Mao v AMP Superannuation Limited - [2017] NSWSC 987 - NSWSC 2017 case summary — Zoe

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Mao v AMP Superannuation Limited

[2017] NSWSC 987

Supreme Court of NSW|2017-07-13|Before: Ward CJ, Slattery J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-07-13

Before

Ward CJ, Slattery J

Catchwords

Evans v Esanda Finance Corporation Ltd [2016] NSWSC 1742 Australian Communist Party v The Commonwealth (1951) 83 CLR 1
[1951] HCA 5 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292
[1994] HCA 14 CJ v AKJ [2015] NSWSC 498 Glennan v Commissioner of Taxation (2003) 198 ALR 250
[2003] HCA 31 Green v Jones [1979] 2 NSWLR 812 Guthrie v Spence (2009) 78 NSWLR 225

Source

Original judgment source is linked above.

Catchwords

Evans v Esanda Finance Corporation Ltd [2016] NSWSC 1742 Australian Communist Party v The Commonwealth (1951) 83 CLR 1[1951] HCA 5 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292[1994] HCA 14 CJ v AKJ [2015] NSWSC 498 Glennan v Commissioner of Taxation (2003) 198 ALR 250[2003] HCA 31 Green v Jones [1979] 2 NSWLR 812 Guthrie v Spence (2009) 78 NSWLR 225Mao v BT Funds Management Ltd [2014] NSWSC 1794 Mao v AMP Superannuation Ltd [2015] NSWCA 252 Mao v AMP Superannuation LtdMao v BT Funds Management Ltd (No 3) [2016] NSWSC 382 Mao v AMP Superannuation LtdReport on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805 Re Culleton [2017] HCA 3 Re Finlayson

Judgment (22 paragraphs)

[1]

Background

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]

The First Judgment

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.
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.
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.
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)]).
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.)
In particular, in the First Judgment, Hallen J: very much doubted that Ms Mao would be in a position to conduct the matter in a way that facilitates the just, quick and cheap resolution of the real issues in dispute ([129]); doubted that Ms Mao was capable of understanding the factual and legal framework for her claims and the type of evidence required to succeed in those claims, stating that "[s]he certainly does not appear to be capable of understanding what is relevant to each proceeding and what is not relevant" and referring in that context to the suggestion that she was seeking $50,000,000 ([131]); considered it was unlikely that Ms Mao was capable of assessing the impact of particular evidence on her case ([132]); was not sure that Ms Mao would have the capacity to understand the Court processes, basic rules for conducting the hearing and court rulings when the matter came to a hearing, particularly a hearing involving objections to evidence, the calling of witnesses and the cross-examination of witnesses ([133]); was of the view that Ms Mao did not have the capacity to understand the roles of Counsel for the defendants and the role of instructing solicitors, and considered that during a contested adversarial hearing she may have even more difficulty understanding the role of lawyers (his Honour noting his opinion that her criticism of the legal representatives of the defendants and their motives appeared quite unwarranted) ([135]); considered it was difficult to predict whether Ms Mao would be able to control her emotions and behave in a non-abusive and non-threatening manner during the trial ([137]); was not satisfied that Ms Mao had the capacity to understand that she could possibly lose one or both cases in whole or in part if that were to be explained to her ([138]), noting that Ms Mao's answers to questions regarding compromise demonstrated that she was unable to even contemplate that possibility, or if she did, was not properly able to appreciate the risks that face her (and stating that Ms Mao's belief that that she is in the absolute right would in his view prevent any rational discussion regarding compromise).
His Honour also doubted that Ms Mao would be able to consider the possibility that a particular claim made in the statement of claim could fail, considering that she would not be capable of assessing any settlement proposal on its merits having regard to the state of the evidence, submissions and other developments in the proceedings at the time the proposal was made ([139]).
His Honour said of Ms Mao (at [139]) that "[h]er unwavering belief that she has been wronged by the conduct of the Defendants and what she described as 'personality' will prevent rational consideration of any settlement offer".
At [140], his Honour referred to the risk that the stress and pressure of the litigation might harm Ms Mao's physical or mental health (implicitly accepting the opinion of Dr Westmore in that regard).
Hallen J was therefore satisfied that Ms Mao was a person under a legal incapacity. However, in circumstances where: there had been unsuccessful attempts to find a tutor to act for Ms Mao in the litigation; the only tutor prepared to act had placed a significant condition on his appointment; and the proceedings might be stultified if a tutor could not be identified (which his Honour said would not be to Ms Mao's benefit or to the benefit of the defendants - [150]), Hallen J formed the view that the appropriate course was to order that a tutor be appointed for Ms Mao and then to allow the parties a further opportunity to consider the reasons and take further steps to see whether there was someone who could be nominated and who might be prepared to act as Ms Mao's tutor. Relevantly, his Honour made the following orders: (i) Being satisfied that the Plaintiff is a person under a legal incapacity, orders that a tutor be appointed for the Plaintiff. (ii) Orders that the Defendants in the AMP proceedings continue to make attempts to nominate a tutor who consents to being appointed and, failing that nomination, consideration will be given to whether the court should make a declaration under the NSW Trustee and Guardian Act 2009 (NSW) that the Plaintiff is incapable of managing her affairs and order that the part of her estate, constituted by her actual contingent assets or liabilities in, or arising out of, these proceedings, be subject to management under that Act.
I pause here to note that Hallen J had considered following the course adopted by Slattery J in another decision (see Iskandar v Mahpur (No 6) (Supreme Court (NSW), Slattery J, 15 February 2012, unrep)), namely that of making an order on his own motion making an appropriate declaration as to Ms Mao's ability to manage her affairs and a partial management order pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW), but noted that no submissions had been made at the hearing as to whether in fact Ms Mao met the test for being incapable of managing her affairs within the meaning of that Act (see [154]) and said that, though there was evidence that did bear upon that question, it was read for a purpose other than elucidating an answer to the question whether Ms Mao was incapable of managing her affairs said (see [153]-[157] of the First Judgment.
On 4 February 2015, the two proceedings were listed before Hallen J for directions. On that occasion his Honour dismissed an application made orally by Ms Mao to adjourn the hearing of the proceedings before him (on the basis that there was at that time nothing further to be done as there was no evidence that anyone had been located who would be prepared to act as tutor). His Honour made no order as to the costs of the defendants in relation to any of the notices of motion determined on 5 November 2014.

