Kearney v Amirbeaggi

1. [1]

   These are the Court’s reasons for having made the following interlocutory orders on 19 February 2025:

   1. (1)

      The proceedings are fixed for final hearing commencing on 28 April 2025 with an estimate of ten days.

   2. (2)

      The defendants’ notice of motion for a permanent stay of the proceedings is adjourned to 28 April 2025 with the intention that if the final hearing is not able to proceed on that date or soon after due to default of the plaintiff, then the hearing of the defendants’ notice of motion may resume, taking into account the then circumstances and developments.

   3. (3)

      By close of business on 5 March 2025, the plaintiff is to serve on the defendants and to deliver to Fagan J's associate any written submissions he wishes to make with respect to setting aside subpoenas that have been issued by the defendants and/or with respect to upholding subpoenas that he has issued.

   4. (4)

      The plaintiff's notices of motion regarding subpoenas filed 5 May 2024 and 14 May 2024 and the defendants’ notice of motion regarding subpoenas filed 9 May 2024 are listed for hearing on Friday 7 March 2025.

   5. (5)

      Order that the subpoenas issued by the defendants to Carroll & O'Dea Lawyers, Mark Barbeliuk, and Dr Donald Rowe are stood over to be returnable on 7 March 2025 with liberty to the subpoenaed parties to provide documents to the Court prior to that date.

   6. (6)

      Note that the defendants’ solicitors are to inform the recipients of their subpoenas of the terms of order 5.

   7. (7)

      Note that it is the intention of the Court to deal with any arguments concerning the pleading of the defendants’ defence at the commencement of the final hearing and if it then appears necessary to await developments of the evidence in order to resolve pleading issues, then the resolution of challenges to the defence will be stood over to be decided with the resolution of the other issues in the case.

   8. (8)

      Note that the plaintiff has indicated an intention to file a further version of his statement of claim, incorporating changes from the document entitled "Second further amended statement of claim" which appears at p 2 and following of exhibit TRP-4 to the affidavit of Timothy Price sworn 2 July 2024.

   9. (9)

      Note that the defendants do not require directions to be made to the plaintiff that he should file any further evidence by any particular date prior to the final hearing, nor any direction that he file any further amended pleading at any particular date prior to the commencement of the hearing.

   10. (10)

       Note, accordingly, the defendants’ have accepted that it will not be an impediment to embarking upon the final hearing from 28 April 2025 if the plaintiff provides a further amended statement of claim close to or at the commencement of the hearing, or if he provides further affidavit evidence close to or at the commencement of the hearing.

The substantive proceedings

1. [2]

   The plaintiff’s substantive claim in the proceedings is for damages for alleged professional negligence of the defendants. From 27 March 2013 the plaintiff retained the first defendant as his solicitor to advise him with respect to the alleged oppression of the plaintiff as a minority shareholder in Optimisation Australia Pty Ltd (“Optimisation”). The first defendant was also retained to commence proceedings on behalf of the plaintiff in the Equity Division of this Court to obtain relief against the oppression. The first defendant carried on his legal practice through a corporation, the second defendant, which was therefore also retained by the plaintiff. The retainer continued until December 2013 when the defendants terminated it by reason of the plaintiff’s failure to pay fees.

2. [3]

   After the defendants had ceased to act for the plaintiff in relation to his claim against Optimisation and its majority shareholders, he continued the suit as a self represented litigant. He was successful and in 2018 he obtained orders from Brereton J in the Equity Division pursuant to which the majority were required to purchase of the plaintiff’s 35% interest in the company for a price of $725,000 adjusted for the balance of the plaintiff’s loan account. He also recovered payment of $8,333.33 representing pay in lieu of one additional month’s notice for termination of his employment by Optimisation as a sales representative. Two directors of the company were ordered to repay to it certain amounts that they had caused to be overpaid to themselves in respect of salary and leave entitlements. A separate entity in which those directors were interested was also ordered to reimburse overpayments that it had received from Optimisation.

