Mao v AMP Superannuation Limited

Background

1. In 2013 Ms Mao commenced two sets of proceedings in this Court: the first, commenced by statement of claim filed on 31 July 2013, against the AMP entities (the AMP proceedings) and the second, commenced by statement of claim filed on 12 August 2013, against the BT entities (the BT proceedings). The background to the respective proceedings, and the history of the matter up to the time an order was initially made that a tutor be appointed for Ms Mao, is set out in the decision of Hallen J in Mao v AMP Superannuation Limited; Mao v BT Funds Management Ltd [2014] NSWSC 1794 (the First Judgment). However, it is convenient here to set out some of that history again.
2. In summary, in both proceedings Ms Mao claims an entitlement to benefits under particular superannuation trust deeds. In respect of the AMP entities, her claim, as initially commenced, was for payment of a claimed total and permanent disablement benefit of about $25,000 plus a temporary salary continuance benefit of $135,000 (totalling around $160,000). In respect of the BT entities, the amount claimed was in the order of $200,000 (alternatively a sum of $200,813 and interest under a "Employer Policy" or a sum of $209,406 and interest under a "Personal Policy").
3. When the respective sets of proceedings were first commenced, Ms Mao had the benefit of legal representation. However, the solicitors who were acting for her in each of the proceedings filed a notice of ceasing to act in each matter on 15 April 2014. The circumstances in which Ms Mao's solicitors ceased to act for her, as were explained to the Court at the time, are recounted in an affidavit affirmed 14 August 2014 by Elizabeth Grace Esber (a solicitor in the employ of the solicitors acting for the AMP entities) and read on the present application. In essence, Ms Esber deposes that Ms Mao's then solicitor explained to the Court that he was unable to obtain any meaningful instructions from her in circumstances where she was very unwell and was then being admitted into a psychiatric facility.
4. After Ms Mao's solicitors ceased to act for her, Ms Mao indicated that she intended to amend her claim in both proceedings to claim loss, damages and "life threatening damages" in the amount of $50,000,000 (see [69] of the First Judgment, reference there being made to a second Court Statement dated 30 October 2014 of Ms Mao containing an assertion by Ms Mao to that effect).
5. The AMP proceedings were listed for hearing before Hallen J for three days commencing on 29 September 2014. Prior to that date, each side applied for interlocutory orders. First, on 20 August 2014, Ms Mao sent a notice of motion to the court seeking that the hearing of the matter be in Newcastle. Then, on 25 August 2014, the AMP entities filed a notice of motion seeking orders including for the appointment of a tutor for Ms Mao pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), that the proceedings be heard concurrently with the BT proceedings and that the then hearing dates be vacated.
6. In support of her application for the hearing to be conducted in Newcastle, Ms Mao sent to the court a Court Statement dated 20 August 2014 (see [37] of the First Judgment) in which she put forward three reasons for her application, the first of which was by reference to her health, namely that she relied on medication, her carer and "constant professional health from mental health Service" to help her through the court proceedings. A further Court Statement dated 20 August 2014 was sent to the Court from a Mr Simon Smith, in which he stated that he was the carer for Ms Mao and in which further reasons were proffered for the application for the case to be heard in Newcastle, including the statement that: Originally this case was about money. Now it has become a case of life-and-death for Ms MAO as she has been dragged into constantly reliving in her past. She suffers mental illness which was caused by her past. When Ms MAO stands trial, it is inevitably [sic] she will be brought to recall her past. Under this circumstance, she needs to be put on close watch by the mental health professional team from Hunter Valley Mental Health Service who has been looking after Ms MAO for over the last 3 years.
7. The respective interlocutory applications came before Young AJ on 3 September 2014. What transpired on that occasion, so far as Hallen J could glean from the transcript, is set out in the First Judgment (from [40]-[52]). Ms Mao did not attend and was not represented on that occasion. Young AJ made orders noting that the defendant, AMP Superannuation, would arrange for a tutor to be appointed for the plaintiff and that the appointment would be made in court on 1 October 2014 or in chambers on 2 or 3 October 2014. Young AJ noted that if Ms Mao wished to be heard on the matter she should notify the Registrar accordingly. His Honour Young AJ thus made no order on 3 September 2014 for the appointment of a tutor, vacated the hearing then listed before Hallen J on 29 and 30 September and 1 October 2014; and ordered that the two sets of proceedings be heard together, with evidence in the one to be evidence in the other. Young AJ also indicated that, in order to accommodate Ms Mao, the Court would sit in Newcastle on 26 March 2015, provided arrangements could be made with the clerk of the court in Newcastle for a court, and that the remainder of the case would be heard in Sydney on 27 and 30 March 2015 provided Ms Mao's doctors were able to attend.
8. A directions hearing took place before Hallen J on 1 October 2014, on which occasion Ms Mao appeared by audio link. On that occasion, his Honour identified the particular issues that the parties wished to agitate, noting that there had been a misunderstanding as to the orders that had in fact been made by Young AJ on the earlier occasion regarding the appointment of a tutor. His Honour confirmed that no such order had been made. The hearing of the motion for the appointment of a tutor was stood over to 5 November 2014 on which occasion his Honour indicated that issues as to whether the two proceedings should be heard consecutively and as to the amendment of the pleadings (presumably to encompass Ms Mao's substantially increased claim for "life-threatening damages") were also to be dealt with (see [57]-[58] of the First Judgment).

