Mao v AMP Superannuation Limited (No. 2) - [2017] NSWCA 297

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mao v AMP Superannuation Limited (No. 2) [2017] NSWCA 297
Hearing dates: 13 November 2017
Date of orders: 13 November 2017
Decision date: 13 November 2017
Before: White JA
Decision:
Refer to para [10] of judgment.

Catchwords: CIVIL PROCEDURE – Court of Appeal – judgments and orders of – setting aside own orders – UCPR r 36.16 – application seeking direction that court’s own orders not be entered and seeking declaration that there was a miscarriage of justice in earlier hearing by court as constituted – need for finality of litigation – court did not fail to consider applicant’s submissions – court did not fail to consider applicant’s materials and evidence – orders to be entered – application refused
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 36.16
Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Mao v AMP Superannuation Ltd [2017] NSWCA 296
Category: Procedural and other rulings
Parties: Youhua Mao (Applicant)
AMP Superannuation Limited (1st Respondent)
BT Funds Management Limited (2nd Respondent)
AMP Life Limited (3rd Respondent)
AIA Australia Limited (4th Respondent)
NSW Trustee and Guardian (5th Respondent)
Maurice Blackburn Pty Ltd (6th Respondent)
Representation:
Counsel:
Self Represented (Applicant)
E Esber (1st and 3rd Respondents)
D F Villa (2nd and 4th Respondents)
J Brouwer (5th Respondent)
N/A (6th Respondent)
Solicitors:
N/A (Applicant)
Turks Legal (1st-4th Respondents)
NSW Trustee and Guardian (5th Respondent)
N/A (6th Respondent)

File Number(s): 2017/230266

Judgment

WHITE JA: I will deal now with Ms Mao’s application that I direct that the orders I made earlier today not be entered and that I should declare that there has been a miscarriage of justice. I am not persuaded that I should give any such direction or make any such declaration.
The orders that I made earlier today have not been entered yet.

[Interruptions by Ms Mao.]

After further repeated interruptions I will resume my reasons for saying that I decline to make a direction that the orders I made earlier today on Ms Mao’s stay application should not be entered and why I decline to make a declaration that there was a miscarriage of justice in relation to that application.
As I started to say, the orders that I made earlier today have not been entered yet. There is therefore power to set aside the orders under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). However, as the High Court said in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6, in deciding whether or not such a course should be taken so as to allow the application to be re-ventilated, consideration has to be given to the importance of the public interest in the finality of litigation. The jurisdiction is to be exercised cautiously. The Court must be astute that it is not used to provide a back door method by which unsuccessful litigants can seek to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Mao v AMP Superannuation Limited (No. 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWCA 297
Decision Date: 13 November 2017

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application by the applicant, Mao, seeking to set aside orders made by the Court itself. The dispute arose from an earlier hearing where the applicant contended that a miscarriage of justice had occurred. The applicant sought a direction that the Court's previous orders not be entered and a declaration that the earlier hearing had been vitiated by a miscarriage of justice.

The central legal issues before the Court were whether it had failed to consider the applicant's submissions and materials, and whether these alleged failures constituted a miscarriage of justice warranting the setting aside of its own orders. The Court was required to balance the applicant's claims against the fundamental legal principle of the finality of litigation.

In its reasoning, the Court found that it had indeed considered the applicant's submissions and evidence presented during the earlier hearing. Consequently, the Court concluded that there had been no failure to consider the applicant's case and therefore no miscarriage of justice had occurred. The Court affirmed the principle of finality in litigation, indicating that such applications to set aside a court's own orders are exceptional and require compelling grounds.

The application was refused, and the Court ordered that its previous orders be entered.

Orders

Orders of the court

Refer to para [10] of judgment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mao v AMP Superannuation Limited (No. 2) [2017] NSWCA 297
Hearing dates:	13 November 2017
Date of orders:	13 November 2017
Decision date:	13 November 2017
Before:	White JA
Decision:	Refer to para [10] of judgment.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – judgments and orders of – setting aside own orders – UCPR r 36.16 – application seeking direction that court’s own orders not be entered and seeking declaration that there was a miscarriage of justice in earlier hearing by court as constituted – need for finality of litigation – court did not fail to consider applicant’s submissions – court did not fail to consider applicant’s materials and evidence – orders to be entered – application refused
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) r 36.16
Cases Cited:	Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Mao v AMP Superannuation Ltd [2017] NSWCA 296
Category:	Procedural and other rulings
Parties:	Youhua Mao (Applicant) AMP Superannuation Limited (1st Respondent) BT Funds Management Limited (2nd Respondent) AMP Life Limited (3rd Respondent) AIA Australia Limited (4th Respondent) NSW Trustee and Guardian (5th Respondent) Maurice Blackburn Pty Ltd (6th Respondent)
Representation:	Counsel: Self Represented (Applicant) E Esber (1st and 3rd Respondents) D F Villa (2nd and 4th Respondents) J Brouwer (5th Respondent) N/A (6th Respondent) Solicitors: N/A (Applicant) Turks Legal (1st-4th Respondents) NSW Trustee and Guardian (5th Respondent) N/A (6th Respondent)
File Number(s):	2017/230266