Mao v AMP Superannuation Ltd

[2015] NSWCA 252

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mao v AMP Superannuation Ltd [2015] NSWCA 252

Hearing dates:

13 July 2015

Date of orders:

27 August 2015

Decision date:

27 August 2015

Before:

Beazley ACJ; Emmett JA; Leeming JA

Decision:

1 The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal.

 

2   Leave to appeal be granted.

 

3   The requirement for the filing of a notice of appeal be dispensed with.

 

4   Appeal be allowed in part.

 

5   Orders (i) and (ii) of the orders made on 18 December 2014 be set aside.

 

6   The question whether to appoint a tutor for the applicant in proceedings 2013/232241 and 2013/244238 be remitted to the Equity Division.

 

7   Appeal be otherwise dismissed.

 8   The respondents pay the applicant’s costs of the summons seeking leave to appeal and of the appeal.

Catchwords:

PROCEDURE – tutors – determination that a person is under a legal incapacity – whether such a determination by a court has the effect that proceedings involving such a person are automatically stayed – Uniform Civil Procedure Rules 2005 (NSW), r 7.14

 

PROCEDURE – tutors – application for appointment of tutor – requirement to nominate a person as tutor and to provide evidence that the proposed tutor consents to being appointed – Uniform Civil Procedure Rules 2005 (NSW), r 7.18(5)

PROCEDURE – tutors – appointment of tutor – regularity of orders purporting to appoint a tutor without naming a person as tutor – Uniform Civil Procedure Rules 2005 (NSW), Pt 7 Div 4

Legislation Cited:

Australian Human Rights Commission Act 1986 (Cth)
Civil Procedure Act 2005 (NSW), s 14
Crimes (Domestic and Personal Violence) Act 2007 (NSW), Pt 5
Disability Discrimination Act 1992 (Cth)
NSW Trustee and Guardian Act 2009 (NSW), s 41
Privacy Act 1988 (Cth)
Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth)
Privacy Regulation 2013 (Cth)
Succession Act 2006 (NSW), Ch 3 Pt 3.2
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 7.13, 7.14, 7.15, 7.16, 7.18, 36.15, 51.12, 51.16, 51.25

Cases Cited:

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794
Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 2) [2015] NSWSC 33
Mao v AMP Superannuation Fund [2015] NSWCA 178

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)

Representation:

Counsel:
Self-represented (Applicant)
Mr JG Duncan (First and Third Respondents)
Mr DF Villa (Second and Fourth Respondents)

  Solicitors:
Self-represented (Applicant)
Turks Legal (Respondents)

File Number(s):

2015/13717

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Date of Decision:

18 December 2014

Before:

Hallen J

File Number(s):

2013/232241; 2013/244238

Judgment

1. THE COURT: By summons filed on 12 March 2015, Ms Youhua Mao seeks leave to appeal from orders made on 18 December 2014 (the December Orders) by a judge of the Equity Division (the primary judge). The orders were made in two separate proceedings brought by Ms Mao. By the December Orders, the primary judge, being satisfied that Ms Mao is a person under legal incapacity, purported to order that a tutor be appointed for her in each of the two proceedings. However, no person was actually nominated by his Honour as Ms Mao’s tutor. Rather, his Honour ordered the defendants in one of the proceedings to continue to make attempts to nominate a tutor who consents to be appointed. Those attempts have so far been unsuccessful.

Persons under Legal Incapacity

2. Division 4 of Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) deals with “persons under legal incapacity”. Rule 7.14 provides as follows:

7.14 Proceedings to be commenced or carried on by tutor

(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.

(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.

Rule 7.13 provides that, in Div 4, “person under legal incapacity includes a person who is incapable of managing his or her affairs”.

3. Rule 7.16 provides that a tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed the tutor’s consent to act as tutor and a certificate, signed by the tutor’s solicitor, to the effect that the tutor does not have an interest in the proceedings adverse to that of the person under legal incapacity. Rule 7.15(1) contemplates that a person may become the tutor of a person under legal incapacity without the need for any formal instrument of appointment or any order of the Court.

4. Rule 7.18 deals with a court’s power to appoint and remove tutors. The relevant provisions are as follows:

(1) In any proceedings in which a party is or becomes a person under legal incapacity:

(a) if the person does not have a tutor, the court may appoint a tutor, or

(b) if the person has a tutor, the court may remove the party’s tutor and appoint another tutor.

[…]

(3) If the court removes a party’s tutor, it may also stay the proceedings pending the appointment of a new tutor.

[…]

(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:

(a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and

(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.

