumstances where Mr Kearney had, at least in submissions before me on 20 October 2025 and certainly in submissions today, squarely raised the issue of whether the stay should extend beyond the point of resolution of the tutorial issue.

7. [7]

   Returning to the description of circumstances that prevailed as of 22 October 2025, fifthly, the registrar had otherwise made directions to progress towards a hearing of the issue concerning a tutor as raised by what were then orders 4, 5 and 6 of the amended notice of motion. When the matter was heard before me on 20 October 2025, Mr Kearney was due to file his evidence in relation to those matters by 27 October 2025.

8. [8]

   Sixthly, at the time of the hearing before me on 20 October 2025, no appeal or application for leave to appeal from the orders of Fagan J had been formally commenced. However, Mr Kearney relied on a draft notice of appeal and draft grounds leave to appeal which set out in considerable detail the grounds which Mr Kearney sought to rely on in demonstrating that Fagan J had erred. I note that Mr Kearney has for today’s purposes also filed a document styled as a draft summons seeking leave to appeal, which again sets out his proposed grounds for overturning the decision of Fagan J.

9. [9]

   At the hearing of 20 October 2025, Mr Kearney indicated that, if necessary, he could proceed to file those documents to address the perceived formal deficiency. I concluded that this was not an appropriate step to procure, in circumstances where the issue of the proposed tutor remained unresolved. Mr Kearney’s own position was that the evidence demonstrated that he lacked the capacity to act on his own behalf, and if a tutor came to assume responsibility for the conduct of the appeal, it would be a matter for the tutor to decide how to proceed and what documents to file. In those circumstances, I proceeded instead on the basis that the draft grounds of appeal should be treated as indicating the grounds which Mr Kearney said showed error on the part of Fagan J.

10. [10]

    In my judgment of 22 October 2025, I determined that it was appropriate to grant a temporary stay of enforcement of the costs orders made by Fagan J until prayers 4, 5 and 6 of the amended notice of motion were resolved. Among other things, that was predicated on an acceptance that an arguable ground of appeal existed and Mr Kearney would suffer prejudice in the absence of a stay of that kind. That was a more temporary stay than Mr Kearney desired. He had sought a stay of enforcement of the costs orders until resolution of the appeal proceedings.

11. [11]

    I was not persuaded to grant a stay in those terms, in circumstances where there was a significant and unresolved question about whether Mr Kearney had capacity to act on his own behalf, and the issue of appointment or recognition of a tutor was due to be resolved in the near future. How that issue was resolved would have a significant impact on the form of any ongoing appeal, which in turn could have an impact on whether an extension of the stay of enforcement of any costs orders beyond that point was warranted. The continuation of the stay of enforcement of the costs orders beyond that point was, therefore, a matter best addressed by the Court once the issue of the proposed tutor was resolved.

12. [12]

    By order 2 on 22 October 2025, I gave the respondents liberty to apply to the Court of Appeal registrar for an order lifting the stay in order 1 if prayers 4, 5 and 6 had not been resolved by 11 December 2025. As I explained in my reasons for judgment, that liberty to apply was granted to provide the respondents with a mechanism to have the stay revisited if, for whatever reason, the issue regarding the appointment or recognition of a tutor did not proceed in the timely way that was expected as of 22 October 2025.

13. [13]

    As events have transpired, Mr Kearney filed his evidence in relation to prayers 4, 5 and 6 as directed. That involved an expert report of Dr Rowe dated 27 October 2025 and a consent to act as tutor by a Mr Matthew Hancock. An amended notice of motion was filed on 4 November 2025. This updates the orders sought in relation to the proposed tutor, now Mr Hancock. The respondents have also served evidence, although not medical evidence, for the purposes of the hearing of the tutorial issue, and the relevant parts of the amended notice of motion dealing with the tutor issue have been set down for hearing on 23 February 2026.

14. [14]

    It follows that by the first order I made on 22 October 2025 the stay of enforcement of the costs orders would operate until at least that time. That would theoretically have been subject to the respondents making an application in the meantime under the liberty to apply. However, in the absence of some significant change of circumstances which has not occurred, it is hard to imagine how the respondents could have justified bringing an application between now and then, given the dispute about prayers 4, 5 and 6 is due to be resolved at or after the hearing, which has now been scheduled for 23 February 2026. Indeed, as I will explain further in this judgment, the respondents have accepted that the stay will remain in place until the hearing of that issue, at least if it occurs on 23 February 2026. Mr Kearney by today’s amended notice of motion nevertheless seeks a different form of protection in the form of a stay of enforcement of the costs orders of Fagan J until the conclusion of the applications for leave to appeal or appeals. This is prayer 2 of his amended notice of motion of 28 November 2025.

15. [15]

    This is to a large extent, a repeat of the application that I head on 20 October 2025 and determined in my judgment two days later. By prayer 3 of his amended notice of motion, Mr Kearney seeks an order altering the liberty to apply, which I had granted by order (2) on 22 October 2025.

