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[2025] NSWSC 588
General information, not legal advice.
Supreme Court of NSW
2025-06-10
Meek J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Julie (a pseudonym) v John (a pseudonym) (No 2) [2025] NSWSC 588
Hearing dates: 8 May 2025
Date of orders: 8 May 2025
Decision date: 10 June 2025
Jurisdiction: Equity - Protective List
Before: Meek J
Decision: Application by the first defendant for a financial management order in respect of the third defendant dismissed with costs.
Catchwords: FINANCIAL MANAGEMENT ORDERS — New hearing consequent upon orders allowing an appeal of financial management orders of the Guardianship Division of the NSW Civil and Administrative Tribunal under the Guardianship Act 1987 (NSW)
PROTECTIVE JURISDICTION — Evidence — New hearing — In the exercise of its protective jurisdiction the Court is not necessarily bound by strict rules of evidence but, subject to or with due regard to considerations of procedural fairness, has a discretion to act on material which is rationally probative of material facts and issues, even though excluded by technical rules of evidence
PROTECTIVE JURISDICTION — New hearing — Application for financial management orders — Repeated impermissible correspondence by applicant (first defendant) to Judge’s chambers email disclosed actuating purposes in respect of the new hearing which were very remote from the purported purpose of whether the third defendant was incapable of managing her affairs — Case management directions to achieve procedural fairness required service of affidavit material by the parties for the new hearing and relevantly by the applicant before mid-December 2024 — In early February 2025 the new hearing of the application was fixed to take place in early May 2025 — Applicant in early March 2024 provided certain “witness statements” rather than affidavits — That material was not rationally probative and not permitted to be relied upon — No subsequent application was made by the applicant, prior to the hearing, to be permitted to rely upon oral evidence (nor other materials) on the hearing — At the listed hearing the applicant had not served affidavit evidence, had travelled to China and sought to be permitted to conduct the hearing by AVL from China and contemplated that oral evidence would be called from two witnesses who had not been subpoenaed to attend to give any such evidence — That request was refused (in light of above context and prejudice to the active respondent) and the application for financial management order dismissed
FINANCIAL MANAGEMENT ORDERS — Permissible purposes — A financial management order, per se, is not a vehicle for commandeering and otherwise realising and dividing family wealth by reference to purported intentions of the deceased family members or otherwise than in accordance with the principles that properly inform the jurisdiction to make a financial management order
CIVIL PROCEDURE — Dismissal of proceedings — Civil Procedure Act 2005 (NSW) s 61(3)(a) — Failure to comply with case management orders
PRACTICE AND PROCEDURE — Principles regarding email communications with Judge’s chambers — Approach with self-represented litigants
HEARINGS — Mode of appearance at hearing —Proceedings in Supreme Court are generally held in person — Audio visual and other modes of appearance — r 31.3 Uniform Civil Procedure Rules 2005 (NSW), Pt 1A Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Evidence Act 1995 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Guardianship Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ability One Financial Management Pty Limited v JB by his tutor AB [2014] NSWSC 245; (2014) 11 ASTLR 155
Al Dakhili v Al Kheurallah [2023] NSWSC 47
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
In the matter of Sunnya Pty Ltd [2023] NSWSC 1286
M v M [2013] NSWSC 1495
Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539
Mulberry Capital Management Pty Ltd v Shen – AVL Application [2022] NSWSC 1023
P v NSW Trustee and Guardian [2015] NSWSC 579
RAP v AEP [1982] 2 NSWLR 508
Re Frances and Benny [2005] NSWSC 1207
Roberts v Balancio (1987) 8 NSWLR 436; (1987) 11 Fam LR 669
Sobalirov v Bullen [2020] NSWSC 1532
Xia v Santah Pty Ltd [2003] NSWSC 807
Zhang v Zhang [2022] NSWSC 924
Zhou v Birriga Holding Pty Ltd [2024] NSWSC 1425
Texts Cited: Bible - New International Version
Davies, Martin, Andrew Bell, Paul Brereton and Michael Douglas, Nygh’s Conflict of Laws in Australia (10th ed, 2020, LexisNexis Butterworths)
Theobald, Henry, The Law Relating to Lunacy (1924, Stevens & Sons, London)
Category: Principal judgment
Parties: “Julie” (a pseudonym) (Plaintiff / Respondent)
“John” (a pseudonym) (Defendant / Applicant)
NSW Trustee and Guardian (Second Defendant)
“Olivia” (a pseudonym) (Third Defendant)
Representation: Counsel:
O Jones (Plaintiff / Respondent)
Solicitors:
Clear Lawyers (Plaintiff / Respondent)
In-person (Defendant / Applicant)
File Number(s): 23/177002
HIS HONOUR: Many families function and live out their lives delighting and disappointing each other without resort to legal processes. Sometimes legal processes may be necessary to determine disputed relational matters and property entitlements within families.
Not all such litigation is unwelcome or vexed. Uncontested adoption applications are a quintessential example of a legal proceeding which in many respects gladdens hearts and generally enriches the adoptive family. However, many family grievances or disputes worked out in the context of litigation have the opposite tendency, especially where conducted by a family member by means of unrestrained disparaging correspondence and materials of no probative value for any legitimate forensic purpose.
Such family litigation will often be particularly challenging where questions arise regarding the capacity or motives of one or more of the family members.
On 8 May 2025, I dismissed with costs an application of the first defendant (John) [1] for a financial management order in respect of the third defendant, his mother (Olivia) (application). These reasons for judgment set out the basis for my dismissal of the application.
The history to the dismissal is important and I will recite salient parts of it below. It brings to an end a long-standing attempt (approximately 2.7 years) by John to achieve through the application certain disclosed financial objectives which were very remote from the proper purpose of a financial management order and far from evident as being for the welfare of his mother. John was initially legally represented but since early September 2024 has been self-represented.
Evidence at a prior hearing before me revealed that over 25 years ago, certain medical professionals ventured an opinion that John had what was then described as “Asperger’s syndrome”. [2] Without opining on that, certainly on one view, John exhibits sufficient functioning qualities to conduct litigation. However, the tragic irony in this matter is that John’s conduct of the application raised more questions regarding his own sagacity, than that of his mother to conduct her affairs.
To give context to the dismissal of the proceedings, it will be necessary to outline certain of John’s conduct of the application. Even so, it is not appropriate nor the purpose of this judgment to venture into any examination of John’s capacity nor the reasons for his conduct. No application was made by any party challenging John’s capacity to conduct litigation. Expressly, I do not proceed on the basis that John has been diagnosed with or has any form of autism spectrum disorder or other condition that may impact upon his capacity or conduct.
The reasons make reference to reasons for judgment delivered by me on 9 August 2024, Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 ( or ) and will adopt its nomenclature and abbreviations.
On 8 October 2022 John signed and on 21 October 2022 filed, in the Guardianship Division of the New South Wales Civil and Administrative Tribunal (Tribunal), an application pursuant to the provisions of the Guardianship Act 1987 (NSW) (Guardianship Act). [4]
On 5 November 2022, Julie (John’s sister) and Robert (Julie’s husband) lodged a submission with the Tribunal seeking an order that John’s application be dismissed on the basis that it was vexatious, spurious, lacking in substance and misconceived. [5]
The Tribunal held two hearings in relation to the application.
The first hearing was held on 14 December 2022. On that day, the Tribunal made orders committing Olivia’s estate to management under the NSW Trustee and Guardian Act 2009 (NSW) (NSWTG Act) and appointing the NSW Trustee and Guardian (NSWTG) as financial manager under an interim financial management order for a period of six months (first orders). The Tribunal provided reasons for the first orders on 19 January 2023. [6]
The second hearing was held on 22 March 2023. On that day, the Tribunal made orders committing Olivia’s estate to management under the NSWTG Act and appointing the NSWTG as financial manager. The orders specifically excluded part of Olivia’s estate from the financial management order, consisting of two bank accounts and a credit card (second orders). The Tribunal provided reasons for the second orders on 5 May 2023. [7]
On 2 June 2023, by a notice of appeal, the Plaintiff (Julie) appealed the decision of the Tribunal. [8]
On 4 September 2023, pursuant to leave given on 14 August 2023, Julie filed an amended summons. The amended summons sought the following relief: [9]
- Appeal from the decision of the NSW Civil & Administrative Tribunal on 22 March 2023 allowed.
- Orders of the Tribunal dated 22 March 2023 be set aside.
- Orders of the Tribunal dated 14 December 2022 be set aside.
- In lieu thereof, order that the Application before the Tribunal is dismissed.
- First Respondent to pay the appellants costs.
Appended to the amended summons were points of claim which (omitting formal parts) set out 7 grounds of appeal. The grounds of appeal were detailed and spanned over 6 pages. [10] Julie contended that, in making the financial management order, the Tribunal erred in law for various reasons, including errors of procedural fairness, applying the incorrect legal test, and acting in a legally unreasonable way. [11]
Julie and John were the active parties in the proceedings. The NSWTG was named as the second defendant but did not file any appearance nor participated on the hearing of the appeal. Olivia was named as the third defendant and Mr Schmidt-Liermann, solicitor, filed a submitting appearance on her behalf on 1 February 2024. [12]
In dealing with an appeal from the Guardian Division, the Court may decide to do so by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) Sch 6 cl 14(3)(2). However, no party at that stage contended that the Court should do so in this case. [13]
The hearing of the appeal was listed before me on 14 June 2024 and, on that occasion, Mr O Jones of counsel appeared for the plaintiff instructed by Clear Lawyers, and Ms A Poukchanski of counsel appeared for John instructed by SLF Lawyers. The hearing progressed on that day and I reserved judgment.
On 9 August 2024, I delivered reasons for judgment in the matter, allowing the appeal.
A significant part of the grounds of appeal related to the question of John’s standing to make the application. I made various findings regarding the standing issue, including that:
it was raised before the Tribunal; [14]
it was pressed by Julie (and not abandoned);
the Tribunal was obliged to address it; [15]
contrary to the submissions of Ms Poukchanski (counsel for John), the Tribunal did not address it and a finding of standing was not “inherent” in the Tribunal’s reasons;
the Tribunal’s rejection of the summary dismissal application of Julie was not a finding on standing; [16] and
a finding on standing was material to the outcome. [17]
In addition, I made various other findings.
On 9 August 2024, I made the following orders:
THE COURT ORDERS that:
1 the appeal from the decision of the Tribunal on 22 March 2023 is allowed;
2 the orders of the Tribunal dated 22 March 2023 be set aside;
3 the orders of the Tribunal dated 14 December 2022 be set aside;
4 there be no order as to costs, to the intent that each party will bear their own costs of the proceedings, unless within 14 days of these orders any party indicates by email to the Associate to Meek J that a different order as to costs is sought, in which case directions will be made to facilitate the determination of any dispute as to costs.
5 Grants leave to approach the Associate to Meek J for any relisting or other consequential or ancillary order by email on 2 days’ notice.