5. The fact that power is conferred, by r 7.18(3), to stay the proceedings tends to suggest that, absent its exercise, the proceedings will not be stayed even though there is a finding of legal incapacity and no tutor is in place. On the other hand, that conferral of power may be seen to be in tension with the proscription in r 7.14(1), which constitutes an effective bar to the proceedings albeit that the word “stay” is not used. On that analysis, the power conferred by r 7.18(3) would be surplusage, because the absence of a tutor (by reason of his or her removal by the court) would enliven the proscription in r 7.14(1). However, r 7.14(1) only prevents the person under legal incapacity from commencing or carrying on proceedings; that is to say, it does not apply to all parties to the proceedings. That rule must be read in conjunction with r 7.17, which provides:

7.17 Non-appearance of person under legal incapacity

(1) Subject to subrule (2) [which applies to proceedings in the Local Court], the plaintiff in proceedings against a defendant who is a person under legal incapacity may take no further step in the proceedings following service of the originating process until a tutor has entered an appearance on behalf of the defendant.

Note. If no such appearance is entered, the plaintiff may apply to the court under rule 7.18 for the appointment of a tutor of the defendant, or for the removal and appointment of such a tutor.

Thus, a party may commence proceedings against a defendant who is under legal incapacity by filing an originating process (which is explicitly contemplated by r 7.17(1)), with service being made in accordance with r 10.12 of the UCPR. In that situation, r 7.17(1) prevents the plaintiff from taking any further steps in the proceedings until the defendant’s tutor has entered an appearance on the defendant’s behalf. In the absence of such an appearance being filed, the plaintiff may apply to the court under r 7.18 for the appointment of a tutor. The consequence of the foregoing is that there is a very limited extent to which the operation of r 7.1(1) does not effect a complete stay of the proceedings.

Procedural History

Pre-Trial Directions Hearings

6. On 31 July 2013, Ms Mao commenced proceedings 2013/232241 (the AMP Proceedings) against AMP Superannuation Ltd and AMP Life Ltd (the AMP Parties) by statement of claim. She sought declarations that she was entitled to a total and permanent disablement benefit from one or other of the AMP Parties. On 12 August 2013, Ms Mao commenced proceedings 2013/244238 (the BT Proceedings) against BT Funds Management Ltd and AIA Australia Ltd (the BT Parties). She sought declarations that she was entitled to a total and permanent disabled benefit from one or other of the BT Parties. In both proceedings, when they were commenced, Ms Mao was represented by Maurice Blackburn, solicitors.

7. In January and February 2014, Maurice Blackburn served on the AMP Parties Ms Mao’s evidence and evidentiary statement in the AMP Proceedings. It is unclear whether that same material was served on the BT Parties at that stage. On 11 February 2014, the solicitor representing the AMP Parties received an authority to release information addressed to AIA Australia Ltd signed by Ms Mao dated 3 February 2014. The document authorised the release of documents “in relation to my claim for a Total and Permanent Disablement benefit” to the AMP Parties. Those documents, which include a psychiatric assessment report of Dr Zoltan Zsadanyi, consultant psychiatrist, were provided to the solicitor representing the AMP Parties on or about 13 March 2014.

8. A settlement conference took place at the offices of Maurice Blackburn on 3 April 2014. That conference was unsuccessful. On 8 April 2014, Maurice Blackburn informed the solicitors for the AMP Parties that Ms Mao had withdrawn their retainer. At a directions hearing before the Registrar in Equity the following day, Maurice Blackburn sought a three-week adjournment to the proceedings and indicated that Ms Mao was unwell and was being admitted to a psychiatric facility. They informed the Registrar that they were unable to obtain meaningful instructions from her. On 15 April 2014, Maurice Blackburn filed a Notice of Ceasing to Act for Ms Mao in each of the AMP Proceedings and the BT Proceedings.

9. On 30 April 2014, a directions hearing was conducted by the Equity Registrar. Mr Simon Smith was given leave to appear for Ms Mao. Mr Smith provided to the solicitor for the AMP Parties a document purporting to be signed by Ms Mao authorising him to represent her at the hearing because she was unfit to appear. Mr Smith has been described as Ms Mao’s “carer” and regularly gives her assistance in connection with court appearances.

10. Mr Smith informed the Registrar that Ms Mao could not attend Court, but intended to pursue her claims and wished to obtain a hearing date. The Registrar listed the AMP Proceedings for hearing on 29 and 30 September and 1 October 2014 and made the usual orders for hearing. Mr Smith asked that the hearing take place in Newcastle. The Registrar informed Mr Smith that he would need to approach the judge hearing the matter to make arrangements for the proceedings to be heard in Newcastle. On 15 August 2014, the Registrar listed the BT Proceedings for hearing on 3 September 2014 before Rein J.