16. [16]

    Mr Kearney has been agitating for orders of this kind since around 17 November 2025. On 20 November 2025 the respondents wrote to Mr Kearney proposing the existing stay be extended to 23 February 2026, being the date of hearing of the tutor issue. On the same day Mr Kearney indicated he would consent to such orders being made, subject to adding the words “without prejudice”. The next day the respondents indicated that they would agree to the addition of those words. However, Mr Kearney subsequently indicated that he no longer consented to the proposed orders.

17. [17]

    At a directions hearing before the registrar on 3 December 2025 the respondents confirmed that they would not seek to lift the extent stay prior to the hearing listed on 23 February 2026. They also indicated that the current amended notice of motion ought to be listed on the same date to avoid further unnecessary cost. Mr Kearney opposed that course. The respondents have confirmed in written submissions that they will not take any steps to seek to lift the extent stay prior to the resolution of the tutorial issue listed for hearing on 23 February 2026.

Power to vary interlocutory order

1. [18]

   The Court does have power to vary an interlocutory order under r 36.16(3) of the UCPR. Such a variation may be ordered where circumstances have changed sufficiently to justify that change. Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126.

2. [19]

   The requirement for a material change in circumstances is critically important. It is not appropriate simply to re-agitate the same arguments that have been heard and determined already, or to run what is in substance an appeal from an earlier decision.

3. [20]

   Mr Kearney has filed extensive written submissions of over 60 pages and extensive affidavit evidence in support of his application for a variation of the existing stay. I have read those submissions and considered his evidence, and I have also heard further oral submissions from Mr Kearney today. Amongst other things, Mr Kearney relies on a long history of medical reports attesting to his impaired capacity over different periods of time. This evidence is in turn relied on to submit that it was erroneous of Fagan J to proceed in the absence of Mr Kearney at the hearing of the matter at first instance, and to show other alleged errors by Fagan J in his Honour’s management of those proceedings.

4. [21]

   Mr Kearney has also sought to demonstrate that the material he points to shows that I underestimated the strength of his grounds of appeal in dealing with the question of the stay on the last occasion.

5. [22]

   Mr Kearney has properly today addressed his submissions to the question of whether there has been a material change in circumstances since 20 October 2025. He points in that regard to two particular matters. One is the service of a draft summons seeking leave to appeal, which sets out in some considerable detail the grounds of appeal that Mr Kearney would seek to rely upon. The other is the report of Dr Rowe which was filed on 27 October 2025.

6. [23]

   Dr Rowe’s report, which Mr Kearney helpfully directed me to in particular respects, deals, at least relevantly for today’s purposes, with two broad issues. One is Mr Kearney’s ongoing capacity to run proceedings on his own behalf, which is the critical issue to be determined by the Court on 23 February 2026. The other is that the report deals more historically with whether Mr Kearney lacked capacity in the past, when the matter was being managed and heard by Fagan J, to run the proceedings on his own behalf at first instance. That in turn, Mr Kearney submits, feeds into the question of whether he has demonstrated strong grounds to challenge the correctness of what Fagan J determined. Because this material was not before me on 20 October 2025, this is said to be a material change in circumstances that should justify a variation to my orders.

7. [24]

   It is apparent from his submissions that Mr Kearney is dissatisfied with the reasoning and findings in my judgment of 22 October 2025. However, as I have emphasised, the present application is not an appeal, and it is not an opportunity for Mr Kearney simply to have a second attempt at persuading me that I should make a different order from the one I made on 22 October 2025 based on reagitating the arguments that were made on that occasion.

8. [25]

   Ultimately, in my view, Mr Kearney has not identified any material change in circumstances that warrants a different approach. Mr Kearney argues that I gave insufficient attention to the full scope and force of the multiple grounds of appeal detailed in his draft documentation that was before me on 20 October 2025, and he has emphasised that the material which has since become available, particularly in the form of Dr Rowe’s report, corroborates that there are multiple strong grounds of appeal in his favour to challenge the decision of Fagan J.

9. [26]

   That exercise of seeking to demonstrate the strength of the grounds of appeal is, with respect to Mr Kearney, misdirected. As I explained in my judgment of 22 October 2025, it is relevant to the question of a stay of enforcement of orders sought in connection with an appeal from those orders to consider whether there are arguable grounds of appeal that have been identified. I found on the last occasion that Mr Kearney had established at least one arguable ground of appeal, and that was for the purposes of the exercise of determining the stay issue, the decisive matter in his favour as far as arguability of the appeal was concerned.

10. [27]

    Given the other considerations that affect the resolution of this matter in the unusual circumstances of this case, Mr Kearney’s position is not relevantly advanced by contending that he has additional grounds of appeal, which Mr Kearney says are strong or at least arguable. Nor, in the circumstance of this case, do I accept that the determination of the appropriate form of stay is affected by my assessment of the relative strength of the appeal grounds, beyond finding that arguable grounds of appeal have been established.

