Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd
[2014] NSWSC 1794
•18 December 2014
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794 Hearing dates: 5 November 2014 Decision date: 18 December 2014 Jurisdiction: Equity Division Before: Hallen J Decision: (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.
(iii) Orders that the Plaintiff's notice of motion to have the proceedings heard with a jury be dismissed.
(iv) Orders that the Plaintiff'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 the Plaintiff's application to set aside the order made by Young AJ that the AMP Proceedings and the BT Proceedings be heard together, with the evidence in one being evidence in the other, be adjourned to the adjourned date.
(vii) Orders that the Plaintiff's notice of motion to amend the Statement of Claim be adjourned to the adjourned date.
(viii) Stands the proceedings over to a date convenient to the parties and the court.
Catchwords: PROCEDURE - Supreme Court procedure - Application by Defendants for appointment of tutor for self-represented Plaintiff - Opposition by Plaintiff - Meaning of "person under legal incapacity" in UCPR - Applicable principles - Difficulty in nominating tutor who consents to act - Adjournment of application to determine whether, if a tutor cannot be nominated, a declaration and order may be made under s 41 of the NSW Trustee and Guardian Act 2009 (NSW)
Plaintiff's application for trial by jury - Whether "interests of justice" require trial by juryLegislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)Cases Cited: Bowering v Knox & Bowering [2014] NSWSC 1107
Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200
Dunhill v Burgin [2014] UKSC 18; [2014] 1 WLR 933
Goddard Elliott v Fritsch [2012] VSC 87
Iskandar v Mahbur (No 6) (Supreme Court (NSW), Slattery J, 15 February 2012, unrep)
Iskandar v Mahbur [2011] NSWSC 1056
Kirby v Leather [1965] 2 QB 367
Lee v Keddie [2011] NSWCA 2
Malo v South Sydney District Junior Rugby Football League Limited [2008] HCA Trans 135 (7 March 2008)
Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; (2007) 69 NSWLR 496
Masterman-Lister v Brutton [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162
McKenzie v McKenzie [1970] 3 WLR 472; [1971] P 33
Murphy v Doman [2003] NSWCA 249
Rappard v Williams [2013] NSWSC 1279
Simon v Hunter and New England Area Health Service [2009] NSWSC 758
Slaveski v Victoria [2009] VSC 596; (2009) 25 VR 160
Stokes v McCourt [2014] NSWSC 61
Wang v New South Wales [2014] NSWSC 909
White v Fell (England and Wales Court of Appeal (Civil Division), 12 November 1987, unrep)Category: Principal judgment Parties: Youhua Mao (Plaintiff)
AMP Superannuation Ltd and AMP Life Ltd (Defendants in 2013/232241)
BT Funds Management Ltd and AIA Australia Ltd (Defendants in 2013/244238)Representation: Youhua Mao (Plaintiff in person)
Counsel:
Mr J Duncan (Defendants in 2013/232241)
Mr R Perla (Defendants in 2013/244238)
Solicitors:
Turks Legal (Defendants in 2013/232241 and 2013/244238)
File Number(s): 2013/232241; 2013/244238
JUDGMENT
Introduction
HIS HONOUR: In circumstances to which I shall return, there were two proceedings listed before me on 5 November 2014, in each of which Ms Youhua Mao, who is unrepresented, is the Plaintiff. The Defendants in each matter are different, but both matters were listed consecutively, with the intention that, ultimately, they may be heard together.
During the course of that hearing, at which the Plaintiff was personally present, I permitted her to be assisted by Mr S E Smith, who has been helping her for some time in the conduct of the two proceedings which have been before the court on previous occasions. (There was evidence, for example, that the Plaintiff had authorised Mr Smith, in writing, "to represent me and attend the court hearing of 30 April 2014. This is due to the fact that I am unfit to attend today's court hearing".) The Plaintiff, on an earlier occasion the matter was before me, had described Mr Smith as "my friend, my carer".
Mr Smith acknowledged that he is not a legal practitioner and that he does not seek to appear on the Plaintiff's behalf as her advocate. I permitted him to sit at the bar table, during the course of the hearing, and to assist the Plaintiff in presenting her case. He played the role of her "McKenzie friend" (that name being derived from the decision of the English Court of Appeal McKenzie v McKenzie [1970] 3 WLR 472; [1971] P 33).
It would be remiss of me not to mention that, throughout the hearing, Mr Smith was disciplined, not in any way disruptive, acted with decorum, and, on the occasions that I asked him to assist, he did so with utmost courtesy. I shall return to a matter concerning Mr Smith later in these reasons.
At the hearing on 5 November 2014, the Defendants in the first proceeding, 2013/232241, AMP Superannuation Ltd and AMP Life Ltd, were represented by Mr J Duncan of counsel. Where necessary, I shall refer to this matter as "the AMP Proceedings". In the second proceeding, 2013/244238, the Defendants, BT Funds Management Ltd and AIA Australia Ltd, were represented by Mr R Perla of counsel. Where necessary, I shall refer to this matter as "the BT Proceedings". However, because the approach of the Defendants in both proceedings, in relation to the issues before me, is, essentially, the same, when convenient, I shall refer to them, compendiously, as the Defendants.
I should also mention that each counsel treated the Plaintiff with respect and courtesy, and, in this regard, they tried to ensure that she could understand what submissions were being made. In my view, the conduct of each towards the Plaintiff (and Mr Smith) was exemplary.
I shall be dealing with the manner in which the Plaintiff presented at the hearing later in these reasons. However, it may be said here that she was disciplined, not in any way disruptive, acted with decorum, and did her best to answer the questions put to the best of her ability.
Each of the parties, in accordance with the directions that I made, provided written submissions which will remain with the court papers. It will be necessary to return to the documents sent to me by, or on behalf of, the Plaintiff, later in these reasons.
Finally, by way of introduction, I should mention that the hearing was completed within one day despite the Plaintiff being unrepresented and the magnitude of the written material provided to me.
The Applications
There were the following applications, each brought by the Plaintiff, listed for hearing before me:
(a) An oral application made previously, but renewed, to set aside certain orders made by Young AJ, on 4 September 2014, when the Plaintiff did not appear. This included the order made that the AMP Proceedings and the BT Proceedings be heard together, with the evidence in one being evidence in the other;
(b) A notice of motion, filed 10 October 2014, in which she sought to amend the pleadings, as well as an order that the trial of each matter be conducted with a jury;
(c) A notice of motion, dated 3 November 2014, in which she sought leave to issue a number of subpoenas and an order that both proceedings be "conducted" (which I have taken to mean "heard") in Newcastle.
(This notice of motion is not shown on the court's computerised record system as having been filed in the Registry. However, as it had been served, and as there was no objection to me hearing it, I was prepared to deal with it.)
The Defendants did not oppose the Plaintiff making the oral application to which I have referred, although they did oppose the setting aside of the relevant orders made by Young AJ on 4 September 2014. It was this application that was the most time consuming, before me.
Although it was not perceived at the hearing, there may have been a misunderstanding about whether Young AJ did, in fact, make an order for the appointment of a tutor for the Plaintiff. I shall return to this topic later. It seemed to be accepted, if the order regarding the appointment of a tutor (if made by his Honour) were not set aside, or if a tutor for the Plaintiff is now appointed, the notice of motion to amend the Statement of Claim could not proceed for reasons to which I shall return.
The Defendants also opposed the Plaintiff's application to set aside the order that the matters be heard consecutively. It will not be necessary to deal with that application, at this time, unless the order for the appointment of the tutor is set aside, or if no order for the appointment of a tutor for the Plaintiff is made.
It also seemed to be accepted that leave should not be granted to issue the subpoenas because they were no longer necessary in light of the manner in which the matters had proceeded. The application for leave to issue those subpoenas will be dismissed.
Additionally, the Defendants did not oppose the Plaintiff's application for the proceedings to be heard in Newcastle, which application was, at least in part, determined by Young AJ (as to which, see later). As it is likely that sufficient notice will be given for the final hearings, there will be enough time to ensure that the witnesses, expert and lay, to be called, will not be inconvenienced by having to travel to Newcastle for the final hearings. The court is prepared to hear the proceedings in Newcastle and arrangements will be made, at the appropriate time, for this to occur, if the parties then wish that to happen.
Background to the Claims being heard
The Plaintiff commenced the AMP Proceedings by Statement of Claim filed on 31 July 2013. It is clear that this Statement of Claim was drafted by a lawyer. It identifies a firm of solicitors as then acting as the Plaintiff's legal representatives.
In the Statement of Claim, the Plaintiff, in summary, sought declarations that each of the decisions made by the Defendant, respectively, was void and of no effect, and that she was entitled to a total and permanent disablement benefit under a Trust Deed that established a fund known as "AMP CustomSuper". An order was sought that the second Defendant pay to the first Defendant the amount of the benefit for payment by the first Defendant to the Plaintiff. In the alternative, the Plaintiff sought damages and interest. Other relief was also sought. There were 32 different paragraphs of factual allegations, with additional sub-paragraphs, providing particulars. It appears that the Plaintiff sues for two benefits, a total and permanent disablement benefit of about $25,000, plus a temporary salary continuance benefit of $135,000.
The Defendants in the AMP Proceedings, in a Defence filed on 30 October 2013, in summary, made certain admissions, but denied that the Plaintiff was entitled to the relief that she sought. In particular, they asserted that she was not an Insured Person as defined in the Policy; but, if she was, that the insurance cover ceased on 20 October 2008 when her employment was terminated; that she did not suffer disablement; but, if she did, she did not suffer disablement whilst she was an Insured Person under the Policy; and that the Defendants were entitled to decline the Plaintiff's claim for a TPD benefit, relying upon a letter dated 16 November 2012 from the second Defendant, and the first Defendant's determination dated 5 November 2012.
