Mao v B T Funds Management Limited & Ors

Judgment

1. THE COURT: This is an application for leave to appeal from orders of the Equity Division (Parker J) of 2 June and 10 June 2021 (Mao v BT Funds Management Limited [2021] NSWSC 644; Mao v BT Funds Management Limited (No 2) [2021] NSWSC 692).
2. The history of these proceedings and of a similar proceeding brought by the applicant, Ms Mao, against AMP Superannuation Limited has been recorded in numerous judgments. The proceedings were commenced in 2013. The history is set out in judgments of Hallen J in Mao v AMP Superannuation Limited; Mao v BT Funds Management Ltd [2014] NSWSC 1794, by Ward CJ in Eq in Mao v AMP Superannuation Limited [2017] NSWSC 987 and by Parker J in Mao v BT Funds Management Limited [2021] NSWSC 644, amongst others. It suffices to say that in 2014 Hallen J held that Ms Mao was a person under a legal incapacity and that an order should be made for the appointment of a tutor. Ms Mao appealed from Hallen J's orders to the Court of Appeal. The Court of Appeal did not set aside Hallen J's finding that Ms Mao lacked capacity to conduct legal proceedings but held that it was not open to the Court to make an order for the appointment of "a tutor". It was necessary for the Court to identify the person to be appointed as tutor and who had consented to act as such if an order for the appointment of a tutor were to be made (Mao v AMP Superannuation Ltd [2015] NSWCA 252).
3. On 26 July 2017, on the Court's own motion, Ward CJ in Eq appointed the NSW Trustee and Guardian as manager of so much of the estate of Ms Mao as pertained to her right, title and interest in the proceeding she had brought against BT Funds Management Limited and AIA Australia Limited (together "BT") (Mao v AMP Superannuation Limited [2017] NSWSC 987).
4. The NSW Trustee and Guardian was later also appointed tutor and compromised the proceedings against AMP and against BT in that capacity for a settlement sum of $416,000 (J [14]). The settlement was approved by the Court. (J [15]).
5. As a result of the settlement Ms Mao's proceeding against BT was discontinued by the filing of a notice of discontinuance by the solicitor engaged by the tutor, Maurice Blackburn.
6. On 2 June 2021, Parker J dismissed with costs a notice of motion filed by Ms Mao on 17 March 2021 which sought: "1. A declaration that the single 'Notice of Discontinuance' dated 11 March 2019 was and is void and of no effect. 2. Order that the Orders of Equity Registrar L Walton made on 12 March 2019 be set aside."
7. The order of Registrar Walton of 12 March 2019 was an order noting the filing of the notice of discontinuance. As the primary judge said (Mao v BT Funds Management Limited at [18]), that order was unnecessary as the notice of discontinuance, which had already been filed, brought to an end proceedings instituted by Ms Mao against BT.
8. On 10 June 2021, Parker J dismissed with costs a notice of motion filed by Ms Mao on 18 May 2021. His Honour also declined to grant leave to Ms Mao to amend the notice of motion. The notice of motion irregularly purported to join as respondents to the motion three parties who were not parties to the proceedings, namely, the Commonwealth of Australia, AMP Limited and Westpac Banking Corporation. It sought an order that the Commonwealth pay Ms Mao's ongoing costs and sought an order that Ms Mao be allowed to prosecute her "Notice of Constitutional Matter". It sought a direction for the delivery of documents to be relied upon by Ms Mao in relation to her Notice of Constitutional Matter which sought to challenge the validity of the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Industry (Supervision) Act 1993 (Cth). It also sought a declaration that did not address the rights of the parties and could not be made as to asserted requirements of any valid law.
9. In his first judgment, the primary judge summarised Ms Mao's submission in relation to her notice of motion of 17 March 2021 as follows: "[47] Ms Mao's principal contention was that all of the steps taken purportedly on her behalf by MB were of no effect, and so were the steps purportedly taken on her behalf by the Trustee. Her submissions started with two propositions. The first was that self-representation is a right. The second is that legal representation cannot be forced on a litigant against the litigant's will, it must be consensual."
10. The primary judge correctly observed: "[48] Both of these propositions are correct as general statements. However they are subject to long-standing exceptions in the case of litigants who lack capacity to conduct litigation in their own interests. The tutor procedure is centuries old and has long been recognised as an exception to the general rule that a person may represent himself or herself in litigation. Similarly, the provisions for management of estates in the application for litigation reflect the protective jurisdiction of the Court, which derives from the powers of the Chancery Court in England, which likewise goes back centuries. It has always been recognised that where a person is unable to conduct proceedings himself or herself, the Court may appoint a tutor or otherwise appoint a manager to that person's estate, who can then conduct the proceedings on behalf of and in the interests of that person, subject of course to the overall supervision of the Court."