On 23 August 2024, Julie’s solicitor Mr Clear foreshadowed that she sought an order for costs of the proceedings and proposed a number of orders. On 26 August 2024 by email, my Associate enquired whether there was any dispute regarding costs and whether the parties wished to be heard orally and be provided with reasons. On 27 August 2024, Mr Clear indicated that he did not seek any oral hearing and was content for the matter to be dealt with on the papers, but did seek reasons for any decision on cost.
On 27 August 2024 and 4 September 2024, I made orders to facilitate the determination of costs.
On 11 February 2025, I made the following orders regarding costs of the first hearing, which orders (incorporating a slip rule amendment) were as follows:
- Notes:
a. the reasons for judgment of Meek J delivered on 9 August 2024;
b. the Orders of Meek J on 9 August 2024 and in particular Order 4 as follows "there be no order as to costs, to the intent that each party will bear their own costs of the proceedings, unless within 14 days of these orders any party indicates by email to the Associate to Meek J that a different order as to costs is sought, in which case directions will be made to facilitate the determination of any dispute as to costs";
c. that by email dated 23 August 2024 to the Associate to Meek J Mr Clear on behalf the plaintiff sought a different costs order;
d. the Orders of Meek J on 27 August 2024 making directions for the determination of the costs issue;
e. the further Orders of Meek J on 4 September 2024 extending the time for compliance with Orders 1-3 made on 27 August 2024;
f. the Notice of Ceasing to Act filed Mark Smith of SLF Lawyers, notifying his ceasing to act as the legal representative of the first defendant;
g. the submissions of Mr Jones of counsel on behalf of the plaintiff dated 12 September 2024 and filed on 13 September 2024;
h. the email submission of the first defendant sent on 24 September 2024 (2:19 AM) to the Associate to Meek J;
i. the reply submissions of Mr Jones of counsel on behalf of the plaintiff dated and filed on 2 October 2024; and
j. neither the plaintiff nor the first defendant require reasons for judgment for the determination on costs (transcript 15 October 2024 page 5).
- Notes that the provisional costs Order 4 made on 9 August 2024 that "there be no order as to costs, to the intent that each party will bear their own costs of the proceedings" did not take effect and for the sake of certainty is now vacated.
- Orders that the first defendant pay the plaintiff’s costs of and incidental to the proceedings on the hearing of appeal from the decisions of the New South Wales Civil and Administrative Tribunal up to and including 9 Augst 2024 and such of the further costs of the proceedings since 9 August 2024 referrable only to addressing the issue of costs of the appeal.
The 9-month period between the making of orders allowing the appeal (9 August 2024) and the date for the new hearing (8 May 2025) was marked by a number of aspects, being:
the cessation of legal representation for John;
a decision by the parties for John’s Tribunal application to be heard by way of a new hearing by me;
mention by John of an independent assessment regarding Olivia, though no application to that effect;
correspondence by John to my chamber’s email address (chambers email) and sometimes to my Associate’s email address; and
listings, including directions by way of case management for the purposes of ensuring a fair new hearing.
I will briefly address the first three matters listed above. I will deal with the last two matters under separate main headings.
As, noted, at the appeal hearing on 14 June 2024, John was legally represented.
Notwithstanding that legal representation, from 2 September 2024, John commenced to send email correspondence to my chambers email, being an email address superintended by my staff (Associate and Tipstaff).
Generally, for the purposes of the case management directions before me, John requested and I permitted John to appear by AVL, with my Associate sending the link to John and the legal representatives for the other parties. [18]
From 3 September 2024, John, particularly in a context for an upcoming hearing, insisted that AVL details be emailed to his wife’s (Kylie) email to permit her to “attend the hearing”. [19] On 15 October 2024, at the listing of the matter, I discussed with John arrangements regarding AVL attendance and made an order (Order 7) as follows:
Permits an AVL link to be sent to [Kylie] on the basis that she may observe and or hear the proceedings by that form but not being a party to the proceedings she has no right to be formally heard in relation to the matter.
Thereafter, for the purposes of each directions listing, John attended the court listing at times by requesting and being permitted an AVL connection to the court. Further, consequent upon requests by John for an AVL to be sent to Kylie, I permitted Kylie to appear by that means but on the basis outlined above. [20]
On 4 September 2024, at the listing of the matter, Ms Ram (an employed solicitor) attended in a context in which SLF Lawyers had served on John a Notice of Intention of Ceasing to Act.
On 7 September 2024, John emailed my Associate requesting that she include any (email) correspondence to email addresses apparently of two solicitors, [21] Lawyer A and Lawyer B.
On 11 September 2024, Mr Smith of SLF Lawyers filed a Notice of Ceasing to Act on behalf of John.
On 1 October 2024, one of the solicitors to whom John had referred to (namely Lawyer B) sent an email to my Associate and other parties stating that he did not act for John and had confirmed this with John and separately with Mr Clear.
On 3 October 2024, notwithstanding the above-mentioned email from Lawyer B, John by email to my chambers email asserted that Lawyer B had been in discussions with Witness A and Lawyer A, intimating that Lawyer B would likely act. [22] In fact, Lawyer B never commenced to act.
Further emails were sent by John to my Associate’s email asserting that Lawyer A was representing him and should be copied into email correspondence by my Associate. [23] Notwithstanding that, Lawyer A never commenced to act for John in these proceedings.
On 4 November 2024 and at various times thereafter, John sent another email to my Associate asserting that another lawyer, Lawyer C, “is our new lawyer”. [24] John asserted that he did not wish Julie and Robert to contact his new lawyer. [25]
On 10 February 2025 (just prior to the listing before Registrar Walton), John sent an email to my chambers under the subject heading “COSTS” asserting that he and Kylie were represented by Lawyer A and Lawyer C, and provided their email addresses. He stated that “Our lawyers have taken over from [prior lawyers] for us” and that they were seeking costs from Robert and Julie, and enquired when I would hold a hearing in the court to hear from witnesses and evidence regarding “COSTS……”. [26]
On 19 February 2025, John sent emails to my chambers email requesting that an AVL be sent to Lawyer C being “our lawyer” [27] and to Lawyer A “our other lawyer”. [28]
Having regard to the lack of any of John’s nominated solicitors formalising any application to appear on his behalf, my Associate at 4:50 PM on 19 February 2025, sent the following email to the parties:
This email is sent on behalf of his Honour
Dear Practitioners,
His Honour has considered the email of [John].
On 10 December 2024 His Honour made the following order being Order 7
"[The Court] Permits an AVL link to be sent to [Kylie] on the basis that she may observe and or hear the proceedings by that form but not being a party to the proceedings she has no right to be formally heard in relation to the matter".
His Honour proposes to permit an AVL link to be sent to [Kylie] on the same basis of as above.
To join the hearing remotely via AVL please use the following link:
https: [redacted]
If there is a need to join via telephone, the number is 02 [redacted] and the ID is [redacted]#.
Please ensure you attend via AVL at least 5 minutes prior to the listing.
On 11 September 2024, [John’s] then solicitor Mark Smith of SLF Lawyers, filed a Notice of Ceasing to Act as the legal representative for [John]
Since 11 September 2024 [John], in various emails sent to the Associate to Meek J, has made reference to several lawyers being his lawyer namely, [Lawyer B] from [Firm], [Lawyer C] from [Firm] and [Lawyer A]. However, to date, none of those persons nor any other lawyer has filed a Notice of Appointment of Solicitor to act for [John].
There are procedures for a new legal representative acting in proceedings, including formally filing a Notice of Appointment of Solicitor.
His Honour, does not propose to arrange for an AVL link to be sent to [Lawyer C] or [Lawyer A] until such time as whichever solicitor is acting formally is appointed to act for [John].
On 10 March 2025 at 7:43 PM, John sent an email to my chambers under the subject heading “Affidavits” requesting that copies of affidavits that Robert and Olivia had made be sent to a further lawyer, Lawyer D, who it was said “might” be representing John. An email address was provided. After the sign off, the email further stated that he did not wish Julie’s or Olivia's solicitors to contact [Lawyer D] “until [Lawyer D] has officially contacted the Supreme Court…”.
On 11 March 2025 at 8:51 AM, my Associate at my request sent to John and to the other legal representatives the following email in response to John's email.
This email is sent on behalf of his Honour
Dear Practitioners,
His Honour has considered the email of [John].
As previously advised please ensure that other parties are copied into any email correspondence sent to his Honour's chambers.
On 11 September 2024, [John’s] then solicitor Mark Smith of SLF Lawyers, filed a Notice of Ceasing to Act as the legal representative for [John]
Since 11 September 2024 [John], in various emails sent to the Associate to Meek J, has made reference to several lawyers being his lawyer namely, [Lawyer B] from [Firm], [Lawyer C] from [Firm] and [Lawyer A]. However, to date, none of those persons nor any other lawyer has filed a Notice of Appointment of Solicitor to act for [John].
This latest email does not confirm that [Lawyer D] is acting for [John]. Rather the email asserts that he "might" be representing [John].
There are procedures for a new legal representative acting in proceedings, including formally filing a Notice of Appointment of Solicitor.
His Honour, does not propose to arrange for myself or anyone on behalf of the court to send [Lawyer D] the affidavits of [Olivia] and [Robert].
If and when a solicitor (whether it be [Lawyer D] or someone else) formally commences to act for [John], [Lawyer D] may seek those affidavits from the plaintiff's solicitors.
The orders made by me on 9 August 2024, whilst setting aside the decision and orders of the Tribunal expressly did not dismiss John’s application.
On 2 September 2024, Mr Clear sent to my Associate an email [30] noting that he had written to John's solicitor (Mr Smith) enquiring as to whether John intended to proceed with his application for appointment of a financial manager and that John’s solicitor had stated that they had not been able to obtain instructions to respond to the request. Mr Clear outlined certain orders that he sought. In the absence of any consent, I ordered that the matter be listed 9 AM on Wednesday, 4 September 2024.
Later on 2 September 2024, John by email to my chambers email [31] indicated that he did wish to continue with what he described as being an application to have a public guardian look after Olivia and her affairs.
On 4 September 2024, at the listing before me, I expressly enquired of John what he intended to do in relation to the application instituted in the Tribunal and he indicated that he wished to proceed. [32]
I made a number of orders, including the following orders:
- Notes that on 2 September 2024 by email correspondence to the Associate to Meek J the solicitors for the plaintiff sought orders that the first defendant provide an indication to the Court and to the plaintiff as to whether he intends to prosecute the application made to the NSW Civil and Administrative Tribunal seeking a financial management order in relation to [Olivia] which application was dated 8 October 2022.
- Notes that on the listing this morning Mr Jones of counsel appears for the plaintiff and Ms Ram solicitor appears as courtesy to the Court in circumstances in which the first defendant’s solicitors have filed a Notice of Intention to Cease to Act on 3 September 2024 and the first defendant himself has also appeared by audio visual link.
- Notes that the first defendant informs the Court that he does intend to proceed to prosecute the application.