[3]

Proceedings in the Court of Appeal

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.
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.
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.
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]).
Relevantly, for present purposes, the Court noted (at [45]) that no contention appeared to be advanced in the draft notice of appeal or in the summary of argument to the effect that the primary judge had erred in forming the opinion that Ms Mao was a person under legal incapacity but went on to state that "[n]evertheless, for the reasons that follow, order (i) made on 18 December 2014 should be set aside with the consequence that there will remain no order or declaration in respect of Ms Mao's legal incapacity" (my emphasis). At [55], the Court said: None of the foregoing is to criticise the finding by the primary judge that Ms Mao was a person under legal incapacity. No submissions were directed by either party in relation to that finding, and it is certainly not self-evident that there was any error on the part of the primary judge in concluding that Ms Mao is a person under legal incapacity within the meaning of r 7.13.
The Court proceeded to set aside orders (i) and (ii) of the orders made on 18 December 2014 and to remit to this Division (not in terms to Hallen J) the question whether to appoint a tutor for Ms Mao in the respective sets of proceedings. The appeal was otherwise dismissed. The respondents were ordered to pay Ms Mao's costs of the summons seeking leave to appeal and of the appeal.
Their Honours noted at [61] that the effect of this would be as follows: That will leave the two proceedings before the primary judge. It will be necessary for his Honour to deal with the motion of the AMP Parties of 25 August 2014. The appropriate course may be to dismiss that motion as irregular or, if leave is sought, to give leave for the motion to be amended to include a prayer for the appointment of a named individual or entity as tutor. The BT Parties would have the opportunity of filing their own motion seeking the appointment of a named individual as tutor in the BT Proceedings. That will be a matter for his Honour.
Though in substance favourable to her, insofar as the orders made in relation to the appointment of a tutor were set aside, Ms Mao sought special leave to appeal from that decision to the High Court. That application was again dismissed on the papers.

[4]

Correspondence in relation to costs orders

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.
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".

[7]

Events leading up to the hearing on 13 July 2017

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.
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.
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.
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).
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.
There was then a series of emails from Ms Mao in which, among other things, it was asserted that I should not be hearing the proceedings unless Hallen J had disqualified himself from hearing the proceedings; that, if his Honour had done so, then the Court "must" give a certificate to that effect and, if not, then the directions and motions (including the motion for Hallen J to disqualify himself) "must" be listed before Hallen J. This culminated in a request by email on 12 July 2017 that I recuse myself from "directions/hearing the proceedings".

[8]

Applications made by Ms Mao on 13 July 2017

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.
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.)
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.
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.
It was on that basis that Ms Mao asked that I disqualify myself from hearing the respective proceedings (by which I understood her to mean that I should not proceed to hear the AMP entities' motion which had been listed for hearing before me on 13 July 2017 or the motion filed in Court by the BT entities at the outset of the proceedings on that day). Ms Mao asked that I make a decision on that application before I proceed any further. I did so. I dismissed that application.
I noted the bases on which Ms Mao had made her oral application for me to disqualify myself from hearing the matter. I informed Ms Mao that I was of the view that none of those matters warranted my disqualification from hearing the notice of motion filed on 28 March 2017 by the AMP entities and that I proposed to proceed to do so.
I should note that the same issue as that which arose in the Court of Appeal here arises, namely that a person under a legal incapacity has no capacity to commence and conduct proceedings and therefore the oral application by Ms Mao for me to disqualify myself from hearing the AMP entities' motion would arguably be incompetent. The most efficient way of dealing with the issue before me was, in my opinion, simply to dismiss the application for disqualification. As a formal matter, to the extent necessary I dispense with the requirements of r 7.14(1) of the UCPR for that purpose. As to the amendment of the AMP entities' motion, there was no reason not to grant leave to the extent that such leave was necessary. The difficulties with the August 2014 motion were made evident in the Court of Appeal's decision. That motion could simply have been dismissed and a fresh motion brought in relation to the appointment of a manager to part of Ms Mao's estate, as is the effect of the amendment. No purpose would have been served in requiring a fresh notice of motion to be filed in circumstances where Ms Mao is well and truly on notice that the AMP entities are no longer pressing for the appointment of a tutor but are seeking an outcome whereby the NSW Trustee is appointed to part of her estate.
As to the reasons for my refusal to accede to the recusal application, neither the fact that the proceedings have been before this Court (and before Hallen J) numerous times over the last four years nor the fact that Hallen J has published a number of judgments in the proceedings is any reason for me not to hear the present application by the AMP entities. This is not a situation where the present application (or even the substantive proceedings) is part-heard by Hallen J. His Honour has not yet dealt with anything other than the interlocutory applications in the proceedings to date. The AMP entities are no longer pressing for the relief sought in their August 2014 notice of motion (which was the subject of the Court of Appeal decision). The matter was remitted to the Equity Division, not in terms such as would require Hallen J to conduct the re-hearing of the motion. Indeed, the Court of Appeal contemplated that the appropriate course on the remittal might be for the motion to be dismissed as incompetent. That issue now does not arise having regard to the relief sought in the amended notice of motion. Nor does the fact that there has been an application (not yet determined) by Ms Mao for Hallen J to disqualify himself from hearing either the tutor application or the proceedings say anything to warrant another judge disqualifying himself or herself from hearing the present application by the AMP entities. Indeed one would have expected that the prospect of another judge hearing the application might remove any need for Ms Mao to proceed with that earlier application.
Therefore, it is difficult to see any sensible basis on which I should have acceded to the recusal application. I note in that regard that it is the duty of a judge to hear matters listed before him or her. Kirby P, as his Honour then was, in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; (1992) 9 ACSR 309, in a case involving an unfounded assertion of apprehended bias, said (at 418) Judges should perform the duties of their office which, of their nature, will often be painful and unrewarding. They should do so with courage and decisiveness avoiding the relinquishment of their duties which will then necessarily fall to another judicial officer for whom the task may be no more congenial. Such relinquishment will also involve costs, delay and inconvenience to parties who are otherwise entitled to have the decision of the judicial officer appointed to their case (referring to Re JRL; Ex parte CJL; Re Polites; Ex Parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 100 ALR 634).
When I indicated that I would not disqualify myself, Ms Mao immediately informed me that she would appeal from that decision. She is, of course, free to seek leave from the Court of Appeal to do so.
The next objection raised by Ms Mao to me proceeding to deal with the AMP entities' motion was Ms Mao's assertion that, having informed me of her intention to appeal from my refusal to disqualify myself, the proceedings were automatically stayed. There is, however, no automatic stay in those circumstances. I saw no basis on which, in accordance with the ordinary principles upon which a stay may be granted pending an application for leave to appeal or appeal (see Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685), to make an order for a stay in the present case.
The third objection raised by Ms Mao to me continuing to deal with the AMP entities' notice of motion was the fact that she had filed the Notices of a Constitutional Matter, to which I have referred above (at [44]). As those notices were on the Court file and as Ms Mao had, in email communications with the Court in advance of the hearing on 13 July 2017, made reference to those notices, I had already had the opportunity to review the material contained in those notices. Ms Mao asserted that the constitutional matters raised in those notices had the effect that it was the duty of the Court not to proceed with the notice of motion filed by the AMP entities. Ms Mao informed me that she had received letters from eight Attorneys-General "[a]sking me if I take further action to remove to the High Court, they would like me to provide relevant documents to them. So I'm going to do that" (T 11.34-37).
I noted the alleged constitutional issues that, as I read the notices, were said to arise, namely those relating to: the scope of the "constitutional power" of the New South Wales Supreme Court; that there had been a violation of certain Commonwealth laws and/or the Australian Constitution; the integrity of the rule of law, the constitutional responsibility of the executive government in carrying out the business of government; and the notion of responsible and representative government under the Constitution.
I invited Ms Mao to make what submissions she wished to make in relation to the constitutional matters that she said arose from those notices. Her response was that she had a problem with filing anything (which may relate to her attempt to file notices of motion by email, although in her correspondence reference is made to a "secret" order to "block" her from filing any affidavit and as to her not being allowed to file submissions).
I informed Ms Mao that, as I had understood it from the email correspondence that had been forwarded by her, the significance that she attached to the service of the Notices of Constitutional Matters was that she said there needed to be directions made in relation to those matters and that the application by the AMP entities must be stayed until a hearing of the constitutional matter. Ms Mao made reference to s 78B of the Judiciary Act and said that it was the duty of the Court not to proceed.
I adverted to authorities to the effect that a cause does not involve a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. The fact that Ms Mao may have a strong conviction in the present proceedings that there was a matter arising under the Constitution is not to the point. What has to be established is that it did involve a constitutional matter. I made brief reference to what was said by Gageler J in Re Culleton [2017] HCA 3 and by Leeming JA in Potier v State of New South Wales [2014] NSWCA 359 and indicated that I would in my written reasons supplement the reference to authorities in relation to that issue (as to which, see from [68]-[128] below).
I then indicated to Ms Mao that I had read carefully the Notices of Constitutional Matter and that in my opinion the present proceedings did not involve a matter or matters arising under the Commonwealth Constitution or involving its interpretation in the requisite sense and therefore in those circumstances (and for reasons that I indicated I would elaborate on in writing when I published in due course my reasons in relation to the motion brought by the AMP entities) I was not persuaded that Ms Mao had established that there was a constitutional matter which required the stay of the hearing of the application by the AMP entities.
Ms Mao's response at that stage was, in effect, that her advice was that the Court should stop proceeding any further but that she did not wish to say anything further (see T 11.39-43): I say this, your Honour. It's up to you, you keep going, but I say this, then I will say goodbye, I advise the Court, stop proceeding any further. Stop proceeding any further. Right? Goodbye.
Ms Mao then terminated the telephone link.

