Kearney v Amirbeaggi [2022] NSWCA 130

Kearney v Amirbeaggi [2022] NSWCA 130

The applicant had shown cause why the existing leave application should not be dismissed for want of due despatch because he was not in breach of any direction and had taken steps including filing a summary of argument and white folder. Although the proposed appeals from the earlier February, April and May orders had no real prospects or would be futile, the applicant's real challenge was to the 10 June 2022 refusal to vacate the 1 August hearing. The further psychiatric report of 5 July 2022 materially strengthened the case for an adjournment by stating that the applicant could not comply with pre-trial orders or participate in the hearing and that there was concern about suicide risk....

Jurisdiction
Australia
Judgment Date
20 July 2022
Procedural Posture
Application for Leave to Appeal From Interlocutory Orders in Supreme Court of NSW Common Law Division Proceedings / Show Cause Referral for Want of Due Despatch; Application to Amend Summons for Leave to Appeal and Stay Proceedings Below Pending Hearing of the Application for Leave to Appeal
Outcome
Leave granted to amend summons; amended application for leave to appeal adjourned; Common Law Division proceedings stayed pending hearing of the application for leave to appeal.
Legal Topics
['leave to Appeal From Interlocutory Orders' 'stay of Proceedings Pending Leave to Appeal' 'case Management Decisions' 'adjournment of Trial' 'self Represented Litigant Mental Health' 'want of Due Despatch']
['civil Procedure' 'appeals' 'professional Negligence'] ['leave to Appeal From Interlocutory Orders' 'stay of Proceedings Pending Leave to Appeal' 'case Management Decisions' 'adjournment of Trial' 'self Represented Litigant Mental Health' 'want of Due Despatch']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Interlocutory Orders in Supreme Court of NSW Common Law Division Proceedings / Show Cause Referral for Want of Due Despatch; Application to Amend Summons for Leave to Appeal and Stay Proceedings Below Pending Hearing of the Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the application for leave to appeal should be dismissed for want of due despatch.' 'Whether the applicant should be permitted to amend the summons for leave to appeal to add a claim for leave to appeal from the Common Law Division orders made on 10 June 2022.' "Whether the proceedings in the Common Law Division should be stayed pending hearing of the application for leave to appeal where new psychiatric evidence suggested the trial would adversely affect the applicant's mental health." 'Whether an appeal from the refusal to vacate the hearing date had real prospects of success in the unusual circumstances.']

Ratio Decidendi

The applicant had shown cause why the existing leave application should not be dismissed for want of due despatch because he was not in breach of any direction and had taken steps including filing a summary of argument and white folder. Although the proposed appeals from the earlier February, April and May orders had no real prospects or would be futile, the applicant's real challenge was to the 10 June 2022 refusal to vacate the 1 August hearing. The further psychiatric report of 5 July 2022 materially strengthened the case for an adjournment by stating that the applicant could not comply with pre-trial orders or participate in the hearing and that there was concern about suicide risk....

Court Disposition

Leave granted to amend summons; amended application for leave to appeal adjourned; Common Law Division proceedings stayed pending hearing of the application for leave to appeal.

Orders

  • ['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.' 'Order that the amended application for leave to appeal be adjourned to 31 October 2022.' 'Stay the proceedings in the Common Law Division...