11. The primary judge conducted a pre-trial directions hearing for the AMP Proceedings on 18 August 2014, in which Ms Mao participated by audio-link. The primary judge allowed Mr Smith to speak on Ms Mao’s behalf and to otherwise assist her. His Honour was informed that no affidavits had been served by either side but that the solicitors for the AMP Parties had provided to Ms Mao’s solicitors the documents upon which the AMP Parties intended to rely. His Honour then gave directions as follows:

1. The solicitors for the AMP Parties were to prepare and send to Ms Mao by 29 August 2014 an index of documents intended to be relied upon, together with a copy of the documents;

2. Ms Mao was to deliver to the office of the solicitors for the AMP Parties by 5 September 2014 any documents not referred to but sought to be relied upon by her;

3. The solicitors for the AMP Parties were to deliver to the primary judge no later than 19 September 2014 a bundle of documents, including pleadings, affidavits and any documents intended to be relied upon by either party, and to serve a copy on Ms Mao by the same time;

4. Each party was to deliver an outline of submissions and serve the outline on the other party by the same time.

Raising of the Tutor Issue

12. After the primary judge had given those directions, counsel for the AMP Parties said that he wished to raise an issue in relation to the legal capacity of Ms Mao and said that his Honour would wish to be satisfied as to Ms Mao’s ability to represent herself in the proceedings. Counsel also referred to the BT Proceedings and said that his expectation was that the same medical issue and the same factual background issues would be raised in both proceedings. He said that, while different insurance policies were involved, which might have different insuring clauses, the factual matrix, including the medical factual matrix, would be the same. For those reasons, it was submitted, the two sets of proceedings should be heard together. Ms Mao denied that there was any issue about her capacity and asserted that the AMP Proceedings and the BT Proceedings were separate proceedings, that the defendants were all different and that the only similarity was that the lawyers for the defendants in each of the proceedings were the same.

13. At that time, the primary judge was not apprised of Ms Mao’s medical condition and there was no notice of motion before him for the appointment of a tutor for Ms Mao. For those reasons, the primary judge indicated to the parties that he would not make any order concerning the appointment of a tutor at that time and that any application should be made by way of notice of motion, together with an affidavit in support, which should be served upon Ms Mao. His Honour also indicated that any application for the two proceedings to be heard together should also be made by notice of motion supported by affidavits. His Honour suggested that any such application should be made to the applications judge as soon as reasonably possible.

14. On 25 August 2014, the AMP Parties filed notice of motion seeking orders that:

1. a tutor be appointed for Ms Mao under r 7.18 of the UCPR;

2. the BT Proceedings be heard concurrently with the AMP Proceedings, with evidence in one being evidence in the other;

3. the hearing listed to commence on 29 September 2014 be vacated.

15. At about the same time, Ms Mao filed a notice of motion bearing the date 20 August 2014 seeking an order that the hearing listed to commence on 29 September 2014 take place in Newcastle. In support of that notice of motion were two documents entitled “Court Statement”, one prepared by Ms Mao and the other by Mr Smith. Both documents made reference to the geographical distance between Ms Mao’s place of residence (in Dungog, NSW) as well as to Ms Mao’s mental health professionals who are based in Newcastle.

16. Both of those motions were listed for hearing before Young AJ on 3 September 2014. Ms Mao did not appear, either personally or by a representative, when the motions were called on for hearing. After hearing briefly from counsel for the AMP Parties and the solicitor for the BT Parties, his Honour noted that the AMP Parties would arrange for a tutor to be appointed for Ms Mao. His Honour noted that the appointment would be made in chambers on 1, 2 or 3 October 2014 and that, if Ms Mao wished to be heard on the matter, she should notify the Registrar accordingly so that it could be listed in Court.

17. Young AJ then ordered that the hearing before the primary judge fixed to commence on 29 September 2014 be vacated and ordered that directions (2), (3) and (4) made by the primary judge on 18 August 2014 be vacated. His Honour confirmed direction (1) made on 18 August 2014. His Honour also ordered that the AMP Proceedings and the BT Proceedings be heard together with the evidence in one to be evidence in the other. That effectively disposed of prayers (2) and (3) of the notice of motion filed by the AMP Parties on 25 August 2014. However, it left prayer (1) unresolved.

18. Young AJ also directed that, within 28 days of a tutor being appointed, Ms Mao was to deliver to the solicitors for the AMP Parties any documents not previously referred to but to be relied upon by her and ordered that the evidence of the BT Parties be prepared in a bundle duly indexed and sent to Ms Mao no later than 26 September 2014. His Honour also indicated that, provided that arrangements could be made for a courtroom to be available, the Court would sit in Newcastle on 26 March 2015 with the remainder of the case to be heard in Sydney on 27 and 30 March 2015, provided that Ms Mao’s medical witnesses were able to attend. His Honour ordered that the matter be listed for further directions on 1 October 2014.