[9]

Notices of Constitutional Matter

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.
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.
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.
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]).
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.
As in the case of that first notice, these two notices were directed to the relevant defendants along with the Attorneys-General of the Commonwealth and the States and Territories.
It does not appear that an affidavit of service has yet been supplied in relation to these further notices but nothing turns on this. Any failure to act in accordance with rr 1.22 and 1.23 of the UCPR "does not exonerate the Court from its obligation to comply with the Commonwealth law" and to determine whether the proceeding involves a matter arising under the Commonwealth Constitution or involving its interpretation (see Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 at [5]).
The second and third notices are also lengthy documents. Broadly speaking, these notices are said to raise questions concerning: first, the "Constitutional responsibility of the Executive Government of the commonwealth to administer laws and carry out the business of government" (at [3]-[4]); and, second, the notion of responsible and representative government under the Constitution (at [5]-[6]).

[10]

Statutory framework

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.
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.
Rule 1.22(1) of the UCPR provides that if proceedings pending in a court involve a matter arising under the Commonwealth Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act, then the party whose case raises the matter must file a notice of a constitutional matter. Rule 1.22(2) then provides as follows: … (2) Notice of a constitutional matter must state: (a) specifically the nature of the matter, and (b) facts showing the matter is one to which subrule (1) applies.
Rule 1.23 of the UCPR provides as follows (1) The party whose case raises the constitutional matter, or such other party as the court may direct, must file notice of a constitutional matter and serve a copy of the notice on all other parties and the Attorneys-General of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory: (a) if the matter arises before any directions hearing or case management conference in the proceedings, not later than 2 days before the date of that hearing or conference, or (b) if no directions hearing or case management conference has been fixed or is imminent, as soon as practicable, or (c) if the matter arises at a hearing, within such time as the court directs. (2) As soon as practicable after a party files and serves a notice in the circumstances referred to in subrule (1) (b), the party must apply to the court for directions.
Rule 1.24 of the UCPR provides that the party raising the constitutional matter must also file an affidavit of service of each notice required to be served under r 1.23 and must do so promptly after the notice is served.

[11]