11. The primary judge found: "[51] In effect the orders made by the Chief Judge gave the Trustee full power over the legal causes of action which gave rise to Ms Mao's claims. That carried with it the power to conduct the proceedings and to settle them. It is impossible now to dispute the validity of the settlement or the steps taken under it. Even if I were satisfied that there was something technically wrong with the notice of discontinuance, l would not be justified in taking any action, as it is apparent that the claims in the proceedings have been compromised and merged under the settlement deed into a legal entitlement to the payment of a sum of money, which has now been satisfied."
12. Ms Mao challenged the right of Maurice Blackburn lawyers to file the notice of discontinuance, arguing that she had terminated their retainer on 8 April 2014 and that a party had a right to represent himself or herself in litigation.
13. However, as Parker J explained, there are longstanding procedures for the representation of individuals who lack capacity to commence or carry on proceedings. Ward CJ in Eq found that Ms Mao was not capable of managing that part of her estate as consisted of her claims against AMP and BT and appointed the NSW Trustee and Guardian as her financial manager of that part of her estate. Her financial manager appointed a tutor who engaged Maurice Blackburn. These steps were regularly taken. The application for leave to appeal from the orders of Ward CJ in Eq was dismissed and a further application for special leave to appeal to the High Court was dismissed. It is not arguable that the NSW Trustee and Guardian did not have authority to compromise the proceedings, nor that Maurice Blackburn did not have authority to file the notice of discontinuance.
14. Ms Mao included in her materials the affidavits that were before Ward CJ in Eq in an apparent attempt to say that those affidavits falsely depicted her mental condition. Her purpose in doing so appears to have been to seek to demonstrate that that evidence ought not to have been accepted. But the conclusion of Ward CJ in Eq has been affirmed. Parker J observed that Ms Mao stated to his Honour that she did not now contest the management orders made by Ward CJ in Eq or the order of the Court of Appeal refusing leave to appeal. As his Honour noted, this was to do no more than recognise that as those orders stand they must be accepted in subsequent litigation as being proper and effective (at [49]).
15. Other personal attacks made by Ms Mao on individuals at Maurice Blackburn and at the NSW Trustee and Guardian were rejected by the primary judge as baseless. They were repeated in Ms Mao's submissions but no material was identified that could support them.
16. Order 4 sought in Ms Mao's notice of motion of 18 May 2021 that was the subject of Parker J's second judgment sought a final order by way of declaration that could not be made by way of notice of motion and in any event is unintelligible as a purported statement of any legal rights pertaining as between Ms Mao and the defendants to proceedings 2013/244238.
17. The balance of the relief sought in the notice of motion was directed to Ms Mao's proposed constitutional challenges to the validity of Commonwealth superannuation legislation. The primary judge correctly held (J2 [11]) that the complaint Ms Mao seeks to raise in relation to the validity of the superannuation legislation has nothing to do with the issues between her and BT. The primary judge said: "[12] Ms Mao appears to believe that in some way her rights as a beneficiary under the superannuation fund of which BT is trustee stem from the Commonwealth legislative scheme. In my view, that is misconceived. Those rights are equitable rights which exist under the general law as a result of the assumption by BT of obligations as trustee for the beneficiaries of the fund under the trust deed. [13] The statutory scheme operates at a different level, by requiring employers to make contributions to superannuation funds, the receipt of which then gives rise to rights on the part of those beneficiaries. A successful challenge to the scheme would, so far as I can see, have no impact whatever on the legal entitlements which exist under the superannuation fund, and still less under an insurance policy effected by BT for the benefit of Ms Mao."
18. Ms Mao sought before the primary judge to amend the notice of motion to include an order that the notice of discontinuance "be dismissed". That application had been determined by Parker J in his first judgment.
19. Ms Mao also sought an order that "the stay order of the Court on 26 May 2016 be lifted for the hearing of the plaintiff's application to have Hallen J recuse himself but that that application be dismissed".
20. The primary judge held that the stay order by Hallen J on 26 May 2016 had been overtaken by events when Ward CJ in Eq appointed the NSW Trustee and Guardian as the manager of Ms Mao's litigation and no question of Hallen J or any other judge of the Court continuing to hear the plaintiff's claim could arise. (J2 [7] and [8]). That is plainly correct. In any event there would be no occasion to lift the stay in order to dismiss an application brought by Ms Mao that has not been determined and is now irrelevant.