On 13 September 2024, Mr Clear sent to my Associate submissions, a Notice of Motion and affidavit of the plaintiff. The orders sought in the Notice of Motion included for John’s application to be dealt with by way of new hearing in this Court and directions for filing of evidence and other case management. The Notice of Motion also foreshadowed that Julie would seek at the final hearing of the application dismissal of the application and an order prohibiting John from bringing any further proceedings in relation to the affairs of Olivia without leave of the Court.
On 15 October 2024, John confirmed that he intended to prosecute his application to the Tribunal and the parties agreed that the application would be dealt with by way of new hearing in this Court, which hearing was listed before me on 8 May 2025.
On 2 September 2024, John sent the first of many emails to my chambers email. The correspondence by John to my chambers email continued at varying frequency up to the time of the listing of the matter for hearing on 8 May 2025. Over 60 such emails were sent by John to my chambers email. Indeed, even after I dismissed John’s application, further emails were sent by John to my chambers email [36] as well as emails from third-party suppliers to John. [37]
Characteristics of the correspondence included:
a sign off from [John] and [Kylie] above the reference to [Company A]; and
none of the correspondence was copied to the legal representatives for Julie or any other party.
On 3 September 2024, my Associate at my request sent an email to John, and also to Julie's representatives, noting that several emails had been received from John and indicating the correspondence should not be sent without being copied to the representatives of the other parties. In this regard, I referred to my comments in Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 (Wyatt) at [153]-[157] regarding email communications with judges’ chambers. [38] In Wyatt, I stated:
- Generally there should be no communication with a judge's chambers in relation to any matter before the Court without the consent of all other active parties to the proceedings: Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 at [3] per Kunc J.
- The reasons for that and the circumstances in which communications are and are not permissible are addressed by his Honour at [19]-[22]:
“19 Email has done away with what might be thought to have been the last practical barriers to quick and easy communication with a judge's chambers. There are many types of communication, including by email, with a judge's chambers which can assist the parties and the Court in achieving a just, cheap and quick resolution of proceedings (see s 56 of the Civil Procedure Act 2005 (NSW)). This can include the advance provision of material proposed to be relied upon in court.
20 However, the natural and well intentioned desire on the part of legal practitioners to send a communication to a judge's chambers copied to all the parties, which, at first blush, might appear to promote the efficient conduct of proceedings must always be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance) by communications sent without either the knowledge or consent of all parties. As I have said in paragraph [17] above, sending such a communication with a disclosure of the other parties' lack of knowledge or lack of consent does not cure any impropriety.
21 As a practical matter, and consistently with the principles and rules to which I have referred, I summarise the position as follows. There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this:
(1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing);
(2) ex parte matters;
(3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and
(4) exceptional circumstances.
22 There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties.”
- Specifically, absent consent, it is not an appropriate way to apply for an adjournment to send an email to a judge’s chambers email or to the Associate (even if copied to an opponent). Whilst a judge may treat that sort of communication as amounting to an application, there is no obligation on the judge to do so: Magjarraj v Asteron Life Limited [2010] NSWCA 207 per Hodgson JA at [5], Macfarlan JA at [7] agreeing (facsimile communications sent to primary judge).
- A party cannot properly expect a judge to consider privately materials emailed to a judge’s chambers on a contested application, afortiori where the responding party has not been included in some of the communications allegedly because material is “highly confidential”.
- Such a practice should not be engaged in. Notions of expediency however well-intentioned must, as noted by Kunc J, be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance).
- It is perhaps understandable that an unrepresented litigant might in the exigencies of a hearing, particularly in the context of an application seeking an adjournment where no evidence has been marshalled prior to making the application, seek to urgently provide material to the Court in a way which seems expedient to such litigant.
- There is no presumption that everyone knows the law. However, ordinarily, ignorance of the law does not excuse its breach: e.g. Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 546F per Hunt J.
- The above-mentioned principles regarding the appropriate means of communication with judges are underpinned by considerations of justice not only being done but being seen to be done and by procedural fairness for all the parties in the matter.
- The principles apply to all practitioners and litigants, including self-represented litigants.
- In making that observation, it may be that a Judge in dealing with such a communication takes steps to explain the principles and their purpose to the matter to a self-represented litigant, in a way that would not ordinarily be necessary to explain by way of reminder to a legal practitioner.
- The approach of the Court will self-evidently vary according to the particular circumstances of any different case.
- Often, if there has been a transgression (especially a first-time instance) by a self-represented litigant of such principles, the matter can be addressed in a sensitive and low-key way to ensure the important principles regarding transparency and fairness are upheld whilst not embarrassing the litigant nor overly detracting from progression of the hearing.
- In some instances (which was not this case), if a self-represented litigant repeatedly sends such impermissible communications to a Judge’s chambers, despite having been made aware on prior occasions of such principles, the approach of the Court to the matter may well differ to what I have described immediately above.
Evident from my observations in Al Dakhili, the approach that will be taken by the Court to self-represented litigants sending impermissible communications to a judge’s chambers will vary according to the particular circumstances of each case.
Despite numerous requests from my Associate at my request to ensure that other parties were copied into any email correspondence sent to my chambers, [39] John consistently and steadfastly ignored that direction.
Broadly speaking, the vast majority of John’s email communications did not fall within any of the exceptions noted above. Deplorably, a significant number of John’s communications contain very serious allegations against various persons including legal representatives.
During the listing of the hearing on 8 May 2025 before me, John asserted that Lawyer E had informed him not to send anything to the other parties’ lawyers, stating “it’s up to my lawyer to do that”. When I made the observation that he had no current lawyer, John simply responded “Well, we did have a lawyer but he retired”. [40] My impression is that John, by his response, was seeking to provide some excuse or rationale for why he had disregarded the (numerous) directions that I had given by my Associate that he should not engage in any correspondence with my chambers without notice to the other party. If John’s comments were purportedly an excuse or a rationale, I do not accept them.
There is little doubt that, where a party is legally represented, correspondence for the purposes of court proceedings should ordinarily (excepting cases of extreme urgency or other specified exceptions) [41] be with the solicitor for the party as distinct from correspondence to the party. [42] However, there is no legal conduct rule or convention that permits or justifies a self-represented litigant from not copying to legal representatives of other parties his or her email correspondence to a Judge’s Associate or to a Judge’s chambers.
By dint of the procedure which I adopted, with my Associate copying in legal representatives of other parties to her replies to John’s emails, in which she reminded him to ensure the other active parties were copied into email communication, I attempted to ensure, both for the purposes of transparency and procedural fairness, that the legal representatives for the other parties were made aware of the correspondence from John to my chambers.
The legal representatives for Julie (the only active respondent to John’s application) exhibited to some degree the “patience of Job”. [43] Whilst they did not acquiesce to John’s transgressions regarding my direction in respect of communications, they did not make complaints nor seek any specific orders or relief in respect of his impermissible communications.
Themes and issues which were raised in (and sometimes strongly pervaded) John’s correspondence included gratuitous disparaging remarks by John regarding Robert as a “con-man”, a “thief”, a “sweet talker” [44] and assertions by John that:
On 4 September 2024, on the listing of the matter before me, Mr Jones appeared for Julie and Ms Ram appeared in court, noting that on the prior day her firm had filed a Notice of Intention to Cease to Act. John appeared by AVL.
John having indicated that he wished to proceed with his application, [82] I made the following orders:
….
- Notes that on 27 August 2024 Meek J made procedural orders in relation to determining costs.
- Directs the plaintiff to file and serve a Notice of Motion setting out such orders as the plaintiff seeks in relation to dealing with the application whether by dismissal or otherwise by 4pm on 11 September 2024 and further direct that in the first instance such Notice of Motion may be served on the first defendant by email to [Company A]@bsdmail.com.
- Directs that in the event that the first defendant’s solicitors do in fact cease to act that the first defendant within 3 days of that occurring file with the Court and serve on the plaintiff a Notice of Change of Address for Service (being UCPR Form 76).
- Directs the plaintiff to file and serve any submissions in respect of the Notice of Motion by 4pm on 11 September 2024.
- Directs the first defendant to file and serve any submissions in respect of any opposition to the Notice of Motion by 4pm on 25 September 2024.
- Directs the plaintiff to file and serve any reply submissions on the Notice of Motion by 4pm on 2 October 2024.
- Orders that the time for compliance with order 1 made by Meek J on 27 August 2024 be extended to 4pm on 11 September 2024.
- Orders that the time for compliance with order 2 made by Meek J on 27 August 2024 be extended to 4pm on 25 September 2024.
- Orders that the time for compliance with order 3 made by Meek J on 27 August 2024 be extended to 4pm on 2 October 2024.
- Stands the matter over for mention to before Meek J at 9am on 15 October 2024, both as to the Notice of Motion and the question of costs.
On 15 October 2024 at the listing of the matter, Mr Jones appeared on behalf of Julie. John appeared by AVL and Ms Gardiner appeared for the NSWTG.
The orders that I made were as follows:
- Orders (noting the consent of the First Defendant) that the application for a financial management order made by the First Defendant and dated 21 October 2022 be dealt with by way of new hearing in this Court.
- Directs that the Plaintiff file and serve evidence (if any) in relation to the application by 4pm on Friday, 8 November 2024.
- Directs the First Defendant to file and serve any evidence by 4pm on Friday, 6 December 2024.
- Stands the matter over for mention to before Meek J at 9:45am on Tuesday, 10 December 2024.
- Notes further to the Orders made on 27 August 2024 that the Plaintiff does not seek reasons for the further decision on costs.
- Excuses the Second Defendant, New South Wales Trustee & Guardian (NSWTG), from further attendance unless there is good reason for the NSWTG to attend on some later occasion.
- Permits an AVL link to be sent [Kylie] on the basis that she may observe and or hear the proceedings by that form but not being a party to the proceedings she has no right to be formally heard in relation to the matter.
On 10 December 2024, on a listing before me, Mr Jones appeared for Julie and John appeared again by AVL. Mr Jones confirmed that Julie's affidavit evidence was complete. I raised with John the question of when he would be able to provide his evidence. He indicated to the Court that he was “working on it at the moment” and proffered that he would be able to put the material on in “maybe a week”.
I made the following orders:
- Notes that the Plaintiff’s affidavit evidence in chief is now complete.
- Directs the First Defendant to file and serve its affidavit evidence by 4pm on 17 December 2024.
- Grants leave to the parties to approach the Equity Registrar to obtain a hearing date.
On 10 February 2025, there was no listing before me. There was a listing before Registrar Walton at 9:30 AM.
It became evident that there was some confusion at least on John’s part in being able to formally appear in that occasion. He was apparently thinking that the matter was listed before me.
