Kearney v Amirbeaggi

1. [1]

   This application for leave to appeal comes before me upon referral from the Registrar for the applicant to show cause why the proceedings should not be dismissed for want of due despatch. The applicant Brian Kearney is the plaintiff in proceedings in the Common Law Division against the respondents Farshad Amirbeaggi and ACN 111 804 383 Pty Limited (formerly Yates Beaggi Lawyers Pty Ltd) trading as Yates Beaggi Lawyers, in which he sues lawyers who had acted for him in an earlier commercial dispute, for damages for professional negligence. To the extent necessary, the substance of Mr Kearney’s claim is explained by Ierace J in a judgment declining to dismiss it as an abuse of process. [1]

Background

1. [2]

   In the proceedings below, Mr Kearney on or about 28 June 2021 filed a Notice of Motion seeking inter alia an order expediting the hearing of the proceedings. The matter was case managed by Cavanagh J, who ultimately fixed it for hearing for 15 days commencing on 5 September 2022, reserving leave to apply for an earlier hearing date. Such an application (that is, for an earlier hearing date) was heard by Beech-Jones CJ at CL on 15 February 2022. His Honour acceded to that application, vacating the hearing date of 5 September 2022 and instead fixing the matter for hearing on 1 August 2022 with an estimate of seven days. His Honour’s essential reasoning and orders were as follows: [2]

2. [3]

   On 1 March 2022, Mr Kearney purported to file a Notice of Appeal (2022/59224). As amended on 18 March 2022, it relevantly sought orders setting aside orders (2) to (5) of 17 February 2022, and directions to lead to new pre-trial directions culminating in an expedited hearing of the trial. The twelve proposed grounds of appeal in essence complain that the judge erred in failing to give proper weight or consideration to evidence of Mr Kearney’s mental health and the desirability in that regard of having the proceedings heard earlier. The purport of Mr Kearney’s complaint at that stage appears to have been that the judge had erred in failing to grant a greater degree of expedition to the proceedings. I do not suggest that this encapsulates the whole of Mr Kearney’s complaints, but it is a sufficient summary for present purposes.

3. [4]

   Meanwhile, at first instance, on 12 April 2022, Beech-Jones CJ at CL made directions standing the proceedings over for directions on 3 May 2022, and directing the defendants to file an affidavit explaining their non-compliance with earlier directions of the Court. Further directions – none of them adverse to Mr Kearney – were made on 3 May 2022. On 20 May 2022, his Honour made orders that, relevantly:

4. [5]

   On 23 May, his Honour granted leave to the defendants to rely on a late affidavit, and otherwise dismissed the defendants’ motion.

5. [6]

   In this Court, the requirement for leave to appeal from an interlocutory judgment having been brought to Mr Kearney’s attention, he filed a summons for leave to appeal, together with a white folder, on 7 April 2022. On 12 April 2022 he filed an outline of argument which summarised and explained the grounds of appeal, and while referring to the emergence of “significant new medical evidence and serious adverse events” since 17 February 2022, maintained in substance the position that the judge had erred in failing to grant (further) expedition of the substantive proceedings. By motion filed on 22 April 2022, Mr Kearney sought an expedited determination of the application for leave and any consequent appeal.

6. [7]

   On 16 May 2022, the Registrar extended time for the respondents’ reply to 13 May 2022, and granted leave to Mr Kearney file an amended motion, which was stood over for further directions on 23 May 2022. Mr Kearney was subsequently offered, but did not accept, an expedited hearing on 25 May. On 23 May, the application was adjourned for further directions on 6 June. On 6 June, Mr Kearney filed notices of intention to appeal from the orders of 12 April 2022 and from the orders of 20 May 2022. Before the Registrar, Mr Kearney referred to a medical certificate of Dr Grace dated 9 May 2022, which relevantly stated:

7. [8]

   The Registrar adjourned the proceedings to 27 June to show cause before a judge why the summons for leave to appeal should not be dismissed for want of due dispatch, with the applicant directed to serve any affidavit in that respect by 23 June.

8. [9]

   On 10 June 2022, Beech-Jones CJ at CL considered an application made by Mr Kearney for vacation of the hearing date, in circumstances where the defendants below had defaulted in timely service of their evidence, and also because Mr Kearney’s mental health was said to have deteriorated to an extent that his conduct of the proceedings would be seriously compromised. The judge declined to vacate the hearing, and made the following orders: [3]

9. [10]

   On 27 June, Mr Kearney filed a notice of intention to appeal from the orders of 10 June 2022.

10. [11]

    Shortly before the hearing before me, Mr Kearney served and subsequently provided to the court a document entitled amended notice of motion which seeks a stay of orders 2, 3, 4, and 5 made on 17 February 2022, a stay of the orders made on 20 May 2022, setting aside of the orders made on 10 June 2022 and various other orders and directions. Following the conclusion of the hearing, at his request, I directed that he may make further, written, submissions by 11 July, with the respondents permitted to respond by 18 July. For reasons which are acceptable, Mr Kearney lodged submissions on 17 July. The respondents promptly indicated that they did not wish to make further submissions and relied on their written submissions of 13 July (in opposition to the application for leave to appeal) and their oral submissions on 27 June.