11. [28]

    Most critically, as things stand, Mr Kearney’s position is that he lacks capacity to run the proceedings, as demonstrated in evidence available to him, and, in fact, confirmed by the most recent report of Dr Rowe filed on 27 October 2025. On that basis, he is continuing to seek orders for the appointment or recognition of a tutor. The appeal, or, strictly speaking, the putative appeal is approaching a critical juncture. A tutor may be appointed or recognised, in which case the tutor will need to decide if the appeal proceeds, and if so, in what form. That could well affect the assessment of whether or not it is appropriate for the stay to persist. Alternatively, a tutor may not be appointed or recognised and the future conduct of the appeal will need to be reassessed on the basis that Mr Kearney will be conducting the appeal personally if it continues. That circumstance too may have implications for the continuation of the stay. In whatever circumstances pertain, relevant considerations may include the future efficiency of the conduct of the appeal proceedings and how that intersects with the relevant factors going to a continuation of the stay of enforcement of the cost orders.

12. [29]

    These are considerations that the Court will only be in a position to properly assess and weigh up on or after 23 February 2026. The Court may well be satisfied if an appeal is on foot and there is reason to expect that it will be efficiently prosecuted, that the stay should be extended at that time to preserve the status quo until the appeal is resolved.

13. [30]

    But I remain of the view that that is a matter best resolved by the Court at that point. These were considerations that informed my decision to confine the stay to the period between 22 October 2025 and the resolution of the issue regarding a tutor. These considerations remain compelling in my view. There has been no relevant change in circumstances.

14. [31]

    To the extent there is now a greater certainty about the timing of the hearing of those aspects of the amended Notice of Motion with a listing of 23 February 2026, that does not support any change to the existing stay, including the change that Mr Kearney seeks.

Revocation of specific liberty to apply

1. [32]

   I will deal briefly with the proposed variation to Order 2 that I made on the last occasion, which granted to the respondent liberty to apply after 11 December 2025 for a lifting of the stay. As I have already noted, Mr Kearney seeks a variation to that Order 2. That order was made at that time to address the uncertainty about the timing of the resolution of the issue about appointment or recognition of a tutor. There is now greater certainty about that timing with the relevant aspects of the amended Notice of Motion listed for hearing on 23 February 2026.

2. [33]

   The respondents have indicated expressly in submissions to me that they will not take any steps to seek to lift the extent stay prior to resolution of the tutor issue in the circumstances, at least on the assumption that it proceeds as currently listed on 23 February 2026 to be heard. I am satisfied that it is appropriate in those circumstances to remove the liberty to apply that was granted by Order 2, which is evidently a source of ongoing stress to Mr Kearney.

Costs of the motion

1. [34]

   Finally, dealing with the costs of the motion. Considerations as to the costs of the Notice of Motion today are reasonably finely balanced. Mr Kearney has been unsuccessful in his application to extend the stay until the resolution of the appeals. And in that sense, on the basis that costs would ordinarily follow the event, the respondent might be considered entitled to a costs order in its favour.

2. [35]

   An additional consideration in favour of the respondent in that regard is that it has acted quite responsibly and reasonably in proposing consent orders that would have effectively preserved the effect of the existing temporary stay. Mr Kearney was initially amenable to consenting to those orders, but subsequently revoked his consent. The respondent has also acted responsibly by indicating that it has no intention of seeking to exercise the liberty to apply to vary the stay in advance of 23 February 2026.

3. [36]

   On the other hand, Mr Kearney points out that although he had success on the last occasion before me, in my judgment on 22 October 2025, I did not make an order for costs in his favour, but ordered that costs of the hearing be costs in the appeal if and when instituted.

4. [37]

   Although there is a strong case for a specific costs order in favour of the respondents on this occasion, taking all those matters into account, given the approach I took on the last occasion, I will make an equivalent order that the costs in respect of the notice of motion filed on 3 December 2025, which was heard before me today, will be costs in the appeal, including any application for an extension of time to appeal if and when instituted.

5. [38]

   Otherwise, it is appropriate to vary the order that I made on the last occasion, only to reflect the fact that the issue regarding the appointment or recognition of a tutor is now the subject of a different notice of motion from the one I referred to on that occasion. The orders of the Court are:

   1. (1)

      Vary Order (1) in ([2025] NSWCA 234) to read:

   2. (2)

      Revoke Order (2) in [2025] NSWCA 234 (made on 22 October 2025).

   3. (3)

      Costs of the Amended Notice of Motion filed by the applicant on 3 December 2025 shall be costs in the appeal (including any application for an extension of time to appeal), if and when instituted.

   4. (4)

      The amended Notice of Motion dated 28 November 2025 (filed on 3 December 2025) is dismissed.