Prior to the listing, John sent a number of emails to my chambers email including relevantly:
an email under the subject heading “List of Court orders required”. The “list” was in line with certain of the correspondence John had earlier sent (elaborated on below) including seeking the appointment of a liquidator to close down the family business, sell real property and distribute the proceeds into three shares. Other relief sought principally included orders against Robert and orders directing Company A to do certain things; [85] and
the email referred to above regarding purported representation for him and costs. [86]
No leave had been sought by John to amend his application to seek any such relief. No evidence in support of any such application (nor any rationally probative evidence in support of such relief) was then or later provided by John. Further, there was no indication that he had given any notice of intention to seek such orders to the respondents nor to potentially affected parties including Company A and Robert.
The Court’s record of proceedings reveals the Mr Jones attended but there was no appearance by or on behalf of John. Mr Jones later confirmed to me that John had been connected to the Court for the listing of the matter before Registrar Walton on 10 February 2025 but had not been connected when the matter was called at the start of the list. [87] This was consistent with an email from a Client Services Officer of the Court (CSO) to my Associate. [88] The Registrar listed the matter for hearing before me at 10 AM on 8 May 2025, with an estimated hearing time of one day.
John engaged in correspondence with my chambers about the matter.
My Associate sent to John copied to the other legal representatives the following: [89]
This email is sent on behalf of his Honour
Dear Practitioners and [John],
His Honour refers to the various emails sent by [John] on the weekend (8 and 9 February 2025) and this morning (7:42 AM and 9:20 AM).
His Honour also refers to the email sent by Mr Clear this morning (8:19 AM).
The above matter was seemingly in the list before Registrar Walton this morning.
His Honour’s chambers received the email below from [John] at 10:44 AM.
Subsequently, a call from [John] was received by his Honour’s Associate in chambers.
[John] explained that matter was listed today and a AVL link had been sent and received by him. The AVL link worked, however he was connected with a Judge that did not know who he is or what the matter was about.
My Associate explained that the matter was listed today before the Equity Registrar and any AVL links would have been provided by her and not by the chambers of Meek J as the matter was not before Meek J.
[John] was informed he may contact the Equity Registrar by return email or call with any questions relating to the listing before her this morning.
In relation to Mr Clear’s email His Honour proposes to address the question of costs shortly.
Kind regards
Later on 10 February 2025, John sent an email to my chambers email requesting confirmation that that “the next Supreme Court hearing is May 8th at 10am”. [90] On 11 February 2025, my Associate responded at my request indicating that John should contact the Equity Registrar with any questions relating to the listing before her (relevantly by which the hearing date had been allocated). [91]
On 14 February 2025, John emailed my chambers identifying witnesses that he and Kylie would like to give verbal statements about Company A, the property, and Robert and Oscar's Will. The witnesses being Witnesses A and B, were asserted to be long-term family friends. The email indicated that there were various Company A customers and ex-distributors who would like to give their verbal statements, and he also had a “VIP from overseas” who would like to give a verbal statement to the Court by video. [92]
On 19 February 2025, my Associate sent to the practitioners and to John notification of listing of the matter for directions on 20 February 2025 at 9:15 AM in my Court and provided an AVL link. [93]
On 20 February 2025, the CSO alerted my Associate that a Notice of Listing had been sent to John for the hearing on 8 May 2025, but it had been returned as being the wrong address and requested contact details to notify him of the hearing date. [94] My Associate provided the CSO with the correct email address for John for the purposes of sending out the Notice of Listing for the hearing on 8 May 2025. [95]
At the listing on 20 February 2025, Mr Jones appeared in person on behalf of Julie and John appeared by AVL. I raised with John a number of matters.
I noted that in a number of his emails, John had referred to a number of lawyers who he asserted had been representing him in some way and asked whether that had been formalised. [96] He asserted that he had been promised by Lawyer E when the case was started (I infer at the point of time of the initial filing of the application in the Tribunal) that he was going to call a number of witnesses to give evidence and that it had not happened. [97] To clarify the situation, I asked John whether he was able to indicate with any certainty whether one of various named lawyers would be acting for him. John indicated that Lawyer A still had his file. [98]
I asked whether there had been a specific request to Lawyer A for him to act for John in relation to the new hearing of the application. He indicated that whilst Kylie had spoken to Lawyer A, he had not spoken to him for some while. I noted that there is a distinction between a solicitor holding files or papers on the one hand and being asked to or being prepared to act for someone going forward. I indicated that unless there was some specific request for Lawyer A or Lawyer C to act in relation to a new hearing they would not ordinarily act of their own volition. I noted that ordinarily a solicitor needs a specific retainer to act for a particular purpose. [99]
I discussed the position regarding witnesses and attempted to elicit from John what his intentions were. John asserted (consistent with his correspondence to my chambers email) that he had been “trying to achieve since the beginning of the whole case” to have a liquidator appointed to Company A, to close down the business and “sell our property”, so that the money could be “split evenly between” Olivia, Julie and himself. He asserted that that was what Lawyer E had promised would happen. Following John's response, I indicated that it was not obvious to me that the application for the appointment of a financial manager was something that would achieve his stated objective and that, if that was what he was seeking to achieve, he ought to reflect deeply into whether the application had any prospect at all of being able to achieve that sort of outcome for him. [100]
I further indicated that when matters are fixed for hearing, ordinarily that is done on the basis that the evidence that the parties wish to put forward has been identified and, if one or other party wished to rely on further evidence, they would need to seek leave or permission to do that. [101]
- Notes that on 10 February 2025 the Registrar in Equity listed the new hearing of the First Defendant’s application for a financial management order in respect of the Third Defendant to be dealt with by Meek J on 8 May 2025 in a context in which the Plaintiff’s evidence was then complete and the First Defendant has not served any evidence.
- Notes that the First Defendant apparently connected to the Court at the listing on 10 February 2024 via an audio link at least but did not appear at the time the Registrar dealt with the matter.
- Notes on 14 February 2025 the First Defendant, by email sent to the chambers of Meek J, advised that he wished to have various witnesses give verbal statements at the hearing of the matter.
- Notes that the First Defendant has indicated that his intention in having the Court hear the application is to have the companies [Company A and Company B] liquidated and all property (including landholdings at [the property]) sold and divided equally between himself, the plaintiff and his mother [Olivia]/Third Defendant.
- Notes that as matter presently stand it is not obvious that the existing application is an appropriate means by which any such an objective as stated in Order 4 may be able to be achieved.
- Notes that in light of the above, Meek J has asked the First Defendant to reflect on whether he wishes to persist with the application in light of his stated objective and to speak to any legal representative that he desires to act for him to specifically request whether such representative is able to or wishes to act for him, it not being obvious that such a request has been made by the First Defendant so far.
- Directs the First Defendant to provide to the Plaintiff’s representatives and to the Court a list of witnesses by their given name and surname who he wishes to adduce evidence from, such list to be provided by email by 4pm on Monday, 24 February 2025.
- Directs the First Defendant to file with the Court and serve any affidavits or witness statements from the persons referred to in the list from whom he proposes to give evidence, such affidavits or witness statements to be provided by 4pm on 3 March 2025.
- Notes that the directions in Orders 7 and 8 above do not give permission for those witness and affidavits/statements to be relied upon and that the question of whether leave is given for such affidavits or witness statements from those persons to be relied upon will be reserved to be further addressed by Meek J at a listing after 3 March 2025.
- Stands the matter over to before Meek J at 9am on Thursday, 6 March 2025 to consider the question whether the affidavits or witness statements provided by the First Defendant is or are able to be relied upon, for directions and for such if any other orders as the nature of the case may require.
Please don't let [Julie or Robert] see the list as we don't want them contacting any of our witnesses.
On 3 March 2025, John emailed to my chambers email material described as being “witness statement” from each of Witnesses A and B. [108] What was attached were a number of “JPG” files which were photos of a phone screen in which was embedded a further photo of a phone screen which contained seemingly an email from each of Witnesses A and B.
On 4 March 2025, my Associate on my behalf, sent an email to John copied to the other legal representatives, observing that the witness statements had proved difficult to read and requesting that that he forward the email version of the statement to my chambers or provide a hard copy. [109] Later that evening, John emailed to my chambers email further “JPG” files. [110] These were seemingly pictures of actual printed statements albeit pieced together.
Further on 5 March 2025, following a further email from my associate noting that the witness statements provided remained difficult to read and print, [111] John eventually simply forwarded emails from Witnesses A and B setting out the details of their evidence. [112]
On 6 March 2025, John sent a further email to my chambers email [113] attaching copies of SMS messages from Witnesses C and D. The emails inter alia stated, “See what [Witnesses C and D] think of [Robert and Julie]” and contained historical messages relevantly with the descriptors “bitch” regarding Julie and “dickhead” and “scum bag” regarding Robert.
On 6 March 2025, the listing before me proceeded. Mr Jones again appeared on behalf of Julie and John appeared by AVL.
I raised with John the fact that on 24 February 2024 he had sent an email with a list of ten witnesses and referred to the fact that since that time he had sent statements from Witnesses A and B and the SMS messages that morning. I asked him whether that was the extent of the material he had sent. He indicated that was the case, although there may be one “coming at the end of the month”. I enquired about that and eventually he disclosed Witness E as being the person. [114]
I asked Mr Jones whether he had any objection to Witness A’s statement. He indicated that he did, broadly on the basis that the material was irrelevant to the issues in dispute and expressed in such a general and vague form as to have no probative value. He confirmed the position was the same in relation to the statement of Witness B. [115] I noted that the material was not sworn or affirmed and on the face of it was simply pure assertion. I pause to observe that neither “statement” rationally bore upon Olivia’s capacity. Indeed, the statement from Witness A concluded [116] with a recommendation which bore close resemblance to John’s objective of a liquidation and division of the family’s wealth:
As a closing statement, I highly recommend that this court can appoint an independent person to close the [Company A’s] business down and sell off the [real property] before this [Robet] ends up with all of [Oscar’s] wealth which was intended to be equally shared according to what I have read. This would restore peace within the family.
Mr Jones confirmed that if the material was to be received in any shape or form, he would require those persons for cross-examination. [117] I enquired of John whether he understood that, to rely upon the material, those witnesses would be susceptible to being cross-examined and asked him whether he had spoken with them about that. He indicated he had. [118]
I then turned to the SMS messages from Witnesses C and D. I asked him to explain to me their relevance. He indicated that it showed what they thought of Julie and Robert in the past. He indicated that Witnesses C and D were located in Brisbane. [119] I indicated that my present view was that the material was not relevant to John's application for the appointment of a financial manager. I indicated to John that it was not relevant or of assistance to the Court for persons to simply assert that Julie is a “bitch” or that Robert is a “dick head” and did not propose to give him leave to rely upon material from Witnesses C and D. [120]
In relation to the other material from Witnesses A and B, Mr Jones asked me to make a ruling regarding that. I declined permission to rely upon that material. [121]
I made the following orders:
- Notes Order 1 of Meek J on 15 October 2024, made with the consent of the first defendant, that the application for a financial management order in respect of the third defendant pursuant to the provisions of the Guardianship Act 1987 (NSW) (Guardianship Act), signed by the first defendant on 8 October 2022 and filed on 21 October 2022 in the Guardianship Division of the New South Wales Civil and Administrative Tribunal (Tribunal), be dealt with by way of new hearing in this Court, being listed for 8 May 2025.