The Plaintiff commenced the proceedings against BT Funds Management Ltd and AIA Australia Ltd by Statement of Claim filed 12 August 2013. This Statement of Claim identifies the same firm of solicitors as the Plaintiff's legal representative. In summary, the relief claimed was in similar terms but, naturally, related to a different Trust Deed and Policy and different times. The pleadings comprised 29 different paragraphs of factual allegations, as well as a number of sub-paragraphs providing particulars. The amount claimed was $200,813 (and interest) under what was described as "the Employer Policy", or was $209,406 (and interest) under what was described as "the Personal Policy".
The first Defendant, in a Defence filed on 4 December 2013, in summary, made certain admissions, but denied that the Plaintiff was entitled to the relief that she sought. The second Defendant filed its Defence on 4 November 2013, in similar terms.
The solicitors, who had been acting for the Plaintiff in each of the proceedings, filed a Notice of Ceasing to Act, in each matter, on 15 April 2014. The Notice of Intention to file that Notice, in each matter, had been filed, and served upon the Plaintiff, on 8 April 2014.
In late April 2014, only the AMP Proceedings were listed, for hearing, before me, in Sydney, for three days commencing on 29 September 2014.
On 18 August 2014, I held a pre-trial directions hearing. By previous arrangement, the Plaintiff did not appear in person, but appeared by audio-link. At her request, I permitted Mr Smith to speak on her behalf and to otherwise assist her.
During the course of the directions hearing, I was informed that no affidavits had been served by either side, but that, whilst the Plaintiff's previous solicitors had been acting for her, there had been served the documentary evidence upon which she intended to rely, including "quite a number of medical reports, some other ancillary correspondence and documentation, plus a statement - not an affidavit - of Ms Mao made or signed on 13 February 2014".
I was also informed that the AMP's solicitors had provided, to the Plaintiff's solicitors, the documents upon which the Defendants intended to rely. (There was some dispute about whether the Plaintiff had been provided with a copy, but nothing turns on that issue at the present time.)
I then made a number of orders and directions relating to the service of relevant documents, the preparation, and provision, of a Court Book, the service of a copy of the Court Book upon the Plaintiff, and the service of written submissions.
Counsel for the Defendants raised, then, "a potential or serious issue in relation to the legal capacity of the Plaintiff in this matter" and that:
"Your Honour would, in my submission, wish to understand what is the current position of the plaintiff against the background where she has had multiple admissions to mental hospitals, at least one of which was under compulsion in order to be satisfied of this plaintiff's ability to represent herself in this proceeding."
Counsel also stated that, when the matter had been before the Registrar, on 15 August 2014, the issue of the Plaintiff's capacity had been adjourned to be heard by me.
Counsel also raised the BT Proceedings, which, he suggested, should be heard with the AMP Proceedings. He did not submit that they must be heard together but that:
"My expectation is that there would be the same medical issue and the same factual background issues that would be dealt with in both proceedings. There will be two different policies and there may be as well differences as to the relevant insuring clauses under the two policies. But the factual matrix, including the medical factual matrix, will have [to be] the same."
The Plaintiff, immediately, denied there was any issue about her capacity. She also said that "they were separate cases... and the Defendants [are] all different" and that the only similarity was that the Defendants' lawyers, in each proceeding, were the same.
Because there was no notice of motion for the appointment of a tutor for the Plaintiff, and because, then, I did not know anything about her medical condition, I stated that I did not propose to make any order appointing a tutor at that time. I informed counsel that if an application for the appointment of a tutor were to proceed, it should be by way of notice of motion, with an affidavit in support, a copy of each of which should be served upon the Plaintiff.
I also suggested that any application for the two proceedings to be heard consecutively should be made by notice of motion with supporting affidavits.
Due to the immediacy of the hearing, and because I was to be absent from Chambers for a period of time before the hearing, I suggested that, if any applications were to be made, they should be made before the Applications Judge as soon as reasonably possible.
Before I adjourned the proceedings, the Plaintiff stated that she had six issues that she wished to raise with me. The following passage relates to what was then said, principally by Mr Smith, on behalf of the Plaintiff:
"One of the issues that Ms Mao has here: It's all about liability. People have life insurance to have a peaceful mind and security for their future and I am no exception. Your Honour, please look at what I have got. Personally, the defendants have stripped me naked. I don't know if there was anything of me the defendants have not yet known from my private life to my professional career and to all my medical records--
HIS HONOUR: Mr Smith, I am going to deal with liability at the hearing. I am not dealing with any questions of liability today.
SMITH: Right, no problem.
PLAINTIFF: So I can't, I'm not allowed to amend - what I'm saying is that what they have done, this is about insurance but it seems like they stop at nothing, they try, they take my money and today my understanding is they try to take my life--
HIS HONOUR: I will deal with issues of liability at the hearing.
SMITH: At the hearing, understood your Honour.
PLAINTIFF: At the hearing, not now?
SMITH: Thank you, your Honour.
PLAINTIFF: And the second issue is--
HIS HONOUR: Mr Smith, can you assist please? What is the second issue?
SMITH: Yes, thank you. It is - I will just read what I have here. 'I refer to my email of August 17. One of the attachments is for the financial planning. There is financial planner, Terry Banfield, an authorised representative of AMP Financial Planning as presented to your Honour in full.'
HIS HONOUR: Mr Smith, I have not looked at any documents sent to me because it is not the purpose of today's directions hearing.
SMITH: No problem. Just one question if I may, just in regard to whether or not Ms Mao may want to subpoena this particular AMP financial planner.
HIS HONOUR: Mr Smith, I can't give legal advice in the matter. I don't propose to. I have indicated previously that Ms Mao is under a very great disadvantage without legal assistance.
SMITH: Exactly, yes your Honour, I understand.
PLAINTIFF: There's another one, is about--
SMITH: Just, your Honour, just in relation to a trial and jury, Ms Mao has got here: I'm moving a motion for this trial to be heard by a jury, and if your Honour could just explain, if I can just get a couple of things to explain--
HIS HONOUR: Mr Smith, that is not a matter before me today. If you want a jury, and you can establish that it is a matter for a jury trial, but so far as I am aware, this is not an appropriate case for a jury trial, but I won't be hearing a notice of motion for a jury trial, so--
SMITH: Okay, that's fine, that's understood.
HIS HONOUR: And if there were a jury trial, Mr Smith, I can assure you that the hearing date will be vacated.
SMITH: Right, understood.
PLAINTIFF: I just, because this is--
SMITH: It's just in regard again, your Honour, I guess to explain Ms Mao's theory in this regard is that it just relates to legal language I guess and putting her situation regarding her issue with the insurance company in layman's terms, if you like, so with a jury there's greater empathy, if you like, greater understanding.
HIS HONOUR: I can't comment on that. I don't know. I am unaware whether this is a matter for a jury trial, but very rarely in New South Wales at the present time would this matter be likely to be heard by a jury.
SMITH: Okay.
PLAINTIFF: Basically I just want the conduct of the trial--
HIS HONOUR: I will worry about the conduct of the trial at the trial, Ms Mao. I will try to explain the way the conduct of the trial will occur at the trial. There is no point doing it now.
SMITH: No problem. Just a quick one, in relation to the location of the hearing, and it's something that I mentioned a couple of weeks ago with the Registrar, whether or not there was a possibility this particular trial may be able to be heard at Newcastle.
HIS HONOUR: Well Mr Smith, I'm sorry, that is again not before me at the moment. I have made no enquiry whether that is a possibility or not.
SMITH: Right.
HIS HONOUR: It is probably a bit late now the matter has been set--
PLAINTIFF: I put this matter to your Honour--
SMITH: If Ms Mao wants to pursue this particular objective just--
HIS HONOUR: You will have to put on a notice of motion I would think.
SMITH: I beg your pardon?
HIS HONOUR: You will need to put on a notice of motion.
SMITH: Notice of motion.
PLAINTIFF: Notice of motion--
HIS HONOUR: To have the hearing occur in Newcastle.
SMITH: Okay, thank you.
PLAINTIFF: The subpoena, how to explain--
SMITH: Yes, just your Honour, if you wouldn't mind, just in regards to a subpoena and, of course, we're not doing--
PLAINTIFF: How can I bring, I mean the matter, the subpoena, the defendant accuse me, to agree life insurance on deception. There's a plan, financial planner, what's been said by him to me, and so I need to get evidence, how can I do it, bring him--
HIS HONOUR: Unfortunately I'm not able to give you legal advice. That is why I have repeated to you on a number of occasions that you really do need some legal advice and legal assistance."
I was absent from Chambers from 29 August 2014 until 21 September 2014.
On 20 August 2014, the Plaintiff sent a notice of motion to the court that was in the following terms:
"1. The hearing of this case listed on 29 Sept 2014, 30 Sept 2014, and 1 Oct 2014 to be conducted in Newcastle."
In support of the Plaintiff's notice of motion, she also sent to the court a document headed "Court Statement" dated 20 August 2014 in the following terms:
"I, YOUHUA MAO, the Plaintiff, wish to seek leave for the hearing of this case listed on 29 Sept 2014, 30 Sept 2014, and 1 Oct 2014 to be conducted in Newcastle. This is due to the following facts:
Health reason: I rely on medication, my carer Mr Simon Smith and constant medical professional help from mental health Service to help me through the court proceedings. Mr Simon Smith and my mental health crisis team from the Hunter Valley Mental Service are based in Maitland and Newcastle.
