Counsel:
Mr J Duncan (Defendants in 2013/232241)
Mr R Perla (Defendants in 2013/244238)
[2]
Solicitors:
Turks Legal (Defendants in 2013/232241 and 2013/244238)
File Number(s): 2013/232241; 2013/244238
[3]
JUDGMENT - EX TEMPORE (REVISED)
HIS HONOUR: In both of these matters, which were listed again today, I had previously delivered reasons for judgment, which bears the medium neutral citation Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794.
Relevantly, following a contested hearing, I reached the conclusion that the Plaintiff, who is Ms Mao, in both matters, is a person under a legal incapacity, and ordered that a tutor be appointed for her. I also ordered that the Defendants, in the AMP proceedings, continue to make attempts to nominate a tutor who consented to being appointed and, failing such a nomination, that consideration would 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 also made some orders relating to other notices of motion with which I had dealt at the hearing. I stood the proceedings over until today.
On 18 December, 2014, the date on which judgment was to be delivered, by arrangement with the Plaintiff, the court contacted her (when Mr Smith was with her) by telephone audio-link and informed her of the orders that were made.
The transcript of the proceedings, on that date, relevantly, includes (at T3.36 - T5.05):
"In all the circumstances I am satisfied that the plaintiff is a person under a legal incapacity and that an order should be made for the appointment of a tutor.
I sincerely regret that the plaintiff will be very upset by this conclusion, but the making of such an order is clearly in the interests of justice and even though she might not see it in that way her best interests also.
Accordingly, I propose to order as follows:
Being satisfied that the plaintiff is a person under a legal incapacity, that a tutor be appointed for the plaintiff.
I order 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 & Guardian Act 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.
…
The order that I propose to make in regard to the jury is that the plaintiff's Notice of Motion to have the proceedings heard with a jury be dismissed.
Now the remaining issue was, firstly, the plaintiff's Notice of Motion for leave to issue subpoenas. I think in all the circumstances that Notice of Motion should be dismissed as it was discussed at the hearing and it was agreed that there was no reason to issue subpoenas any longer.
The application by the plaintiff to have the proceedings heard together with the evidence in one being evidence in the other I propose to adjourn in the light of the order for the appointment of the tutor and, similarly, the plaintiff's motion to amend the Statement of Claim is also to be adjourned.
Now, Ms Mao, I want you to understand that the judgment which I have written comprises some 65 pages. I will have my Associate send to you a copy of that judgment immediately.
I propose now to find out from you and also from Mr Duncan and Ms Elena, who are present in Court, what date would be convenient to stand the matter over to determine what should happen in the future.
In relation to costs of the motions, I order that any argument about costs be dealt with on the adjourned date, if any application for costs is made by or on behalf of any of the defendants.
In that regard, Mr Duncan and Ms Elena, I know the difficulties of these matters but I seriously encourage no further application for costs should be engaged in.
Now, Mr Smith and Ms Mao, is there any date in February that better suits you?
PLAINTIFF: The date for what? Sorry, your Honour, the date for what?
HIS HONOUR: Well, the proposal is, Ms Mao, that AMP, by its solicitors, will continue to find a tutor to be appointed for you. After you get the judgment you might consider whether there is an alternative to the continuation of AMP finding a tutor for you by you nominating a tutor who may be prepared to act on your behalf.
After you have had an opportunity to read the reasons in which I have gone into some detail of why I propose to appoint a tutor and why I have appointed a tutor, you might feel more comfortable about nominating a tutor to act on your behalf.
So there are two reasons. Firstly, for the matter to be adjourned to February and that is, firstly, to enable AMP's solicitors to continue to locate a tutor, if that is possible or, alternatively, for you to nominate a tutor with whom you might be comfortable. Do you understand?
SMITH: Yes I have got that, yes, yes, yes. We would be looking for a date. Basically His Honour is going to send out the documentation and then we are obviously going to read that. In the meantime AMP are going to try and track down a tutor and this will give us time then to meet again and see where everything is at in February.
HIS HONOUR: I think that is a very fair way of putting it, Mr Smith, and I am very grateful to you for your assistance.
SMITH: No problems.
PLAINTIFF: Your Honour?
HIS HONOUR: Yes, Ms Mao.
PLAINTIFF: Am I allowed to appeal your judgment?
HIS HONOUR: Of course you are, Ms Mao. You have every right to appeal if you choose to adopt that course, but I think before you make any decisions in that regard perhaps you should see my decision and the reasons for my decision and you will come to appreciate, I hope, that one of the matters which is of consideration to the Court is what the Court regards to be in your best interests, so I hope when you read the judgment you will see that I have taken into account all of the matters that you raised for my consideration and I have taken into account what, in my view, is in your best interests as well as the interests of justice in the case.