The First Judgment

1. The hearing of the AMP entities' application for the appointment of a tutor took place before Hallen J on 5 November 2014. Ms Mao was in attendance, representing herself, on the application.
2. Hallen J published his decision on that application on 18 December 2014 (the First Judgment). His Honour summarised the evidence read on the 5 November hearing ([60]-[70] of the First Judgment), noting that Ms Mao's previous solicitors had served evidence upon which she would rely at the substantive hearing (including a medico-legal report of Dr Westmore, a number of NSW Health Mental Health Discharge Summaries, a number of other medical reports, and a document described as "AMP Initial Medical report and a certificate for superannuation disablement claim completed by a Dr So dated 14 February 2012" (see [64])). At [74]-[83] of the First Judgment, his Honour set out excerpts from the transcript of the proceedings on 5 November 2014.
3. His Honour concluded (at [84]), from the answers that Ms Mao had given on that occasion, that she had a firmly held belief that she did not require any assistance to conduct the cases that she had brought against the AMP entities and the BT entities.
4. At [85]-[86] of the First Judgment, Hallen J summarised the medical reports regarding Ms Mao, noting that she had suffered from a psychiatric illness for more than 15 years, that her psychiatric condition continues as an acute and chronic condition, that within her condition she has some disabilities with multiple areas of functioning (including concentration and processing speed, decision-making capacity and judgment) and that there were some comments in the medical reports about her capacity to care for herself. His Honour noted that Dr Westmore had opined that Ms Mao suffered from Chronic Post Traumatic Stress Disorder and a significant Depressive Disorder with predominant symptoms of anxiety and agitation (see [85(h)]).
5. At [146] of the First Judgment, his Honour concluded, having had regard to what was said in Slaveski v Victoria (2009) 25 VR 160; [2009] VSC 596 at [31]-[32] by Kyrou J (as his Honour then was) and having addressed, with particular reference to Ms Mao's position, the various matters identified by Kyrou J as potentially relevant to the question of capacity to conduct legal proceedings, that Ms Mao was a person under a legal incapacity and that an order should be made for the appointment of a tutor. (On the application before me, Counsel for the respective defendants submitted that that finding is an extant finding, noting that it was not challenged in the subsequent Court of Appeal proceedings and submitting that it has not been overturned. I will return to this in due course.)

Proceedings in the Court of Appeal

1. Ms Mao then brought proceedings in the Court of Appeal seeking to challenge the interlocutory orders made by Hallen J. Her summons for leave to appeal was heard on 13 July 2015, concurrently with the appeal assuming leave were to be granted.
2. Before then, there was an unsuccessful challenge by Ms Mao as to the direction that the Registrar of the Court of Appeal had made to the effect that the respondents (that is, the AMP entities and the BT entities) should prepare the appeal book required to be prepared in accordance with the UCPR. Ms Mao had, by notice of motion filed on 17 June 2015, sought an order that the appeal book prepared by the respondents be dismissed and that she be allowed to prepare the appeal book. She maintained that she was at a disadvantage in having to conduct proceedings from papers prepared by the respondents. That application came before Emmett JA on 22 June 2015 (see Mao v AMP Superannuation Funds [2015] NSWCA 178) and was dismissed. His Honour also refused Ms Mao leave to make an amendment to the notice of motion to seek an order that the respondents pay her costs in the sum of $50,000. An application by Ms Mao for special leave to appeal from that decision was dismissed by the High Court on the papers.
3. Ms Mao's challenge to the orders made by Hallen J in relation to the appointment of a tutor was successful (Mao v AMP Superannuation Ltd [2015] NSWCA 252). Having regard to Hallen J's finding as to Ms Mao's incapacity, the Court noted that the summons for leave to appeal might be incompetent (on the basis that Ms Mao had no capacity to commence proceedings of that nature) but said that, in the absence of a tutor, there might be no scope for her to impugn the conclusions of the primary judge (see [59]). Noting that that circumstance had been brought about by the AMP entities' to comply with r 7.18 in the original application for the appointment of a tutor, the Court considered that the appropriate and pragmatic course was to dispense with the requirements of r 7.14 of the UCPR to the extent that this would prevent Ms Mao from commencing and carrying on the appeal proceedings. The Court accordingly made an order to that effect.
4. As to the substantive matter before the Court of Appeal, their Honours granted leave to appeal and allowed the appeal in part. Relevantly, the Court held that Div 4 of Pt 7 of the UCPR was premised on the assumption that if a court is asked to appoint a tutor the court will have evidence as to incapacity as well as evidence of the consent to act by the proposed tutor and said that evidence of both of those matters was explicitly required by r 7.18(5) (see [48]-[49]). The Court did not accept the proposition necessarily implicit in the AMP entities' motion of 25 August 2014 that there was a capacity to bifurcate the determination of legal incapacity on the one hand and the appointment of a tutor on the other (see [51]).