Introductory observations

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.
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. …
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.
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.
There is abundant authority on the point. In Potier Leeming JA said (at [23]) that "the assertion of a hopeless point, even if characterised as constitutional, does not attract the operation of s 78B". In Re Culleton at [29] Gageler J spoke of the need for the relevant "constitutional point" to be "real and substantial". See also the authorities to which Garling J referred in Australia and New Zealand Banking Group Ltd v Evans; Evans v Esanda Finance Corporation Ltd [2016] NSWSC 1742 (at [70]-[75]).
Section 78B is "not conditioned upon the constitutional point being raised by one of the parties" and it is "the character of the cause before the court that determines whether the operation of the section is attracted" (CG Berbatis Holdings at [16] (my emphasis)). Furthermore, subject to the provision relating to interlocutory relief (s 78B(5)) and noting the provision in relation to severable matters (s 78B(2)(c)), it has been said that "the duty of the Court not to proceed in a case to which the section applies is unqualified by any residual discretion to proceed" (CG Berbatis Holdings at [12]). In Glennan v Commissioner of Taxation, Gummow, Hayne and Callinan JJ noted (at [13]) that s 78B "does not purport to nullify the continued exercise of jurisdiction in cases where its terms apply but there is a failure in their observance" and that in that sense, the "duty" which the section imposes "is one of imperfect obligation". Finally, one should also bear in mind the further point made in CG Berbatis Holdings (at [14]): Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.
A fundamental difficulty in relation to each of the notices in the present case is a failure to identify (or, with respect, for it to be said to be the case in any non-frivolous or sufficiently arguable sense that there is) any provision or provisions of the Constitution under which a matter arises or in relation to which there is a question of constitutional interpretation (or, for example, any state legislation said to generate an inconsistency in the sense envisioned in s 109 of the Constitution).
While there is a clear obligation on a court to be satisfied that the proceeding before it is not properly characterised as giving rise to a "matter" in the relevant sense, it is not appropriate for the Court to engage in some open-ended and speculative theoretical discussion on whether a constitutional issue of the kind attracting the operation of s 78B could in some hypothetical sense be discerned. On the materials currently before the Court, it appears that that is the only kind of discussion that would be possible. In these circumstances it does not appear that the present case can be characterised fairly as one in which a party has simply failed properly to articulate an arguable constitutional point and the court is nevertheless obliged to ascertain objectively whether there is a "matter" in the relevant sense. It will be necessary to scrutinise closely the proceeding before the court, but this does not justify wholly unbounded speculation on possible constitutional issues. As a closer examination of Ms Mao's notices will illustrate, this point may be made in relation to most (if not all) of the alleged constitutional points.
It may be that there can be a "matter" in the relevant sense even though it is not raised by the pleading; but it does not follow that the court should be "astute to excavate constitutional questions out of the causes before it" (CG Berbatis Holdings at [22]). To speak even of "excavation" assumes the possible existence of an underlying "matter" to be discovered by some process of judicial analysis. I am not persuaded that Ms Mao's notices point to anything which would require further "excavation" of the proceeding before me in search of a "matter"; nor has appropriate independent reflection on the proceedings as a whole convinced me that there is in fact an underlying "matter" in the sense envisioned in s 78B of the Judiciary Act.

[13]

The first set of alleged constitutional issues

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").
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.]
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").
Ms Mao then sets out an extensive list of questions said to be raised concerning this Court's "Constitutional Power" to have done certain things. A difficulty common to all of these (and to the alleged constitutional points expressed in similar terms in the second and third notices) is that a bare assertion of a lack of constitutional power does not raise a "matter" in the relevant sense. No reference is made to any provision of the Constitution and there is nothing in the pleadings or circumstances of the case as a whole to suggest there to be any non-trivial question about the possibility of there being some constitutional inconsistency. The "Constitutional Power" questions are as follows.
First, whether there was power "to allow lawyers for the defendants to give evidence against the plaintiff" (at [33]). No constitutional issue is thereby raised.
Second, whether there was power "to deny the plaintiff's right to contest the evidence against her by denying the plaintiff's subpoena of trying to cross-examine the defendants' lawyers who had given evidence against the plaintiff" (at [34]).
Third, whether there was power "to raise revenue from imposing thousands of dollars of filing and hearing fees on the plaintiff who was on a Centrelink Disability Support Pension" (at [35]) and "by engaging a private debt collector to inflict damages on the plaintiff who was on a Centrelink Disability Support Pension" (at [36]).
Fourth, whether there was power "to block the plaintiff from filing further documents" and to refuse an application to postpone filing fees (at [37]).
Fifth, whether there was power "to privatise the NSW Supreme Court by allowing a private contractor to impose on the plaintiff thousands of dollars of fees in inauthentic Court Transcripts produced by the private contractor" (at [38]).
Sixth, whether there was power "to make the NSW Supreme Court a Court only for the people who live in Sydney by denying the plaintiff an adequate venue and/or an adequate time for her to appear in the NSW Supreme Court" (at [39]).
Seventh, whether there was power to make an order that the defendant (in relation to the notice of motion filed on 25 August 2014 in the AMP proceedings) "will arrange for a tutor to be appointed for the plaintiff" (at [44]) and whether there was power for Young AJ (at [44]), Hallen J (at [47]), or, on appeal, for Beazley ACJ and Emmett and Leeming JJA (at [54]), to order that a tutor be appointed for Ms Mao. (Pausing there, the Court of Appeal, as noted earlier, in fact determined that the powers to approve a tutor had not been validly exercised but this does not raise a constitutional issue).
Eighth, whether there was power "to ignore the plaintiff's Notice of Motion" which sought an order that Hallen J (at [48]) and later Emmett JA (at [53]) be disqualified for bias and not to make a decision on those motions.
Ms Mao also sets out a list of contentions relating to whether certain judicial officers have infringed the "integrity of the Commonwealth and/or the integrity of the High Court and/or violated the Australian Constitution" (at [40]-[43]; [45]-[46]; [49]-[52]).

[14]

The second set of alleged constitutional issues

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]).
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]).
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)).
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.
In Société Des Produits Nestlé SA v Christian (No.13) [2014] FCCA 2966, Manousaridis J was confronted with the assertion that the matter arising under the Constitution or which involved its interpretation in that case was "a right to procedural fairness and impartiality". His Honour concluded (at [6]) that the respondent had failed to identify "the content" of the concept said to arise under the Constitution, or any relevant provision of the Constitution relevant to it. In the present case, Ms Mao's invocation of "the Rule of Law" stands in a broadly analogous position. To my mind, the difficulties to which I have pointed with respect to the invocation of the rule of law apply, mutatis mutandis, to Ms Mao's reliance upon notions of representative and responsible government in the second and third notices. For the purposes of s 78B, these contentions raise no matter arising under the Constitution or involving its interpretation.
Second, Ms Mao again raises questions as to the "Constitutional Power" of this Court (and, in some cases, in relation to various Attorneys-General). These include whether there was power: "to conceal the NSW Supreme Court video and/or audio recordings in Open Court" (at [63]); "to be above the law, [sic] nobody had the power to hold them to account" (at [64]; see also [66]); "to be a Court of systematic judicial corruption, misconduct, perverting the course of justice, abuse of power and cover-up, bankrolled by the defendants" in the two sets of proceedings "with the money that they had stolen from their members' Superannuation contributions" (at [65]); and "to conceal" various alleged misconduct by officers of this Court or various NSW legal practitioners (at [67]-[72]).
Ms Mao again points to no provisions of the Constitution requiring interpretation; nor to any Commonwealth legislation which might raise an inconsistency with any state legislation; nor to any express or implied constitutional rights. For essentially the same reasons as those set out in relation to the set of contentions just discussed, there is again no matter arising under the Constitution or involving its interpretation.
The balance of the notice (at [73]-[362]) then sets out the facts said to show the proceeding to be one to which s 78B of the Judiciary Act applies. Scrutiny of these facts does not provide any meaningful support for the contentions advanced in the earlier part of the notice that the proceedings involve a "matter" in the relevant sense (and, putting to one side the precise formulation of the alleged "matters" by Ms Mao, nor do these facts compel a different conclusion). This is for the general reasons advanced above as to the broader difficulties of the notices, and, where relevant, for the more specific reasons advanced above and below in the more detailed consideration of the notices.