Financial reason: I am on a Disability Support Pension, and I have not worked since 21 Oct 2008. To come to Sydney to stand trial is not an affordable option for me.
Distance reason: My residential address is in Dungog NSW, which is about 212km away from Sydney. It is impossible for me to attend the Court proceedings and come home back to Dungog on the same day."
There was also a Court Statement, dated 20 August 2014, from Mr Smith, sent, which was in the following terms:
"I, Simon Everett Smith, JP and the carer for YOUHUA MAO, who is the Plaintiff, wish to seek leave to explain why the hearing listed on 29 Sept 2014, 30 Sept 2014, and 1 Oct 2014 should be conducted in Newcastle. This is due to these following reasons:
Duty of Care: 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 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. I will be a support person to sit with Ms MAO in court to assist her in presenting her case to the court, and more importantly to look after her. All this can be done only if the hearing listed on 29 Sept 2014, 30 Sept 2014, and 1 Oct 2014 is conducted in Newcastle
The right to be heard: Even though Ms Mao is not well, she has the right to be heard at the Court. When the trial starts, there will be some questions only Ms Mao can answer. She is a well-educated woman, only the illness has got her. Ms Mao's rights should not be undermined by her wellbeing. Everybody is equal before the law. People who are well don't have more right than people who are not that well. Ms Mao has as much right as anyone else. Ms Mao has the right to be heard at Court, and that right should not be taken away from her. I have supported Ms Mao three times at The Supreme Court of New South Wales. Each time, I had to get up in the morning at 2 am to catch the XPT at 3:26am from Dungog and then to arrive in Sydney at around 7 o'clock, to attend court at 9am and then to catch the 2:40pm XPT from Sydney to Dungog. I arrived back home at around 6:30pm. It was 7 plus hours on the XPT train, and it would take 8 and half hours on the City Rail train. To conduct the hearing of this case in Sydney on 29 Sept 2014, 30 Sept 2014, and 1 Oct 2014, it would deny Ms MAO's right to be heard.
Benefits for all: After over two years, this case needs to be brought to an end, and a fair trial is the way to go. It's also in the best interest of the defendants for this case to be heard as soon as possible. It would not be difficult to make a day trip from Sydney to Newcastle and attend the hearing and then come back to Sydney. There is no disadvantage for the defendants if the hearing listed on 29 Sept 2014, 30 Sept 2014, and 1 Oct 2014 was to be conducted in Newcastle."
On 25 August 2014, the Defendants in the AMP Proceedings filed a notice of motion in which they sought the following relief:
"1. Order that a tutor be appointed for the plaintiff pursuant to Rule 7.18 of the Uniform Civil Procedure Rules 2005.
2. Order that the proceedings bearing Case Number 2013/244238 be heard concurrently with these proceedings, with the evidence in one being evidence in the other.
3. Order that the hearing in these proceedings listed to commence on 29 September 2014 be vacated.
4. Further or other orders.
5. Order that the cost of the motion be costs in the cause."
The Proceedings before Young AJ
The two notices of motion came before Young AJ on 3 September 2014. On that date, Mr J Duncan of counsel appeared for the Defendants in the AMP Proceedings and Ms B Elena appeared for the Defendants in the BT Proceedings.
I have been greatly assisted by the Transcript, which I received after the conclusion of the hearing on 5 November 2014. I have taken what follows from the transcript and from the other evidence read on the hearing.
The matter was called outside the Court at 10:00 a.m. but there was no appearance by, or on behalf of, the Plaintiff.
There was evidence (read at the hearing before me on 5 November 2014) that a solicitor, Ms C O'Donnell, employed by the firm of solicitors representing the Defendants in the AMP Proceedings, had telephoned Mr Smith shortly before the matter was called on and that he had informed her that neither he, nor the Plaintiff, would be attending.
Young AJ advised the legal representatives present that the court had received some email correspondence and his Honour permitted the legal representatives of the Defendants to read it: T 2.00-2.24.
Young AJ asked some questions about who was proposed to be appointed as the tutor for the Plaintiff, but, other than it being suggested by counsel for AMP that Mr Smith may be appropriate but that the Plaintiff's consent to that course "would not be forthcoming", and that the NSW Trustee and Guardian might be appropriate, the discussion did not proceed very far.
His Honour discussed some procedural issues and then said "We should stand the matter over for a time for the tutor to be appointed". His Honour then asked counsel for AMP how long it would take to "have the paperwork ready for the tutor to be appointed" (T8.03 - 8.04), to which the response was "28 days".
His Honour asked whether the appointment should require the matter be mentioned, or whether it should be dealt with in Chambers, to which counsel responded "in Chambers": T8.16.
His Honour then stated, at T8.19 - 8.23:
"...note that the Defendant AMP Superannuation Limited will arrange for a tutor to be appointed for the plaintiff. The appointment will be made in Chambers on 1, 2 or 3 October. And if the Plaintiff wishes to be heard on the matter, he [sic] should notify the Registrar so that the matter can be listed at 9:30 in court".
There was also discussion about whether the hearing before me, commencing in late September, could proceed and, if not, when, where, and for how long, the two proceedings should be listed for hearing.
His Honour made the following orders (which have been recorded in the computerised court record system):
"The Court notes:
The Defendant Amp Superannuation will arrange for a tutor to be appointed for the plaintiff. The appointment will be made in court at 9:30am on 1 October 2014 or in chambers on 2 or 3 October and if the plaintiff wishes to be heard on the matter she should notify the Registrar accordingly.
The Court order:
Vacate the hearing before Hallen J on 29, 30 September and 1 October.
Direction 1 made by Hallen J is confirmed. Directions 2, 3 and 4 are vacated.
In lieu of Direction 2, direct that within 28 days of a tutor being appointed the plaintiff deliver to the defendant's solicitors any documents not previously referred to but to be relied upon by her by 4pm.
Order that these proceedings 2013/232241 be heard together with proceedings 2013/244238, with the evidence in one to be evidence in the other.
- Order that the evidence of the defendant in 2013/244238 be prepared in a bundle duly indexed and sent to the plaintiff no later than 4pm on 26 September 2014 and the same direction with respect to the plaintiff's evidence in 2013/244238 as was made in 2013/232241 that is within 28 days of the tutor being appointed.
- On the plaintiffs Notice of Motion of 25 August in order to accommodate the plaintiff the court will sit in Newcastle on 26 March provided that arrangements can be made with the clerk of the court in Newcastle for a court. The remainder of the case will be heard in Sydney on 27 and 30 March 2015 provided that the plaintiff's doctors are able to attend.
Order that the matter be listed for further directions on 1 October 2014 at 9:30am.
- Vacate the directions hearing before the Registrar on 5 September 2014.
- Leave to the defendants to amend the defence if they are so advised.
- Costs of the motions to be costs in the cause."
No doubt, Young AJ adopted the course that he did to enable the Defendants to nominate a tutor, to enable that tutor to file the tutor's consent to act as tutor, and a certificate, signed by the tutor's solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 7.16.
(The order relating to the date for the hearing to take place in Newcastle on 26 March 2015 was subsequently vacated. Currently, there is no date on which either proceeding is listed for hearing.)
Directions Hearing on 1 October 2014
By arrangement, the matter was listed before me on 1 October 2014, on which occasion the Plaintiff appeared by audio-link. I permitted Mr Smith, once again, to assist the Plaintiff. Different legal representatives appeared for the Defendants in each proceeding.
I shall not set out all that occurred at this directions hearing, but I identified the issues that one, or more, of the parties wished to agitate. (These were the issues that finally came before me, for hearing, on 5 November 2014.)
On the issue of the order made by Young AJ regarding the appointment of a tutor, the transcript reveals that there was a discussion about that issue:
"DUNCAN: In relation to this process, Justice Young made a series of orders on the hearing of two notices of motion and I'm uncertain whether a contest to the first and third propositions that your Honour has put forward is available to be dealt with, in effect, as your Honour's sitting in appeal against a decision...
HIS HONOUR: I don't think it's an appeal. As I understand it, the application as I apprehend it is an application to set aside these orders because the Court should have granted an adjournment bearing in mind the medical evidence of Miss Mao's inability to attend on the relevant date before Justice Young. Alternatively, those orders ought to have been set aside. Now, whether they should have been made or not made, and whether or not I have jurisdiction probably is a matter that has to be determined at the hearing of the plaintiff's notice of motion."
This exchange between Bench and Bar revealed a misunderstanding of the orders that had, in fact, been made by his Honour. It appears that Young AJ did not appoint a tutor for the Plaintiff, but simply said an order would be made, in Chambers, unless the Plaintiff wished to be heard (which, in the events that have happened, she did). Despite this apparent misunderstanding, no prejudice has been suffered by the Plaintiff since the hearing proceeded on 5 November 2014, effectively, as the hearing of the Defendants' notice of motion for the appointment of a tutor. All of the evidence in support of the notice of motion was read and submissions were made upon the basis that I should determine whether a tutor should be appointed. There was other evidence, served after the hearing before Young AJ, in respect of the notice of motion by each party, which was also read.
On 1 October 2014, I also identified, for the benefit of the Plaintiff, some of the authorities that I thought might assist in relation to the notices of motion to be dealt with. In relation to the tutor issue, I referred to my decision of Rappard v Williams [2013] NSWSC 1279 and the decision of McDougall J in Stokes v McCourt [2014] NSWSC 61; and on the question whether the proceedings should be heard by a jury, I referred to s 85 Supreme Court Act 1970 (NSW) and Maroubra Rugby League Football Club v Malo [2007] NSWCA 39; (2007) 69 NSWLR 496.