3. [4]

   In the present proceedings the plaintiff’s allegations of negligence include that the defendants failed to obtain interlocutory orders to prevent two of the directors of Optimisation from conducting a meeting on 29 April 2013 for the purpose of removing the plaintiff as a director; failed to take steps to obtain Optimisation’s accounting records in a timely manner and failed to inform the plaintiff of an offer of compromise dated 28 June 2013 from the directors of Optimisation. The damages claimed include compensation for psychiatric illness, including Adjustment Disorder with Mixed Anxiety and Depressive Mood, Major Depressive Disorder and Post Traumatic Stress Disorder. These disorders are alleged to have manifested themselves in an acute mental health breakdown on 26 November 2014 and in chronic cognitive and functional impairment.

Previous vacation of fixtures for final hearing

1. [5]

   On 28 June 2021 the plaintiff filed a notice of motion seeking an order that “Expedition [be] granted in these proceedings”. On 9 December 2021 Cavanagh J fixed the proceedings for final hearing on 15 September 2022 with an estimated hearing time of 15 days. At the plaintiff’s request his Honour granted him leave to approach the Chief Judge of the Division to seek an earlier hearing date.

2. [6]

   On 15 February 2022 the plaintiff submitted to the then Chief Judge that the hearing should be brought forward because the proceedings were exacerbating his already fragile mental health and because the defendants had been guilty of delays. The judgment on this application, Kearney v Amirbeaggi [2022] NSWSC 130, records at [6] that the proceedings were then at a stage that may be summarised as follows:

3. [7]

   On 17 February 2022 the Chief Judge vacated the 5 September 2022 hearing date and re-fixed the matter for 1 August 2022.

4. [8]

   On 10 June 2022 to the plaintiff applied to have the hearing date of 1 August 2022 vacated. That was refused for reasons given in Kearney v Amirbeaggi [2022] NSWSC 805. At [11] of that judgment the Chief Judge discounted some of the reasons for adjournment as advanced by the plaintiff, including that he intended to amend his statement of claim in respects that had not been identified. His Honour found as follows:

5. [9]

   On 10 June 2022 his Honour confirmed the hearing date of 1 August 2022 and directed that the plaintiff file and serve his lay and expert evidence in reply by 8 July 2022. The parties were directed to file and serve a supplementary tender bundle of documentary evidence by 25 July 2022 and to exchange submissions, chronologies and objections to evidence by 28 July 2022.

6. [10]

   On 27 June and 20 July 2022 a summons for leave to appeal, filed by the plaintiff, came before Brereton JA: Kearney v Amirbeaggi [2022] NSWCA 130. The summons was referred by the Registrar of the Court of Appeal to show cause why the proceeding should not be dismissed for want of due dispatch. By the summons, the plaintiff sought leave to appeal against the Chief Judge’s orders of 17 February 2022, on the ground that the proceeding should have been given a hearing date earlier than 1 August 2022. He sought leave to amend the summons to claim leave to appeal against the Chief Judge’s subsequent orders of 10 June 2022, asserting that the 1 August 2022 hearing should have been vacated and that directions preparatory to that hearing should not have been made.

7. [11]

   In support of the amendment to his leave application the plaintiff tendered a further letter from Dr Grace dated 5 July 2022, in the following terms:

8. [12]

   Brereton JA considered that an appeal from the Chief Judge’s refusal on 10 June 2022 to vacate the 1 August 2022 trial date had “real prospects of success”, on the following basis (at [27]):

9. [13]

   The plaintiff was granted leave to amend his summons so that the 10 June 2022 orders could be agitated. Brereton JA considered that this expanded application for leave to appeal should not be heard before 1 August 2022. His Honour’s reasons were as follows:

10. [14]

    The result was an order that the proceedings at first instance were stayed pending the hearing of the application for leave to appeal, which was adjourned to 31 October 2022. Consequently, the final hearing listed for 1 August 2022 could not proceed.

11. [15]

    On 12 December 2022 the plaintiff’s proceedings in the Court of Appeal were dismissed by consent. The stay of proceedings in this Division thereby came to an end and the matter was relisted before the Registrar on 2 March 2023. As Cavanagh J subsequently observed, the evidence for the final hearing was substantially complete at that time. However, the plaintiff sought leave to file further evidence and the Registrar directed him to file a notice of motion and affidavit in support of that. He failed to do so. On 20 April 2023 the Registrar dismissed the proceedings for want of due dispatch by the plaintiff.