Correspondence in relation to costs orders

1. In relation to the costs orders made in her favour in the Court of Appeal, Ms Mao notified the solicitors for the respective defendants by letter dated 8 September 2015 that her costs of the summons seeking leave to the appeal and of the appeal "are many millions of dollars" and that: I hereby give notice that the respondents pay $1,000,000.00 (one million) up front before the final costs calculation has been made requesting payment of that "up front" sum within 14 days. The response to that demand on behalf of the respective defendants (by letters dated 9 September 2015) was to draw to Ms Mao's attention that, as she was and remained a self-represent litigant for the appeal proceedings, she did not incur legal fees and was not entitled to recover professional costs or be paid for the time spent in conducting and preparing her case. Ms Mao was referred to the High Court's decision in Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 in that regard. The AMP entities accepted that Ms Mao might be entitled to recover out of pocket expenses incurred in the appeal proceedings, if they were necessarily and reasonably incurred, and invited Ms Mao, if there were disbursements for which she wished to claim reimbursement, to advise the details and provide copies of the receipts evidencing the disbursements. That elicited a response from Ms Mao to the effect that she should have known it was a waste of time to try to have the matter resolved outside of court.
2. On 15 December 2015, Ms Mao forwarded by express post to the directors of AMP Limited, purportedly by way of service, an unfiled statement of claim, claiming an amount of $100,000,000 plus interest of $10,000,000 by way of an order that the named defendants pay Ms Mao's costs of the summons seeking leave to appeal and of the appeal. The unfiled statement of claim makes various very serious allegations against numerous legal practitioners and judicial officers and alleges collusion on the part of AMP with BT and AIA "to abuse the Australian Legal System and to violate the plaintiff's rights for the purpose of serving the defendants' vested interests to enrich themselves".

Remittal to the Equity Division

1. Following the decision of the Court of Appeal, the two proceedings were relisted by Hallen J for directions on 4 April 2016. There was no appearance by or on behalf of Ms Mao on that occasion. The proceedings were stood over to 10 May 2016 for further directions (see Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 3) [2016] NSWSC 382).
2. On 10 May 2016, when the matter came back before Hallen J, Ms Mao attended by telephone. The day before she had affirmed an affidavit stating, among other things, that Hallen J "must be disqualified from hearing further AMP proceedings and further BT proceedings" and that his Honour's judgment of 18 December 2014 "was illegal and it has almost killed me". His Honour informed Ms Mao on that occasion that her application that he recuse himself would be heard at 11.45am on 26 May 2016 (see Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 4) [2016] NSWSC 722 at [18]-[22]).
3. On 26 May 2016 there was no appearance by or on behalf of Ms Mao. His Honour did not proceed in Ms Mao's absence with the recusal application. Rather, his Honour decided that he should stay the recusal application, and any other extant application brought in this Division, pursuant to s 67 of the Civil Procedure Act 2005 (NSW) until such time as any party should seek to have the stay lifted. The applications thus stayed included the application for the appointment of a tutor that had been remitted by the Court of Appeal to this Division.

Notice of Constitutional Matter

1. On 14 June 2016, Ms Mao filed in the High Court Sydney Registry a Notice of a Constitutional Matter, seeking that the High Court determine whether or not the judgment and/or orders of Hallen J on 18 December 2014, the conduct of Hallen J presiding over directions in the two proceedings, the conduct of the New South Wales Court of Appeal presiding over the concurrent hearing in appeal proceedings, and the judgment and orders of the New South Wales Court of Appeal "have infringed the integrity of the Commonwealth Parliament and/or the integrity of the Commonwealth Executive Government and/or the integrity of the New South Wales Parliament and/or the integrity of the New South Wales Executive Government and/or the integrity of the New South Wales Supreme Court and therefore violated the Australian Constitution".
2. At [5] of that Notice of Constitutional Matter, Ms Mao asserted that the facts set out in the notice reveal "that the applicant was pushed to die and in fact she would be dead on many occasions during proceedings 2013/232241 and 2013/244238 if it were not for others who had risked their lives to save the applicant".

Events leading up to the hearing on 13 July 2017

1. By letter dated 8 November 2016, Ms Mao notified the AMP entities, in a letter marked to the attention of the CEO, Chairman and directors of the AMP Limited Board of her claim that her costs of the summons seeking leave to appeal and of the appeal plus interest were well in excess of $100,000,000 and demanded payment of the "first instalment of costs" of $10,000,000 by 15 November 2016 by cheque.
2. That is the background against which the AMP entities' amended notice of motion for the appointment of a manager to part of Ms Mao's estate was filed in late March this year. By amending their notice of motion in this regard, the AMP entities are no longer pressing for an order for the appointment of a tutor for Ms Mao.
3. On 23 May 2017, Ms Mao filed a further Notice of Constitutional Matter giving notice that the respective sets of proceedings involved a matter arising out of the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act 1903 (Cth). On 29 June 2017, Ms Mao filed two further Notices of Constitutional Matter (one each in the two proceedings). I consider those notices further in due course.
4. By various email communications to the Equity Registrar and others in the Court, Ms Mao then sought to file two notices of motion dated 28 May 2017, seeking an injunction to stay orders made by the Prothonotary on 24 April 2017 in relation to the proceedings. Those were procedural directions, among other things for the service by Ms Mao of any affidavits in response to the 28 March 2017 notice of motion. When Ms Mao was informed by the Registrar that a notice of motion could not be filed by email, and that leave would not be granted for her to do so, Ms Mao contended that the orders involved a matter arising out of the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act and that it was the duty of the Court not to proceed unless and until the Court was satisfied that a Notice of Constitutional Matter had been given and a reasonable time had elapsed for consideration by the Attorneys-General of the question of intervention or removal of the cause to the High Court (see Ms Mao's email of 1 June 2017).
5. After further email communications with the Registry, Ms Mao's carer sent an email on 20 June 2017 to the Registry and others in the Court, applying to the Court for directions. A time was allocated for such a directions hearing to take place before me on 3 July 2017. That date was then said to be unsuitable to Ms Mao for medical reasons. The Court was advised that she was unable at that time to inform the Court of a suitable date for directions. Accordingly, the proposed directions hearing was vacated. Ms Mao was advised that directions would be dealt with, with the motion already listed, on 13 July 2017.