[15]

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

In both documents, the nature of the alleged constitutional points are again set out under the heading "State the Nature of the Matter".
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.
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.
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.
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).
At [20] Ms Mao makes various assertions relating to the service of the relevant notices. At [21] Ms Mao states that the Attorney-General for the Commonwealth decided to "do nothing". At [22] certain alleged misconduct (effectively in the same terms described in the first Notice of a Constitutional Matter) is said to have occurred "[u]nder the watch" of the Attorney-General of the Commonwealth and the alleged matter is said (at [23]) to be whether the Attorney-General "had a duty in upholding the Rule of Law" and if so (at [24]) whether the Attorney-General "had the Constitutional Power NOT to carry out his duty in upholding the Rule of Law". There is no matter in the relevant sense in these paragraphs for essentially the same reasons discussed above in relation to the relevance of the "Rule of Law" more generally.
At [25] it is asked whether the Attorney-General of the Commonwealth "had a duty to the Commonwealth and the Australian people" and (at [26]) it is asked whether this duty "is paramount and prevails to the extent of inconsistency with any of his other duty [sic] such as his duty to his political party … and/or his duty to the Federal government". At [27] it is asked whether the Attorney-General "had the Constitutional Power NOT to carry out his duty to the Commonwealth and the Australian people". Even putting to one side the failure to give any content to the term "duty", there is no matter in the relevant sense, again for broadly the same reasons outlined above in relation to the invocation of the "Rule of Law" in the first notice.
At [28]-[33] Ms Mao recounts alleged communications between her and her local Federal Member in which Ms Mao requested he make certain representations to the Federal Parliament, which request was denied. At [34] it is asked "[w]hether or not" the Member had "a duty in representing a constituent of his electorate" and at [35] it is asked whether this "duty" is "paramount and prevails to the extent of inconsistency" with other duties the Member may have had to his political party or to the federal government. It is then asked (at [36]) whether the Member had the "Constitutional Power NOT to carry out this "duty". The alleged matter apparently arising from these paragraphs appears to relate to the nature of the public law obligations of a Federal Member of Parliament. No reference is made to any relevant provisions of the Constitution. Nor is any attempt made to give content to the alleged "duty". The contentions in these paragraphs give rise to "no matter" in the sense envisioned in s 78B of the Judiciary Act.
At [37]-[38] Ms Mao asserts that the Prime Minister made certain public comments in relation to current and former officers of the defendants in the two proceedings. At [39] Ms Mao asserts that the Prime Minister "tried very hard on almost anything and everything for the purpose of resisting the call for a Royal Commission into the financial services sector". Ms Mao then asserts (at [40]) that that "[u]nder the watch" of the Prime Minister the "systematic criminal activities and illegal practices" by the defendants "were concealed and unleashed". It is then asked "[h]ow the Government of the Commonwealth carried out the business of government" by reference to the alleged conduct (noted above) of the Prime Minister, the Attorney-General of the Commonwealth, and the Federal Member. These contentions again suffer from the general difficulties noted at the outset and to the extent the contentions are premised on invocations of the rule of law or representative and responsible government, the contentions suffer from vices similar to those already discussed.
At [42] it is asked whether or not the Prime Minister had the "Constitutional Power" to conceal the "systematic criminal activities" of the defendants. At [43] it is asked whether the "Government-dominated parliamentary inquiry into the big four Banks … had the Constitutional Power to investigate the systematic criminal activities" of one of the defendants. At [44]-[48] it is asked whether or not the Prime Minister had "a duty in upholding the Rule of Law"; whether he had the "Constitutional Power NOT to carry out" this duty; whether he had "a duty" to the Commonwealth and the Australian people"; whether this duty is "paramount and prevails to the extent of inconsistency with any [of] his other [duties]"; and whether he had the "Constitutional Power NOT to carry out" this duty. Again these paragraphs do not on any reasonable view disclose a "matter", even putting to one side yet again the imprecision of the notion of a "duty" and the invocation of abstractions not subject to any elucidation.
At [49] it is asked whether the Chairman of the Australian Securities and Investments Commission (ASIC) was a "criminal investigator"; whether that Chairman "had the capacity and/or qualification to investigate the systematic criminal activities" by the defendants (at [50]); and whether ASIC has "all the powers of a royal commission" (at [51]). The same differences as identified above apply to this issue.
It is then asked whether certain named individuals (namely, the "Executive Government of the Commonwealth: the Prime Minister; the Treasurer of the Commonwealth; the Minister for Revenue and Financial Services of the Commonwealth; the Attorney-General of the Commonwealth; the Chairman of [ASIC]; the Chairman of Australian Prudential Regulation Authority (APRA); the Commissioner of Taxation (ATO)") had the "Constitutional Power NOT to" administer such laws as" the Superannuation Guarantee (Administration) Act and the Superannuation Industry (at [52]) and to "carry out the business of government" (at [53]); as well as the "Constitutional Power to be incompetent, captured, corrupt and/or an accessory" (at [54]). The first and second questions (at [52]-[53]) suffer from the same difficulties of other alleged constitutional points examined above which relate to the general administration of Commonwealth legislation; the third (at [53]) clearly discloses no "matter".
The balance of the second and third notices ([55]-[143]) then state facts said to be ones to which s 78B of the Judiciary Act applies. For the same reason in relation to the corresponding sections in the first notice, there is no "matter" in the relevant sense.

