Kearney v Amirbeaggi [2025] NSWSC 147

Supreme Court New South Wales

Medium Neutral Citation: Kearney v Amirbeaggi [2025] NSWSC 147 Hearing dates: 17 and 19 February 2025 Date of orders: 19 February 2025 Decision date: 05 March 2025 Jurisdiction: Common Law Before: Fagan J Decision: (1) The proceedings are fixed for final hearing commencing on 28 April 2025 with an estimate of ten days. (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) 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) 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) 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) Note that the defendants' solicitors are to inform the recipients of their subpoenas of the terms of order 5. (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) 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) 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) 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. Catchwords: CIVIL PROCEDURE — stay of proceedings — abuse of process — whether plaintiff misrepresented his psychiatric condition to the Court – stay application stood over to final hearing date – hearing of stay application to resume in the event the final hearing is vacated, stayed or aborted CIVIL PROCEDURE — hearing date fixed – no directions for filing in advance of hearing Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Kearney v Amirbeaggi [2022] NSWSC 130 Kearney v Amirbeaggi [2022] NSWSC 805 Kearney v Amirbeaggi [2023] NSWSC 1404 Category: Procedural rulings Parties: Brian Kearney (Plaintiff) Farshad Amirbeaggi (First Defendant) Yates Beaggi Lawyers (Second Defendant) Representation: Counsel: Mr B Kearney, self represented (Plaintiff) Ms FT Roughley (Defendants)