Proceedings before the Primary Judge

19. The primary judge conducted a directions hearing on 1 October 2014 when Ms Mao appeared by audio-link. His Honour permitted Mr Smith to assist Ms Mao. The AMP Parties and the BT Parties were separately represented. His Honour fixed for hearing on 5 November 2014 the outstanding prayer in the motion by the AMP Parties for the appointment of a tutor.

20. On 10 October 2014, Ms Mao filed a notice of motion in the AMP Proceedings seeking leave to file an amended statement of claim and an order that the proceedings be heard by a jury. The following month, Ms Mao served a notice of motion in the BT Proceedings dated 3 November 2014 seeking leave to issue subpoenas and an order that, after 5 November 2014, all further proceedings be conducted in Newcastle.

21. Following a hearing on 5 November 2014, in which the AMP Parties and the BT Parties were represented by counsel, and Ms Mao appeared in person with the assistance of Mr Smith, the primary judge made the December Orders, for reasons that he published on that day. The December Orders were as follows:

(i) Being satisfied that [Ms Mao] is a person under a legal incapacity, orders that a tutor be appointed for [her];

(ii) Orders that [the AMP Parties] 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) [the NSW Guardian Act] that [Ms Mao] 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;

(iii) Orders that [Ms Mao’s] notice of motion to have the proceedings heard with a jury be dismissed;

(iv) Orders that [Ms Mao’s] notice of motion for leave to issue subpoenas be dismissed;

(v) Orders that any argument about costs be dealt with on the adjourned date, if any application for costs is made by, or on behalf of, any of the Defendants;

(vi) Orders that [Ms Mao’s] application to set aside the order made by Young AJ that the AMP Proceedings and BT Proceedings be heard together, with the evidence in one being evidence in the other, be adjourned to the adjourned date;

(vii) Orders that [Ms Mao’s] notice of motion for leave to amend the Statement of Claim be adjourned to the adjourned date;

(viii) Stands the proceedings over to a date convenient for the parties and the court.

In the course of his reasons published on 18 December 2014, the primary judge observed that the effect of r 7.14 of the UCPR was that, until a tutor was actually nominated and files the relevant documents, nether of the proceedings could continue. [1]

1. Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794 at [148].

22. As indicated above, on 12 March 2015, Ms Mao filed a summons seeking leave to appeal from the December Orders. The summons records that Ms Mao had filed and served a notice of intention to appeal (in both proceedings) on 7 January 2015, but the Court’s computerised record system shows it as having been filed on 15 January 2015. Nothing turns on that discrepancy.

23. In the meantime, the AMP Proceedings and the BT Proceedings were listed for directions before the primary judge on 4 February 2015. However, on 3 February 2015, Ms Mao sent to the primary judge (but apparently did not file) a notice of motion seeking an order that his Honour be disqualified for bias from hearing the AMP Proceedings and the BT Proceedings.

24. At the directions hearing on 4 February 2015, Ms Mao appeared by audio-link. She was again assisted by Mr Smith. Ms Mao asked that the directions hearing be adjourned because she did not wish to deal with any of the matters arising from the reasons published on 18 December 2014. The primary judge observed that there was no evidence that the AMP Parties had been able to locate a person who was prepared to act as tutor for Ms Mao and that it was unlikely that Ms Mao would cooperate in any event. [2] Counsel for the AMP Parties indicated that they did not wish to make any application for a declaration as to Ms Mao’s inability to manage her affairs under the NSW Guardian Act. Counsel for the BT Parties also indicated that they did not wish to seek such relief. Both indicated that it was a matter for the Court.

    2. Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 2) [2015] NSWSC 33 at [28].

25. The primary judge therefore concluded that the Court should not of its own motion make any declaration as to Ms Mao’s inability to manage her affairs or make a partial management order under the NSW Guardian Act. [3] Both proceedings were then adjourned sine die, for reasons that his Honour delivered ex tempore on 4 February 2015.

    3. [2015] NSWSC 33 at [31].

26. The summons seeking leave to appeal joins both the AMP Parties and the BT Parties as respondents. They are also named as respondents in the draft notice of appeal provided in connection with the application for leave to appeal. A direction has been given that any appeal, if leave be granted, be heard concurrently with the application for leave to appeal.

Pre-Appeal Hearings in this Court

27. At a directions hearing on 20 April 2015, the Registrar of the Court of Appeal directed that the AMP Parties and the BT Parties prepare the white book necessary for the hearing of the application for leave to appeal and any appeal. The Registrar directed Ms Mao to indicate any further documents that she wished to be included in the white book beyond those included in the papers that were to be prepared by the AMP Parties and the BT Parties. In due course, the AMP Parties and the BT Parties prepared and filed and served a white book consisting of two volumes.

