Mao v AMP Superannuation Limited

[2017] NSWSC 987

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Mao v AMP Superannuation Limited [2017] NSWSC 987
Hearing dates:	13 July 2017
Date of orders:	26 July 2017
Decision date:	26 July 2017
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	(1) Order that so much of the stay ordered by the Court on 26 May 2016 be lifted so as to permit the first and second defendants in proceedings 2013/232241 to prosecute the amended notice of motion filed on 28 March 2017 and, to the extent necessary, give leave to the said defendants to amend their notice of motion filed 25 August 2014 in those terms. (2) Of the Court’s own motion, pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) appoint the NSW Trustee as manager of so much of the estate of the plaintiff as pertains to the plaintiff’s right, title and interest in proceedings 2013/232241 and in proceedings 2013/244238. (3) Order that the costs of the amended notice of motion be costs in the cause. (4) Dismiss without costs the motion filed in Court on 13 July 2017 by the defendants in proceedings 2013/244238. (5) Liberty to the plaintiff and the defendants in each of proceedings 2013/232241 and proceedings 2013/244238 to apply within 14 days for any variation/amendment to these orders necessary to permit compliance with any relevant superannuation legislation following the disposition of either set of proceedings. (6) Note the ability of the NSW Trustee to apply for any variation or addition to the orders made today. (7) Stand the matter over to the Registrar’s List on 23 August 2017 at 9.00am, together with proceedings 2013/2442328, for directions.
Catchwords:	MENTAL HEALTH - NSW Trustee and Guardian Act - Protected estate manager - Litigant in person - Appointment of NSW Trustee as manager of so much of the estate as pertains to plaintiff’s right title and interest in ongoing proceedings
Legislation Cited:	Australian Human Rights Commission Act 1986 (Cth) Disability Discrimination Act 1992 (Cth) Judiciary Act 1903 (Cth), s 78B NSW Trustee and Guardian Act 2009 (NSW), ss 38, 39, 40, 41, 71 Privacy Act 1988 (Cth) Superannuation Guarantee (Administration) Act 1992 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 1.22, 1.23, 1.24, 7.14, 7.18, Pt 7, Pt 57 Civil Procedure Act 2005 (NSW), ss 14, 56, 67
Cases Cited:	A v A [2015] NSWSC 1778 Ability One Financial Management Pty Limited v JB by his Tutor AB [2014] NSWSC 245 AGU v Commonwealth of Australia [2013] NSWCA 333 Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 Australia and New Zealand Banking Group Ltd v Evans; 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; [1999] FCA 1151 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, (1992) 9 ACSR 309 Cachia v Hanes (1994) 179 CLR 403; [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; [2009] NSWCA 369 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)   Solicitors: Plaintiff self-represented TurksLegal (Defendants/Applicants on motion; Defendants in proceedings 2013/44238)
File Number(s):	2013/232241
Publication restriction:	Nil

Judgment

1. HER HONOUR: Listed before me for hearing on 13 July 2017 was an amended notice of motion filed on 28 March 2017 by AMP Superannuation Limited and AMP Life Limited (to whom I will refer as the AMP entities), the defendants in proceedings 2013/232241 (to which I will refer as the AMP proceedings). By that amended notice of motion, the AMP entities ask that the Court of its own motion appoint the NSW Trustee and Guardian as manager of so much of the plaintiff (Ms Mao)’s estate as pertains to her right, title and interest in the AMP proceedings and in other proceedings in this Court (proceedings 2013/244238, to which I will refer as the BT proceedings).

2. The defendants in the BT proceedings (BT Funds Management Limited and AIA Australia Limited, to whom I will refer as the BT entities) are listed as persons affected by the orders sought on the application brought by the AMP entities for the proposed financial management orders. At the outset of the hearing of the AMP entities’ motion, the BT entities sought leave to file in Court a motion seeking similar but not identical relief in the BT proceedings. They did so for more abundant caution in the event that the Court were of the view that the AMP entities did not have sufficient interest to seek the orders sought in prayer 3 of the AMP entities’ amended notice of motion (the appointment of a manager to part of Ms Mao’s estate) in relation to the BT proceedings (T 1.37).

3. Ms Mao, who is self-represented and attended the hearing (at her request) by telephone link, opposed the filing in court and hearing of the BT entities’ notice of motion and strenuously opposed me proceeding to hear the AMP entities’ motion, for reasons to which I shall come shortly.

4. I gave leave, on the undertaking of the BT entities’ solicitors to pay any requisite filing fees, for the filing in Court of the BT entities’ notice of motion and indicated that I would deal in due course with whether it should be heard instanter, as had been requested by Counsel for the BT entities.

5. From the history of the proceedings to date, I understand that Ms Mao opposes the making of any management order of the kind sought by the AMP entities but by the time I came to hear submissions on that aspect of the matter Ms Mao had ceased to participate in the hearing, having chosen to terminate the telephone link.