11. [12]

    Were the circumstances upon which Mr Kearney was required to show cause only his conduct of the proceedings in this Court on the summons for leave to appeal, I would not dismiss the proceedings. His summary of argument was filed in a timely manner; a white folder has been filed; it is not apparent that he is in breach of any direction of this Court. He can hardly be criticised for failing to accept the offer of an expedited hearing at quite short notice. His request for an adjournment on 6 June was based on medical advice to which I have referred. In my judgment, Mr Kearney has in those respects shown cause why the proceedings should not be dismissed for want of prosecution. Indeed, it would be extraordinary to dismiss for want of due despatch an application by an applicant who is not in default of any direction.

12. [13]

    On one view, the matter could be simply left there and returned to the Registrar for further directions. However, adopting that course would fail to address the real issues that now arise.

13. [14]

    At the hearing, what most concerned me was that it appeared that Mr Kearney’s essential position now was that he wished to have the trial adjourned on account of his health and welfare, and that that position was inconsistent with prosecuting an appeal from Beech-Jones CJ at CL’s declining to grant further expedition to the proceedings on 17 February 2022.

14. [15]

    While my judgment was reserved – and before his written submissions were lodged – he requested that the matter be urgently relisted, because if the trial proceeded on 1 August it would have “unthinkable medical and legal ramifications” for him. The President’s chambers responded, indicating to all parties that when disposing of the show cause question, I would if appropriate consider making directions for the further conduct of the application for leave to appeal, proposed amended summons and notice of motion. For that purpose, I reconvened the court to enable the parties to address what directions should be made, and drew their attention specifically to Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4), [4] referred to more fully below. Ultimately, the respondents did not consent to, but did not oppose, the course which I have decided, for the reasons that follow, to adopt.

15. [16]

    Mr Kearney’s written submissions contain much that is irrelevant, or misconceived. For example, the fact that some interlocutory judgments have not included a medium neutral citation (MNC) nor been published on Caselaw, has no effect whatsoever on their status. More fundamentally, and as I endeavoured to point out during the hearing, appeals lie from orders, not from reasons. While I understand that Mr Kearney disputes some of the matters recorded and observations made by Beech-Jones CJ at CL in his Honour’s reasons of 17 February and 12 April 2022, it is only against orders that appeals lie, and his Honour’s observations in the course of the reasons are of no consequence for any final hearing of the matter. If it is not or no longer sought to disturb the orders actually made by his Honour, it does not matter that there may be misstatements in the reasons.

16. [17]

    In circumstances where there is now no prospect that the Court could or would fix an earlier hearing than 1 August, and indeed Mr Kearney does not seek an earlier hearing, an appeal from the orders of 17 February would be futile, and there is no prospect that leave to appeal would be granted. While the reasons of 12 April 2022 contain some observations critical of Mr Kearney’s engagement with the Court by email correspondence, there is no order adverse to Mr Kearney, and there is no prospect that leave to appeal would be granted from the orders of that date. And although it appears from Mr Kearney’s submissions before me that he has some complaints about the “disentitled to costs” order made against the defendants on 20 May 2022, it is an order substantially favourable to him, and one in respect of which, due to its trial management character, there is in my opinion no prospect that leave to appeal would be granted.

17. [18]

    However, Mr Kearney’s real complaint is about the more recent directions made in the proceedings below on 10 June 2022, requiring him to serve his evidence by 8 July and maintaining the hearing date of 1 August. His present position is that he is not mentally or physically fit and cannot be ready to proceed with a hearing commencing on 1 August, and that pressing on with such a hearing would be further deleterious to his health. In short, he seeks (as he sought before Beech-Jones CJ at CL on 10 June) that that hearing should be adjourned, to allow him a period of respite in which to regain his mental health. If that were achieved, then it is difficult to see that he would have any other tenable basis for any of his pending applications for leave to appeal.

18. [19]

    Although in the course of the hearing I suggested that if Mr Kearney wished to challenge the orders of 10 June 2022, a new summons for leave to appeal would be required as they post-dated the extant summons, that suggestion overlooked that, as it now seems to me, Civil Procedure Act 2005 (NSW), s 64(3), would permit the amendment by leave of the extant summons to add applications for leave to appeal from the later interlocutory orders. It is clear from the amended notice of motion that that is in substance what Mr Kearney now seeks.

19. [20]

    In declining to vacate the hearing, Beech Jones CJ at CL, who had before him the psychiatrist’s report which I have set out above, said:

20. [21]

    This Court has been provided with a further report of Dr Grace, of 5 July 2022, which states:

21. [22]

    This report, in my judgment, significantly strengthens the applicant’s case for an adjournment of the trial, and highlights the level of risk involved in not doing so.