28. On 17 June 2015, Ms Mao filed a notice of motion seeking an order that the white book filed by the AMP Parties and the BT Parties be struck out. The basis for that application was that the UCPR provides that an applicant for leave to appeal or appellant is to prepare the relevant papers. [4] Further, Ms Mao complained that some of the material in the white book was irrelevant because it came after the date of the December Orders. She said that she was at a disadvantage in having to conduct the proceedings from papers prepared by the other parties.

    4. UCPR, r 51.12 (1) and r 51.25(1).

29. On 22 June 2015, that motion came before Emmett JA who ordered that the application be dismissed and gave directions for the completion of the preparation of documents for the hearing, which had already been fixed for 13 July 2015. [5] The Court has power to dispense with the provisions of the UCPR. [6] In particular, such a power is expressly conferred in relation to the preparation of appeal papers. [7] Emmett JA saw no reason to dismiss the white book as Ms Mao had sought.

    5. Mao v AMP Superannuation Fund [2015] NSWCA 178.

    6. See Civil Procedure Act 2005 (NSW), s 14: “In relation to particular civil proceedings, the court may, by order, dispense with any requirement of the rules of court if satisfied that it is appropriate to do so in the circumstances of the case”.

    7. UCPR 51.25(1) (“Unless the Court directs otherwise”).

30. On 10 July 2015, Ms Mao filed an application for special leave to appeal to the High Court from the orders of Emmett JA on 22 June 2015.

The Hearing on 13 July 2015 and the Oral Applications

31. The summons for leave to appeal, and the appeal (if leave were granted) was fixed for hearing on 13 July 2015. At the request of Ms Mao, the time for commencement of the hearing was deferred from 10.15 am to 11.45 am to accommodate Ms Mao’s need to travel to Sydney from Dungog and to attend a doctor’s appointment in Sydney in the morning.

32. When the matter was called on for hearing, Ms Mao moved the Court for an order that the Court disqualify Emmett JA from sitting on the application for leave to appeal and any appeal if leave were to be granted. The application was made orally and was based on the fact that Emmett JA had dismissed the motion filed by Ms Mao seeking an order that the white book be set aside. Ms Mao submitted that, because his Honour had dismissed her application, partly on the basis that there was a power to depart from the provisions of the UCPR, there would be a miscarriage of justice if he sat on the present application. Emmett JA indicated that he did not consider that he was biased or that there could be any justification for any apprehension of bias and that he was not disposed to recuse himself. If one party objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case. [8]

    8. See, eg, Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [19].

33. Ms Mao then sought an adjournment of the hearing of the summons for leave to appeal. She also purported to demand that the Court provide a judgment on her application for the Court to disqualify Emmett JA. Beazley ACJ informed Ms Mao that it was not a matter for the Court but was a matter for the judge concerned as to whether the judge should recuse himself. Her Honour pointed out on several occasions in response to Ms Mao that, if she were unsuccessful in her application, she could, if she wished, raise bias or apprehended bias as a ground for impugning this Court’s decision in an application for special leave to appeal. Her Honour informed Ms Mao on a number of occasions that the Court would not be giving a judgment in relation to the disqualification application.

34. Beazley ACJ then indicated to Ms Mao several times that the summons for leave and the appeal were fixed for hearing and that Ms Mao should make such submissions as she wished to make in support of the grant of leave. The Court adjourned for five minutes to give Ms Mao the opportunity to consider whether to proceed with presenting submissions in support of her summons. Ms Mao did not make any further submissions in support of the summons for leave. Accordingly, her Honour called upon counsel for the AMP Parties and the BT Parties.

35. At 12:55 pm, the Court adjourned the hearing to 2:15 pm. However, shortly thereafter, the Court received a message from Ms Mao that she needed to leave the Law Courts Building no later than 2 pm in order to catch her train back to Dungog. In the circumstances, the Court resumed the hearing and continued until 1:55 pm.

36. In the course of submissions from counsel for the AMP Parties and the BT Parties, the Court raised the question of the competence of the appeal in the light of r 7.14, to which reference has been made. The Court also raised the question of the regularity of the December Orders, in so far as they purport to appoint a tutor without actually naming a person as tutor. It became apparent that counsel for the AMP Parties and counsel for the BT Parties were not necessarily ready to deal with such questions.

37. After further submissions from counsel for the AMP Parties and the BT Parties, Ms Mao was invited to reply. However, she did not make any substantive submissions, but complained that she had not been heard and demanded the right to be heard. Ms Mao was again given the opportunity of making submissions in support of her substantive application for leave to appeal, but declined to make any further submissions on that matter. The Court then reserved its decision.

The Reasons of the Primary Judge

38. The primary judge had before him evidence intended to be relied upon by Ms Mao in the substantive proceedings, consisting of a forensic report dated 2 June 2013 by Dr Bruce Westmore, a forensic psychiatrist. Dr Westmore expressed the following opinion in relation to Ms Mao:

Her day to day activities are significantly impacted in a negative way as a result of her psychiatric illnesses and, were it not for the support of her friend [Mr Smith], I suspect she would need to be institutionalised. I do not believe Ms Mao could maintain herself independently in the community.