I also suggested to the parties that the issue whether the proceedings should be heard consecutively, and that of the amendment of the pleadings, could be determined after the application regarding the appointment of the tutor was dealt with.
I then made directions regarding the service of any further evidence upon which it was intended to rely and written submissions.
The Evidence read on the hearing on 5 November 2014
For their part, the Defendants relied upon the affidavit affirmed 14 August 2014 of Elizabeth Grace Esber; another affidavit by Ms Esber affirmed 20 October 2014; and an affidavit sworn 27 August 2014 of Rosamund Anne Wicks. Importantly, the affidavit of Ms Wicks annexed a copy of the evidence which the Plaintiff's solicitors had served before they had ceased to act for her.
In the second affidavit of Ms Esber, she set out the steps taken between 15 September and 20 October 2014, by members of her firm, to locate a solicitor from a firm of solicitors, or a sole practitioner, in Dungog or Newcastle, willing to be appointed to act as a tutor for the Plaintiff. She also stated that a request was made of the NSW Trustee and Guardian to act as the Plaintiff's tutor, without success. Contact had also been made with the Law Society of New South Wales Pro Bono Scheme, Legal Aid, and the Mental Health Advisory Service, all without success also. She stated, in relation to the Law Society Pro Bono Scheme, that "the Application is made ... by way of a particular form, the completion of which could not be achieved without the assistance of the Plaintiff".
There is evidence that only one solicitor was prepared to act as the Plaintiff's tutor upon the condition that the Defendants indemnified him in relation to costs that were incurred by him in doing so.
The Plaintiff relied upon an affidavit affirmed on 30 October 2014, which included a "Court Statement" dated 24 September 2014, another one dated 29 September 2014, and a third dated 30 October 2014. I have earlier referred her Court Statement of 20 August 2014. She also relied upon a document headed "Plaintiff Replies the Evidence Served" dated 27 October 2014.
As earlier stated, the Plaintiff's previous solicitors had served evidence upon which she would rely at the substantive hearing of the AMP proceedings. The evidence served included a copy of her statement dated 13 February 2014, a medico-legal report dated 2 June 2013 of Dr Bruce Westmore, a number of different 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 Dr So dated 14 February 2012".
In her Court Statement dated 24 September 2014, which I have read in its entirety, the Plaintiff stated that she believed that "the purpose of [the motion to have a tutor appointed for the Plaintiff] is to silence the Plaintiff and so as to make the case go away. The Plaintiff informs the court that the Plaintiff will be launching a legal action to sue the defendants' legal representatives for professional misconduct".
In her Court Statement dated 29 September 2014, which I have read in its entirety, the Plaintiff stated that she opposed the two cases being heard concurrently, with the evidence in one being the evidence in the other, "on the basis [that] the plaintiff believes it will create a risk of miscarriage of justice by creating unnecessary complexity for the Plaintiff to present each of the above cases and also creating unnecessary complexity for the decision maker(s) to understand the arguments for each of the above cases at the trial".
The Plaintiff also wrote:
"2. The plaintiff informs the court that the above two cases are completely separate cases. Each case has its own first defendant and second defendant one of which is different from the other. Each of the defendants carried and carries its business and its liability independently.
3. The plaintiff also informs the court that the above cases are completely separate cases for the following reasons:
(a) They are different claims under different policies which were defined by different defendants of each case; and
(b) They are different circumstances under which the policies were taken by the plaintiff; and
(c) They are and were different procedures which the plaintiff has been put through by the different defendants of each case in relation to how each of the defendants handled and handles the plaintiff's claims; and
(d) The plaintiff's member accounts have also been managed differently by the different defendants of each of the above cases; and
(e) In case 2013/244238, the plaintiff is still a member but in case 2013/232241, at all material times, the plaintiff was a Member within the meaning of the Rules.
...
5. It appears to the plaintiff that the different legal representatives responsible for each of the above two cases have shared the same tactics, such as 'strip the plaintiff naked and cut her open'. However, the same tactics used by the lawyers of the same firm TurksLegal do NOT make the above two cases the same one.
...
15. The plaintiff questions the purpose and the time for bringing this motion by the legal representatives of the above two cases. As stated in the plaintiff's court statement of 24 Sept 2014, the plaintiff will be launching a legal action to sue the legal representatives of the above two cases for professional misconduct."
In her Court Statement dated 30 October 2014, the Plaintiff asserted:
"1. The Brutality which has been brought to me by the above two cases must NOT be ignored when the court decides 'order a trial by jury in the proceedings'.
a. I thought the hearing listed on 3 September was re-scheduled to another time after a medical certificate from my GP was provided to the Equity Registrar Andrew Musgrave of the Supreme Court of NSW, and leave was also sought from Equity Registrar Musgrave for the hearing on 3 September 2014 to be re-scheduled as I was unable to attend Court on 3 September 2014 due to my medical conditions.
b. I received the judgment of the Supreme Court of NSW, Acting Justice Young AO given on 3 September 2014 via email at about 4:00 p.m. on 3 September 2014.
c. I was gob smacked by the judgment. If it was not for Mr Simon Smith and the Paramedics from Dungog Ambulance, who attended me shortly after Mr Simon Smith called 000, I would be dead on the night of 3 September 2014 and Mr Simon Smith would be harmed too. I was taken to the EU of the Maitland Hospital NSW by the ambulance later on the night of 3 September 2014.
d. It is beyond my comprehension that my rights were taken away from me by the Supreme Court of NSW, Acting Justice Young AO so easily. The judgment is and was neither impartial nor constitutional.
e. Since 3 Sept 2014, I have been suffering life-threatening damages particularly caused by the judgment. Ambulance has attended me three times.
2. It is the Inequality between the defendants and me, the plaintiff of the above two cases that has caused the Brutality to me.
3. The following is quoted from a book 'how to run your own court case' downloaded from Australia, we inherited the adversarial approach from Britain. With an adversarial approach, the hearing is treated much like a debate or verbal jousting match between adversaries. The parties or their lawyers present the evidence and arguments and the decision-maker listens carefully and then decides the winner.'
If the above two cases were heard by a Judge, I can't understand the language and legal jargons which are used by lawyers at court when they present the above two cases to a Judge. This is not a problem only for me. Mr Simon Smith, a JP, born and grew up in Australia, and with a university degree, could not understand either what has been said by the lawyers or what is really meant. This will put me in a very disadvantaged situation which will make the trial not fair. I certainly do not think it is a good idea to ask the defendants' counsel to rephrase his sentence every time he speaks.
If the above to cases were heard by Jury, the jury are members of the community. I am a member of the community and Mr Simon Smith, who will be helping me with presenting the above two cases at the trial, is a member of the community too. If the jury can understand what the defendants' counsel say, so do I and Mr Smith. This will be a fair trial.
4. A trial by jury maybe expensive. Justice costs money, but injustice costs life or causes serve [sic; severe] damage to life. Everything we do is about people. Without this notion, we are nothing."
In her second Court Statement dated 30 October 2014, the Plaintiff asserted:
"1. I, YOUHUA MAO, the plaintiff of the above two cases, intend to amend 'the plaintiff suffered loss and damages' in each of the above two Statement of Claims to 'the plaintiff claims suffered loss, damages and life-threatening damages in the amount of $50 million'.
The Defendants tendered an email dated 31 August 2014 from Mr Smith (Ex. AMP 1) addressed to my Associate, which had been sent to the Court also, and to other persons (which the Plaintiff accepted she had authorised to be sent), which was in the following terms:
"Case: 2013/232241 - Youhua Mao v AMP Superannuation Limited
Case: 2013/244238 - Youhua Mao v BT Funds Management Limited
Dear Registrar,
My name is Youhua Mao. I am the plaintiff of the above two cases.
I am writing to you to raise my greatest concern about the authority and the integrity of The Supreme Court of NSW.
1. His Honour The Hon Justice Philip Hallen made the following direction at the pre-trial hearing on 18 August (Case: 2013/232241):-
'Directs the Defendant's solicitors prepare and send to the Plaintiff an index of documents, together with a copy of the bundle of documents intended to be relied upon by 4:00 p.m. on 29 August 2014.'
It is 4:00 p.m. 31 August 2014. I have NOT received these documents from the Defendant's solicitors as directed by His Honour.
2. Registrar Equity A Musgrave made the following direction at the Directions hearing on 15 August (Case: 2013/244238):-
'Directs the Defendant's solicitors send to the Plaintiff some documents on 29 August 2014. These documents were requested by the plaintiff previously.'
It is 4:00 p.m. 31 August 2014. I have NOT received any document from the Defendant's solicitors as directed by Registrar Equity A Musgrave.
3. At the pre-trial hearing on 18 August (Case: 2013/232241), the defendants tried to deny my right before His Honour The Hon Justice Philip Hallen. Our system is designed to protect people's right. The rights of people who have a disability are set out in a range of human rights instruments including the Disability Discrimination Act. The lawyer for the defendants Mr Duncan, as the officer of the court, should know better than anybody else. I believe the Defendants and Mr Duncan have breached a range of human rights laws including the Disability Discrimination Act.
4. At the pre-trial hearing on 18 August (Case: 2013/232241), the defendants adopted my doctors' reports and my medical history as the evidence to deny my right before His Honour The Hon Justice Philip Hallen. If the defendants had ever accepted those medical reports of my mental illness history, this case would never have been brought to the court. The defendants choose to accept or deny my doctors' reports when it suits them, and Mr Duncan, the lawyer for the defendants, was there to help them. I believe Mr Duncan was paid every time when he came to Court representing the defendants. We all know people smugglers enrich themselves on the basis of other people's misery. To me, Mr Duncan is no better than a people smuggler.