Applications made by Ms Mao on 13 July 2017

1. That brings me to the events of 13 July 2017, when the AMP entities' motion for the Court to appoint a manager to part of Ms Mao's estate had been listed for hearing. Ms Mao had requested in advance that she be permitted to attend by telephone link and I permitted that to occur.
2. At the outset, as adverted to in the introduction to these reasons, an application was made by Counsel appearing for the BT entities, Mr Villa, to file in Court their notice of motion seeking similar relief to that sought by the AMP entities. Ms Mao opposed that course on the basis that only the AMP proceedings were listed in the Court list (which was correct); and on that basis she also objected to Mr Villa's appearance. As I considered no purpose was to be served by requiring the notice of motion to be filed in the Registry rather than in Court, on the undertaking of the BT entities' solicitor to pay the requisite filing fees I allowed the notice of motion to be filed in Court. No prejudice can sensibly be said to have been suffered by the mere filing of the BT entities' notice of motion in Court. I indicated that I would determine in due course whether that motion should be heard that day. (As it transpires, it is not necessary to deal with that notice of motion given the conclusion I have reached as to the amended notice of motion filed by the AMP entities.)
3. As to the opposition by Ms Mao to Mr Villa being in attendance on the hearing of the AMP entities' motion, the BT entities are named as persons affected by the orders sought in that motion and thus there could be no reasonable basis for an objection to Mr Villa's attendance on their behalf.
4. After Counsel for the AMP entities, Mr Duncan, identified the notice of motion on which he was moving and indicated that leave was sought for the amendment of the motion (in essence to seek that the Court of its own motion appoint a manager to part of Ms Mao's estate in lieu of the relief originally sought for the appointment of a tutor) and as he was proceeding to identify the affidavits that he would read on that application, Ms Mao made an oral application in effect that I disqualify myself from hearing the AMP entities' notice of motion. She indicated that she made that application on the following six grounds: 1. that the AMP proceedings and the BT proceedings are not "fresh proceedings" - they are nearly four years old in this Court; 2. that Hallen J has presided many times over pre-trial proceedings in the two AMP and BT proceedings since 18 August 2014; 3. that Hallen J has given and published four case law ([sic]; presumably meaning that his Honour has published four judgments reported on CaseLaw) in these two proceedings and has made many orders in the same proceedings; 4. that it is in the interests of justice that there be an answer to the issue whether the four judgments given and published by Hallen J in the two sets of proceedings "are safe or should be relied on and/or cited by others in the years to come in pursuance of justice"; 5. that there is a motion in the two sets of proceedings to disqualify Hallen J from hearing the whole proceedings and this is currently still before Hallen J; and 6. that Ms Mao has not been notified that Hallen J has made a decision to disqualify himself from hearing the respective proceedings and that, should the stay order be lifted as sought by the motions of the defendants in the respective proceedings, Hallen J will be asked by Ms Mao to make a decision on the motion whether to disqualify himself from hearing the two proceedings.

Notices of Constitutional Matter

1. Before proceeding to the determination of the AMP entities' application, I now set out my reasons for determining that there is not a constitutional matter arising out of the Notices of Constitutional Matter filed by Ms Mao such as to warrant the stay of any hearing of the AMP entities' notice of motion seeking the appointment of a manager for Ms Mao's estate.
2. The first of the three notices in question (that which is dated 22 May 2017) was filed on 23 May 2017 in the AMP proceedings. The notice was addressed, among others, to the Attorneys-General for the Commonwealth and each of the states and territories. On 26 May 2017, Ms Mao filed an affidavit in proceeding 2013/244238 in which she deposed (at [10]) as follows: On 26 May 2017, I served, by Registered Post, on every other party in the proceedings number 2013/232241 and 2013/244238 and on the Attorneys-General of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory with a copy of the NOTICE OF CONSTITUTIONAL MATTER filed by me on 23 May 2017 in the NSW Supreme Court.
3. In a separate affidavit of service also filed on 26 May 2017 in the same proceeding Ms Mao deposed (at [3]) in similar terms. An affidavit of service was also filed in identical terms in proceeding 2013/232241 on 26 May 2017.
4. The first Notice of a Constitutional Matter is a lengthy document. In summary, the alleged constitutional issues fall under two broad categories: first, the scope of the "Constitutional Power" of this Court to make certain orders (particularly in relation to the appointment of tutors and the management of a person's estate) and whether in relation to proceedings in which such orders were made there has been a violation of certain Commonwealth laws and/or the Australian Constitution (see [2]-[3]; [28]-[55]); and second, the "integrity of the Rule of Law", a constitutional issue said to be raised by the alleged misconduct of an extensive list of judicial officers, those associated with the operation of the Court, various Attorneys-General, and certain Australian legal practitioners (see [4]; [56]-[72]).
5. The second and third notices in question, filed on 29 June (in each of the respective proceedings), are said to be filed "in conjunction with" Ms Mao's first notice of a constitutional matter filed on 23 May 2017. The second and third notices are in identical terms.