6. For the reasons that follow, I am of the view that Ms Mao is incapable of managing her affairs insofar as they relate to the conduct of the respective proceedings she has brought in this Court and that the Court should, of its own motion, make an order appointing the NSW Trustee and Guardian to manage that part of Ms Mao’s estate as comprises her right, title and interest in the respective proceedings.

Background

7. 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.

8. In summary, in both proceedings Ms Mao claims an entitlement to benefits under particular superannuation trust deeds. In respect of the AMP entities, her claim, as initially commenced, was for payment of a claimed total and permanent disablement benefit of about $25,000 plus a temporary salary continuance benefit of $135,000 (totalling around $160,000). In respect of the BT entities, the amount claimed was in the order of $200,000 (alternatively a sum of $200,813 and interest under a “Employer Policy” or a sum of $209,406 and interest under a “Personal Policy”).

9. When the respective sets of proceedings were first commenced, Ms Mao had the benefit of legal representation. However, the solicitors who were acting for her in each of the proceedings filed a notice of ceasing to act in each matter on 15 April 2014. The circumstances in which Ms Mao’s solicitors ceased to act for her, as were explained to the Court at the time, are recounted in an affidavit affirmed 14 August 2014 by Elizabeth Grace Esber (a solicitor in the employ of the solicitors acting for the AMP entities) and read on the present application. In essence, Ms Esber deposes that Ms Mao’s then solicitor explained to the Court that he was unable to obtain any meaningful instructions from her in circumstances where she was very unwell and was then being admitted into a psychiatric facility.

10. After Ms Mao’s solicitors ceased to act for her, Ms Mao indicated that she intended to amend her claim in both proceedings to claim loss, damages and “life threatening damages” in the amount of $50,000,000 (see [69] of the First Judgment, reference there being made to a second Court Statement dated 30 October 2014 of Ms Mao containing an assertion by Ms Mao to that effect).

11. The AMP proceedings were listed for hearing before Hallen J for three days commencing on 29 September 2014. Prior to that date, each side applied for interlocutory orders. First, on 20 August 2014, Ms Mao sent a notice of motion to the court seeking that the hearing of the matter be in Newcastle. Then, on 25 August 2014, the AMP entities filed a notice of motion seeking orders including for the appointment of a tutor for Ms Mao pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), that the proceedings be heard concurrently with the BT proceedings and that the then hearing dates be vacated.

12. In support of her application for the hearing to be conducted in Newcastle, Ms Mao sent to the court a Court Statement dated 20 August 2014 (see [37] of the First Judgment) in which she put forward three reasons for her application, the first of which was by reference to her health, namely that she relied on medication, her carer and “constant professional health from mental health Service” to help her through the court proceedings. A further Court Statement dated 20 August 2014 was sent to the Court from a Mr Simon Smith, in which he stated that he was the carer for Ms Mao and in which further reasons were proffered for the application for the case to be heard in Newcastle, including the statement that:

Originally this case was about money. Now it has become a case of life-and-death for Ms MAO as she has been dragged into constantly reliving in her past. She suffers mental illness which was caused by her past. When Ms MAO stands trial, it is inevitably [sic] she will be brought to recall her past. Under this circumstance, she needs to be put on close watch by the mental health professional team from Hunter Valley Mental Health Service who has been looking after Ms MAO for over the last 3 years.

13. The respective interlocutory applications came before Young AJ on 3 September 2014. What transpired on that occasion, so far as Hallen J could glean from the transcript, is set out in the First Judgment (from [40]-[52]). Ms Mao did not attend and was not represented on that occasion. Young AJ made orders noting that the defendant, AMP Superannuation, would arrange for a tutor to be appointed for the plaintiff and that the appointment would be made in court on 1 October 2014 or in chambers on 2 or 3 October 2014. Young AJ noted that if Ms Mao wished to be heard on the matter she should notify the Registrar accordingly. His Honour Young AJ thus made no order on 3 September 2014 for the appointment of a tutor, vacated the hearing then listed before Hallen J on 29 and 30 September and 1 October 2014; and ordered that the two sets of proceedings be heard together, with evidence in the one to be evidence in the other. Young AJ also indicated that, in order to accommodate Ms Mao, the Court would sit in Newcastle on 26 March 2015, provided arrangements could be made with the clerk of the court in Newcastle for a court, and that the remainder of the case would be heard in Sydney on 27 and 30 March 2015 provided Ms Mao’s doctors were able to attend.

14. A directions hearing took place before Hallen J on 1 October 2014, on which occasion Ms Mao appeared by audio link. On that occasion, his Honour identified the particular issues that the parties wished to agitate, noting that there had been a misunderstanding as to the orders that had in fact been made by Young AJ on the earlier occasion regarding the appointment of a tutor. His Honour confirmed that no such order had been made. The hearing of the motion for the appointment of a tutor was stood over to 5 November 2014 on which occasion his Honour indicated that issues as to whether the two proceedings should be heard consecutively and as to the amendment of the pleadings (presumably to encompass Ms Mao’s substantially increased claim for “life-threatening damages”) were also to be dealt with (see [57]-[58] of the First Judgment).

The First Judgment

15. 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.