Registrar, I request an explanation for all the issues raised above.
If this matter is not in your work area, please let me know who I should address these issues to.
I also CC this email to whom it may concern.
A signed copy of this email will be posted to the following address tomorrow:
Supreme Court of NSW
GPO Box 3
Sydney NSW 2001".
The Plaintiff at the Hearing on 5 November 2014
Next, I should refer to the Plaintiff and to some of her oral statements made at the hearing before me. Before doing so, I should mention that she appeared punctually at the hearing. (In fact, she was sitting, with Mr Smith, at the back of the court whilst I dealt with other matters before the start of the hearing.)
She was neatly and tidily dressed. I observed her affect, not unnaturally, to be quite intense and somewhat anxious. At times, she appeared a little agitated.
I should also mention that her curriculum vitae, which formed part of the "Evidentiary Statement" served upon the Defendants, revealed that the Plaintiff had a degree in Computer Software from University of Technology Dalian China, accredited by the Australian Computer Society, an MBA from the University of International Business and Economics and that she had "over 10 years' experience in IT project management, 20 years professional offering in IT...successfully managing to deliver IT projects in a variety of industries...".
Turning then to the transcript, at T4.30-4.50, the following passage appears:
"HIS HONOUR: I think we can deal with the issue of trial by jury today. I am not entirely sure that I have any notice of motion which deals with the application to revoke Young J's order. Have you filed any such notice of motion?
PLAINTIFF: I don't know for sure. I took the case to the High Court of Australia and I was told it wasn't the form on 28 October and I was told it wasn't the proper case for me to take to the High Court of Australia.
HIS HONOUR: Am I right in saying there is no notice of motion, Mr Duncan, to set aside or revoke Young J's order?
DUNCAN: That is my understanding.
HIS HONOUR: I think in the circumstances, Mr Duncan, Mr Perla, why don't I treat Ms Mao's application which has been foreshadowed at least as an oral application to set aside Young J's orders for the appointment of the tutor?
DUNCAN: I think that is appropriate.
PERLA: Yes."
At T17.12-T17.49:
"PLAINTIFF: Yes. Your Honour I just changed my mind, you asked me if I had some document to raise but yeah I do have.
HIS HONOUR: You hand it up. Have you got some evidence in reply?
PLAINTIFF: I received an affidavit of Elizabeth Esber on 30 September 2014 and I would like to submit in court.
HIS HONOUR: Do you want to read that affidavit?
PLAINTIFF: Yes.
HIS HONOUR: I think Ms Mao it appears to be an affidavit in similar terms to Ms Esber's affidavit of 20 October. I think just the date has been--
PLAINTIFF: Quite a lot, the wording quite different and there are quite a lot of information in this affidavit.
HIS HONOUR: What is the difference between the two affidavits, Mr Duncan?
DUNCAN: Essentially the one that I have read brings the matters up to date.
HIS HONOUR: If you look at the affidavit of 30 September and you look at the affidavit of 20 October I think you will see the only difference is in relation to paras 15 and 16.
PLAINTIFF: There are quite a lot in the affidavit.
HIS HONOUR: I think you will find that the only difference is the addition of paras 15 and 16. You should check that but I think that is the only change is it not Mr Duncan?
DUNCAN: Yes your Honour. Paragraphs 15 and 16 of the affidavit of 20 October has been added to the contents of the affidavit of 30 September.
HIS HONOUR: That must be the only difference, all right?
PLAINTIFF: Thank you, your Honour."
At T19.31-T21.23:
"HIS HONOUR: You tell me which orders you want me to set aside, would you?
PLAINTIFF: The first one is the defendant AMP Superannuation bill. The second one is (inaudible).
HIS HONOUR: Ms Mao you will have to speak up.
PLAINTIFF: And then the following one is the order that these proceedings 2013/232241 be heard together. Another one following order, order that evidence of the defendant in 2013/244238 be prepared in a bundle, annexed and sent to the plaintiff and then the second last one leave to the defendants to amend the defence if they are so advised.
HIS HONOUR: They are the ones that you want--
PLAINTIFF: Set aside. Your Honour I would like to respond to what, before the brea[k] you raised your concern about a few issues. One is you raised the matter, the case is very complicated for me to manage. Your Honour I would fight the complexity is man-made. It is my intention from the defendants to start with AMP, it only took, maximum five minutes for the word frame because I was working as the business manager in the company. It is not individual policy, it is a group policy. It is to do with AMP but it just - maximum five minutes and now I receive more than eight kilos document. What I am saying to you, sorry my language but your Honour this complexity is man-made complexity. My second, you raised the second--
HIS HONOUR: Do you mean by that man made by the defendant.
PLAINTIFF: Yes man made by the defendant. They are human, yes.
HIS HONOUR: Okay.
PLAINTIFF: And my second point, my second response to you, your Honour mentioned compromise and this has to do with my personality. I have been called many things at stages of my life but one thing since I could remember things has never changed. I am a person black and white and I don't compromise. Right is right, wrong is wrong. I don't see anything in between.
HIS HONOUR: Just a moment. I am sorry, did you say 'right is right. Wrong is wrong and I won't compromise'?
PLAINTIFF: I am not compromising. I don't see anything in between. You can't be right and at the same time you are wrong.
HIS HONOUR: 'I don't see anything in between which requires compromise'. Is that what you said?
PLAINTIFF: Particularly for to do with this case, it is not a time for me to argue this case, this case it is wrong at so many levels.
HIS HONOUR: All right. Thank you.
PLAINTIFF: And the third, your Honour raised concerns about being without tutor I could be disadvantaged, and a tutor could be in some ways helping me with the case, in response to your concern your Honour I say that is - I have university degree and I used to work in a management position for many years and same Simon Smith, he was born and he grew up in Australia and he has university degree too. He is a JP for over seven years.
HIS HONOUR: Ms Mao, I was not in any way being critical of your intelligence.
PLAINTIFF: No I am not saying that.
HIS HONOUR: My comment was that--
PLAINTIFF: Concerned.
HIS HONOUR: That every litigant in person who is not a lawyer has to deal with procedure and the running of a case in circumstances which are firstly stressful and secondly in circumstances where they are running to the court room process and procedure and that sort of thing.
One of the things, I don't know but one of the things that we need to be considered is whether there is any cross-examination of any witnesses. I don't know whether you intend to cross-examine anyone. I have no idea but that is one.
PLAINTIFF: Yeah I do.
HIS HONOUR: But that is one circumstance where you may be at a disadvantage so please don't think that my concern regarding your being disadvantaged had anything to do with your intelligence. It had to do with the fact that you are not legally trained.
PLAINTIFF: Yes, I understand. Sorry I didn't express myself clearly. I thank your Honour for the caring. What I am saying is I feel it so right, systematic problem, it is not just my personal this kind of problem. All I am saying is I have university degree. If the judicial system is too complicated even for two of us with university degree to understand to proceed with our - then our judicial system, it is a legal system should change not us so I don't see I need a tutor. I will represent myself, end of the story."
At T23.24-T23.35:
"HIS HONOUR: Before you sit down, could I just ask you something, if I don't remove a tutor, what will you do then[?] What will happen then, do you think?
PLAINTIFF: I don't know. Just feel that if I been forced to have someone represent me that is equally to a doctor announce me Youhua Mao as a person who is dead. That is equal for me if I--
HIS HONOUR: You as a--
PLAINTIFF: As a person who is dead, has died, that is equal, if I do not have a voice, if I can't have a voice to express myself that is equally me, it is just a person breathing but has no right, have no voice, I am nothing."
And at T24.13-24.46:
"HIS HONOUR: Would you object to having a lawyer represent you?
PLAINTIFF: No, I don't, but the lawyer has to be good, at least be equal to - the lawyer, my understanding they are not all good...
HIS HONOUR: You want someone with experience in this area. Is that what you mean?
PLAINTIFF: I mean some lawyers very good, some lawyer not, but AMP and BT they got money, they can hire very good ones but if mine not that good, that is one of my concerns so why would I pay eventually in order to give the money, right, to have a lawyer that is not good. That is one thing. The second thing in this case is I don't know these documents what it is all about, all about me and too much information, just personal information, I mean a lawyer, I don't know anyone I know who know me is a lawyer so the story start up again and again.
HIS HONOUR: I am sorry, do you mean you don't want someone you know to represent you?
PLAINTIFF: No, I don't know anybody who is a lawyer. I mean whoever represent me would be a stranger and they have to read the story, ask me questions and that is - last year there was one admission, me admitted to the psychiatric unit for two months directly because of that, just always about my past and clarify this and evidence about that, about my life and if I am - I just ran away from a class system and everything to do with the class system. I don't know. Even this book, this is just a fraction of the evidence if you can read. I don't really touch it, all about me and what is the case to hire someone and I keep telling a story and to hire someone who does now know me and I have to tell the story to them about me, what happened, and I can't - it is just that every time my psychiatrist because consistent with me one day now we deal with the present, we don't talk about the past, even my psychologist cannot see the terms when it started, couldn't handle it."
(The "Book" referred to by the Plaintiff was the Court Book prepared by the solicitors acting for the Defendants in compliance with my directions.)
And at T25.02-26.18:
"HIS HONOUR: Is there anything else that you want to tell me[?] Could I just ask you one other question, can you tell me what you understand your case is about?
PLAINTIFF: It is about I got a super and the super has some sort of a life insurance and I ceased work because I became mentally ill and then - so I couldn't go back to work since then and it was refused because the reason is mental.