12. [16]

    On 20 November 2023 the Registrar’s order dismissing the proceedings was reviewed and set aside by Cavanagh J: Kearney v Amirbeaggi [2023] NSWSC 1404. His Honour made the following findings about the procedural history to that point:

13. [17]

    The proceedings were referred to Weinstein J for case management. On 23 November 2023 his Honour listed the proceedings for final hearing on 26 August 2024. The plaintiff was allowed until 1 March 2024 to serve a fresh psychiatric report in support of his claim and to serve any additional lay evidence. The defendants were directed to serve any further evidence by 5 April 2024.

14. [18]

    On 5 March 2024 Weinstein J extended those times to 12 April 2024 for the plaintiff and 5 June 2024 for the defendants. The justification for the extension in relation to the defendants was that Dr Ventura, who had provided a psychiatric expert report concerning the plaintiff, to be relied upon in the defendants’ case, had transitioned to semiretirement and would not be available for the scheduled final hearing. The defendants were arranging for the plaintiff to be examined by another expert. A significant issue in the case is whether the defendants’ alleged negligent handling of the plaintiff’s claim against Optimisation, in 2013, caused the plaintiff to suffer mental illness and whether that mental illness has disabled him from gainful employment.

15. [19]

    On 22 April 2024 the plaintiff confirmed to Weinstein J that he had served all evidence. On 30 May 2024 an order was made for the plaintiff to attend upon the defendants’ expert, Dr Steven Yeates, on 13 June 2024 and for the defendants to serve the doctor’s report by 24 June 2024. The plaintiff duly attended the appointment and a report was served on 25 June 2024.

16. [20]

    The defendants issued subpoenas for the production of documents on the following dates, to the parties indicated:

17. [21]

    On 5 May 2024 the plaintiff filed a notice of motion seeking to set aside the first three of the above subpoenas and on 14 May 2024 he filed a further notice of motion to set aside the subpoena addressed to the Commonwealth Bank.

18. [22]

    On 8 May 2024 the plaintiff issued the following subpoenas for production of documents:

19. [23]

    On 9 May 2024 the defendants filed a notice of motion seeking to have both of the plaintiff’s subpoenas set aside.

20. [24]

    The matter was relisted on 17 June 2024 for further directions. On that date Weinstein J set down the notices of motion regarding the subpoenas for hearing on 8 August 2024, with directions for service of affidavits in support. His Honour had earlier advised that he would make orders in accordance with the Professional Negligence List Practice Note (Supreme Court CL No 7). The directions made on 17 June 2024 included the following:

21. [25]

    At the next directions hearing on 8 July 2024 the plaintiff informed Weinstein J that he would be seeking an adjournment of the final hearing listed for 26 August 2024, on psychiatric medical grounds. He tendered a letter from Dr Grace dated 3 July 2024. The doctor confirmed that he was continuing to treat the plaintiff. He expressed the following opinions:

22. [26]

    The plaintiff told Weinstein J on 8 July 2024 that he was to be admitted to hospital in psychiatric care on 15 or 16 July 2024. His Honour relisted the matter for 17 July 2024 for the purpose of ascertaining the plaintiff’s medical situation. On that date the plaintiff did not appear and the Court received a letter from the Sydney Clinic in Bronte stating that the plaintiff had been admitted to that facility, with no further detail. Weinstein J noted that all evidence for the final hearing appeared to have been exchanged and counsel for the plaintiff confirmed that position. The proceedings were stood over to 7 August 2024, to ascertain whether the plaintiff would then be fit to proceed or whether he would make his foreshadowed application to vacate the hearing listed for 26 August 2024.

23. [27]

    On 5 August 2024 Dr Grace wrote a letter in the following terms, which was brought to the Court’s attention on 7 August 2024:

24. [28]

    Prior to the listing on 7 August 2024 the plaintiff had notified the defendants that he would seek a stay of the proceedings on three grounds. First, that in the psychiatric and other medical circumstances described by Dr Grace he was unable to proceed to a final hearing on 26 August 2024. Secondly, that the pre-trial directions made by Weinstein J were procedurally unfair to him and would prejudice his conduct of the final hearing. Thirdly, that Weinstein J and other judges, registrars and court staff who have been concerned in the proceedings at various stages have acted wrongfully and that their misconduct is the subject of a “Supreme Court cover up plan”.