So you, of course, have every right to appeal but why don't you wait until you see the reasons for judgment, discuss them with Mr Smith and if you wish to appeal we can discuss that on the adjourned date as well.
SMITH: No problem your Honour. That is fine, so we will wait for the documentation."
Following the delivery of the reasons for judgment in court, my Associate informed the Plaintiff, by email, that the reasons for judgment were about to be published on Caselaw, and provided the medium neutral citation thereof. Subsequently, a copy of the written reasons was sent, by post, to the Plaintiff at the address which had been provided by her to my Associate. Today, she confirmed that she had received those reasons.
Although the court's computerised record system indicates that the orders were made on 18 December 2014, those orders, apparently, were not entered. This will now be remedied.
On 19 December 2014, my Associate received an email from the Plaintiff, which email was in the following terms:
"Dear Madam Associate & Whom it May Concern
Thank you Madam for your email.
Re: 2013/232241 - Mao v AMP Super Limited; 2013/244238 - Mao v BT Funds Management Limited
1. Respectfully, I will be launching an appeal against His Honour's Judgment of 18 December 2014.
2. I warn the legal representatives for the defendants of the above two cases:
Stop immediately further disclosing any of my private information to anyone who is not a party involved in the above two cases.
3. I will be launching a case at the Federal Court of Australia to claim the damages caused to me on ground of:
Constitutional Law, Privacy Law, Human Rights Law and Disability Discrimination Law, and/or further Laws will be supplied after discovery.
4. I also seek His Honour's permission for the proceeding of the above two cases on 4 February 2015 to be conducted in Newcastle.
Thank you very much for your assistance
Happy Christmas to His Honour and All of You !"
My Associate, at my request, acknowledged receipt of the email on the same date.
On 14 January 2015, my Tipstaff received an email from the Plaintiff requesting information about the availability of a transcript of the proceedings of the hearing, which had taken place on 5 November 2014. At my request, she responded informing the Plaintiff that a copy of the transcript could be obtained from the Reporting Services Branch of the Supreme Court.
It appears that the Plaintiff filed a Notice of Intention to Appeal (often called "a holding appeal") on 15 January 2015. That Notice appears to be in the form identified in UCPR rule 51.6. The rule allows a prospective appellant three months from the date of judgment within which to actually file a notice of appeal or a summons seeking leave to appeal.
On 22 January 2015, the Plaintiff sent an email, addressed to the Chief Judge in Equity, with a copy addressed to me, as well as to the Registrar in Equity, and to the Defendants, which email, relevantly, was in the following terms:
"Dear Judge and Dear Registrar
Case: 2013/232241 - Mao v AMP Super Limited; 2013/244238 - Mao v BT Funds Management Limited
My name is Youhua Mao. I am the plaintiff of the above two cases.
I have noticed the above two cases are listed for directions on 4 Feb 2015 before Justice P Hallen.
I am writing to you to make the following two requests:
1. I request the proceedings on 4 Feb 2015 and onwards of the above two cases be conducted in Newcastle.
I refer to all documents that I have filed in Court previously regarding the same request made in the NOM.
To supplement my previous statements, I made this request again based upon the Procedural Fairness (Natural Justice).
On 5 Nov 2014 in Sydney, Justice P Hallen presided directions hearings of the above two cases, and I attended in person.
(a) My carer Mr Smith and I got up at 2am, and caught the XPT at 3:26am from Dungog. While we were walking towards the Dungog Station at 3am, there were a group of young men who tried to provoke us on Dowling Street Dungog. We arrived in Sydney at around 7am.
(b) Justice P Hallen presided over the (directions) hearings for almost 4 hours (from 10am to around 2pm). The proceedings stopped only because Mr Smith and I had to go to catch the 2:40pm XPT from Central Station to Dungog.
(c) Mr Smith and I arrived at Dungog home at 9:10 pm as the train was running late. It was almost 10 hours on the XPT train for me & my carer Mr Simon Smith who had to come with me to Sydney, plus 4 hours in Court.
(g) In contrast, the legal representatives of the defendants of the above two cases were coming from almost next door to the Court:
Mr James Duncan of counsel for the defendants of case 2013/232241 is from 11th Floor St James Hall Chambers.
Mr Raphael Perla of counsel for the defendants of case 2013/244238 is from Thirteen Wentworth Selborne.