Statutory framework

1. Section 78B of the Judiciary Act provides as follows: Notice to Attorneys-General (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending: (a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; (b) may direct a party to give notice in accordance with that subsection; and (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. (3) For the purposes of subsection (1), a notice in respect of a cause: (a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and (b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause. (4) The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section. (5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
2. In relation to s 78B(2)(c) of the Judiciary Act, in Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 3) [2010] FCA 428, Rares J said (at [16]) that the better reading of the word "continue" in this section was that the Court is "entitled to embark on a hearing provided that it can be conducted in a way that severs the matter arising under the Constitution, or involving its interpretation, until the proceedings reach the point where such severance cannot be maintained". As appears from the judgment of the Court of Appeal (Bathurst CJ, Beazley P and Basten JA) in AGU v Commonwealth of Australia [2013] NSWCA 333 at [20], s 56 of the Civil Procedure Act must also be considered: … The Civil Procedure Act, s 56 requires the Court to give effect to the overriding purpose of the Act and of rules of court so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 56 is not only directed to the position of the parties to the litigation. It is also directed to the proper application of the resources of the Court: see ss 56(2). Parties to an appeal should not have any expectation that the appeal can be divided into several parts to be heard separately by the Court.

Introductory observations

1. In my opinion, the present proceedings do not involve a matter (or matters) arising under the Commonwealth Constitution or involving its interpretation in the requisite sense.
2. In Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151, French J said the following (at [19]-[20]) as to the nature of the word "matter" as used in s 78B of the Judiciary Act: The word "matter" in s 78B bears the same meaning as in Chapter III of the Constitution. In that sense it embraces the "subject matter for determination in a legal proceeding" - Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265. It is the "justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy" - Fencott v Muller (1983) 152 CLR 570 at 603. The content of the controversy which constitutes a matter "is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out" - Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 at 294. See also Re Wakim ex parte McNally [1999] HCA 27; (1999) 163 ALR 270 at 310-313 (Gummow and Hayne JJ). The scope of a "matter" in respect of which the Court has jurisdiction is defined by the controversy between the parties, but nothing in the concept of matter as developed in the cases requires that its characterisation as "arising under the Constitution or involving the interpretation of the Constitution" should depend critically upon the particular pleadings, claims or assertions made by the parties. Assertion or non-assertion of a constitutional question is not determinative of the character of the matter. …
3. The strong conviction of Ms Mao that the present proceedings involve a matter arising under the Constitution is not, as I indicated to Ms Mao, to the point. As noted by Hunt J in Green v Jones [1979] 2 NSWLR 812 (at 818): … it is not sufficient that the plaintiff bona fide and genuinely believes that his challenge involves a matter arising under the Constitution. He must establish that it does involve such a matter.
4. To similar effect, Toohey J in Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 (in remarks explicitly endorsed in Glennan v Commissioner of Taxation (2003) 198 ALR 250; [2003] HCA 31 at [14] (Gummow, Hayne and Callinan JJ)) said the following (at 74): … a cause does not "involve" a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution.

Consideration of the first notice of a constitutional matter

1. As adverted to above, the alleged constitutional issues outlined in the first Notice of a Constitutional Matter appear to fall into two broad categories. These are described in the notice under the heading "State the Nature of the Matter".
2. First, it is said (at [2] and [3]) that the "scope of the NSW Supreme Court's Constitutional Power to make an order and/or a NSW Case Law" arises "with respect to": proceeding 2013/232241 (that is, the AMP proceedings); proceeding 2013/244238 (that is, the BT proceedings); in relation to a notice of motion filed 25 August 2014 in the AMP proceedings in which the AMP entities sought the appointment of a tutor pursuant to r 7.18 of the UCPR; and, further, in respect of a so-called "recycled" notice of motion filed 28 March 2017 in both proceedings which sought, among other things, that the court order a financial manager to that much of Ms Mao's estate as pertains to Ms Mao's right title and interest in the two sets of proceedings pursuant to s 41 of the NSW Trustee and Guardian Act.
3. Second, it is said (at [4]) that a question concerning the "integrity of The Rule of Law" arises from: certain alleged "systematic judicial corruption, misconduct, perverting the course of justice, abuse of power and cover up" by various officers of the NSW Supreme Court said to be done "in an effort to shut down" the two sets of proceedings (at 4); certain alleged "criminal activities" by various legal practitioners of NSW (at 4); and the alleged concealment of the alleged misconduct by various Attorneys-General (at 4-(f)).
4. The alleged constitutional issues said to fall under these two broad categories are then set out in greater detail at [28]-[55] (in relation to the first category) and [56]-[72] (in relation to the second category). The balance of the notice ([73]-[362]) then states the alleged facts said to show the matter to be one to which s 78B of the Judiciary Act applies.