25. [29]

    The last-mentioned point is one instance in an unceasing stream of unsupported allegations of judicial corruption that have emanated from the plaintiff throughout the proceedings.

26. [30]

    On 7 August 2024 the proceedings came before McNaughton J, in the absence of Weinstein J on leave. The defendants urged her Honour to list the plaintiff’s stay application for hearing the next day, together with the plaintiff’s application to vacate the hearing date of 26 August 2024. It was submitted that only upon full hearing of the defendants’ response to those applications would the Court have sufficient information to assess the defendants’ claim that the date for final hearing should be maintained. McNaughton J rejected the defendants’ proposal. Her Honour held as follows:

27. [31]

    McNaughton J vacated the hearing of the notices of motion concerning subpoenas that had been listed for 8 and 9 August 2024 and vacated the final hearing that had been listed for 26 August 2024.

28. [32]

    On 26 August 2024 the proceedings were listed before Harrison CJ at CL for consideration of appointing a new date for the final hearing. The plaintiff appeared by audiovisual link and was evidently in a state of agitation and confusion. He professed to have taken “10 mg of Valium just to appear today”, because of stress. Notwithstanding that the matter had been ready for final hearing since at latest 17 July 2024, subject only to resolution of the subpoena arguments, the plaintiff was insistent that he wished to make further submissions and seek further orders before a fresh hearing date was appointed. His statements on this occasion included the following:

29. [33]

    The plaintiff told the Chief Judge that he was due to be readmitted to a psychiatric ward on 30 August 2024. His Honour granted the parties liberty to approach the List Manager to obtain a hearing date with an estimate of three weeks and liberty to apply on 48-hour’s notice to relist for dealing with the further submissions and applications for orders to which the plaintiff had referred. It was pointed out to the plaintiff that whatever final hearing date was given by the List Manager would be well into 2025 and there would be ample time for dealing with the matters that the plaintiff wished to raise, whatever they might be.

30. [34]

    The plaintiff said to the Chief Judge on 26 August 2024:

31. [35]

    On 12 September 2024 the defendants filed a notice of motion claiming an order for permanent stay of the proceedings. Submissions subsequently filed on 12 December 2024 disclose that the primary basis of this application is the defendants’ allegation that the plaintiff has misled the Court about his medical circumstances and has misused claims about his mental ill health to avoid having the proceedings finally determined. The defendants claim that the plaintiff is prolonging the proceedings and misusing them for the purpose of promoting his general allegations of corruption in the Court, which appear on a website that he maintains under the title “You Be The Judge”.

32. [36]

    On 13 September 2024 the proceedings were listed before Harrison CJ at CL. The parties had not obtained from the List Manager a fresh date for the final hearing. The plaintiff informed his Honour that he expected to be admitted to a psychiatric ward for 3 to 5 weeks commencing in the following week. On that basis his expected discharge date would be no later than the end of October 2024. The plaintiff asked his Honour to allow “a three-month medical respite period” with respect to the litigation, commencing from when he expected to be discharged.

33. [37]

    The plaintiff invited his Honour to read an affidavit that he had sworn on 11 September 2024, in support of the three month medical respite. Attached to the affidavit was a further letter from Dr Grace dated 29 August 2024, which included the following:

34. [38]

    Annexure X to the plaintiff’s affidavit of 11 September 2024 was a short minute of 21 orders, some of them in the alternative, that the plaintiff proposed should be made at the directions hearing on 13 September 2024. Despite Dr Grace’s opinion about the need for a three-month respite and about the adverse psychiatric effects of the plaintiff being required to comply with procedural orders, it is apparent from the content of the affidavit that the plaintiff was at that time able to prepare a comprehensive legal document. The body of the affidavit is 53 pages in length. It contains an accurate summary of the matters in issue on the pleadings and a very detailed summary of procedural steps up to that date. There are 373 pages of annexures, accurately assembled, marked and identified in the body of the affidavit.