- Notes, reserving to the parties the right to contend otherwise, that the application for a new hearing of the application for a financial management order in respect of the third defendant is, in light of Order 1, pursuant to one or more of Sch 6, cl 14(3) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 25L Guardianship Act, ss 38, 40 and 41 of the NSW Trustee and Guardian Act 2009 (NSW), or this Court's inherent power.
- Notes the orders made by Meek J on 10 December 2024, regarding the first defendant filing and serving his evidence and the orders of Meek J on 20 February 2025, pursuant to Sch 6, cl 14(3)(b) NCAT Act or in exercise of other case management powers.
- Notes the list of 10 witnesses named by the first defendant in his email to the Associate to Meek J dated 24 February 2025 (4:19 PM), [Witnesses A and B] but not including [Witnesses C and D].
- Notes the provision by the first defendant by email forwarded to the Associate to Meek J:
a. on 5 March 2025 of narratives said to be "witness statements" from [Witness A] (email dated 22 February 2025) and [Witness B] (email dated 24 February 2025); and
b. on 6 March 2025 of three screenshots of SMS messages from the phone of [Witness C] said to be statements of what [Witnesses C and D] think of the plaintiff and [Robert].
- Notes, despite no formal notice of motion, the oral application for leave by [John] the first defendant to adduce evidence from [Witnesses A, B, C and D] on the new hearing listed on 8 May 2025.
- Notes the objection of counsel for the plaintiff to permit the material from [Witnesses A, B, C and D] to be relied upon, inter alia on the basis that the material is irrelevant to the issues in dispute and expressed in such general and vague form as to have no probative value and is not otherwise sworn or affirmed.
- Notes, reserving to the parties the right to contend as to whether the Court is or is not bound by rules of evidence, it remains subject to an overriding obligation to afford procedural fairness and to have regard as to the capacity of material to be legally probative of a fact in issue.
- Declines to permit the "witness statements" from [Witnesses A and B], the text messages from [Witnesses C and D] having regard to procedural fairness, the capacity of material to be legally probative of a fact in issue, that the material is not sworn or verified, and does not appear to be relevant or bear upon to the issue on the hearing which principally relates to the current capacity of [Olivia].
On 7 March 2025, John sent an email to my chambers email [122] addressing a number of matters including relevantly intimating that he wished to ask Olivia and Robert some questions at the court hearing.
On 10 March 2025 (10:08 AM), my Associate at my request sent to John and to the other legal practitioners the following email:
This email is sent on behalf of his Honour
Dear Practitioners,
His Honour has considered the email of [John].
[John] is reminded that any communication with chambers in respect of the case must be on the basis that email is copied to email addresses for the legal representatives for the other parties.
His Honour proposes to regard the email as notice that [John] wishes at the hearing on 8 May 2025 to cross examine the third defendant ([Olivia]) on her affidavit.
His Honour notes that during the listing on 6 March 2025 [John] gave notice that he wished to cross examine [Robert] on his affidavit.
His Honour further notes that in accordance with the Orders made on 15 October 2024, whilst his Honour has permitted an AVL link to be sent to [Kylie] on the basis that she may observe and or hear the proceedings by that form, as she is not a party to the proceedings she has no right to be formally heard in relation to the matter. Accordingly, [Kylie] will have no right, without leave to act on behalf of [John] or be involved in the hearing in the same way as [John] is involved such as by cross-examining deponents of any affidavits.
On 24 March 2025, John emailed to my chambers a series of four separate emails with 9 attachments in total, all being photos of a phone showing text messages from a number described in the first email to be from Witness B. The initial email stated “4 emails coming with 3 attachments running in order for Justice Meek to read”. The first attachment contains a text message regarding “why [Julie] sacked [Lawyer A]”. The remainder of the 8 attachments, pieced together, contain one long text message titled “Speech to the Judge”. It starts with “I stand before you today to bring to your attention the significant changes that have taken place regarding my family’s legal representation following my father, [Oscar] passing”. Accordingly, it seems that text message is written by John or from John’s perspective rather than Witness B.
On 3 April 2025, John sent a further email to my chambers email, [123] this time attaching a photograph of what appeared to be an SMS message on a phone from (according to the email) “a gentleman named [Witness F]”.
The SMS message contains the following content:
Hi [John], it was good to see you and catch up for what was a short time. I am also sorry to hear what an awful time you are going through with your sister and her husband. He doesn't sound like a nice person at all. I hope everything goes in your favour at the end of all this nightmare. Yes we will meet up again down the track. Do let me know how you go with the court hearing.
Pausing here, I observe that, apart from John's assertion in the email to my chambers that the SMS came from the person named Witness F, the attached document does not in any way identify the sender. In any event, the SMS did not express any statement relevant to the question of whether Olivia required a financial manager, as distinct from assertions regarding Julie and Robert. Lastly, the SMS gives no intimation at all that the sender intends his statement to be some form of evidence to be relied upon, nor any awareness that the sender would be liable to be called as a witness and potentially cross-examined.
Later in the morning on 3 April 2025, John sent a further email attaching what purported to be photos from the inside of Olivia's house taken by [Witness B] and making various assertions regarding Olivia’s capacity and intentions. [124] A further email was later sent in the early afternoon of 3 April 2025 from John making assertions that various family members had learnt to drive in the backyard of the [family property] and that Robert was precluding John’s daughter from driving, and seeking intervention of the Court to prevent Robert’s actions. [125]
On 2 May 2025, John sent a further email to my chambers, which content appeared to be an extract of some of the message dated 9 November 2023. The email concluded with the sentence:
The above letter is from [Kylie] regarding what [Julie] is like [Julie] doesn't want [Olivia] to agree to allow the Supreme Court to appoint an independent liquidator to close our business ([Company A]) down.
Good afternoon
Supreme Court case for
([Company A])
What time is the hearing for tomorrow ?
May 8th ......
***** We have not yet received the link YET
And we are not sure what time .....
The email concluded with a request to send AVLs to 5 email addresses relevantly being John, Kylie, Lawyer C and two witnesses, one of which was seemingly Witness A, the other one being unidentified.
At my request, my Associate sent to John, copied to the other legal representatives, the following email: [128]
This email is sent on behalf of his Honour
Dear [John],
The hearing is an in person hearing and you should arrange to attend the hearing in person.
The hearing is listed at 10am tomorrow at the Hospital Road Court Complex, Sydney.
Good afternoon ........
No one told Myself and [Kylie] that it is an in person hearing ........
We have always received a link to appear via video
Both myself and [Kylie] are unable to attend in person at such short notice .......
The ONLY person that usually attends in person is Oliver Jones while everyone else attends via video link ......
PLEASE send us the video link
OR
organise another day for the hearing
Good afternoon Linda
As per our phone conversation
Another reason for being unable to attend in person tomorrow is because I am currently in Shanghai China on a business trip ......
PLEASE send both myself and [Kylie] a video link to the hearing for tomorrow
OR
organise another date
This email is sent on behalf of his Honour
Dear [John],
His Honour has considered your email below.
Ordinarily, the hearing of cases is dealt with in person.
There needs to be proper reason as to why the final hearing of this case should be dealt with by AVL rather than the parties attending in person.
Further, it is not known whether the other parties oppose you been provided with an AVL for the purposes of conducting the hearing of the matter.
His Honour proposes to provide an AVL for the limited purpose of you explaining your position tomorrow morning and to hear submissions from all parties regarding whether the hearing may be permitted to be conducted that way.
To join the hearing remotely via AVL please use the following link:
https:[redacted].
If there is a need to join via telephone, the number is 02 [redacted] and the ID is [redacted]#.
Please ensure you attend via AVL at least 5 minutes prior to the listing.
Good afternoon ...... Thankyou
PLEASE also send a video link to [Kylie]
***** [Kylie] wasn't told that this hearing was supposed to be an in person hearing either AND she has not made arrangements to attend the court in person...
****** However IF Michael Clear or Mr Schmidt-Liermann or IF [Julie] / [Robert] are able to pick her up tomorrow morning she is happy to attend with them ..................
Good morning
Please show this photo to [Olivia] and see IF she can name the other gentlemen in the photo during the hearing .......
Also ...... There are 2 gentlemen who are waiting to be paid for doing some maintenance work at her house just recently in the last few weeks ......
[Tradesman A] ..... and ..... [Tradesman B]
It is giving [Company A] a bad reputation by not paying these 2 trades.......
When [Oscar] was alive ..... the trades were always paid quickly
My Associate sent to John, copied to the other legal representatives, an email permitting Kylie to attend by AVL on the same basis as had been previously permitted for her. [134]
When the matter was called on for hearing, Mr Jones appeared on behalf of Julie and eventually a video connection was secured by which John was able to be connected. There were some difficulties with the connection. He disconnected and then was able to recommence the video link. [135]
He confirmed that he was indeed in Shanghai, China and asserted that he and Kylie had no idea that they had to attend in person. [136]
There were a number of issues. One issue related to the fact that ordinarily, whilst the Court from time to time permits people to appear for directions, listings and other purposes via AVL, that is the exception rather than the general rule and that ordinarily court proceedings are held in person. Secondly, I raised with John the fact that there was an issue as to whether John could seek to conduct the hearing or give evidence from China.
I asked him how he anticipated he was going to be able to conduct or operate a hearing via AVL. He simply responded, “by video”. [137] I asked him whether he asserted that he had evidence that he wished to put forward in respect of the hearing to which he responded, “yeah, lots of it”. [138]
I drew to his attention that I had made directions on a number of occasions for him to bring forward his evidence in an orderly way as a matter of fairness to the other parties so that they would know what evidence they had to address in the matter. [139] He asserted that Witnesses A and B both wanted to come into the courtroom and make statements by verbal means. [140]
I indicated to him that I did not permit that to happen by the orders that I had made on 6 March 2025 and that, since that time, he had made no further application for permission to rely upon evidence from either of them or from anyone else. Whilst making certain assertions about what Lawyer E had done, he confirmed that he had not made any application since 6 March 2025 to rely upon any evidence for the purposes of the hearing. [141] Nonetheless, he asserted that he wished Witnesses A and B to appear in court to make verbal statements. I asked him whether he had taken steps to enable them to appear today and whether he had issued subpoenas to them. He indicated that he had not, and he was “hoping that the court can do that”. [142]
I observed that, in relation to a person who is self-represented, the role of the judge of the Court is to ensure that there is a fair trial according to law for all the parties in the proceedings, not just the person who is self-represented. I noted that the judge could explain the Court procedure to a self-represented person and provide information in relation to that procedure and practice of the Court, but that it was not the function of the Court to give that self-represented litigant advice nor to conduct the case on behalf of that person, nor to take steps to involve itself in a way to issue subpoenas of its own initiative. [143]
There are differences between the adducing and admission of evidence in the Tribunal and the Supreme Court. The statutory framework which principally governs the practice and procedures of the Tribunal is set out in the NCAT Act. In hearing an application for a financial management order, the Tribunal is: (a) not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice; [152] and (b) to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. [153]
In proceedings in the Supreme Court commenced by summons, subject to the rules of court and the Evidence Act 1995 (NSW) (Evidence Act), evidence in chief of any witness at any hearing must be given by affidavit unless the Court orders otherwise. [154]
The character of a new hearing in the Supreme Court where the Court has allowed an appeal from a decision of the Tribunal to make a financial management order is understood by reference to the statutory provisions under the NCAT Act [155] and also to the nature of the jurisdiction being exercised.