[…]

Her prognosis unfortunately is extremely poor. That conclusion has been reached because of the chronic nature of her illness and [its] treatment resistance.

At this time it needs to be said that she will require psychiatric treatment indefinitely. Further admissions to hospital cannot be excluded, nor can the possibility of further institutional care be excluded.

39. In his reasons of 18 December 2014, the primary judge indicated that his Honour was not satisfied that Ms Mao has the capacity to understand that she could possibly lose one or both of the AMP Proceedings and the BT Proceedings in whole or in part if such a matter were explained to her. [9] While his Honour considered that Ms Mao has the capacity to understand and did understand the Court processes when such matters were explained to her, his Honour was not certain that she would be able to do so during a hearing, particularly a hearing involving objections to evidence and cross-examination of witnesses (as well as her own cross-examination). [10] His Honour considered that Ms Mao does not have the capacity to understand the roles of counsel and solicitors for the defendants. [11]

    9. [2014] NSWSC 1794 at [138].

    10. Ibid at [133].

    11. Ibid at [135].

40. Further, the primary judge doubted that Ms Mao is able to consider the possibility that a particular claim made by her in her statement of claim could fail. His Honour did not consider that she is capable of assessing any settlement proposal on its merits. [12] His Honour considered that some of the statements made by Ms Mao demonstrate her inability to understand the nature of the litigation in which she is engaged, the possible outcomes of the litigation and the risks associated with it, including the possibility of an adverse costs order if she is unsuccessful. [13] His Honour concluded:

I have given careful consideration to the opposition of [Ms Mao] to the application. I am conscious of the significance of my decision and its effect on her. Whilst weight must be given to her wishes, the issue for determination is whether she is a person under a legal incapacity. In all the circumstances, I am satisfied that [Ms Mao] is a person under a legal incapacity and that an order should be made for the appointment of a tutor. [14]

[…]

UCPR rule 7.14 provides that, as such, [Ms Mao] may not carry on proceedings except by her tutor. Thus, until the tutor is actually nominated and files the relevant documents, both proceedings cannot continue. [15]

12. Ibid at [139].

13. Ibid at [145].

14. Ibid at [146].

15. Ibid at [148].

41. The primary judge observed that no submissions were made at the hearing about whether Ms Mao meets the test for being incapable of managing her affairs within the meaning of the NSW Guardian Act. Section 41(1) of that Act provides that, if the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under that Act. The Court may also appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee. The Court may make an order on its own motion or on the application of any person having a sufficient interest in the matter (s 41(2)).

The Grounds of Appeal

42. Ms Mao’s proposed grounds of appeal might fairly be summarised as follows:

1. Ms Mao’s right to be heard and to represent herself and her right to privacy were violated by a process in which procedural fairness was denied;

2. The orders of Young AJ of 3 September 2014 were made irregularly, illegally and against good faith, and without Ms Mao’s knowledge, her private information has been given to eight law firms and at least two other organisations by the solicitors acting for the AMP Parties and the BP Parties;

3. The primary judge did not have jurisdiction to re-hear and re-decide matters that had already been decided by Young AJ;

4. Instead of exercising power under r 36.15 of the UCPR to set aside the orders made by Young AJ, the primary judge exercised the power to neutralise Ms Mao’s position in order to stop her from taking legal action against Young AJ and the solicitors for the AMP Parties and the BT Parties;

5. The hearing of 5 November 2014 constituted misleading and deceptive conduct;

6. The “dimension of law” was absent in the December Orders;

7. The reasons of the primary judge were based on highly selective, highly prejudicial and inadmissible materials and on fabrication and falsification.

43. In the summary of argument filed in support of the summons for leave to appeal, Ms Mao repeats the assertions made in the draft notice of appeal by way of purported compliance with the requirement of r 51.12(4)(a) to state the nature of her case. In purported compliance with the requirement of r 51.12(4)(b) to state the questions involved, Ms Mao poses questions as follows:

• Why the orders made by Young AJ were made irregularly, illegally and in bad faith,

• How the primary judge exercised the power in r 36.15(1) as a “back door” to reopening those matters, and

• Under what circumstances the judgment of 18 December 2014 was made and why the whole of it should not “be thrown out”.

In purported compliance with the requirement of r 51.12(4)(c) to state her argument, Ms Mao sets out a detailed chronology commencing with the fixing of the proceedings for hearing on 30 April 2014 and various other events leading up to the hearing on 5 November 2014, which are summarised above.