HIS HONOUR: I heard up to 'and I couldn't go back to work'. What did you say after that?
PLAINTIFF: It is just, it is a case about my super and my super got life insurance and it is a group policy and I couldn't work because I become mentally ill and since I couldn't manage at some stage where I was working, they are very unwell.
HIS HONOUR: What follows from that[?] What has happened since then?
PLAINTIFF: I am at work since October.
HIS HONOUR: Would you like to have a rest for a moment.
PLAINTIFF: No thank you we have to go, we have a train to catch.
HIS HONOUR: Where do you have to go?
SMITH: Your Honour, if I might, we live near Dungog and they have changed the train system, our XPT leaves Central at 2.40.
PLAINTIFF: I imagine we will be finished by then, Mr Smith. Is there anything else that you want to tell me about what you think the case is about...[?]
PLAINTIFF: What the case is about.
HIS HONOUR: Is there anything else[?] You have told me that you had super, life insurance, you become mentally ill so that you cannot go back to work. Your case is all about your super. It is a group policy. You ceased to work because you became mentally ill. You could not manage and you have not worked since October.
PLAINTIFF: October 2008.
HIS HONOUR: Anything else about your case?
PLAINTIFF: No. I have just, it has been almost three years. When I first signed the new agreement with my former lawyer, I think almost three years, I never thought this case would make it to the court. It was in my mind, it was just paper work, it was not a lawyer, just helping me with the paper work. It was not and I think it was that - lawyers come but never heard by a lawyer until all of a sudden the case has been up to Supreme Court.
HIS HONOUR: What do you expect to get if you win the case?
PLAINTIFF: What do I expect?
HIS HONOUR: Yes.
PLAINTIFF: I expect equally from the defendant what I have suffered, I want them to know this is wrong. It is just so wrong. I am in work, had life insurance, anybody, you know what sort of product they sell, a product for peaceful mind for having a security in your future.
This is not - this is a torture. I am not objecting for any business provided or whatever in making money, making profit for good but you can't make profit at human cost and this is nothing. It has just kept going, burying me in the paper work and to pursue profit, pursue money.
HIS HONOUR: Anything else?
PLAINTIFF: I have no more to say."
And at T33.08-T33.49:
"HIS HONOUR: Is there anything else you want to tell me?
PLAINTIFF: Yes, that is why, my point is, the evidence which was provided by my former lawyer on my behalf, the evidence provided is to the defendant for the purpose of proceedings, my super life insurance claim. It is nothing but they use now, they use this evidence against me trying to take my right away.
HIS HONOUR: They are not using it against you, what they are saying is that was the information that was provided by your former lawyers. I will give you an example of what I mean. If you look at p 3 of that document, p 3 of the affidavit, have a look at para 15.
PLAINTIFF: Yes.
HIS HONOUR: And all they were trying to show me was - and then if you look at para 17 on p 4, that is the document, they were just telling me that was your evidentiary statement of 13 February 2014. That is all that was, that it was not to be used against you, it was to demonstrate what had already occurred when you had lawyers acting for you.
PLAINTIFF: I have different views on all this, your Honour. Excuse me. I have to explain to you. I agree with you all this evidence they obtained they received from my former lawyers. I don't argue with that, this evidence and this evidence they prove, the evidence for the parties to proceed my super life insurance claims but they use this evidence, they abused the process, even abused, misconduct, they used this evidence, my private medical records and to use this evidence, now they use as the evidence to take my right away from me. That is my point. So they used this evidence.
You go through the fingerprint all over the outline submissions from the defendant, from Ms Duncan and Mr Perla all over there. They go my medical records and my submission to the hospital and the diagnosis, my symptoms and my medications and all that, that is why they used it. They abused the process and tried to take my right away from me. That is my point. This evidence should be inadmissible, cannot be used against me and try and take my right away from me.
HIS HONOUR: Ms Mao, it is 1 o 'clock now. I need to take an adjournment. How much longer do you expect to be?
PLAINTIFF: I am exhausted. That is why I ask for the case to be conducted in Newcastle."
Following some short submissions by counsel, I asked the Plaintiff whether there was anything else she wished to say. She responded, at T38.09-38.13:
"Only one thing. I would like to say, I can't remember where I read it, but they will have ability by the people's eyes who approach them. This is how the tutor will do it."
I mentioned earlier that I would refer again to Mr Smith. During the course of the submissions, I raised the question whether, if a tutor were appointed, the Defendants would seek an order for costs against the tutor. The following discussion then occurred at T34-35:
"HIS HONOUR: Can I just ask you this: Let us assume for the purpose of the argument that a tutor is appointed, whatever the result of the case would the defendant be seeking an order for costs against the tutor in the event that they were successful?
DUNCAN: I don't believe I have those instructions right now.
HIS HONOUR: I think that is a very important matter. Mr Duncan, perhaps you could get some instructions because one of the things that I wondered about, and I don't know whether it is a matter that has occurred to Ms Mao and perhaps Mr Smith, but one of the concerns that I would imagine may be a difficulty in appointed a tutor is, in the event that a costs order is made against Ms Mao, one of the things I was going to ask Mr Smith was, in the event that no costs are sought, in the event that Ms Mao is unsuccessful, for example, if he would be prepared to act as Ms Mao's tutor. So I am just wondering whether he may or may not. I am very surprised that no one suggested that he be appointed as Ms Mao's tutor but he might be concerned that he would be liable for costs because he would be personally liable but if it were to be that he would not be subjected to any claim for costs in the event that Ms Mao was unsuccessful, he might be prepared to act as tutor. I will ask him but maybe you could get some instructions.
Mr Duncan, it seems to me that there are cases where costs should not loom large or as large as in other cases. This might be one of them.
DUNCAN: I fully understand.
HIS HONOUR: Mr Smith, I am sorry to put this on you, as it were, as a surprise but in the event that I was satisfied that Ms Mao needed a tutor and I was not prepared to discharge or set aside or vary the order of Young J, in the event that occurred and in the event that the defendant did not seek any costs order, in the event that Ms Mao were unsuccessful would you be prepared to act as her tutor?
SMITH: Absolutely, no problem.
HIS HONOUR: Would Ms Mao, as it were, be prepared to have him act as her tutor? Ms Mao, can I ask you, if I think that you need a tutor and if there is no order for costs sought against the tutor, would you be happy for Mr Smith to act as your tutor?
PLAINTIFF: No, I don't need anybody to be my tutor.
HIS HONOUR: That answers my question, Mr Smith. Thank you very much."
Her answers reveal the Plaintiff's firmly held belief that she does not require any assistance to conduct the cases that she has brought against the Defendants.
The Medical Evidence
I do not propose to undertake a comprehensive analysis of the medical reports regarding the Plaintiff. The following summary, taken from the submissions of counsel for the Defendants, in my view, is, for the most part, sufficient, and it records what appears to be non-controversial. I shall also provide some additional references to the medical evidence that are particularly relevant to the present applications.
(a) The Plaintiff has suffered from a psychiatric illness for more than 15 years.
(b) She has had multiple admissions to psychiatric institutions since late 2009, at least one of which was under compulsion.
(c) Her psychiatric condition continues as an acute and chronic condition.
(d) Within the Plaintiff's condition, she has some disabilities with multiple areas of functioning, including: concentration and processing speed, decision-making capacity and judgment.
(e) Her condition is inextricably intertwined with her history. When attempting to recount and otherwise deal with that history, she becomes extremely tearful and distressed. There is a real possibility that giving evidence in court could worsen her mental state. (She and Mr Smith appear to recognise the potential risk to the mental state of the Plaintiff in recalling her past, and the real potential for realisation of this risk within these proceedings in seeking to have the matter heard in Newcastle.)
(f) When she attended medical experts, she was probably thought disordered, appeared to be distracted and was unable to focus for long periods of time; she was unable to provide a clear chronological account of her history of mental illness;
(g) She had admitted to having auditory hallucinations and there appeared to be a chronic history of paranoid delusions.
(h) In May 2013, Dr Westmore opined that the Plaintiff suffered from Chronic Post traumatic Stress Disorder and a significant Depressive Disorder with predominant symptoms of anxiety and agitation. He reported that, "she was extremely distressed intermittently throughout the assessment".
There were some comments in the medical reports about the Plaintiff's capacity to care for herself, it being noted that she needs prompting with self-care and activities of daily living. By way of example, Dr Westmore opined, in a report dated 2 June 2013, that "her day to day activities are significantly impacted in a negative way as a result of her psychiatric illnesses, and were it not for her friend, Simon, I suspect she would need to be institutionalised. I do not believe that Ms Mao could maintain herself independently in the community." He concluded that "this lady's prognosis is very poor and she remains a patient at high risk".
(I have quoted some of the statements contained in the report of Dr Westmore as he is the expert upon whom the Plaintiff intends to rely in the substantive proceedings. The report to which I have referred is "Exhibit R to the Evidentiary Statement of the Plaintiff of 13 February 2014".)
Whilst it may not fall precisely into the category of medical evidence, I have earlier referred to the statements about the Plaintiff's state of health, and mental health, in the Court Statements relied upon by the Plaintiff, and made orally at the hearing.
The Statutory Basis of the Plaintiff's Application to set aside Orders
Although I have stated that Young AJ did not make an order appointing a tutor, in case I am wrong I shall deal, briefly, with the statutory basis for an application to set aside orders.
UCPR rule 36.11(2) provides that, unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system.
UCPR rule 36.15(2) provides that a judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. There is no consent given, in this case, by the Defendants.
UCPR rule 36.16(2)(b) provides:
"The court may set aside or vary a judgment or order after it has been entered if:
...