Properly characterised, it may be seen as part of the Court’s protective jurisdiction directed to administration of the affairs of a person in need of protection. This applies not merely in relation to a new hearing but also, for example, where an application for the appointment of a financial management order is removed from the Tribunal into this Court to be determined. [156]
The Court may permit such fresh evidence, or evidence in addition to or in substitution of the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. [157]
The guiding principle of the jurisdiction is that the welfare of the person in respect of whom the protection of the Court is sought is the paramount consideration. [158]
In the exercise of its protective jurisdiction, this Court acts “without strife in the simplest and least expensive way” [159] and is “not bogged down with any technicalities”. [160] The Court is not necessarily bound by strict rules of evidence, but has a discretion to act on material which is rationally probative, even though excluded by such rules. [161] Thus, it has been said that:
…the Court is able to proceed upon a consideration of what is rationally probative of material facts, with due regard to considerations of fairness vis á vis affected parties… [162]
However while the Court is not bound by the rules of evidence it remains subject to an overriding obligation to accord procedural fairness and must base its decision upon material which carries probative value. The Court should also remain mindful of the potentially serious consequences that follow the making of a determination under the Guardianship Act or the NSW Trustee and Guardian Act, or the Adoption Act for that matter (Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474 at 492-493; see also Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 249-250, 256 (as cited by Meagher JA in Sudath)).
The paramountcy principle, in the operation of the protective jurisdiction, “prevails, where it must, over technical rules of evidence” [164] and Lindsay J has observed that nothing in the Evidence Act compels a contrary approach. [165]
Nonetheless, “even if particular provisions of the Evidence Act do not, in terms, apply, the operation of the protective jurisdiction might usefully be informed by them as a counsel of good practice or procedural fairness”. [166]
There are profound effects consequent upon the making of a financial management order on the person upon whom it is imposed. It changes the status of that person, who was once regarded as being legally autonomous and able to choose how he or she manages his or her estate, to a “protected person” and suspends by law his or her ability to deal with his or her own estate. [167]
Proceedings in Supreme Court are generally held in person. [168]
Nonetheless, the Court may permit parties or witnesses to the proceedings to give evidence and make submissions by telephone, audio visual link or other forms of communication. [169] There has been an increase in the number of cases heard remotely since the commencement of the COVID-19 pandemic. [170]
The considerations of whether it is convenient for the Court to take evidence remotely for the purposes of the E(A& AVL) Act were recently commented upon by the Court of Appeal in Dougan v Mann [2025] NSWCA 109. Bell CJ at [8] stated: [171]
Section 5B(2)(b) of the Act involves a comparative and evaluative judgment being made as to convenience as between the place from which the applicant for the AVL order wishes to give evidence, make a submission or appear, and the place where the court is sitting. It is a judgment to be made in the context of the matter before the court or particular issue or issues in relation to which the evidence, submission or appearance may be germane. While the decision whether to permit evidence to be given by AVL is discretionary, the assessment as to the satisfaction of any of the preclusive circumstances identified in s 5B(2) of the Act does not involve the exercise of any discretion.
Ultimately, it was not necessary for me to determine the question of convenience.
Prima facie, China is not a “participating State” for the purposes of Pt 1A of the E(A& AVL) Act. However, without the benefit of argument, it is not necessary for me to make any concluded determination regarding that.
An order permitting parties or witnesses to the proceedings to give evidence and make submissions by telephone, audio visual link or other form of communication may be characterised in a number of ways, but at least one of the characterisations of it is that it is a form of case management order within the meaning of s 58 of the Civil Procedure Act 2005 (NSW) (CPA).
The Court in deciding whether to make any order for the management of the proceedings, must seek to act in accordance with the dictates of justice. [172]
In determining the dictates of justice in a particular case, the Court must have regard to the provisions in ss 56 and 57 of the CPA and may have regard to the matters set out in s 58(2)(b) of the CPA to the extent to which the Court considers them relevant. [173]
A consideration of some significance to be taken into account in determining whether to permit a witness to give evidence by telephone, audio visual link or other form of communication is whether the issues in the case will involve assessing the credibility of the witness. [174]
If a party fails to comply with a case management direction, the Court may do a number of things including, relevantly, dismiss the proceedings, whether generally, in relation to a particular cause of action, or in relation to the whole or part of a particular claim. [175]
The legal principles dealing with applications under s 61(3)(a) of the CPA are addressed in a number of authorities, including Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 (Hans Pet). [176] In that case, Allsop ACJ (Campbell and Young JJA agreeing) emphasised that, in exercising its powers under s 61(3), the Court must seek to act in accordance with the dictates of justice, which relevantly require the Court to have regard to the provisions of s 56 of the CPA (the overriding purpose of case management), s 57 of the CPA (the objects of case management) and the matters, to the extent the Court considers them relevant, set out in s 58(2) of the CPA.
The tenor and content of John’s repeated and impermissible email correspondence to my chambers email revealed purposes very remote from legitimate purposes in an application for a financial management order. I expressly raised this with John at the listing on 20 February 2025 (almost 3 months prior to the hearing) and asked him to reflect upon it.
Much of John’s correspondence to my chambers email raised very serious allegations in respect of one of the active parties (Julie), one of the family members (Robert) and various legal representatives. That correspondence was pitched at a level of pure assertion without any regard to due process or provision of any appropriate let alone rationally probative form of evidence.
The vast majority of the correspondence was entirely remote from proper considerations in respect of the committing of the estate of Olivia to financial management and the appointment of the financial manager.
John’s assertion that his father Oscar left his estate equally to Olivia, Julie and himself is demonstrably incorrect having regard to Oscar’s Will (provided by John) [177] which reveals that in events that occurred, Oscar left his entire estate to Olivia. In any event, the notion that a company not directed by Olivia should be the subject of liquidation and that other so-called family real estate should in some way be realised under some form of sale and conversion order and divided equally between Olivia, Julie and John, was entirely unsupported by Oscar’s purported testamentary intentions and any other rationally probative evidence.
A financial management order might in some respects have incidental or collateral consequences for companies associated with the person in respect of whom such an order is sought. However, a financial management order, per se, is not a vehicle for achieving liquidation of the company or some form of Court supervision of the directors of the company, nor a means of commandeering and otherwise realising and dividing family wealth by reference to purported intentions of the deceased family members or otherwise than in accordance with the principles that properly inform the jurisdiction to make a financial management order.
There was no suggestion that the position which prevailed in the last hearing, namely that Julie had an enduring power of attorney in respect of Olivia, [178] and that Olivia had at least as at January 2024 resigned directorships of Company A and Company B, [179] had materially altered. In fact, on one of the pre-hearing listings before me, Olivia’s resignation of directorship of both companies was confirmed (relevantly without any dispute by John). [180]
To ensure that John’s application was dealt with appropriately and fairly to all parties, directions were made for the provision of affidavit evidence in respect of his application.
John failed initially to comply with directions regarding service of evidence on 15 October 2024 and specifically for affidavit evidence to be served by 17 December 2024.
THE COURT:
Orders the application of the first defendant for a financial management order in respect of the third defendant pursuant to the provisions of the Guardianship Act 1987 (NSW), signed by the first defendant on 8 October 2022 and filed on 21 October 2022 in the Guardianship Division of the New South Wales Civil and Administrative Tribunal, listed for hearing before Meek J today, 8 May 2025 be dismissed.
Orders that the first defendant pay the plaintiffs costs of and incidental to the application before Meek J from 9 August 2024 up to and including today (other than the costs the subject of the separate orders made by Meek J on 11 February 2025), calculated on the ordinary basis.
Reserve giving of reasons for the orders made today.
**********
A pseudonym, as are the other names used in this judgment, which are either drawn from the PJ or in the case of this judgment, names for 5 lawyers (Lawyers A to E), 6 “witnesses” (Witnesses A to F) and 2 tradesmen (Tradesmen A and B).
Court Book for PJ hearing pp 234-236.
27 August 2024, 2 September 2024 (listing), 11 February 2025, 17 February 2025 (listing).
PJ [24].
PJ [25].
PJ [28].
PJ [31].
PJ [51].
PJ [55].
PJ [56].
PJ [67].
PJ [52].
PJ [61].
PJ [171]-[179].
PJ [180]-[191].
PJ [194]-[198].
PJ [199].
For example, see emails of 3 September 2024 (3:06 PM), 10 February 2025 (7:42 AM).
Emails of 3 September 2024 (5:43 PM, 6:32 PM, 8:48 PM).
For example, emails of 20 February 2025 (8:30 AM, 8:34 AM), 5 March 2025 (10:54 AM).
Emails of Saturday, 7 September 2024 (11:49 PM, 11:51 PM).
Email of 3 October 2024 (1:06 PM).
Email of 16 October 2024 (1:30 AM).
Emails of 4 November 2024 (10:23 AM), 8 November 2024 (8:58 AM).
Email of 8 November 2024 (8:58 AM).
Email of 10 February 2025 (9:20 AM).
Email of 19 February 2025 (4:07 PM).
Email of 19 February 2025 (4:29 PM).
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rr 7.26 and 7.28, Form 77 (version 2).
Email of 2 September 2024 (12:00 PM).
Email of 2 September 2024 (5:49 PM).
T 1-2 (4 September 2024).
Email of 2 September 2024 (5:49 PM).
Emails of 3 September 2024 (4:19 AM), 24 September 2024 (2:19 AM), 9 December 2024 (7:38 PM).
Email of 24 December 2024 (10:25 AM).
Emails of 9 May 2025 (11:55 AM, 3:57 PM), 13 May 2025 (1:37 AM), 30 May 2025 (4:39 AM).
Email of 30 May 2025 (9:05 AM, 9:06 AM).
Email of 3 September 2024 (9:17 AM).
From at least 13 September 2024 (2:11 PM) and virtually every occasion in which a response was made by my Associate to emails from John which did not copy any other parties.
T 10.1-.15 (8 May 2025).
See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Conduct Rules) rr 33.1.1-33.1.4.
Conduct Rules r 33.1
Bible - New International Version - James 5:7-11.
Emails of 3 September 2024 (4:19 AM and 10:16 AM), 24 September 2024 (2:19 AM), 3 October 2024 (11:01 AM).
Email of 9 December 2024 (7:38 PM).
Emails of 11 October 2024 (11:50 AM), 15 October 2024 (4:47 AM), 9 December 2024 (7:38 PM), 24 December 2024 (9:43 AM), see also email of 10 December 2024 (2:30 AM) for the Will.