44. The summary of argument enlarges on the complaint that “the dimension of law was absent” in the December Orders by referring to the following legislation but without reference to any particular provisions of the legislation:

• The Privacy Act 1988 (Cth);

• The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth);

• The Privacy Regulation 2013 (Cth);

• The Disability Discrimination Act 1992 (Cth);

• The Australian Human Rights Commission Act 1986 (Cth).

The reference to that legislation appears to be made in support of a complaint that the reasons of the primary judge of 18 December 2014 have been made public.

45. In support of the complaint that the reasons of the primary judge were based on “highly selective, highly prejudicial” and “inadmissible” materials, the summary of argument refers to affidavits filed on behalf of the AMP Parties. Ms Mao complains that the affidavits had been “presented against me and against my rights, but none of them had been tested”. Ms Mao also complains about the white book prepared in connection with the proceedings. No contention appears to be advanced in the draft notice of appeal or in the summary of argument to the effect that the primary judge erred in forming the opinion that Ms Mao is a person under legal incapacity. Nevertheless, 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.

Competence of the Appeal

46. The December Orders were interlocutory orders made by the primary judge, so that an appeal lies, subject to the grant of leave, pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW). However, on one view, a view that the BT Parties appeared to accept in oral submissions, the commencement of proceedings by filing the summons for leave to appeal was prohibited by r 7.14(1) of the UCPR. As indicated above, the order that is said to engage r 7.14 was in the following terms:

Being satisfied that [Ms Mao] is a person under a legal incapacity, orders that a tutor be appointed for [Ms Mao].

It was suggested that that amounted to a declaration that Ms Mao was a person under legal incapacity. That raises the question of the competency of the proceedings in this Court. That is to say, the filing of the summons for leave to appeal was the commencement of proceedings but, if Ms Mao is a person under legal capacity, r 7.14 prohibited her from taking that step.

47. The reasons of 18 December 2014 make it plain that the primary judge was satisfied that Ms Mao was a person under legal incapacity and that his Honour was conscious that the result of that finding, in conjunction with r 7.14, was that neither the AMP Proceedings nor the BT Proceedings could continue. [16] However, his Honour does not appear to have had regard to the effect of r 7.14 on what would erstwhile have been Ms Mao’s right to seek leave to appeal. His Honour’s reasons of 4 February 2015 make it clear that his Honour was aware of the notice of intention to appeal, but again did not address the question.

    16. Quoted above at [40].

48. Division 4 of Pt 7 of the UCPR proceeds on the basis that, if, as a matter of fact, a person is under legal incapacity, that person may not commence or carry on proceedings except by a tutor. There is considerable justification for such a scheme. A person under legal incapacity should not be permitted to commence or carry on proceedings to the detriment of that person unless represented by another person who is able to make reasoned and sensible forensic decisions on behalf of the first person in relation to the proceedings.

49. Therefore, the assumption in Div 4 of Pt 7 is 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. Thus, evidence as to both of those matters is explicitly required by r 7.18(5). Division 4 proceeds on the basis that, if it is determined that the relevant person is under legal incapacity, there will, at the same time, be an appointment of a tutor who (unlike the person for whom the tutor is appointed) would then be entitled to commence or carry on proceedings.

50. That is to say, with the possible exception of where a tutor is removed, the regime established by Div 4 does not contemplate an occasion such as the present, where there is no one who can commence or carry on any proceedings, since there is no automatic stay of proceedings simply because a court has determined that a party is a person under legal incapacity. That could be critical in circumstances where the relevant party is a defendant. That is to say, the scheme of Div 4 generally is not consistent with the appointment of a tutor “in gross”. The power of the Court is to appoint a person as tutor. Unless an identified person, who has consented to act, is appointed as tutor, the power is not exercised.

51. However, necessarily implicit in the AMP Parties’ motion of 25 August 2014 was a capacity to bifurcate the determination of legal incapacity, on the one hand, and the appointment of a tutor, on the other. That was plain on the face of prayer (1) of the motion, in so far as it simply sought the appointment of a tutor without identifying any person who could be so appointed. Such a bifurcation collides with the scheme of Div 4, the structure of r 7.14(1) and the particular requirement of r 7.18(5)(b).

47. The difficulty occasioned by the way in which the motions proceeded before the primary judge is particularly acute in the present circumstances. Ms Mao claims to be entitled to be paid relatively large amounts of money by both of the AMP Parties and the BT Parties, although the merits of those claims are not before this Court. On one view of r 7.14, being the view that appears to be embraced by the AMP Parties and the BT Parties, the inevitable consequence of the December Orders is that no one is able to prosecute Ms Mao’s claim that they pay her large amounts of money. That was established at the latest when the December Orders were made.