The first set of alleged constitutional issues

1. In relation to the first set of alleged constitutional issues, Ms Mao contends that various judicial officers (and certain other named individuals or groups of individuals) have violated various Commonwealth laws; in particular, the Privacy Act 1988 (Cth); the Disability Discrimination Act 1992 (Cth); the Australian Human Rights Commission Act 1986 (Cth); the Superannuation Guarantee (Administration) Act 1992 (Cth); and the Superannuation Industry (Supervision) Act 1993 (Cth) (see [28]-[32]; it is also said that further Commonwealth laws will be "supplied after discovery herein").
2. Insofar as Ms Mao is calling in aid otherwise valid Commonwealth legislation for the purpose of impugning the conduct of any of the named judicial officers, the words of Garling J in Australia and New Zealand Banking Group Ltd v Evans at [78]-[79] are apposite: Upon exploration with Mr Evans at the hearing, it appeared that he intended to rely upon the Act to persuade the Court that the documents which he had described as promissory notes were in fact promissory notes within the meaning of the Act. In other words, he was proposing to call in aid the sections of the Act and invite the Court to apply them. Merely seeking the application of an otherwise valid piece of Commonwealth legislation does not, without more, constitute, within the meaning of s 78B of the Judiciary Act: "a matter arising under the Constitution or involving its interpretation." Courts all around Australia are called upon every day to interpret and apply provisions of Commonwealth statutes. It happens both in civil and criminal proceedings. It is frivolous to suggest that the mere application of an otherwise valid Commonwealth Act by a court involves a matter arising under the Constitution or involving its interpretation. I am not satisfied that this matter is properly raised. [My emphasis.]
3. In the present case there is no suggestion that Ms Mao intends to impugn the validity of the named statutes (nor is it apparent on the pleadings or in the case as a whole that there is any relevant issue of validity in relation to these statutes). Rather, the contention is that certain judicial officers "violated" (which I take to mean contravened certain specific obligations under) the Commonwealth laws. Even if established, it is not obvious why this would give rise to a "matter" in the relevant sense (as distinct, say, from triggering certain provisions of the relevant statutory regime). If by this contention it is instead meant that the alleged misconduct "violated" Commonwealth law and the Constitution, it is again not obvious whether what is intended is violation in some precise constitutional sense (in which case one would expect to be referred to the relevant constitutional provisions) or simply in some lay abstract sense (in which case there is no "matter" in the sense required by s 78B). Insofar as reference is made to the "integrity of the Commonwealth" being "infringed", the nature of this infringement is not the subject of any specificity (nor is it apparent, for that matter, how a breach of an obligation imposed by Commonwealth legislation would, without more, infringe the "integrity" of the Commonwealth in a manner giving rise to a "matter").

The second set of alleged constitutional issues

1. The second set of alleged constitutional issues are set out in greater detail at [56]-[72] of the Notice of a Constitutional Matter. It is said that "at stake" in these matters is "the integrity of the Rule of Law" (see heading to [56]-[72]).
2. First, it is said that certain officers of this Court "acted and/or conducted themselves with intent to commit and/or to facilitate the commission of an indictable offence" (at [56]), or "with intent to commit and/or to facilitate the commission of corruption, misconduct, perverting the course of justice, abuse of power, [or a] cover-up" (at [57]), or so acted: "in an effort to appoint a tutor" (at [58]); "in an effort to silence the plaintiff" (at [59]); "in an effort to shut down" the two sets of proceedings" (at [60]); "to facilitate the commission of dishonestly obtaining financial advantage or causing disadvantage by deception" (at [61]); and/or "to facilitate the commission of concealing the criminal activities by the defendants" in the two sets of proceedings (at [62]).
3. These contentions raise no constitutional matter. To the extent that these allegations relate to federal legislation, again, s 78B is not engaged "merely because a court is exercising federal jurisdiction, which derives from Ch III of the Constitution" (Waterhouse at [7] (Basten and Emmett JJA)).
4. Moreover, even accepting that the rule of law is an "assumption" underlying the Constitution (Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; [1951] HCA 5), there is nothing in the present case which suggests that the allegations would require any consideration of the significance or meaning of that proposition in the context of a "matter arising under the Constitution or involving its interpretation" (Judiciary Act, s 78B) in circumstances where there is but a bare assertion of alleged criminal conduct by judicial officers (and elsewhere in the document, of other individuals within the NSW and Commonwealth justice and political systems), no reference is made to anything said to arise from the text or structure of the Constitution which would suggest that consideration of the role of the rule of law in federal constitutional law would be required to resolve Ms Mao's allegations, no elucidation of the concept of the rule of law (or any relevant aspect of that concept) is offered, and, finally, as noted above, notwithstanding the court's obligation to scrutinise carefully for itself the proceeding before it for the purpose of characterisation, it is not for the court to hypothesise in some open-ended and speculative manner about every conceivable constitutional argument which could be run.