Email of 10 February 2025 (7:42 AM); see also emails of 2 October 2024 (4:10 AM), 29 October 2024 (1:29 AM), 23 December 2024 (2:04 PM), Saturday, 22 February 2025 (6:54 AM), 27 March 2025 (12:52 PM), 3 April 2025 (11:17 AM).
Emails of 2 September 2024 (5:49 PM), 3 September 2024 (4:19 AM).
Emails of 3 September 2024 (4:19 AM), 2 October 2024 (4:10 AM), 9 December 2024 (7:38 PM), Saturday, 22 February 2025 (6:54 AM).
Email of 24 December 2024 (9:43 AM).
Email of 24 December 2024 (10:07 AM).
Emails of 9 December 2024 (7:38 PM), 24 December 2024 (10:07 AM, 10:13 AM, 10:20 AM), 27 March 2025 (12:52 PM).
Email of 10 February 2025 (7:42 AM).
Emails of 3 September 2024 (4:19 AM), 24 September 2024 (2:19 AM), 11 October 2024 (5:58 PM), 29 October 2024 (1:29 AM), 5 March 2025 (2:06 PM).
Email of 9 December 2024 (7:38 PM).
Email of 10 February 2025 (7:42 AM).
Email of 2 October 2024 (4:10 AM).
Emails of 31 October 2024 (8:25 AM), 23 December 2024 (2:04 PM).
Email of 9 December 2024 (7:38 PM).
Email of 9 December 2024 (7:38 PM).
Email of Saturday, 8 February 2025 (10:01 AM).
Email of 3 October 2024 (11:01 AM).
Email of 11 October 2024 (5:58 PM).
Email of 3 September 2024 (6:32 PM).
Emails of 11 October 2024 (11:50 AM), 14 October 2024 (6:35 PM), 24 December 2024 (9:50 AM).
Email of 11 October 2024 (11:50 AM).
Email of 14 October 2024 (12:07 PM).
Emails of 18 November 2024 (9:21 PM), 9 December 2024 (7:38 PM).
Email of 9 December 2024 (7:38 PM).
Email of 9 December 2024 (7:38 PM).
Email of 9 December 2024 (7:38 PM).
Email of 10 February 2025 (7:42 AM).
Email of 10 February 2025 (7:42 AM).
Email of 10 February 2025 (7:42 AM).
Emails of 11 October 2024 (11:50 AM), Sunday, 13 October 2024 (2:18 PM), 15 October 2024 (12:49 AM), 23 October 2024 (8:06 PM), 5 November 2024 (5:32 PM), 9 December 2024 (7:38 PM and 10:14 PM), Saturday, 8 February 2025 (12:01 AM), 10 February 2025 (7:42 AM, 11:44 AM, 11:58 AM).
Email of Saturday, 22 February 2025 (6:54 AM).
Email of 10 February 2025 (7:42 AM).
Email of Sunday, 9 February 2025 (8:30 AM).
Email of 29 October 2024 (6:10 PM) - in respect of an apparent appeal made by the Tribunal on 28 October 2024.
Emails of 24 December 2024 (10:07 AM, 10:13 AM).
Email of 9 February 2025 (8:30 AM).
T 1-2 (4 September 2024).
Email of 3 October 2024 (11:01 AM).
Email of 1 November 2024 (10:57 AM).
Email of 10 February 2025 (7:42 AM).
Email of 10 February 2025 (9:20 AM).
T 1.38-.46 (20 February 2025).
Email of 20 February 2025 (10:54 AM).
Email of 10 February 2025 (12:19 PM).
Email of 10 February 2025 (1:59 PM).
Email of 11 February 2025 (9:22 AM).
Email of 14 February 2025 (5:22 PM).
Email of 19 February 2025 (3:03 PM).
Email of 20 February 2025 (10:54 AM).
Email of 20 February 2025 (10:57 AM).
T 2.2-.5 (20 February 2025).
T 2.7-.9 (20 February 2025).
T 2.31-.39 (20 February 2025).
T 2.41-3.13 (20 February 2025).
T 3.36-4.2 (20 February 2025).
T 4.4-.12 (20 February 2025).
T 4.18-.20 (20 February 2025).
T 4.34-.44 (20 February 2025).
T 4.46-5.7 (20 February 2025).
T 7.15-.24 (20 February 2025).
T 7.26-.34 (20 February 2025).
Email of 24 February 2025 (4:19 PM).
Emails of 3 March 2025 (5:40 PM, 6:25 PM).
Email of 4 March 2025 (11:04 AM).
Emails of 4 March 2025 (6:35 PM, 6:39 PM).
Emails of 5 March 2025 (10:58 AM, 11:08 AM).
Emails of 5 March 2025 (4:27 PM, 4:36 PM).
Emails of 6 March 2025 (7:10 AM, 7:32 AM).
T 1.29-.50 (6 March 2025).
T 2.1-.27 (6 March 2025).
Emails of 5 March 2025 (4:36 PM).
T 2.33-.44 (6 March 2025).
T 2.46-3.4 (6 March 2025).
T 3.6-.39 (6 March 2025).
T 3.41-.45 (6 March 2025).
T 3.47-4.9 (6 March 2025).
Email of 7 March 2025 (6:00 PM).
Email of 3 April 2025 (10:21 AM).
Email of 3 April 2025 (11:17 AM).
Email of 3 April 2025 (12:14 PM).
Email of 5 May 2025 (4:11 PM).
Email of 7 May 2025 (1:28 PM).
Email of 7 May 2025 (2:19 PM).
Email of 7 May 2025 (4:32 PM).
Email of 7 May 2025 (4:46 PM).
Email of 7 May 2025 (5:29 PM).
Email of 7 May 2025 (6:13 PM).
Email of 8 May 2025 (5:10 AM).
Email of 8 May 2025 (6:42 AM).
T 1.23-.38 (8 May 2025).
T 1.40-.50, 2.23-.25 (8 May 2025).
T 2.27-.30 (8 May 2025).
T 2.32-.40 (8 May 2025).
T 2.42-3.7 (8 May 2025).
T 3.9-.10 (8 May 2025).
T 3.12-.24 (8 May 2025).
T 3.28-.34 (8 May 2025).
T 3.36-.47 (8 May 2025).
T 4.29-.33 (8 May 2025).
T 4.39-5.5 (8 May 2025).
See also e.g. Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539 at [2] per Perram J; Martin Davies, Andrew Bell, Paul Brereton and Michael Douglas, Nygh’s Conflict of Laws in Australia (10th ed, 2020, LexisNexis Butterworths) at [11.25].
T 5.7-.43 (8 May 2025).
T 7.6-.12 (8 May 2025).
T 8.17-.34 (8 May 2025).
T 8.36-9.6 (8 May 2025).
T 9.8-.21 (8 May 2025) (I note that the word "Myself" at T 9.19 is incorrectly transcribed and should be "Yourself").
NCAT Act s 38(2).
NCAT Act s 38(4).
UCPR r 31.2 (which is subject to r 31.1).
NCAT Act Sch 6 cll 14(1)(b) and 14(3)(a).
Guardianship Act s 25L - see Sobalirov v Bullen [2020] NSWSC 1532 (Sobalirov) per Sackar J at [2], [6]-[13].
NCAT Act Sch 6 cl 14(3)(b).
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 (CAC) per Lindsay J at [11].
CAC at [5] citing RAP v AEP [1982] 2 NSWLR 508 at 512 C-D; M v M [2013] NSWSC 1495 at [50](f).
CAC at [5] citing Re Frances and Benny [2005] NSWSC 1207 at [17].
CAC at [7].
CAC at [7] citing Roberts v Balancio (1987) 8 NSWLR 436; (1987) 11 Fam LR 669; Henry Theobald, The Law Relating to Lunacy (1924, Stevens & Sons, London) pp 59-60.
Sobalirov at [12].
CAC at [13].
CAC at [8].
CAC at [14] citing Ability One Financial Management Pty Limited v JB by his tutor AB [2014] NSWSC 245; (2014) 11 ASTLR 155 at [319].
PJ [63]; P v NSW Trustee and Guardian [2015] NSWSC 579 per Lindsay J at [186].
Xia v Santah Pty Ltd [2003] NSWSC 807 (Xia) at [9] per Palmer J; Zhang v Zhang [2022] NSWSC 924 [52].
UCPR r 31.3(1); Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (E(A & AVL) Act) Pt 1A s 5B.
Mulberry Capital Management Pty Ltd v Shen – AVL Application [2022] NSWSC 1023 at [21] per Hammerschlag CJ in Eq.
With whom Ward P at [68] and Leeming JA at [69] relevantly agreed, noting that Leeming JA at [74] made certain additional observations in respect of the character of an appeal of a refusal of an application under s 5B E(A& AVL) Act for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).
CPA s 58(1)(a).
CPA s 58(2)(a).
Xia at [2]-[6] per Palmer J.
CPA s 61(3)(a).
Hans Pet at [36]-[41].
Emails of 10 December 2024 (2:30 AM), 24 December 2024 (9:43 AM).
PJ [45(2)].
PJ [20]-[23].
T 3.29-.34 (20 February 2025).
T 4.18-.20 (20 February 2025).
T 5.47-6.31 (8 May 2025).
T 2.11-.44 (6 March 2025).
T 6.33-.50 (8 May 2025).
T 9.27-.30 (8 May 2025).
T 9.32-.35 (8 May 2025).
T 9.37-.49 (8 May 2025).
T 10.20-.29 (8 May 2025).
T 10.34-.40 (8 May 2025).
T 10.34-.40 (8 May 2025).
Julie (a pseudonym)
John
(1987) 8 NSWLR 436
(1987) 11 Fam LR 669
(1986) 4 NSWLR 536
(2012) 84 NSWLR 474
(1979) 36 FLR 482
(1933) 50 CLR 228
Up to the time of the principal judgment, John was represented by solicitors and counsel. Thereafter, as will be detailed below, he was relevantly self-represented.