[18]

General observations

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]).
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.
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.
Section 40 of the NSW Trustee and Guardian Act confirms that a management order need not apply to the whole of an estate: 40 Orders for management may apply to part of estate An order may be made under this Chapter for the management of the whole or part of the estate of a person.
Section 38 of the NSW Trustee and Guardian Act defines "estate" in the following terms: estate of a person means the property and affairs of a person and, if only part of the estate of a person is under management under this Chapter, means only that part of the property and affairs of the person.
In Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106, Lindsay J noted (at [9) that in some cases a person "may be left to manage what he or she can self-manage", referring to ss 40 and 71(2) of the NSW Trustee and Guardian Act. Section 71(2) provides that a manager may, by instrument in writing, authorise the managed person to deal with so much of the estate as the manager considers appropriate and specifies in the instrument.
In Re AAA; Report on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805, Lindsay J made the following remarks (at [56]-[59]) about the scope of protected estate management orders: The jurisdiction to make a partial management order can be beneficial in some cases; but such an order cannot be made routinely without potentially detracting, in a practical way, from the powers of the NSW Trustee to monitor due management of a protected estate: Re Application for partial management orders [2014] NSWSC 1428. The more efficient, and flexible, form of protected estate management orders is generally one that subjects the whole of an estate to management, but is coupled with a direction (under section 64 or section 65 of the NSW Trustee and Guardian Act), or a recommendation to the NSW Trustee that it exercise powers it has under section 71 of the Act, on terms designed to permit a protected person to manage particular property (e.g., pension income) on a day-to-day basis. Such a regime of orders reserves the supervisory powers of the NSW Trustee, without limiting its powers to obtain information, allowing it to intervene, if circumstances so require, without a formal application for variation of the management orders generally. Viewed globally, and with the general principles enunciated in section 39 of the NSW Trustee and Guardian Act held in view, protected estate management orders should only operate so far as necessary to achieve their protective purpose. However, caution is required in exclusion of particular property from a protective regime that operates not only in the present, but prospectively. An exclusion order (as a partial management order might, alternatively, be described), affecting a person incapable of managing his or her affairs, may leave such a person unprotected from neglect, abuse or exploitation (to paraphrase section 39(g)) at a point at which the NSW Trustee is without power or timely information. As this case illustrates, full protection of a person in need of protection may require consideration of his or her whole circumstances in order to facilitate, for example, the appointment of a guardian or the making of a statutory will. A partial management order (an exclusion order), routinely made, may assume more foresight about future circumstances than is ordinarily in the gift of a decision-maker possessed of limited information. That said, the particular circumstances of each case invite individual consideration.
Part 57 of the UCPR deals, relevantly, with the evidence required when an application pursuant to s 41 of the NSW Trustee and Guardian Act and provides: 57.5 Evidence in support of application under section 41 or 54 (cf SCR Part 76, rule 11) (1) The evidence in support of an application under section 41 or 54 of the NSW Trustee and Guardian Act 2009 must include the following: (a) an affidavit or affidavits setting out: (i) the conduct and conversation or conversations claimed to establish that the defendant is incapable of managing his or her affairs, and (ii) the nature and amount of the property of the defendant, and (iii) the names of the defendant's nearest relatives, so far as they are known, and the attitude of each of them to the application, and (iv) the name of, and reason for selecting, the proposed manager, (b) the affidavits of at least 2 medical practitioners or other persons qualified to give an expert opinion on the defendant's condition, each of whom must set out: (i) his or her formal qualifications, the extent of his or her experience in practice and his or her special qualifications in regard to questions relating to the defendant's condition, and (ii) his or her diagnosis of the defendant's condition, explained in his or her own words and set out in his or her own handwriting, and (iii) that, in his or her opinion, the defendant is incapable of managing his or her affairs, and (iv) the reasons for that opinion or the tests on which that opinion is based, set out in his or her own words and handwriting, … (2) Subrule (1) (a) and (b) do not apply to an application under section 54 of the NSW Trustee and Guardian Act 2009.
In IA v TA [2016] NSWCA 179, the Court of Appeal (Bathurst CJ, Simpson and Payne JJA) said (at [63]), in a case where there had been no application by a party for the appointment of a manager, the following: A judge of the Supreme Court undoubtedly has power, conferred by s 41 of the NSW Trustee and Guardian Act, to make an order of the kind made by the primary judge [that being an order that IA's estate be subject to management]. But the jurisdiction conferred on the Court by s 41 was not invoked by the amended Summons. Although the primary judge had power, under s 41, to make an order of the kind he did, in the absence of an initiating process invoking the jurisdiction, making the order was an erroneous exercise of the power. There is no suggestion that in making the orders the primary judge was acting on his own motion under s 41(2) of the NSW Trustee and Guardian Act. [My emphasis.]
Pausing there, I note that the AMP entities' primary application in the present case is that the Court of its own motion should make the management orders in question. There is clearly power to do so, the jurisdiction having been squarely invoked in their amended notice of motion. The reason for this (rather than the alternative option of the AMP entities themselves applying for the order), as I understand it, is the difficulty they perceive in putting themselves in a position where there can be compliance with the mandatory requirements of r 57.5(1)(b) (set out above) for the filing of medical evidence in support of the application - at least in the absence of co-operation by Ms Mao (which it is anticipated is unlikely to be forthcoming).
Counsel for the BT entities submitted that this would be an appropriate matter in which to exercise the power to dispense with the rules in that regard (see Civil Procedure Act, s 14) and there is force in that submission having regard to the fact that there has already been medical evidence filed in the substantive proceedings by Ms Mao and the communications by or on behalf of Ms Mao with the Court have raised issues both as to her mental health and the stress experienced by her in relation to the proceedings. That said, as I understand it no request has been made for Ms Mao to submit to a medical examination for the purpose of assessing her capacity to manage her affairs, so it is theoretically possible, though one would have to think unlikely, that Ms Mao would accede to such a request. There is also provision under the Rules for an order compelling such an examination to be made in appropriate circumstances.
The question of dispensing with the procedural requirements mandated by r 57.5(1) of the UCPR does not arise if, on the proper view of what is before the Court, this is not "an application under section 41" within the terms of that rule as such (as opposed to an application by the AMP entities that the Court consider exercising, of its own motion, the power to appoint the NSW Trustee as manager of an estate (or part thereof) pursuant to s 41 of the NSW Trustee and Guardian Act). Support for that conclusion may be found from the unlikelihood that the UCPR would mandate evidence to be adduced by the Court itself in support of an application before the Court could of its own motion exercise the power conferred by s 41 of the NSW Trustee and Guardian Act. If, contrary to the view I have reached, the rules do require an applicant who is requesting the Court of its own motion to exercise the power to appoint a manager to part or all of a person's estate to file an affidavit within the terms of r 57.5, then in the circumstances of the present case I would consider it appropriate to dispense with the requirements of that rule, noting in particular that there is already medical evidence that has been filed by Ms Mao as to her psychiatric condition and her own (and her carer's) assertions as to the effect of the proceedings on her health, which do not demonstrate that there has been (or is likely to be) any improvement in her mental condition in terms of her capacity to manage that part of her estate comprising her interest in the respective proceedings.
I am of the opinion that this is an appropriate case (having regard to the history of the matter and to the interests of the just, quick and cheap resolution of the real issues in dispute, as well as the need for proportionality between the costs incurred in the proceedings and the amount realistically in issue in the proceedings) where the Court should consider whether, of its own motion, to make an order of the kind that the AMP entities maintain is appropriate for the appointment of a manager to part of Ms Mao's estate. In those circumstances, it is not necessary to entertain the BT entities' motion that was filed in Court (and which Ms Mao opposed being heard by me), since the same considerations that would lead me to consider of my own motion to appoint a manager to that part of Ms Mao's estate as is comprised of her interest in the AMP proceedings will arise in considering whether or not also to do so of the Court's own motion in the BT proceedings and Ms Mao has been on notice since the 28 March 2017 amended notice of motion of the invocation of the Court's jurisdiction in that regard by reason of the orders sought in the AMP entities' notice of motion.