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order ..."
In the present case, the orders made by Young AJ were entered into the court's computerised Court record system on 3 September 2014.
The Plaintiff made her application, albeit orally, to set aside his Honour's orders before me on 1 October 2014. Young AJ seems to have predicted the possibility of such an application being made by including in his order that "the appointment will be made in court at 9:30 a.m. on 1 October 2014 or in chambers on 2 or 3 October and if the plaintiff wishes to be heard on the matter she should notify the Registrar accordingly".
The Appointment of a Tutor - The Statutory Basis and the legal Principles
An application made by a defendant to have a tutor appointed for a plaintiff is a little unusual, although, as Slattery J has noted in Iskandar v Mahbur [2011] NSWSC 1056, at [10], is "not unprecedented" and is "within the scope of Uniform Civil Procedure Rules, rr 7.17 and 7.18".
Sackar J made the same point in Bowering v Knox & Bowering [2014] NSWSC 1107, at [12] and at [59].
The form of orders made by Young AJ, relating to the responsibility of the Defendants to locate a suitable tutor, is also not unprecedented. In Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200, Hodgson J was required to deal with an application by a plaintiff for directions concerning the appointment of a tutor for a defendant who, as an infant, was a disable
person within the meaning of the Supreme Court Rules 1970 (NSW). Having had some difficulty finding a tutor, the primary contention of the plaintiff, in that case, was that the court should appoint one of its officers to act as tutor.
His Honour, at 204, stated that "such an appointment involves significant responsibilities and duties, and unless the acceptance of such appointments falls within the duties of a particular office, I do not think any court official should be so appointed, at least unless that court official freely consented". (Now, UCPR rule 7.15(2)(b) prohibits the appointment of a judicial officer, a registrar or any other person involved in the administration of the court, as a tutor in proceedings.)
His Honour then added:
"It would appear that the usual practice in the past has been to appoint a solicitor of this Court who has no interest in the proceedings adverse to that of the infant defendant. Rule 62 of the Consolidated Equity Rules of 1902 expressly contemplated this: see also Lawrence v Moyes (1900) 16 WN (NSW) 229 and Sanguinetti v Weaver (1910) 27 WN (NSW) 142. It was, in these circumstances, up to the plaintiff to locate a solicitor, presumably having no association with the plaintiff, who was willing to undertake this task, again presumably on the basis that the plaintiff would indemnify him for his expenses and costs. The application to appoint such a person had to be supported by an affidavit by the solicitor that he had no interest in the subject matter of the proceedings adverse to that of the infant, and that there was no reason so far as he knew why he should not undertake the responsibility of safeguarding the interest of the infant. The application also had to be supported by an affidavit as to the fitness of the solicitor proposed to be appointed."
His Honour concluded:
"It follows from the above that the Court is not at present in a position to appoint a tutor for the defendant. It will be necessary for the plaintiff to find an appropriate person to act. As I have indicated, a solicitor with no connection with the plaintiff and no interest in the case may well be such an appropriate person. The plaintiff will need to bring an application complying with the requirements of Pt 63, r 7, naming the proposed appointee. If the person is a solicitor, the application may also seek dispensing with compliance with Pt 63, r 3(2)."
(The plaintiff in that case was the applicant for the appointment of the tutor as the Defendants are in the present case.)
In Rappard v Williams, one of the cases I drew to the attention of the Plaintiff, at [62] - [83], I dealt with the appointment of a tutor. I wrote:
"A tutor is a person appointed to represent a person under legal incapacity, whether by the Court or otherwise, in accordance with Part 7 Division 4 of the Uniform Civil Procedure Rules 2005 ('the UCPR') (UCPR Dictionary).
The UCPR, Part 7, Division 4 (which includes rules 7.13 to 7.18) describes the way in which persons under legal incapacity may participate in litigation.
Section 3 of the Civil Procedure Act contains the following inclusive, but not exhaustive, definition:
''person under legal incapacity' means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes:
(a) a child under the age of 18 years, and
(b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and
(c) a person under guardianship within the meaning of the Guardianship Act 1987, and
(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and
(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.'
Pursuant to s 11 of the Interpretation Act 1987, which makes a definition in a statute also apply to delegated legislation made under that statute, the definition in the Civil Procedure Act also applies to the UCPR.
UCPR rule 7.13, which has been described as 'a supplementary definition' by Basten JA in Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266, at [19], defines a 'person under legal incapacity' as including 'a person who is incapable of managing his or her affairs'. Otherwise, there is no definition in the UCPR.
Rule 7.14(1) requires a person under legal incapacity to commence, and carry on, proceedings by a tutor.
The approval of the Court for the appointment of a tutor is not required. A Court order is only required where it is sought to substitute one tutor for another (UCPR, r 7.15(5)). The fact that a tutor has been appointed after the commencement of the proceedings (and before a mediation) is not determinative of the question whether the proceedings should have been instituted by the Plaintiff through a tutor: see, for example, Chong v Mo [2010] NSWSC 251, at [70].
A person not being under a personal incapacity to sue, not being an accounting party, not having an interest adverse to the person under a legal incapacity and not relevantly connected with any other party to the proceedings may be a tutor: R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270. The tutor represents the person and does not pursue a personal interest in the proceedings. These requirements are procedural.
UCPR rule 7.15(6) confers authority on a tutor to bind the person under legal incapacity. It confers that authority even if the tutor is someone who would not otherwise have authority to bind the person under legal incapacity, by being the manager of a protected person's estate, or the donee of an enduring power of attorney. However the authority that UCPR rule 7.15 confers on the tutor arises only concerning a limited class of acts, namely acts that the UCPR 'authorise or require a party to do in relation to the conduct of proceedings'. One of the things that the UCPR authorises a party to do is to compromise proceedings.
Where there is no evidence that a party fits within sub-paragraphs (a) to (e) of the definition of 'person under legal incapacity' in s 3 of the Civil Procedure Act, the only way in which she, or he, could be a person under legal incapacity is if the Court were satisfied that she, or he, is a 'person who is under a legal incapacity in relation to the conduct of legal proceedings' who does not fit within any of paragraphs (a) - (e) of the definition, or that she or he was a person who was incapable of managing her affairs within the meaning of UCPR rule 7.13.
There is no definition of the meaning of 'managing ... her affairs' in the Civil Procedure Act or in the UCPR. However, there has been discussion, in many cases, as to the meaning of that phrase under the Protected Estates Act1983 (which has been repealed by s 4 of the NSW Trustee and Guardian Act 2009 with effect from 1 July 2009).
In Application of SJ [2011] NSWSC 372, I wrote, at [17] - [19]:
'A person's capability to manage her, or his, own affairs, was discussed, by Campbell J (as his Honour then was), in Re GHI (a protected person) [2005] NSWSC 581; (2005) 221 ALR 581. His Honour affirmed the approach stated by Powell J in PY v RJS [1982] 2 NSWLR 70. Powell J had said:
'It is my view that a person is not shown to be incapable of managing his or her own financial affairs unless, at the least, it appears
(a) that she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and
(b) that by reason of that lack of competence there is shown to be a real risk that either
(i) she may be disadvantaged in the conduct of such affairs; or
(ii) that such moneys or property that she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner.'
Young J (as his Honour then was) in H v H (Supreme Court, 20 March 2000, unreported) in dealing with the capacity test, said that dealing with the 'ordinary affairs of man' does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs:
'are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills.'
The reference to 'affairs' is a reference to the whole of the person's affairs or his, or her, affairs generally: P v R [2003] NSWSC 819 at [7]. The cause of the incapacity is irrelevant, although the ability to recognise and protect one's own interests plays a central part in the inquiry (P v R at [9]).'
In Iskandar v Mahbur (No 6) (Supreme Court (NSW), Slattery J, 15 February 2012, unrep), his Honour referred to two other alternatives, at [7] - [8], and returned to the possibility of appointing the NSW Trustee and Guardian, in [9], as follows:
"The second option was the possibility of the plaintiff arranging and funding the appointment of the tutor. That course has been considered in previous proceedings: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200. But it is undesirable in this case for many reasons. The plaintiff is unwilling to fund the costs of a tutor for the third defendant. And the third defendant himself has a clear but unfounded concern about potential conspiracies against him among the plaintiff, the Court and other persons. Having a tutor acting for him in the proceedings funded by the plaintiff would have a tendency to compound the third defendant's conspiracy theories about this litigation. Such a solution is quite undesirable.
The third option is appointing a panel member from the Guardian ad Litem Panel, conducted by the Department of Justice and Attorney-General. That option is not without practical difficulties. It is not something which is within the normal operation of that Panel, which I am told was primarily set up to appoint tutors in care proceedings involving children and young persons. Also, a member of the Guardian ad Litem Panel would not ordinarily be made available for this purpose unless the plaintiff was prepared to provide an indemnity to the State of New South Wales in respect of any possible suit which the third defendant might bring against the panel member for maladministration in his role as tutor. The plaintiff is not willing to provide this indemnity. Finally, meeting the costs of a Guardian ad Litem panel members, acting as tutor, would require a separate Legal Aid application. Then a second Legal Aid application must be made for the tutor to engage and fund a solicitor to act for the third defendant. The complications in taking this course produce a high risk of delay and possible failure.
The fourth and final option is that the Court make an order under NSW Trustee and Guardian Act, s 41. This has advantages over the other options. The relevant estate of the third defendant will be managed by the NSW Trustee who will then take responsibility for the appointment of a tutor. It is expected that the costs of the tutor may be met from funds available to the NSW Trustee or, in the alternative from the Legal Aid Commission, which increase the probability that the tutor's expenses will be successfully covered. The plaintiff will not have to meet those expenses. The tutor will still have to apply for Legal Aid for a solicitor, as a tutor may only act by a solicitor unless the Court otherwise orders: UCPR r 7.14(2)."