Solicitors for the defendants of the above two cases are from TurksLegal (Level 44, 2 Park Street Sydney NSW)
After no-sleep at night plus traveling on the train at night, and being already exhausted mentally and physically, I attended the court to argue the case with the defendants' well equipped legal team whose offices are located very close to the Court. This is not fair and it is a denial of my right to be heard.
If further proceedings were conducted in Newcastle, Mr Smith and I will have to get up at 500am to catch the train at 6:48am from Dungog and to arrive in Newcastle at around 8:10am, to attend the Court and then to catch the 5:25pm train from Newcastle to Dungog. We will arrive home around 7pm. Given the period of time from 5am to 7pm that requires Mr Smith and I to attend the Court in Newcastle, it certainly has no disadvantage to the defendants and their legal team. This is fair.
2. I also request the proceedings on 4 Feb 2015 and onwards of the above two cases be recorded.
I made this request due to the fact that the Judgment of Justice P Hallen, given on 18 Dec 2014 is full of fabrication and falsification.
(The medium neutral citation is Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794.)"
On 29 January 2015, at my request, my Associate responded by email:
"Dear Ms Mao,
His Honour has considered your e-mail, below, and advises that the matters will not be able to be heard in Newcastle on 4 February 2015. If you are unable to attend in person, the matter will be heard by way of telephone link, as has been done on previous occasions.
The matter is listed principally for directions on 4 February 2015."
The Plaintiff followed this email with an email in the following terms:
"Dear Madam Associate
Thank you very much for your email.
1. "His Honour has considered your e-mail, below, and advises that the matters will not be able to be heard in Newcastle on 4 February 2015."
If this only means the date of 4 February 2015 is the problem, I am fine for His Honour to chose (sic) another date which suits His Honour and the defendants for the matter to be heard in Newcastle.
2. "If you are unable to attend in person, the matter will be heard by way of telephone link, as has been done on previous occasions."
On previous 2 occasions before His Honour:
(i). On 18 August 2014 Pre-Trial Directions, I attended via telephone link, I did not hear the whole lot of what Mr Duncan of counsel for the defendants of case 2013/232241 had said.
(ii). On 1 October 2014 Directions, I attended via telephone link again, I had raised the issue during the proceeding that I could not hear clearly what Mr Duncan of counsel for the defendants of case 2013/232241 had said, and I had completely missed out what Mr Purdy of counsel for the defendants of case 2013/244238 had said.
The issue here is NOT I am unable to attend in person. The issue I have raised in my email below is the Supreme Court of NSW is obliged to the Procedural Fairness. It is my earnest intention to attend all the court proceedings in person.
3. "The matter is listed principally for directions on 4 February 2015."
The matter was too listed for directions on 5 November 2014.
What is the difference between directions on 5 November 2014 and directions on 4 February 2015 principally?"
At my request, my Associate confirmed that the hearing on 4 February 2015 would take place in the Supreme Court in Sydney.
The Plaintiff, on 2 February 2015, sent another email to my Associate which was in the following terms:
"Dear Madam Associate
Thank you very much for your email attached below.
1. I apply to attend the matter by way of telephone link if "The directions hearing on 4 February 2015 will take place in the Supreme Court in Sydney".
My telephone number is 02 49 921484.
2. Could you (His Hounour (sic) please advise me "What is the difference between directions on 5 November 2014 and directions on 4 February 2015 principally"?
This should not be seen as me seeking legal advice.
This is His Honour's Judicial power as "Judges have the power to interpret and apply the law."
3. I am also preparing a formal Motion to seek order that: Justice Philip Hallen be disqualified of hearing the above two cases for bias.
The formal Motion could be ready as soon as tomorrow."
On 3 February 2015, at my request, my Associate confirmed, by email addressed to the Plaintiff, that a "telephone link has been booked for 10:30 a.m. tomorrow".
The Plaintiff provided a copy of the "formal Motion" referred to by email sent to my Associate. The order sought in the notice of motion (which was said to be filed) is:
"Justice Philip Hallen be disqualified of (sic) hearing the two proceedings 2013/00232241 and 2013/00244238 for bias".
There is no differentiation between actual and apprehended bias in the Plaintiff's notice of motion. Nor is it accompanied by any affidavit evidence.
The Plaintiff informed my Associate that "The original documents are in the post to the Registry of the Supreme Court of NSW". Today, the original notice of motion has not yet reached the court file.
There was also forwarded to my Associate, by email, on 3 February 2015, by the solicitors acting in the AMP proceedings for the Defendants, an affidavit of Elizabeth Grace Esber, affirmed 3 February 2015. I shall return to this aspect later in these reasons.