16. 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.

17. 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.

18. 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)]).

19. 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.)

20. 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).

21. 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]).

22. 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”.

23. 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).

15. 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.

25. 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.

26. 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.

Proceedings in the Court of Appeal

27. 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.

28. 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.

29. 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.

30. 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]).

31. 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.

32. 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.

33. 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.

34. 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.

Correspondence in relation to costs orders

35. 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.

36. On 15 December 2015, Ms Mao forwarded by express post to the directors of AMP Limited, purportedly by way of service, an unfiled statement of claim, claiming an amount of $100,000,000 plus interest of $10,000,000 by way of an order that the named defendants pay Ms Mao’s costs of the summons seeking leave to appeal and of the appeal. The unfiled statement of claim makes various very serious allegations against numerous legal practitioners and judicial officers and alleges collusion on the part of AMP with BT and AIA “to abuse the Australian Legal System and to violate the plaintiff’s rights for the purpose of serving the defendants’ vested interests to enrich themselves”.

Remittal to the Equity Division

37. Following the decision of the Court of Appeal, the two proceedings were relisted by Hallen J for directions on 4 April 2016. There was no appearance by or on behalf of Ms Mao on that occasion. The proceedings were stood over to 10 May 2016 for further directions (see Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 3) [2016] NSWSC 382).

38. On 10 May 2016, when the matter came back before Hallen J, Ms Mao attended by telephone. The day before she had affirmed an affidavit stating, among other things, that Hallen J “must be disqualified from hearing further AMP proceedings and further BT proceedings” and that his Honour’s judgment of 18 December 2014 “was illegal and it has almost killed me”. His Honour informed Ms Mao on that occasion that her application that he recuse himself would be heard at 11.45am on 26 May 2016 (see Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 4) [2016] NSWSC 722 at [18]-[22]).

39. On 26 May 2016 there was no appearance by or on behalf of Ms Mao. His Honour did not proceed in Ms Mao’s absence with the recusal application. Rather, his Honour decided that he should stay the recusal application, and any other extant application brought in this Division, pursuant to s 67 of the Civil Procedure Act2005 (NSW) until such time as any party should seek to have the stay lifted. The applications thus stayed included the application for the appointment of a tutor that had been remitted by the Court of Appeal to this Division.

Notice of Constitutional Matter

40. On 14 June 2016, Ms Mao filed in the High Court Sydney Registry a Notice of a Constitutional Matter, seeking that the High Court determine whether or not the judgment and/or orders of Hallen J on 18 December 2014, the conduct of Hallen J presiding over directions in the two proceedings, the conduct of the New South Wales Court of Appeal presiding over the concurrent hearing in appeal proceedings, and the judgment and orders of the New South Wales Court of Appeal “have infringed the integrity of the Commonwealth Parliament and/or the integrity of the Commonwealth Executive Government and/or the integrity of the New South Wales Parliament and/or the integrity of the New South Wales Executive Government and/or the integrity of the New South Wales Supreme Court and therefore violated the Australian Constitution”.

41. At [5] of that Notice of Constitutional Matter, Ms Mao asserted that the facts set out in the notice reveal “that the applicant was pushed to die and in fact she would be dead on many occasions during proceedings 2013/232241 and 2013/244238 if it were not for others who had risked their lives to save the applicant”.

Events leading up to the hearing on 13 July 2017

42. 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.

43. 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.

44. 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.

45. 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).

46. 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.

47. 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”.

Applications made by Ms Mao on 13 July 2017

48. 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.

49. 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.)

50. 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.

51. 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.

52. 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.

52. 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.

53. 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.

54. 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.

55. 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).

57. 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.

58. 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.

59. 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).

60. 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.

61. 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).

62. 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.

63. 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).

64. 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.

65. 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.

66. Ms Mao then terminated the telephone link.

Notices of Constitutional Matter

67. 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.

68. 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.

69. 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.

70. 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]).

71. 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.

72. 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.

73. 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]).

74. 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]).

Statutory framework

75. 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.

76. 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.

77. 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.

78. 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.

79. 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.

Introductory observations

80. 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.

81. 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. …

82. 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):

1. Of the Court’s own motion, pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) appoint the NSW Trustee as manager of so much of the estate of the plaintiff as pertains to the plaintiff’s right, title and interest in proceedings 2013/232241 and in proceedings 2013/244238.

2. Order that the costs of the amended notice of motion be costs in the cause.

3. Dismiss without costs the motion filed in Court on 13 July 2017 by the defendants in proceedings 2013/244238.

4. Liberty to the plaintiff and the defendants in each of proceedings 2013/232241 and proceedings 2013/244238 to apply within 14 days for any variation/amendment to these orders necessary to permit compliance with any relevant superannuation legislation following the disposition of either set of proceedings.

5. Note the ability of the NSW Trustee to apply for any variation or addition to the orders made today.

6. Stand the matter over to the Registrar’s List on 23 August 2017 at 9.00am, together with proceedings 2013/2442328, for directions.

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Decision last updated: 26 July 2017