35. [39]

    In the substantive proceedings the plaintiff relies upon a report dated 17 June 2021 from Ms Amanda Browne, a psychologist whom the plaintiff has consulted since November 2014. She has diagnosed him with General Anxiety Disorder and Major Depressive Disorder since late 2014 and with Obsessive Compulsive Disorder since 2016. The plaintiff’s behaviour at interlocutory hearings, as recorded on transcripts, and his conduct generally in the proceedings has consistently displayed the symptoms of General Anxiety Disorder as described by Ms Browne. The plaintiff’s 11 September 2024 affidavit is consistent with her description of his symptoms of Obsessive Compulsive Disorder. The affidavit is immensely detailed and meticulously prepared but the content is for the most part quite irrelevant to the fixing, or not fixing, of a date for final hearing, which was the purpose of the directions hearing on 13 September 2024.

36. [40]

    Harrison CJ at CL did not find it necessary to determine, directly, the plaintiff’s application for a three-month medical respite. The priority created by the plaintiff’s notice of motion of the 7 August 2024 for recusal and the defendants’ notice of motion of 12 September 2024 for a stay of proceedings was that those two applications should be dealt with, in that order. His Honour listed them for 17 February 2025, which had the effect that the plaintiff would not have to take any step in the proceedings for over three months after his discharge from the psychiatric facility. Having regard to the nature of the defendants’ application, his Honour did not fix a new final hearing date.

37. [41]

    The Chief Judge expressly did not make directions on 13 September 2024 for the plaintiff to file evidence or submissions with respect to either notice of motion. His Honour recorded the following:

The defendants’ notice of motion for stay – plaintiff’s alleged abuse of process

1. [42]

   Due to other listing priorities of the Division, the Chief Judge was not available to hear the notices of motion on 17 February 2025 and they were listed before me. At the commencement of the hearing the plaintiff was informed that it would therefore be unnecessary for him to pursue the recusal application and that the Court would proceed straight to the hearing of the defendants’ notice of motion for a stay. The plaintiff protested that he had “seven files of documentary evidence of the recusal”, that his submissions and evidence on that application “would probably take 2 to 3 days”, that he had prepared for that application, only, and that he was not ready to respond to the defendants’ stay application. The plaintiff sought an adjournment of the stay application, which I rejected for reasons delivered ex tempore.

2. [43]

   The plaintiff’s position with respect to the two applications was absurd. Both notices of motion were listed for a single day. If the recusal application had had to be dealt with, it could not possibly have occupied more than one hour. Harrison CJ at CL had only ever dealt with the proceedings in two brief directions hearings, both of which had resulted in orders favourable to the plaintiff. Whether or not there was a basis for recusal would have been determined summarily by reference to a very narrow scope of procedural events.

3. [44]

   The plaintiff left the court after his adjournment application was refused. He took no further part in the hearing of the defendants’ stay application for the remainder of 17 February 2025. The hearing continued on 19 February 2025 for half a day, to take the evidence of Dr Grace whom the defendants had subpoenaed. The defendants’ notice of motion then had to be adjourned part heard.

4. [45]

   In deciding whether to grant a stay on the grounds advanced by the defendants, it would be significant for the Court to make a finding on the allegation that the plaintiff misrepresented to the Court his psychiatric condition in mid-2022 and again in July and August 2024. That allegation overlaps with a major issue in the substantive proceedings, namely, whether professional negligence of the defendants caused the plaintiff psychiatric damage that has diminished his earning capacity. To resolve the factual issue of alleged misrepresentation by the plaintiff concerning his psychiatric condition would require a substantial forensic enquiry, going behind the opinions of the plaintiff’s treating psychiatrist. That and other issues in the stay application could not be resolved in a hearing of only one day (as originally allocated) or one and a half days (being the limit of the Court’s available time in the week commencing 17 February 2025.

Rationale for procedural orders of the 19 February 2025

1. [46]

   When it became apparent on 19 February 2025 that significant further hearing time for completion of the stay application would have to be allocated on a future date, the Court offered the parties the alternative of re-fixing the final hearing of the plaintiff’s substantive claim, with minimal further delay, namely, on 28 April 2025 for 10 days. Ten days is my estimate of how long should be required to hear the plaintiff’s professional negligence claim. The hearing time on 17 and 19 February 2025 and the Court’s reading time in relation to the defendants’ stay application, particularly with respect to reviewing the pleadings, would not be wasted if the final hearing could proceed before me. The time spent on the defendant’s notice of motion constituted a substantial and useful opening to the issues in the case.

