Mao v AMP Superannuation Fund
[2015] NSWCA 178
•22 June 2015
|
New South Wales |
Case Name: | Mao v AMP Superannuation Fund |
Medium Neutral Citation: | [2015] NSWCA 178 |
Hearing Date(s): | 22 June 2015 |
Date of Orders: | 22 June 2015 |
Decision Date: | 22 June 2015 |
Before: | Emmett JA |
Decision: | 1 Direct the applicant to file and serve no later than 3 July 2015 her written submissions, together with a schedule of any additional documents that she wishes to be included in the papers for the hearing on 13 July 2015. |
Catchwords: | PROCEDURE – preparation of appeal book |
Legislation Cited: | NSW Trustee and Guardian Act 2009 (NSW) |
Category: | Procedural and other rulings |
Parties: | Youhua Mao (Applicant) |
Representation: | Counsel: |
File Number(s): | 2015/13717 |
Publication Restriction: | Nil |
Decision under appeal: | |
Court or Tribunal: | Supreme Court of NSW |
Jurisdiction: | Equity Division |
Date of Decision: | 18 December 2014 |
Before: | Hallen J |
File Number(s): | 2013/232241; 2013/244238 |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
JUDGMENT
EMMETT JA: By summons filed on 12 March 2015, Ms Youhua Mao seeks leave to appeal from orders made by Hallen J on 18 December 2014. The operative order was that a tutor be appointed for Ms Mao in connection with the proceedings that were before Hallen J. Hallen J was satisfied that Ms Mao is a person under a legal incapacity and gave reasons at some length for his decision to order that a tutor be appointed for the purposes of the proceedings. There are two sets of proceedings. In one, Ms Mao, who is not represented by any legal advisor, sues AMP Superannuation Ltd and AMP Life Ltd (the AMP Proceedings), and in the other, she sues BT Funds Management Ltd and AIA Australia Ltd (the BT Proceedings). She claims to be entitled to the benefit of policies of insurance issued by those companies.
Included in the orders made on 18 December 2014 were orders that the defendants in the AMP Proceedings continue to make attempts to nominate a tutor who consents to being appointed and that, failing such nomination, consideration would be given to whether the Court should make a declaration under the NSW Trustee and Guardian Act 2009 (NSW) that Ms Mao is incapable of managing her affairs and an order that the part of the estate constituted by her actual contingent assets or liabilities, in or arising out of, the two proceedings be subject to management under that Act.
The President has given a direction that the application for leave be heard concurrently with any appeal, assuming leave were to be granted. The application for leave to appeal came before the Registrar of the Court, who directed that the respondents, instead of Ms Mao, prepare a white book. The respondents have prepared a white book consisting of two volumes containing some 32 documents. The Registrar indicated, when giving the direction that the respondents prepare the white book, that Ms Mao could supplement the white book with any further documents that she thought should be before the Court.
By notice of motion filed on 17 June 2015, Ms Mao seeks an order that the appeal book prepared by the respondents be dismissed and an order allowing her to prepare the appeal book in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Ms Mao's reasons for seeking those orders are that she says she is the applicant, and the would-be appellant, in the proceedings, and that she is entitled under the UCPR to prepare the appeal papers. She says that she is at a disadvantage in having to conduct the proceedings from papers prepared by the respondents.
It is by no means apparent what the disadvantage for Ms Mao would be. The appeal books that have been prepared contain an index clearly identifying the documents that are within the papers and identifying the page numbers where those documents are to be found. There would be no difficulty at all in finding material within the papers.
Ms Mao complains that some of the material included in the papers is irrelevant. For example, she refers to the transcript of a directions hearing before Hallen J on 4 February 2015 and other material that appears in the appeal papers after the date of the orders that are the subject of the application for leave, being 18 December 2014. The relevance of the additional material is not totally apparent. Counsel for the first and third respondents indicated that, in preparing the white book, they have erred on the side of caution in including material that may or may not be relevant. That may be germane to the question of costs but does not seem to me to cause any prejudice to Ms Mao at this stage.
It is hardly prejudicial to have the material in the appeal papers. Whether it can be relied upon will be a matter for the Court who hears the application for leave to appeal and any appeal. If Ms Mao is able to demonstrate that the material is irrelevant, no doubt the judges sitting on that hearing will make an appropriate order.
Ms Mao also says that there is other material that should be included. However, she has not been able to specify at this stage precisely what that material is. Clearly, she should have the opportunity of adding to the appeal papers consistently with the indication apparently made by the Registrar at the time of the directions hearing.
The Court has power to vary the rules and in a case such as this, where Ms Mao is not represented, it is not unusual and indeed it is quite usual to provide for a respondent who is legally represented to prepare the appeal papers on the basis that it would be more convenient and less confusing if the material is prepared by qualified lawyers. I see no reason at all at present to dismiss the appeal papers, as Ms Mao seeks.
However, it is appropriate to try to keep the matter on course for hearing. The hearing has been fixed for 13 July 2015. Ms Mao is already considerably out of time in terms of filing her submissions. The appropriate course is to direct that Ms Mao file and serve no later than 3 July 2015 her written submissions and a schedule of the additional material that she says should be before the Court when hearing her application for leave and her appeal if leave is granted.
Ms Mao asks for the costs of this application and indeed asks for leave to amend the notice of motion to seek an order that the respondents pay her costs in the sum of $50,000. I refused her leave to make that amendment.
The orders I propose are these:
(1)Direct the applicant to file and serve no later than 3 July 2015 her written submissions, together with a schedule of any additional documents that she wishes to be included in the papers for the hearing on 13 July 2015.
(2)Direct the respondents to file their submissions in response no later than 10 July 2015.
(3)Refuse leave to amend the notice of motion filed on 17 June 2015.
(4)Order that the notice of motion filed on 17 June 2015 be dismissed.
(5)Order the applicant on that motion to pay the costs of the respondents to that motion.
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Amendments
10 July 2015 - 10/07/15: Spelling correction to name of solicitor
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