48. Neither the AMP Parties nor the BT Parties sought to rely upon r 7.14 in their written submissions opposing Ms Mao’s summons seeking leave to appeal, and this Court has not received full argument on the question. It is therefore undesirable for this Court to express a final view as to the operation of r 7.14 in circumstances such as these. The present situation, in which Ms Mao may not be able to commence or carry on proceedings and there is no tutor who can, has arisen only because of the failure by the AMP Parties to comply with r 7.18(5). The notice of motion filed on behalf of the AMP Parties on 25 August 2014 was defective in that, while the first prayer was for an order that a tutor be appointed for Ms Mao, no person was nominated as tutor. More significantly, there was no evidence to satisfy r 7.18(5)(b) that any person had consented to act as tutor. The BT Parties filed no equivalent motion but appear to have supported the making of an order in the BT Proceedings in terms similar to the orders sought in the AMP Proceedings.

49. It is unclear whether attention was drawn before the primary judge to the AMP Parties’ requirement to comply with r 7.18(5)(b). However, it is clear enough that his Honour was concerned by the absence of a proposed tutor in so far as he observed that one of the things that he was troubled about in relation to the appointment of a tutor was that, “if the matters [were] maintained in their present form, the proceedings may be sidelined because [the AMP Parties] have not been able to appoint a tutor.”

50. 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.

51. Nevertheless, it is a serious thing to engage a prohibition expressed in universal terms against commencing or carrying on proceedings. For example, the prohibition in r 7.14 could prevent the seeking of an apprehended personal violence order,[17] the making of an application for a family provision order under Pt 3.2 of Ch 3 of the Succession Act 2006 (NSW), or, on one view, even the making of an application for bail.

    17. See Crimes (Domestic and Personal Violence) Act 2007 (NSW), Pt 5.

52. None of the foregoing resolves the question as to the effect of r 7.14 on the proceedings purportedly commenced and carried on in this Court. Rule 7.14(1) relevantly provides that a person under legal incapacity may not commence proceedings except by his or her tutor. While r 7.15(1) provides that a person may become a tutor without any formal instrument of appointment or any order of a court, no submission has been advanced that any person has become a tutor of Ms Mao and no tutor has been appointed by the Supreme Court. Accordingly, at present, Ms Mao has no tutor.

53. The filing of the summons for leave to appeal must be taken to have been the commencement of proceedings for the purpose of r 7.14(1). Since no tutor has been appointed and it has not been suggested that any person has become Ms Mao’s tutor, there must be a concern (though it need not be conclusively resolved here) that the purported commencement of the proceedings in this Court, by the filing of the summons for leave to appeal, was defective. Just as the primary judge observed that, until a tutor is actually nominated and files the relevant documents, the AMP Proceedings and the BT Proceedings could not continue,[18] so until that happens the present proceedings in this Court cannot continue. That is the consequence of r 7.14(1) in so far as it provides that a person under legal incapacity may not commence or carry on proceedings except by his or her tutor.

    18. Quoted above at [40].

Conclusion

59. For the reasons indicated above, the summons for leave to appeal may be incompetent since Ms Mao had no capacity to commence proceedings of that nature. However, in the absence of a tutor, there may be no scope for her to impugn the conclusions of the primary judge. That circumstance has been brought about by the AMP Parties because of their failure to comply with r 7.18 in their original application for the appointment of a tutor. In the circumstances, the appropriate, and pragmatic, course is to dispense with compliance with the UCPR to the extent that r 7.14(1) would prevent Ms Mao from commencing proceedings by way of filing the summons for leave to appeal, or filing any notice of appeal if leave is granted, and in so far as r 7.14(1) would prevent Ms Mao from carrying on any such proceedings. This Court has power to do so under s 14 of the Civil Procedure Act.

60. Leave to appeal should be granted and an order should be made that the requirement for the filing of a notice of appeal (under r 51.16(1)(a) of the UCPR) be dispensed with. The appeal should be allowed in part and orders (i) and (ii) of the December Orders should be set aside. There is nothing in the balance of the submissions advanced, ultimately only in writing, by Ms Mao. The question of the appointment of a tutor in each of the AMP Proceedings and the BT Proceedings should be remitted to the Equity Division. The AMP Parties and the BT Parties should pay Ms Mao’s costs of the summons for leave to appeal and of the appeal, if there are any costs.

61. 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.

62. The following orders should therefore be made:

1. The requirements of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the commencement and carrying on of these proceedings by way of application for leave to appeal and appeal.

2. Leave to appeal be granted.

3. The requirement for the filing of a notice of appeal be dispensed with.

4. Appeal be allowed in part.

5. Orders (i) and (ii) of the orders made on 18 December 2014 be set aside.

6. The question whether to appoint a tutor for the applicant in proceedings 2013/232241 and 2013/244238 be remitted to the Equity Division.

7. Appeal be otherwise dismissed.

8. The respondents pay the applicant’s costs of the summons seeking leave to appeal and of the appeal.

**********

Endnotes

Decision last updated: 27 August 2015