Consideration of Ms Mao's second and third notices of a constitutional matter

1. In both documents, the nature of the alleged constitutional points are again set out under the heading "State the Nature of the Matter".
2. First, it is said (at [3] and [4]) that the "Constitutional responsibility of the Executive Government of the Commonwealth to administer laws and carry out the business of government" arises "with respect to" the AMP proceedings and the BT proceedings and "expressly with respect to" the notice of motion filed 25 August 2014 in the AMP proceedings in which the AMP entities sought the appointment of a tutor pursuant to r 7.18 of the UCPR; and the so-called "recycled" notice of motion filed 28 March 2017 in both proceedings which sought, among other things, that the court order a financial manager to that much of Ms Mao's as pertains to Ms Mao's right title and interest in the two sets of proceedings pursuant to s 41 of the NSW Trustee and Guardian Act.
3. Second, it is said (at [5] and [6]) that the interpretation of the "Responsible" and "Representative Government of the Commonwealth under the Constitution" arises in the AMP proceedings and the BT proceedings.
4. Ms Mao then sets out (at [6]-[17]) a series of assertions relating to alleged misconduct by the defendants and various other individuals in respect of which the "Executive Government of the Commonwealth" is said to bear some responsibility (for example, it is said that alleged misconduct occurred "[u]nder the watch" of the government and that individuals were "allowed and/or enabled" to do various things; see [10]; [14]-[17]). Again, no attempt is made to link these contentions to any aspect of the Constitution.
5. At [18] the alleged matter arising under the constitution or involving its interpretation is apparently said to be "[h]ow the Executive Government of the Commonwealth" and various other named individuals "administered such laws" as the Superannuation Guarantee (Administration) Act and Superannuation Industry (Supervision) Act. At [19] the question is then posed "[w]hether or not" these named individuals "had administered" such legislation". Neither [18] nor [19] gives rise to a matter in the relevant sense. A mere factual question about how the executive exercises the power constitutionally vested in it is not by itself a matter in the relevant sense. Again it is not for this Court to engage in unbounded speculation so as to distil (assuming that were even to be possible here) a "real and substantial" (Re Culleton at [29]) constitutional point about whether alleged conduct in the administration of a Commonwealth legislative regime contravenes or gives rise to an interpretation in relation to or is in some other relevant sense connected with the Constitution (to which no reference is made).

Conclusion

1. A close consideration of Ms Mao's notices (and the proceedings as a whole) has not persuaded me that s 78B of the Judiciary Act is engaged. This conclusion is fortified when regard is had to the underlying proceedings, which are essentially concerned with Ms Mao's claim to be entitled to payment of the benefits claimed by her, and to the matter presently in issue which is whether, on the Court's own motion, a manager should be appointed to that part of Ms Mao's estate as relates to the present litigation.
2. The proceedings do not give rise to a "matter arising under the Constitution or involving its interpretation".

Application for appointment of a manager

1. I turn now to the application by the AMP entities for the appointment of a manager to that part of Ms Mao's estate as is comprised of her claims in the respective proceedings.

General observations

1. It is well known that the NSW Trustee and Guardian Act forms part of the protective jurisdiction of this Court and that that jurisdiction is both statutory and inherent. Insofar as the jurisdiction is statutory, it has been noted that its operation is informed by the Court's inherent jurisdiction (see JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [3]; PB v BB [2013] NSWSC 1223 at [2]-[10]; [27]-[29]; [38]-[60]).
2. Section 41 is contained in Ch 4 of the NSW Trustee and Guardian Act. Section 39 sets out general principles which are to be applied when exercising functions under that Chapter: 39 General principles applicable to Chapter It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation.
3. In CJ v AKJ [2015] NSWSC 498 (at [44]-[49]) Lindsay J considered the relevance of s 39 of the NSW Trustee and Guardian Act to the question whether a person is incapable of managing his or her own affairs, as follows: In Re D [2012] NSWSC 1006 at [65] White J expressed a tentative view that (although the "general principles" set out in section 39 are relevant to an exercise of the discretion of the Court under section 41 as to whether to order that the estate of a person be subject to management under the Act if and when the Court is satisfied that the person is incapable of managing his or her affairs) they are not relevant to a determination of whether or not the Court should be so satisfied. I do not embrace that view, save to the extent that I agree that a finding of incapacity for self-management under section 41 is not, in terms, dependent on the operation of section 39. The operation of section 41 might be informed by section 39, but the concept of incapacity for self-management referred to in section 41 is capable of standing alone, without reference to section 39. I view the statutory statement of "general principles" in section 39 as a legislative elaboration of the welfare principle at the heart of the Court's parens patriae jurisdiction (PB v BB [2013] NSW SC 1223 at [57]- [60]; Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245 at [60]- [63]; Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [83]- [84]; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No. 4) [2014] NSWSC 31 at [161]- [162]; JPT v DST [2014] NSWSC 1735 at [42]). Nevertheless, it is not an exhaustive statement of the principles that govern an exercise of protective jurisdiction by the Court: RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 285 [96]. I construe the words "with respect to" protected persons in section 39 as sufficient to require a finding of incapacity for self-management under section 41(1) of the Act to be informed by the "general principles". In my opinion, in construction of the Act as a whole, section 39 forms part of the context in which the expression "incapable of managing his or her affairs" in section 41 is to be construed and given operative effect. Whether or not I am correct in this, the purposive character of the Court's protective jurisdiction (of which section 41 forms part) subsumes the identified differing perspectives of the introductory words of section 39.