2. [47]

   The defendants expressed a preference for simply continuing with their stay application on an adjourned date. On the basis of their experience in August 2022 and again in August 2024, the defendants referred to the risk, even the likelihood, that as a further date for final hearing approaches, the plaintiff would again declare himself psychiatrically unwell, would produce evidence from Dr Grace in support and would secure another adjournment.

3. [48]

   The plaintiff opposed having the case set down for final hearing to commence on 28 April 2025 on the following grounds:

4. [49]

   As to the first point, I consider it would be irresponsible to set aside 35 days of Court time based upon the opinion of a litigant in person who has demonstrated throughout the proceedings that he has limited understanding of litigation procedure. That is shown in the prolix, repetitive pleading of the statement of claim, in the irrelevance of much of the affidavit material that the plaintiff has filed, in his voluminous email correspondence with the Associates of each of the judges who have dealt with the case and in his time wasting conduct throughout numerous interlocutory hearings. The plaintiff’s affidavit of 11 September 2024 contains a breakdown of his 35 day estimate, made up of inordinate multi-day cross examination by both the plaintiff and the defendants of the opposite parties’ witnesses. I have read sufficient of the pleadings and of the filed affidavits to see that the extent of cross-examination proposed by the plaintiff would not possibly be required and would not be allowed. I have made it clear to both parties that if the final hearing does not conclude within the 10 days that I have estimated as sufficient, the case will simply continue on subsequent dates.

5. [50]

   As to the outstanding interlocutory issues, those concerning subpoenas will be dealt with on 7 March 2025. That will leave ample time prior to the appointed final hearing date for any subpoenas that are upheld to be complied with. As for any disputes about the pleadings, I do not intend to attempt to resolve them prior to the commencement of the final hearing. The current (fourth) iteration of the statement of claim is 133 pages long and comprises 204 paragraphs of detailed allegations. It is possible to analyse and summarise the document, eliminating repetition and unnecessary verbiage, to identify the factual and legal contentions that the defendants are required to meet. There would be no utility in having a pre-trial hearing about any aspect of the statement claim because the plaintiff may well seek to change it again at the commencement of or during the hearing. Further, some latitude will have to be extended to the plaintiff, as a self represented litigant, to enable him to adjust the pleading, in matters of detail and within reason, to accord with his evidentiary case.

6. [51]

   As for the plaintiff’s desire to consult with an unnamed barrister, the Court cannot adjust hearing dates to accommodate such an arrangement in relation to counsel who is not briefed for the hearing, either through a solicitor or by direct access. The plaintiff has refused the Court’s direct request to identify the person whom he claims to be consulting. In the absence of a name or any information as to a binding arrangement, the plaintiff’s desire to consult with this person is irrelevant to fixing the final hearing date.

7. [52]

   In his letters of 5 July 2022, 3 July 2024, 5 August 2024 and 29 August 2024, Dr Grace expressed opinions about the stress felt by the plaintiff as a result of being required to comply with pre-trial directions for the preparation of written submissions, chronologies, statements of issues and the like. The doctor was of the view that those pre-trial directions exacerbated the plaintiff’s anxiety as the final hearing date approached. To avoid that situation arising again, I have made no directions for pre-trial preparation. I have dispensed with any requirement that the plaintiff comply with Supreme Court Practice Note CL No 7, relating to professional negligence claims. All affidavits of lay witnesses and expert reports have been filed and served. I have requested the defendants’ solicitors to provide lists of the affidavits and reports that they will rely upon and of the affidavits and reports that they understand are to be read or tendered in the plaintiff’s case. When those lists are received I will seek the plaintiff’s confirmation that they are accurate from his point of view. The Court can locate the evidence within the Court file, relieving the plaintiff of any need to prepare a court book of affidavits and reports.