21. In her written submissions in support of her application for leave to appeal, Ms Mao repeated her contention that superannuation legislation of the Commonwealth is invalid and noted that her application to the High Court that the proceedings be removed to the High Court was dismissed on 11 March 2020 on the ground that there were no pending proceedings for the purposes of s 40 of the Judiciary Act [2020] HCA SL 45. It can be inferred that one of her reasons for seeking to set aside the notice of discontinuance filed by her tutor is to have proceedings on foot in order for her to reagitate the application for removal.
22. As Parker J correctly noted, it has already been determined by Ward CJ in Eq on 26 July 2017 that Ms Mao's proposed constitutional challenge did not raise a matter or matters arising under the Constitution or involving its interpretation because the points she sought to raise were not real or substantial but unarguable. In refusing Ms Mao's application for leave to appeal from the orders of Ward CJ in Eq, this Court (Basten and Leeming JJA) held that Ward CJ in Eq was correct to determine that no arguable constitutional issue had been raised (Mao v AMP Superannuation Ltd [2018] NSWCA 72 at [17]).
23. Moreover, as Parker J observed (J2 [11]), the constitutional issues Ms Mao sought to raise were irrelevant to the proceedings that she commenced against BT (and AMP).
24. Ms Mao relied upon evidence that a Mr Simon Smith (who had appeared as her McKenzie friend before Hallen J) had agreed to be appointed as tutor in place of the NSW Trustee and Guardian. On 13 November 2017 Ms Mao was given leave to claim such relief (Mao v AMP Superannuation Limited [2017] NSWCA 296 at [19]). No such appointment was made. The NSW Trustee and Guardian continued in that role and had authority to settle Ms Mao's proceedings.
25. There is no arguable basis for challenging the primary judge's orders of 2 and 10 June 2021. The summons for leave to appeal should be dismissed.
26. As noted above, the management order made by Ward CJ in Eq was revoked by Lindsay J on 30 June 2019 (J [23]). The primary judge said that this was presumably done on the basis that the proceedings were then at an end and the only remaining matter was the administrative step of paying out the moneys held in court that had been paid in by AMP and BT pursuant to the compromise of the proceedings. The primary judge was troubled by the apparent continuing incapacity of Ms Mao to conduct her proceedings but observed that that issue had not been raised before his Honour. His Honour said that it was not easy to see how it could have been raised without cooperation in the form of consent from Ms Mao to psychiatric evaluations (J [60]).
27. The Court of Appeal faced a similar dilemma on 27 August 2015 when the orders made by Hallen J for the appointment of "a tutor" were set aside on the ground that an order for the appointment of a tutor must identify the person to act as tutor who has given his or her consent to doing so. The Court took the pragmatic course of dispensing with compliance of r 7.14(1) (Mao v AMP Superannuation Limited [2015] NSWCA 252 at [59]). In their reasons of 11 April 2018 dismissing the application for leave to appeal from the judgment of Ward CJ in Eq of 26 July 2017 as incompetent (Mao v AMP Superannuation Limited [2018] NSWCA 72), Basten and Leeming JJA also considered whether the requirements of r 7.14 should be waived. Their Honours declined to do so on the basis that the proposed appeal was unmeritorious.
28. Maurice Blackburn who are named as a party to the summons for leave to appeal submitted that it was apparent from the face of Ms Mao's summons for leave to appeal, her draft notice of appeal and her summary of argument, that she has a continuing incapacity to conduct the legal proceedings and the appeal should be dismissed as incompetent.
29. There is no notice of motion to dismiss the summons for leave to appeal as incompetent. The issue was not raised before the primary judge. No up to date psychiatric evidence is available. It makes no practical difference whether the application for leave to appeal is dismissed as incompetent or whether it is dismissed on its merits. The better course is simply to dismiss the summons for leave to appeal. Costs will follow the event.
30. On the day prior to the hearing, Ms Mao filed a notice of motion seeking orders that the Commonwealth pay the applicant's costs in this Court and that a number of "causes" be removed into the High Court under s 40 of the Judiciary Act 1903 (Cth). As noted above at [8], a similar order for costs against the Commonwealth was sought by Ms Mao in the proceedings before Parker J. The Commonwealth was not joined as a party. There is no basis for the order sought.
31. As to the second order sought, the "causes" which Ms Mao seeks to have removed into the High Court consist of questions concerning the powers of the NSW Trustee and Guardian, the validity of Commonwealth superannuation legislation, and related matters. The power under s 40 of the Judiciary Act is vested in the High Court; this Court has no power to make the order sought: Samootin v Shea [2013] NSWCA 312 at [56].
32. Accordingly, we order that the applicant's summons for leave to appeal and notice of motion filed on 17 November 2021 be dismissed with costs.

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