22. [23]

    While the Court rarely interferes with case management decisions of trial judges, it is not unprecedented for it to do so to prevent a possible miscarriage of justice. [5] Circumstances somewhat similar to the present arose in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4), [6] in which Raybos (of which the principal was Dr Rajski) applied for leave to appeal from a trial judge’s refusal to adjourn an interlocutory application that was set down for seven days, where Dr Rajski, who was appearing as a self-represented litigant in litigation of a highly complex nature, claimed to be incapacitated from continuing to represent himself because of mental and physical exhaustion. The Court of Appeal held that in circumstances which included its own observations of the behaviour of Dr Rajski in the Court, the unseemly record of conduct in the court below, and the nature of the psychiatric evidence available, the exceptional circumstances of the litigation and the likelihood otherwise of further applications, appeals and stays of proceedings, evidence of a psychiatric opinion on Dr Rajski’s condition of health should be admitted. The Court further held that it had jurisdiction to grant a stay of the proceedings before the trial judge in support of a part heard application for leave to appeal, under then Supreme Court Rules 1970, Pt 51, r 10 (see now UCPR r 51.44, which provides that subject to the filing of a relevant originating process – here, a summons for leave to appeal – the Court may order that the decision below or the proceedings under the decision be stayed). In the exceptional and unusual circumstances of the case, the application for leave to appeal was adjourned part heard, and the proceedings at first instance were to be stayed, pending a final determination of the application for leave to appeal, in order to secure “a brief respite in the litigation and that principally because of the evidence of the effect on the health of the claimant which continuance of the proceedings would probably cause”. [7]

23. [24]

    The power to grant a stay under UCPR r 51.44 can be exercised by a single judge of appeal. [8]

24. [25]

    It is now less than two weeks from the appointed commencement of the hearing. Theoretically it might be possible for an expedited application for leave to appeal to be heard, concurrently with any consequent appeal, before then. However, such a course would leave to an unacceptably late stage resolution of whether the hearing at first instance would proceed. It would also require Mr Kearney to engage with the litigation, at a time when it appears to be firmly against the interests of his mental health to do so.

25. [26]

    If an appeal is not heard before 1 August, it will be rendered futile unless a stay is granted in the interim. On the other hand, if a stay is granted, the applicant will achieve his purpose of an adjournment of the trial without his appeal being heard. Neither of these is an attractive proposition, although the second scenario is comparable to the situation in Raybos, where the effect of granting a stay was similar.

26. [27]

    Because of the practical consequences of granting a stay, it is appropriate to apply a stricter than usual standard when considering whether an appeal has prospects of success. In my judgment, in what I consider to be the unusual circumstances of this case, I consider that an appeal from the refusal to vacate the hearing has real prospects of success. The new evidence of Dr Grace, which was not before Beech-Jones CJ at CL, contributes significantly to this conclusion. As in Raybos, the circumstances are such that such evidence can be received on an application for leave to appeal. Moreover, it is in my respectful opinion arguable that it is not quite correct that Mr Kearney did not put forward anything to suggest any period of time in which his psychiatric health may improve, as Beech-Jones CJ at CL said, since the first report of Dr Grace suggests disengagement for a period of three months. His Honour’s view that, if his anxiety is associated with the litigation, it is better to get it over sooner than later, is also contestable, especially if the risk of forcing him to trial in the short term is suicide. If there is a prospect that a period of respite will result in an improvement in his mental health, as might be inferred from Dr Grace’s report, then, contrary to his Honour’s reasoning, there may be some reason to think that something will be gained by vacating the hearing. The prejudice of a deferral to the respondents, in circumstances where, as his Honour rightly acknowledged, they have been responsible for considerable delay to date, pales into insignificance when weighed against the risk that the trial might be a charade with no plaintiff (if Mr Kearney acts on the advice, as he has indicated he will, not to engage), or that he would be required to conduct the trial seriously handicapped by his current condition. In my respectful view, it is very strongly arguable that it is in the interests of justice that the trial be adjourned.

27. [28]

    Accordingly, in my view, on the basis that Mr Kearney is seeking leave to appeal from the orders of 10 June 2022 refusing to adjourn the trial, I would stay the proceedings below pending the hearing of the application for leave to appeal. In order to provide the respite which Mr Kearney requires, I would adjourn the hearing of that application for three months.

28. [29]

    My orders are:

    1. (1)

       Grant leave to the applicant to amend the summons for leave to appeal, by adding a claim for leave to appeal from the orders of the Common Law Division made on 10 June 2022;

    2. (2)

       Order that the amended application for leave to appeal be adjourned to 31 October 2022;

    3. (3)

       Stay the proceedings in the Common Law Division pending the hearing of the application for leave to appeal.