Today, as arranged, the Plaintiff was contacted by telephone audio link. I informed the Plaintiff, who was with Mr Smith, that I had available the documents to which I have referred. She confirmed that she had a copy of all of the documents to which I have referred. She specifically said that she wished me to consider the Notice of Intention to Appeal; the notice of motion and the email addressed to the Chief Judge in Equity.
The Plaintiff stated that she wished the matters to be adjourned today and requested that I not deal with any of the matters arising from my reasons for judgment and the orders that I had made on 18 December 2014. She stated that she wanted an opportunity to consider what she wanted to say.
The Plaintiff also stated that she was not being represented by Mr Smith today. She stated "If you have any questions please address to me." Consequently, Mr Smith did not take part in any of the discussions with the court.
I also informed the Plaintiff that I would hear from counsel for the Defendant, AMP, as to the steps taken to locate a tutor who consented to act, and would thereafter determine what steps, if any, could, or should, be taken to have the matters made ready for hearing. Finally, I would ascertain whether either of the Defendants was seeking an order for costs. I said that these matters may be relevant to the exercise of the discretion whether to grant an adjournment.
Needless to say, the Plaintiff maintained the position that she did not wish to have a tutor at all. She stressed that she filed a Notice of Intention to Appeal and that she wanted the matter adjourned today. I repeated, for the Plaintiff's benefit, what I had indicated in the reasons for judgment, namely that subject to any summons seeking leave to appeal and any appeal being determined in her favour, both proceedings, now, could not be carried on by her without a tutor.
I then called upon Mr Duncan, who sought leave to file in Court the original affidavit of Ms Esber. The Plaintiff opposed the application to file the affidavit, although she accepted that she had received a copy of it. I granted leave to file the affidavit.
The Plaintiff then objected to me reading the affidavit. In the circumstances, and bearing in mind her application for an adjournment, I took the view that if an adjournment were not granted, I should not read the affidavit. In the events that happened, I did not read the affidavit.
There is no evidence that the Defendants in the AMP proceedings have been able to locate a person who is prepared to act as tutor. (Based upon the correspondence to the court from the Plaintiff, it is highly unlikely that the Plaintiff would co-operate in any event.)
Mr Duncan then stated that the Defendants in the AMP proceedings did not wish to make any application for a declaration as to the Plaintiff's inability to manage her affairs and seek a partial management order with the result that the NSW Trustee and Guardian would act as the tutor of the Plaintiff. He submitted that it was a matter for the court.
I then called upon Mr Perla for the Defendants, in the BT proceedings, who also informed the Court that the Defendants in those proceedings did not wish to seek such relief either. He, too, submitted that it was a matter for the court.
Bearing in mind these matters, and that the Plaintiff does not have any legal assistance, and that she has filed a notice of intention to appeal, I am satisfied that the court, should not, of its own motion, at the present time, make any declaration as to the Plaintiff's inability to manage her affairs or make a partial management order. Whether that is a course to be adopted in the future may be considered after the determination of the appeal process.
On the issue of costs, both Mr Duncan and Mr Perla each informed the Court that the Defendants for which he appeared, respectively, did not seek the costs of any of the notices of motion with which I had dealt on 5 November 2014.
As there is nothing further for this court to do at the present time, I have concluded that it is unnecessary to adjourn the matter. In this regard, I stated:
"Neither of the defendants wish to make any application for costs Ms Mao. So I will note that in a moment. This leaves outstanding, firstly, your application for an adjournment. I do not propose to grant an adjournment Ms Mao for the simple reason that it appears to me in the circumstances, and I will give you reasons in a moment, that there is nothing further at the moment for me to do. As there is no evidence that anyone has been appointed, the simple fact is that neither of the proceedings can be carried on by you at the present time. So you will be able, subject to the appropriate application being made, to proceed with what you have said you intend to do, namely, appeal or I assume seek leave to appeal. So there is nothing that I need to know in relation to the matter today. So that will be the end of the matter before me subject to what I propose to now say about my reasons. Is there anything you wish to raise?
Ms Mao: No, no, no further."
It is unnecessary to give consideration to any application for me to recuse myself from the further hearing of the matters (assuming that the notice of motion is filed). In any event, since there is no affidavit in support of the proposed notice of motion, it would be impossible to deal with the application in any event.
I shall not say anything about the proposed notice of intention to appeal which the Plaintiff has filed.
Accordingly, I order that the oral application by the Plaintiff to adjourn the hearing of each matter today is dismissed. I make no order as to the costs of the Defendants in relation to any of the notices of motion determined on 5 November 2014 in each of the proceedings.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 February 2015