[19]

Determination

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.
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.
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].
Lindsay J also emphasised the need to view the statutory formulation in its broader context, about which his Honour made the various observations (see [28]-[49]).
In H v H [2015] NSWSC 837, Lindsay J said the following: … although a decision about whether a particular person is, or is not, capable of managing his or her affairs may be powerfully informed by an expression of a medical opinion, based upon articulated observations of fact and accompanied by an exposition of technical medical terms, a determination about capacity for self-management made upon an exercise of protective jurisdiction is not, in essence, the province of medical expertise but of independent judgment by the Court applying established criteria to particular facts. [Emphasis in original.]
In IA v TA, the Court of Appeal quoted the above passage and left open (at [69]) the question whether a judge could ever make an order under s 41 of the NSW Trustee and Guardian Act without psychiatric evidence, since in that case there was, in fact, psychiatric evidence, from both parties. The Court there also recognised (at [71]) the importance of lay evidence in this task, agreeing with the view expressed by Lindsay J at [37] in H v H that: ... there is no substitute for a direct, personal engagement with the person whose capacity for self-management is under consideration, and those closely associated with him or her in daily living.
In the present case, there is in my opinion sufficient medical evidence, supplemented by Ms Mao's own communications (and those from her carer) as to her need for assistance from the mental health service to get through the court proceedings and the stress the proceedings have caused her, when taken into account with the other matters to which I will refer, for me comfortably to reach the conclusion that Ms Mao is incapable of managing her affairs in relation to the present litigation. Dr Westmore, a respected and experienced psychiatrist, has diagnosed Ms Mao as suffering from the psychiatric conditions noted earlier in these reasons and has made reference to the loss of functionality those conditions are likely to cause Dr Westmore considered that Ms Mao's prognosis was extremely poor and considered her to remain a patient "at high risk" (see his report dated 2 June 2013, a copy of which was initially annexed to an evidentiary statement of Ms Mao and which was annexed to an affidavit sworn by the AMP entities' solicitor, Ms Rosamund Wicks, on 27 August 2014). There is an obvious risk that the stress and pressure of Ms Mao conducting her own litigation may harm or further harm Ms Mao's mental health.
In Re WS [2017] NSWSC 745, Lindsay J dealt, as a separate question in advance of all other matters in the proceedings, with an application under s 41 of the NSW Trustee and Guardian Act in relation to a self-represented litigant. At [25] his Honour noted that the question whether a person is or is not capable of managing his or her own affairs, whether those affairs be defined by involvement in specific litigation or otherwise, "is always a task and time specific question, dependent upon whether the person has the ability to understand and evaluate particular tasks that are in question at particular time" (there citing Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [174]-[175]). In carrying out such an exercise, Lindsay J in H v H had regard to the particular questions posed (at [32]) by Kyrou J in Slaveski v Victoria as questions that might be relevant to the determination whether a self-represented plaintiff has the requisite capacity to conduct his or her legal proceedings (see [31]). Those questions have obvious relevance in the present case, where the part of the estate in respect of which a management order is being considered is that part comprised of Ms Mao's interest in Court proceedings initiated by her and in which she does not have the benefit of legal representation. In answering those questions it is also relevant to take into account the manner in which Ms Mao has conducted the proceedings since her solicitors ceased to act for her.
Matters such as the inexplicable and substantial increase in the damages claimed (referable only to the assertion that these are "life-threatening damages"); the extraordinary claims for costs by a self-represented litigant in relation to the appeal proceedings (the hearing of which occupied no more than a day); the service of an unfiled statement of claim making very serious and unparticularised allegations against the Board of AMP Limited and others, and indeed the making of serious allegations against all and sundry who have been involved in the proceedings to date in any capacity (lawyers, judicial officers and the like); the communications with the Court in relation to the matter; and the content of the Notices of Constitutional Matters (see for example the matters set out at [56], [140] and [189] of the first Notice of Constitutional Matter), leave me in no doubt that Ms Mao does not understand and is not capable of understanding: the factual framework for her underlying claims and the type of evidence required to succeed in them; what is or is not relevant to the proceedings; the court processes involved in the conduct of the case; and the roles of those involved in the court process. I agree with Counsel's submission that the Notices of Constitutional Matter demonstrate a lack of ability to understand what the true issues are and a tendency to expand the matter into "ever increasingly irrelevant areas".
I do not consider that Ms Mao will be capable of conducting the proceedings brought by her in a balanced and objective way; nor does she exhibit an understanding as to the possibility that she could be unsuccessful in the proceedings and the potential costs consequences if that were to be the case. I have already noted the concern that the conduct of the litigation will prove stressful and harmful to Ms Mao's health in light of her "chronic psychiatric illnesses" (see Dr Westmore's report).
Counsel for the BT entities quite candidly informed me that it was his view that, in light of the finding of incapacity by Hallen J and in light of all the history of the dealings between the parties, his view was that it was impossible for his clients to enter into any sensible settlement negotiations with Ms Mao or to achieve a settlement. On the communications and material I have seen on the present application there is a sound basis for such a concern. Counsel also noted concern that there may be requirements under the superannuation legislation to be complied with in relation to any settlement (which may be difficult without co-operation by Ms Mao).
I accept that it is a serious matter to make an order taking away from a person the management of part or all of his or her affairs, and such a decision is not lightly to be made (as Hallen J recognised at [124] of the First Judgment). Nevertheless, I am firmly of the view that in the present case such an order is warranted. Moreover, I consider that it is not in Ms Mao's own benefit for such claims as she may have against the defendants for payments under the respective policies to continue to remain undetermined.
Counsel for the BT entities invited the making of orders to make clear that the estate the subject of the management order consists not only of the proceedings but also the benefit that is the subject of the proceedings, so as to make clear that the parties are able to compromise these proceedings. It was submitted that in order to ensure that the parties could deal with the trustee, standing in Ms Mao's position, to bring the relationship between them to an end, it may be necessary for the trustee to do certain things to comply with the superannuation legislation if there is money paid out as a result of the settlement of the proceedings.
That, however, was something on which Ms Mao had not had an opportunity to be heard. To meet my concern in that regard, it was suggested that the final form of orders could be the subject of debate once judgment was delivered on the relevant motion. I have dealt with this issue by including in the orders liberty to the parties to apply for an amendment to the orders to address any issue as to how compliance with the applicable superannuation legislation can be ensured following the ultimate disposition (by agreement or otherwise) of the litigation. I consider that course is one that will permit Ms Mao an opportunity to understand why any such amendment is necessary or desirable and/or to participate in any debate on that issue.
As to the orders to be made, I note that in A v A [2015] NSWSC 1778, Lindsay J noted as a matter of convention, the NSW Trustee is regularly appointed as a protected estate manager by the Court without notice or, if given notice, without inquiry as to whether or not it consents to such an appointment ([16]), his Honour there referring (at [17]) to the NSW Trustee as "the State's protected estate manager of last resort" (M v M [2013] NSWSC 1495 at [46]-[48]; Ability One Financial Management Pty Limited v JB by his Tutor AB [2014] NSWSC 245 at [30]-[32]). However, his Honour contemplated that it would generally be appropriate, once appointed as manager and tutor, to permit the NSW Trustee to "survey the field of litigious battle" and that orders might be required to take into account the role of the trustee in that regard (see [26]-[29]; see also PF v HK [2016] NSWSC 590 (at [27] (Lindsay J)) and M v Mental Health Review Tribunal (No 2) [2016] NSWSC 572 (at [29 Lindsay J])).
In the present case, the NSW Trustee is not being appointed as Ms Mao's tutor. However, as manager of that part of her estate as is comprised of her interest in the proceedings it will be necessary for the NSW Trustee to assume a role in the proceedings. It would therefore be appropriate to note that it will be open to the NSW Trustee, in its capacity as Ms Mao's manager, to approach the Court for any variation or addition to the orders made today.

