Mao v AMP Superannuation Ltd - [2018] NSWCA 20

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mao v AMP Superannuation Ltd [2018] NSWCA 20
Hearing dates: 12 February 2018
Date of orders: 12 February 2018
Decision date: 16 February 2018
Before: Simpson JA
Decision:
Application dismissed.

Catchwords: JURISDICTION – Court of Appeal – order sought to refer matters to Royal Commission – whether Court of Appeal has jurisdiction to grant the orders
Cases Cited: Mao v AMP Superannuation Ltd [2017] NSWSC 987
Category: Principal judgment
Parties: Youhua Mao (Applicant)
AMP Superannuation Ltd (First Respondent)
BT Funds Management Ltd (Second Respondent)
AMP Life Ltd (Third Respondent)
AIA Australia Ltd (Fourth Respondent)
AMP Ltd (Fifth Respondent)
Westpac Banking Corporation (Sixth Respondent)
TurksLegal (Seventh Respondent)
James Duncan (Eighth Respondent)
Colin Purdy (Ninth Respondent)
Raphael Perla (Tenth Respondent)
D F Villa (Eleventh Respondent)
Representation: Counsel:
In person (Applicant)
No appearance (Respondents)

File Number(s): 2017/230266

Judgment

SIMPSON JA: By a document entitled “Ex Parte Application for an Order to Refer”, Ms Youhua Mao seeks an order referring a “matter” to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (“the Royal Commission”). The “matter” that she seeks to have referred is not clearly identified.

Background

In July and May of 2013 Ms Mao commenced two proceedings in the Supreme Court of New South Wales, in each case naming a financial institution as defendant. In each proceeding Ms Mao claimed benefits under a superannuation deed.
In 2014, at a time when a date fixed for the hearing of the Supreme Court proceedings was imminent, a sequence of events concerning the future progress of the matter began. These were concerned with Ms Mao’s capacity to conduct proceedings, to understand the nature of the proceedings, and to make relevant decisions. The relevant history is comprehensively set out in the decision of Ward CJ in Eq in Mao v AMP Superannuation Ltd [2017] NSWSC 987. The events culminated in Ward CJ in Eq making the following order:

“(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 [the two proceedings].”

By Summons filed on 5 October 2017 Ms Mao seeks leave to appeal against that decision. That application is pending.
In her “Ex Parte Application”, Ms Mao recited the establishment of the Royal Commission and attached the Letters Patent. She asserted that the Terms of Reference to the Royal Commission were “based on” nine separate “Notices of Constitutional Matters” that she had served on the then Attorney-General for the Commonwealth, and arose out of her proceedings, outlined above, against two financial institutions. The order she sought was:

“… an order referring the matters within the Terms of Reference for this Royal Commission inquiry, said to arise out of the [Supreme Court] proceedings …”

It was Ms Mao’s choice to identify the application…

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.

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Details

Case: [2018] NSWCA 20
Decision Date: 16 February 2018

CaseChat Overview and Summary

The applicant, Mao, sought orders from the Court of Appeal of New South Wales that certain matters be referred to the Royal Commission. AMP Superannuation Ltd was the respondent.

The central legal issue before the Court of Appeal was whether it possessed the jurisdiction to grant the orders sought by the applicant, specifically to refer matters to the Royal Commission.

Simpson JA considered the nature of the Court of Appeal's jurisdiction and the powers conferred upon it by statute. Her Honour concluded that the Court of Appeal did not have the power to make the orders sought by the applicant. The Court's jurisdiction is generally confined to hearing appeals from decisions of lower courts or exercising statutory powers, neither of which extended to directing a Royal Commission.

The application was dismissed.

Orders

Orders of the court

Application dismissed.

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 Ltd [2018] NSWCA 20
Hearing dates:	12 February 2018
Date of orders:	12 February 2018
Decision date:	16 February 2018
Before:	Simpson JA
Decision:	Application dismissed.
Catchwords:	JURISDICTION – Court of Appeal – order sought to refer matters to Royal Commission – whether Court of Appeal has jurisdiction to grant the orders
Cases Cited:	Mao v AMP Superannuation Ltd [2017] NSWSC 987
Category:	Principal judgment
Parties:	Youhua Mao (Applicant) AMP Superannuation Ltd (First Respondent) BT Funds Management Ltd (Second Respondent) AMP Life Ltd (Third Respondent) AIA Australia Ltd (Fourth Respondent) AMP Ltd (Fifth Respondent) Westpac Banking Corporation (Sixth Respondent) TurksLegal (Seventh Respondent) James Duncan (Eighth Respondent) Colin Purdy (Ninth Respondent) Raphael Perla (Tenth Respondent) D F Villa (Eleventh Respondent)
Representation:	Counsel: In person (Applicant) No appearance (Respondents)
File Number(s):	2017/230266