Between the time of the principal judgment, on which occasion I made orders (see below), up to (but not including) the hearing on 8 May 2025, there were 5 listings before me of the matter, on 4 September 2024, 15 October 2024, 10 December 2024, 20 February 2025 and 5 March 2025. In addition, I made listing and other orders in Chambers on 4 separate occasions. [3]
Apprehended Violence Orders issued against John preventing him from contacting Olivia were unwarranted; [45]
his father Oscar wanted or intended that everything be shared equally amongst his immediate family (Oscar’s purported testamentary intentions); [46]
an independent liquidator or third party should be appointed to take control of Company A and (identified) real property, and divide (presumably by sale and conversion of all such assets) the total wealth said to be “$$$$$ millions” [47] into three shares to be given to each of John Olivia and Julie (tripartite division); [48]
Lawyer E had promised John that such a liquidator would be appointed and effect a division of property; [49]
Julie and Robert had taken or were taking steps to foil John’s claim that there be a tripartite division and were attempting to receive all such property themselves; [50]
the NSW Trustee & Guardian had failed to take control of Company A and stop the alleged conduct by Julie and Robert; [51]
part of Julie and Robert’s plans involved providing excessive wages to Robert [52] and Robert should be required to repay to Company A alleged excessive wages or funds for over the last decade at a proposed repayment rate; [53]
Robert and Julie had engaged in alleged misconduct by Robert such as tricking or coercing Olivia into signing documentation, [54] which had happened under Olivia’s solicitor’s “watch”; [55]
Robert had (a) stolen certain personal property from a residence over 5 years ago; [56] (b), according to Kylie, more recently with Julie stolen Olivia’s credit card; [57] (c) stolen John’s mail; [58] (d) engaged in theft of other property; [59] (e) illegally deleted sentimental emails sent by Oscar to John; [60] and (f) engaged in aggressive conduct; [61]
there were witnesses who could provide statements to the Court confirming “what [Robert] is like” [62] and “if necessary” regarding alleged self-harm threats of Julie; [63]
Julie and Robert were attempting to prevent Kylie from “having her say”; [64]
Julie’s solicitor and Olivia’s solicitor were conflicted [65] and had engaged in misconduct including: (a) that Olivia’s solicitor had lied to the Tribunal and to the Court; [66] (b) that Julie’s lawyer had lied to the Tribunal; [67] (c) that Julie’s solicitor and Olivia’s solicitor were colluding (the implication being inappropriately); [68] (c) that John would not be surprised if they had “tampered with” Olivia’s Will; [69] (d) that those lawyers were charging exorbitant fees; [70] and (e) that Olivia’s solicitor should be held legally responsible for loss of her property and wealth and had failed to protect her interests; [71]
Robert should pay compensation to John for various alleged reasons; [72]
John should receive backpay from Company A; [73]
Company A should pay John’s prior lawyer’s legal bills (alleged to be $200,000) and pay Lawyer C $5,000; [74]
John, Kylie and their daughter should be entitled to equal access and use of family recreational equipment and that the Court should intervene to grant John and his family such access; [75] and
John’s daughter was allegedly missing out on medical treatment because of Robert’s alleged misappropriation of Oscar’s estate. [76]
Other aspects of John’s correspondence initially left unclear precisely what John was seeking. Thus for example, he claimed “No more NEW items are to be made for [Company A] during the Supreme Court case”. [77] It appears that John was seeking some form of orders that the decision-making powers of the directors of Company A should be superintended by the Court. [78]
John also made assertions that he was seeking to appeal other decisions made by the Tribunal and requesting me to conduct appeals in respect of such matters [79] and sent to the chambers email miscellaneous pages of the Tribunal’s decisions. [80]
Further to what I have indicated above, John not merely adverted to liquidation of Company A but appeared to be under the misapprehension that his application sought an order for the appointment of an independent liquidator to Company A [81] (which it clearly did not).
I informed John that he would not be permitted simply to have various people attend the hearing and start giving oral evidence because that would not be procedurally fair to Julie. [102] I noted that there would need to be certainty as to names of the witnesses John proposed to call and certainty regarding their evidence in chief. John indicated that he could make a list of persons and request them to make written statements. [103] I indicated that those steps would be necessary before any leave was given (to rely upon such material) and indicated to him that, in light of the 3-month period prior to the hearing taking place, he may wish to reflect upon whether he is able to obtain some form of legal advice from someone. [104]
Mr Jones raised two matters prior to the conclusion of the listing. The first related to the concern regarding John questioning Olivia and concerns about that being done in an appropriate way. [105] The second related to a disconnect between the express purpose which John sought to achieve by means of the application and whether that may potentially be an abuse of process in light of the rationale for the application for making a financial management order. [106] I observed to John that I would not make any particular notation about those matters but indicated that it was something that he should give his attention to.
Ultimately, in order to ensure that John had an opportunity to put on evidence and that Julie had an opportunity to know the nature of the evidence that was being relied upon by John, I made a number of orders as follows:
Mr Jones had only become aware the day before that John was in China. He took the position that he did not object to John appearing by AVL [144] but, having regard to the late notice, was (understandably) not in a position to address the question regarding whether any evidence or listing of the proceeding might in some way violate the sovereignty of China. [145]
I made reference to caselaw, noting William J’s decision In the matter of Sunnya Pty Ltd [2023] NSWSC 1286 addressing the question of whether the giving of evidence from someone via AVL from a location in China was permissible. [146] I also referred to my decision in Zhou v Birriga Holding Pty Ltd [2024] NSWSC 1425. [147]
I indicated to the parties that I was prepared to provisionally continue with the matter on the basis that John would appear by AVL though noting that he had no evidence in support of his application for a financial management order. [148]
I returned to the question of evidence from Witnesses A and B. John indicated that Witness A “would be in a truck” and that Witness B was “flying up to the Gold Coast”. I asked him whether he had told them of the court hearing today and he indicated that he had, clarifying that “they both are waiting to receive a court order for them to appear in the courtroom”. [149]
John further clarified “once they have a court order to appear they will appear and make a verbal statement”. I noted that John had not sought permission from the Court to adduce evidence, nor given notice to the other side of any such application. [150] Whilst he asserted that he had been trying for a “long, long time” to get them to appear, he was not able to point to any formal application and Mr Jones confirmed that he was not cognisant of any such application having been made. [151]
On 10 February 2025, the Registrar relisted the matter for hearing before me in a context in which John had failed to serve any such evidence.
On 20 February 2025, notwithstanding the above defaults and cognisant that John had foreshadowed seeking to have various witnesses adduce evidence, I made orders for the provision of names of witnesses and affidavits or witness statements to be provided. As noted above, on that occasion I had expressly indicated to John that he would not be permitted simply to have various people attend the hearing and start giving oral evidence because that would not be procedurally fair to Julie. [181]
On 6 March 2025, I addressed the question of leave to rely upon material provided by John to that point. Having regard to procedural fairness and the fact that the proposed material was not sworn or verified, not relevant nor rationally probative of a fact in issue, I declined permission for John to rely upon material.
At no stage after 6 March 2025 did John make any formal application to me to adduce evidence or amend his application. The material in the form of attachments sent to the chambers email after that date is limited to that which I noted above, namely: (a) the four consecutive emails of 24 March 2025 attaching the SMS messages purportedly of Witness B; (b) the email of 3 April 2025 attaching an SMS message purportedly of Witness F; and (c) the further email of 3 April 2025 attaching images of Olivia’s house. None of the content in those messages was sworn or verified. The writers of the messages are not identified in the messages themselves and at least one of the messages attached on 24 March 2025 seem to be written by John. Further, the content is not rationally probative of a fact in issue. For example, with respect to the message purportedly of Witness F, assertions that Robert “doesn’t sound like a nice person at all” does not go to the question of whether a financial management order should be made in respect to Olivia.
On the hearing, I inquired whether Mr Jones would be in any difficulty if some evidence was able to be elicited from the witnesses identified, given he had no awareness of what was proposed to be said nor presumably the ability to prepare for cross-examination in any informed or considered way. Mr Jones confirmed that he would be prejudiced by a departure from orders requiring evidence to be served and non-compliance with the Court’s orders. [182] His indication in that regard was entirely consistent with his earlier intimation on 6 March 2025. [183]
I specifically addressed with Mr Jones what he asserted ought to be done in light of the fact that there was no evidence in support of John’s application. He submitted that there was no arguable basis to pursue the application and, on clarification by me, confirmed that he said that the application should be dismissed. [184]
In light of that submission, I gave John an opportunity to indicate whether there were any reasons why I ought not to dismiss his application. [185]
In response, John asserted that “business should be closed down”, that Olivia “is being taken advantage of by” Julie and Robert, and that Witnesses A and B “are keen to make verbal statements in the courtroom, once they have received a court order”. [186]
The discussion touched upon the fact that John was not represented. He asserted that Olivia had failed to pay “for our lawyer through the [Company A] account” and asserted that Julie’s lawyer was being paid by [Company A]. [187] I observe that those assertions were not supported by evidence. In any event, it is unclear why John thought that Olivia should fund John’s application to seek to have her estate committed to financial management by payment from a company of which she was not a director.
Having made the observation that John had not put on any evidence which he intended to rely upon in support of his application nor given the other side notice of such an intention, John returned to the assertion that he had been trying for a long time to have the Court order Witnesses A and B to appear in the courtroom to make verbal statements, which had been promised by Lawyer E. [188] I note that at no stage has any such application been made to me for the issue of such subpoenas.
Lastly, John asserted that Olivia should be having an independent assessment for her capacity which Lawyer E had (according to John) promised to arrange and that had never occurred. [189] I record, as noted above, no such application had been made (let alone supported by any relevant evidence) at any material stage of the proceedings on the new hearing before me.
As I have indicated above, a material part of the context of the making of the orders for the serving of affidavit evidence in support of the application arose out of John’s correspondence to my chambers email, and confirmed by John on 20 February 2025, which I have outlined above. Namely, his actuating purposes regarding the new hearing was very remote from those which appropriately attend an application for the making of a financial management order (including whether Olivia is incapable of managing her affairs, whether there is a need for another person to manage Olivia’s affairs and whether it is in her best interests for a financial management order to be made).
In light of the history of the matter and the opportunities given to John to apply to adduce evidence in a form which would be notified to the other side and to the Court, it was clear that he was not in a position to proceed. He had provided no statement from himself, nor any statement from Kylie, notified to Julie's representatives. Even assuming that John expected or perhaps hoped that Witness A and Witness B might somehow give evidence, he had not arranged to serve any statement of the evidence that they might be expected to give on Julie’s representatives.
Further, John had not arranged for any subpoenas to be issued to Witnesses A and/or B. Clearly, they were not in any position (having regard to John’s statements regarding Witness A driving a truck and Witness B flying to the Gold Coast) to easily connect to the Court.
In the above circumstances, fundamentally, John had not provided any evidence in any rationally probative form, such as would permit Julie to be fairly appraised of the nature of the evidence and to address it. In these circumstances and having regard to the ample opportunity John had since late last year to adduce evidence, I determined to dismiss the application.
Even if it be assumed that John’s repeated emails regarding the appointment of a liquidator to Company A were to be considered as raising a live issue, there is no suggestion that John had any standing to seek such a liquidation. Details of Company A were set out in the principal judgment. At the time, John was neither a shareholder nor a director of Company A. [190] Further, none of the content in John’s emails sent to my Associate or chambers email suggested that John is a creditor, director or shareholder of Company A. In the same way that John did not provide rationally probative material for the application for a financial management order, he did not provide any evidence giving any plausible basis for seeking, let alone justifying, the appointment of a liquidator to Company A (or indeed any of the other topics raised in his email correspondence).
Ultimately, in light of my findings above, it is not necessary for me to me further explore the considerations of whether John ought to be permitted to conduct the hearing by AVL and in a context in which he was located in a foreign jurisdiction, namely China.