[20]

Events following the listing of the matter for judgment

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.
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?
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]).
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]).
After due consideration of this further notice (and a review of the pleadings in light of the issues to which it draws attention), I am still unable to accept that these proceedings give rise to a "matter" in the relevant sense. Ms Mao's further notice suffers from the same fundamental difficulties to which reference has earlier been made. For example, the notice fails to give any content to the notion of "the Australian people's private money" or how that subject matter falls outside, say, the constitutional heads of power set out in s 51 of the Constitution. As adverted to earlier, it is not for the court to engage in unbounded speculation about whether the impugned legislation is unconstitutional. Complaint as to whether or not AMP Superannuation Limited has acted properly or in the best interests of the fund members (or was validly licensed as a trustee under the Superannuation Industry (Supervision) Act) does not on its face raise or involve a matter arising under the Constitution or involving its interpretation in the sense required by s 78B of the Judiciary Act.
Thus, nothing in the latest notice has led me to conclude that delivery of this judgment must be deferred to await the outcome of the determination of the matters said to arise in that notice.

Parties

Applicant/Plaintiff:

Mao

Respondent/Defendant:

AMP Superannuation Limited

Legislation Cited (9)

Trustee and Guardian Act 2009(NSW)

Australian Human Rights Commission Act 1986(Cth)

Disability Discrimination Act 1992(Cth)

Judiciary Act 1903(Cth)

Privacy Act 1988(Cth)

Superannuation Guarantee (Administration) Act 1992(Cth)

Superannuation Industry (Supervision) Act 1993(Cth)

Uniform Civil Procedure Rules 2005(NSW)

Civil Procedure Act 2005(NSW)

Cases Cited (54)

69 H v H [2015] NSWSC 837 IA v TA [2016] NSWCA 179 Iskandar v Mahpur (No 6) (Supreme Court (NSW), Slattery J, 15 February 2012, unrep) JMK v RDC and PTO v WDO [2013] NSWSC 1362 M v M [2013] NSWSC 1495 M v Mental Health Review Tribunal (No 2) [2016] NSWSC 572 Mao v AMP Superannuation Funds [2015] NSWCA 178 Mao v AMP Superannuation Limited; Mao v BT Funds Management Ltd [2014] NSWSC 1794 Mao v AMP Superannuation Ltd [2015] NSWCA 252 Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 3) [2016] NSWSC 382 Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 4) [2016] NSWSC 722 PB v BB [2013] NSWSC 1223 PF v HK [2016] NSWSC 590 Potier v State of New South Wales [2014] NSWCA 359 Re AAA; Report on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805 Re Culleton [2017] HCA 3 Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Re WS [2017] NSWSC 745 Sagacious Legal Pty Ltd v Westfarmers General Insurance Ltd (No 3) [2010] FCA 428 Slaveski v Victoria (2009) 25 VR 160; [2009] VSC 596 Société Des Produits Nestlé SA v Christian (No.13) [2014] FCCA 2966 Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 Category: Procedural and other rulings Parties: Youhua Mao (Plaintiff) AMP Superannuation Limited (First Defendant) AMP Life Limited (Second Defendant) BT Funds Management Limited and AIA Australia Limited (Defendants in proceedings 2013/244238 named as persons affected by orders sought on motion) Representation: Counsel: Ms Youhua Mao (Litigant in Person) (Plaintiff) Mr J G Duncan (Defendants/Applicants on motion) Mr D Villa (Defendants in proceedings 2013/244238 named as persons affected by orders sought on motion)

[2009] VSC 596

Cited By (6)

Mao v AMP Superannuation Limited

Mao v AMP Superannuation Ltd

Mao v B T Funds Management Limited & Ors

Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital trading as Westmead Private Hospital

Sowmi v Master Electrical Services Pty Ltd

TA v IA