Determination

1. The threshold question is whether I am satisfied on the evidence before me that Ms Mao is "incapable of managing his or her affairs" (at least so far as those affairs comprise or relate to the prosecution of the respective sets of proceedings) (s 41(1)). Although the AMP entities have urged upon me that there is an extant finding (in these very proceedings) of incapacity, I am of the view that it is incumbent on me to address the question afresh, particularly given that the matter seems to have been approached in the Court of Appeal on the basis that order (i) was a declaration of incapacity and that order was then set aside by the Court.
2. As Lindsay J noted (at [14]) in CJ v AKJ, that expression is left undefined by the NSW Trustee and Guardian Act. His Honour went on to make some general remarks about the interpretation of the provision (at [22]-[25]): The practice of the Court, over many years, has been to view the expression "a person ... incapable of managing his or her affairs" through the prism of observations made by Powell J in PY v RJS [1982] 2 NSWLR 700 at 702B-E. However, as explained by White J in Re D [2012] NSWSC 1006 at [46]- [67] and Re R [2014] NSWSC 1810 at [84]- [94], Powell J's formulation of his test (sometimes described as an "objective" test) of capacity for self-management by reference to "the ordinary affairs of man" has been the subject of criticism as: (a) a gloss on the legislation; and (b) not in unison with a perceived need, according to the terms of the legislation, to take subjective considerations into account on a determination of a particular person's capacity for self-management. In light of White J's analysis (with which, in general, I agree), the Court should be mindful of a need to give effect to the text of the legislation without any elaborative gloss. Insight into the meaning of the expression "a person ... incapable of managing his or her affairs", as used in chapter 4 of the NSW Trustee and Guardian Act, can be had by study of broadly comparable provisions in Part 3A of the Guardianship Act.
3. Lindsay J enumerated (at [27]) some general principles to be borne in mind in cases like the present; including that: (b) of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (i) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (ii) particular reasons for an incapacity for self-management: PB v BB [2013] NSWSC 1223 at [5]-[9] and [50].

Events following the listing of the matter for judgment

1. Finally, after these reasons had been prepared and the parties were notified (by email on Friday 21 July 2017) that this matter would be listed for judgment at 10am on Wednesday 26 July 2017, Ms Mao sent an email to the Court at 4.18pm on Monday 24 July 2017 advising that she had not received that email on 21 July as she had "other engagement which took the whole of that day" and forwarding a copy of an email sent to the Equity Registrar on 24 July 2017 referring to a further Notice of Constitutional Matter filed on 17 July 2017 and seeking directions as to that matter. The notice stated that it was filed in conjunction with the notices filed on 23 May 2017 and 29 June 2017.
2. The latest Notice of Constitutional Matter identifies the nature of the matter as: 3. The scope of the Commonwealth's Constitutional Power to make a law with respect to Australian people's private money is said to arise. 4. Whether or not the provisions concerning RSE licences; Licensing of trustee of Superannuation Industry (Supervision) Act 1993 was and/or is invalid? 5. Whether or not the provision concerning RSE licences; Licensing of trustee of Superannuation Industry (Supervision) Act 1993 was and/or is contrary to the Superannuation Guarantee (Administration) Act 1992?
3. The facts said to show the matter is one to which s 78B of the Judiciary Act applies broadly assert a conflict of interest on the basis that the trustee of the AMP Superannuation Fund (AMP Superannuation Limited) was and is at all material times owned by AMP Limited ([9]); that AMP Life Limited was at all material times owned by AMP Limited ([10]); that under the Superannuation Industry (Supervision) Act AMP Superannuation Limited was allowed "to do deals" with AMP Life Limited, so AMP Limited was "on both sides of the transaction" ([11]); that AMP Limited was and is at all material times listed on the Australian and New Zealand stock exchanges ([12]); that it was reported that an American hedge fund owned up to 6% of AMP Limited shares ([13]); and that AMP Superannuation Limited acted at all material times in the best interest of the parent company, which was contrary to the best interests of Ms Mao, a member of AMP Superannuation Fund ([14]).
4. There follows a series of allegations as to a view said to have been taken by AMP Limited that a 6% rise in net profit for six months was a poor result; that too many unexpected life insurance claimants were singled out to be blamed for the poor performance of the life insurance sector and that this needed to be stopped ([15]-[17]) and as to the position and career progression of the Managing Director of AMP Financial Services at the time Ms Mao's claim was denied ([18]-[21]), culminating in the statement that while the Chief Executive Officer and Managing Director of AMP Limited was being "crowned with "glory" by the board of directors of AMP Limited" Ms Mao was "pushed … to die" ([22]).

Orders

1. For the above reasons I make the following orders: 1. Order that so much of the stay ordered by the Court on 26 May 2016 be lifted so as to permit the first and second defendants in proceedings 2013/232241 to prosecute the amended notice of motion filed on 28 March 2017 and, to the extent necessary, give leave to the said defendants to amend their notice of motion filed 25 August 2014 in those terms. 2. Of the Court's own motion, pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) appoint the NSW Trustee as manager of so much of the estate of the plaintiff as pertains to the plaintiff's right, title and interest in proceedings 2013/232241 and in proceedings 2013/244238. 3. Order that the costs of the amended notice of motion be costs in the cause. 4. Dismiss without costs the motion filed in Court on 13 July 2017 by the defendants in proceedings 2013/244238. 5. Liberty to the plaintiff and the defendants in each of proceedings 2013/232241 and proceedings 2013/244238 to apply within 14 days for any variation/amendment to these orders necessary to permit compliance with any relevant superannuation legislation following the disposition of either set of proceedings. 6. Note the ability of the NSW Trustee to apply for any variation or addition to the orders made today. 7. Stand the matter over to the Registrar's List on 23 August 2017 at 9.00am, together with proceedings 2013/2442328, for directions.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2017