8. [53]

   I will leave it to the defendant solicitors to prepare a court book of documentary evidence, strictly limited to documents that they or the plaintiff wish to tender that are not already annexed to any of the filed affidavits. The defendants’ solicitors will have to communicate with the plaintiff about this by providing him with a proposed index and asking him to nominate any required additions. If the plaintiff does not respond prior to 28 April 2025 and simply produces additional documents for tender during the final hearing, that will be accommodated. At worst, it may require a short-term adjournment to enable the defendants to meet any such documentary evidence of which they were not on notice.

9. [54]

   I have made no direction for either party to file written submissions or statements of issues or schedules of damages in advance of the hearing. The parties are at liberty to do so if they consider that it would be useful to the presentation of their respective cases. In the course of hearing from the plaintiff on 19 February 2025 he made reference to “four or five motions that are on foot” that he claimed would be an impediment to setting a trial date of 28 April 2025. He did not specify what those motions are. From the Court file, I am unaware of any beyond the applications concerning striking out subpoenas and concerning the pleadings, for which I have provided.

10. [55]

    Consistently with the defendants’ apprehensions about whether the plaintiff will, for a third time, seek to have the final hearing fixed for 28 April 2025 vacated, I have stood over the defendants’ notice of motion for stay of the proceedings to that date. If the final hearing should be vacated, or disrupted and aborted part way through, by fault of the plaintiff, consideration will be given at that time to resuming the hearing of the stay application in light of those developments.

11. [56]

    In response to the defendants’ concern that the fixing of the final hearing for 28 April 2025 may simply give rise to another adjournment and further loss and disruption to the defendants, I note that costs orders do not appear to have been made against the plaintiff on the two previous occasions when dates for final hearing have been vacated. Subject to consideration of the circumstances of a further vacation of the hearing date, should that occur on grounds of psychiatric or physical ill-health of the plaintiff, it would be open to the defendants to apply for an order that the plaintiff pay their costs thrown away: s 98(3) of the Civil Procedure Act 2005 (NSW). It would also be open to the defendants to ask that their costs be assessed in a gross sum pursuant to s 98(4)(c) and that the Court should “order otherwise” pursuant to r 42.7(2) of the Uniform Civil Procedure Rules (UCPR), to the effect that the costs thrown away be paid forthwith. Whether such orders could be justified would entirely depend upon circumstances. I mention this potential recourse in answer to the defendants’ concern that by re-fixing the final hearing for 28 April 2025 the Court would be exposing the defendants to further irrecoverable loss.

12. [57]

    Dr Grace’s reports and the stagnation of the proceedings due to the plaintiff’s recurrent psychiatric ill-health raise an issue as to whether the plaintiff is under a legal incapacity to conduct the proceedings, within the meaning of Pt 7, Div 4 of the UCPR. If the Court should come to the view that the plaintiff is under legal incapacity, he would not be able to carry on the proceedings except through an appointed tutor (r 7.14(1) of the UCPR) and, unless the Court should order otherwise, the tutor would be required to act through a solicitor (r 7.14(2)).

13. [58]

    On 19 February 2025 I asked both the plaintiff and counsel for the defendants whether either of them contends that the plaintiff is under legal disability. Both answered in the negative. In his opposition to having the case set down for final hearing the plaintiff did not suggest that any psychiatric or other medical problem would be an impediment. He raised different objections to the final hearing, as listed above. Not only was the plaintiff ready, as at 17 February 2025, to embark upon a two to three day hearing of his notice of motion for recusal of Harrison CJ at CL, he also proposed that the Court should proceed with a series of other interlocutory arguments and applications before the final hearing. If the plaintiff is psychiatrically fit to conduct those other aspects of the case, there is no reason why he should not be fit to conduct a final hearing in two months’ time.

14. [59]

    Notwithstanding present indications of the plaintiff’s fitness to proceed with the final hearing, if this third fixture should have to be vacated on the basis of medical evidence that the plaintiff cannot conduct the hearing because of his psychiatric disorders, the Court will have to return to the question of whether the proceedings should be stayed unless and until the plaintiff has appointed a tutor. Depending upon the tutor’s identity and capabilities and any other relevant factors that may emerge at the time, an appointed tutor may have to conduct the case on behalf of the plaintiff through a solicitor.