His Honour, in the circumstances of that case, then made a declaration that the third Defendant was incapable of managing his affairs; ordered that part of his estate, as constituted by actual contingent assets or liabilities in, or arising out of, the proceedings, be subject to management under the NSW Trustee and Guardian Act; and that the management of the estate, so defined, of the third Defendant be committed to the NSW Trustee.
His Honour noted, pursuant to UCPR rule 7.15(3), that, in the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee and Guardian Act, the tutor of that person is to be the person who has the management of the person's estate under that Act, with the result that the NSW Trustee would become the third Defendant's tutor.
Trial by Jury
Section 85 of the Supreme Court Act provides:
"(1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise.
(2) The Court may make an order under subsection (1) that proceedings are to be tried with a jury if:
(a) any party to the proceedings:
(i) files a requisition for trial with a jury, and
(ii) pays the fee prescribed by the regulations made under section 18 of the Civil Procedure Act 2005, and
(b) the Court is satisfied that the interests of justice require a trial by jury in the proceedings.
(3) The rules may prescribe the time within which a requisition must be filed for the purposes of subsection (2)(a).
(4) A fee paid under this section is to be treated as costs in the proceedings, unless the Court orders otherwise.
(5) In any proceedings in which the Court has ordered a trial by jury, the following questions of fact must be tried without the jury:
(a) questions of fact on a defence arising under section 63(5) or 64(1)(c) of the Workers' Compensation Act 1926 or section 151Z(1)(e) of the Workers Compensation Act 1987,
(b) any other question of fact ordered by the Court.
(6) This section does not apply to proceedings in any Division for defamation."
UCPR rule 29.2(4)(a) provides a time limit for the filing of a notice of motion and a requisition for a jury in proceedings. The Plaintiff did not comply with the prescribed time limit in the present case. She provided no explanation for the delay, but it may be related to the fact that she no longer has representation.
In any event, the court may make an order extending the time for compliance, or delay the payment of the prescribed fee (a power, in each case, not in issue, although the Plaintiff sought neither order). The real matter at issue is whether an order that each matter should be tried with a jury should be made at all.
As stated previously, the decision with respect to the construction and application of s 85 Supreme Court Act is that of the Court of Appeal in Maroubra Rugby League Football Club Inc v Malo. The High Court refused an application for special leave to appeal from the decision of the Court of Appeal: Malo v South Sydney District Junior Rugby Football League Limited [2008] HCA Trans 135 (7 March 2008).
The principles, taken from that case, have been summarised by Johnson J in Simon v Hunter and New England Area Health Service [2009] NSWSC 758, relevantly, at [16] - [22]:
"In Malo, Mason P observed at 498 [9] that the longstanding entitlement to trial by jury in civil proceedings at common law had been removed as had the 'more Janus-faced statutory framework' discussed in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (cf Priest v New South Wales [2006] NSWSC 12 at [78]-[82], [106]-[122]).
The general rule for non-defamation matters is that proceedings in any Division of the Supreme Court are to be tried without a jury, but the court has a power to order otherwise if the conditions in s 85(2) are met: Malo at 499 [13]-[14]. The presence of particular complex factual issues does not necessarily preclude an order for trial by jury, because those issues can be tried without a jury: s 85(5); Malo at 499 [15].
For the purposes of s 85(2), the 'interests of justice' refer to considerations going beyond the private interests of the parties, and a party's self-interested right to requisition for trial by jury is not to be endorsed in order to advantage that party: Malo at 499 [17]-[18].
The court must be positively satisfied that the disinterested interests of justice require departure from the general rule from trial by judge alone: Malo at 499-500 [18]. In determining whether the interests of justice 'require' trial by jury in the proceedings, the applicant need not show 'ineluctable necessity', but the statutory language of 'require' connotes that which is obligatory, not that which is authorised: Malo at 501 [25].
Section 85 is concerned, and only concerned, with whether the interests of justice require departure from the mandated general rule that civil proceedings in the Supreme Court are to be tried without a jury: Malo at 502 [29]. Parliament has made the call that trial by judge alone is the norm. Absence of a 'representative' or 'community' viewpoint is not an inherent defect of trial by judge alone: Malo at 502 [31].
So long as the court remains focused on the statutory test, it may have regard to the incidents of the two different modes of trial, both generally and in their application to the particular proceedings, but it must not lose sight of the fact that, as a general proposition, it must be assumed that each mode of trial is satisfactory and calculated to produce a fair trial of the action according to law: Malo at 500 [19].
Section 85(2)(b) does not direct or permit the court to weigh which mode of trial is preferable in the proceedings, and to prefer trial by jury if traditional considerations or perceptions would have supported that mode. Nor does it permit judicial fact finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern 'moral, ethical or general social values', assuming them to be relevant to the task at hand: Malo at 502 [31]-[32]."
Determination
I shall deal, firstly, with whether a tutor should be appointed for the Plaintiff.
In coming to my conclusions, I have carefully considered the medical, and other, evidence before me, the contents of the writing that the Plaintiff sent to the court, and also my own assessment of the issue based upon some of the things that the Plaintiff said during the course of the hearing.
Medical, psychological, or psychiatric, evidence will usually be important, but the final decision on the question whether she is a person under a legal incapacity rests with the court.
As the Plaintiff submitted, the determination of the question whether she is a person under a legal incapacity is an important issue because it will determine whether she will, in law, have autonomy over decision-making in relation to the AMP Proceedings and the BT Proceedings and the control of the proceedings, including the right to compromise her claims. I accept that it is a drastic step to interfere with a party's legal right to participate personally, and directly, in the proceedings. The right of access to justice is such that the court should act cautiously before denying such a right.
Where a party resists the proposition that she, or he, is a person under a legal incapacity, it is necessary to scrutinise the evidence relied upon to establish that status carefully. A decision in such circumstances is not made lightly; as Kennedy LJ put it, at [27], in Masterman-Lister v Brutton, "no court should rush to interfere".
I also accept that it would be wrong, in principle, to appoint a tutor as a convenient method of dealing with an eccentric, querulous, stubborn or obsessive party. An order should not be made merely for the convenience of the court, or of other parties, in dealing with the difficulties that sometimes occur with an unrepresented party.
As Harrison J observed in Wang v New South Wales [2014] NSWSC 909, at [54], "it is important, however, not to lose sight of the overall context in which the current proceedings have been formulated. As the history reveals, there may well exist an authentic foundation for the plaintiff's dissatisfaction with what happened to her. It is certainly not out of the question that the relevant facts may be capable of supporting the existence of a cause of action known to the law. The passionate and emotional responses in court ... are to some extent at least an obvious and understandable reflection of this".
The court, in determining the issue, is entitled to, and should, consider the position of the litigant in dealing with the case(s). In this regard, the complexity of the litigation will be extremely relevant to the assessment. Her best interests may require the appointment of a tutor to ensure the identification of the merits of her case, and enable presenting that case in a cogent and effective manner not otherwise available to a person without the capacity.
Where a party is not capable of understanding the issues involved in the litigation, or is unable to give sufficient adequate consideration to the compromise of the proceedings, the protection of the processes of the court and the protection of an opposing party, or parties, is very relevant. As Lord Cockburn CJ put it in Banks v Goodfellow (1870) LR 5 QB 549, 569, "... one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration."
In this regard, as an unrepresented litigant, the Plaintiff will also be required to manage court proceedings in an unfamiliar and stressful environment, even if one, or both, of the proceedings are heard in Newcastle. I very much doubt that she 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.
I turn now to the matters identified by Kyrou J that are relevant to the determination of the issue.
From what she has written, and from what was said in court, I doubt that the Plaintiff is capable of understanding the factual and legal framework for her claims and the type of evidence required to succeed in those claims. She certainly does not appear to be capable of understanding what is relevant to each proceeding and what is not relevant. The suggestion that she was seeking $50 million is relevant on this issue.
In addition, the litigation that she has brought is far from simple, and there will not only be real issues of fact but also complex issues of law. Similarly, it is unlikely that she is capable of assessing the impact of particular evidence on her case. Her capacity must be commensurate with the gravity of the decisions in the litigation that she will be required to make. In my view, the more serious the decisions, the greater the capacity required.
It seemed to me that the Plaintiff had the capacity to, and did understand the court processes, the basic rules for conducting the hearing, and the court rulings, when these matters were explained to her, during the directions hearing and at the hearing of the notices of motion. I am not so sure that she would be able to do so during a hearing, particularly a hearing involving objections to evidence, the calling of witnesses, and the cross-examination of those witnesses. I also note that it is likely that the Plaintiff, herself, will be cross-examined.
I am satisfied that the Plaintiff did attempt to comply with directions given for the preparation of the case. I did receive what might be regarded as submissions and forms of statements from her which were in accordance with directions that were made.
The Plaintiff, in my view, does not have the capacity to understand the roles of counsel for the Defendants and the role his instructing solicitors. The criticism of the legal representatives of the Defendants and of their motives, appeared to be quite unwarranted. I consider that, during a contested adversarial hearing, she may have even more difficulty understanding the role of the lawyers.
I did not observe any inappropriate interference, or abuse, during any of the directions hearings or at the hearing of the notices of motion. I have referred to the criticisms of the legal representatives, in writing, earlier in these reasons.
The Plaintiff appeared to be able to control her emotions and behave in a non-abusive and non-threatening manner during each of the directions hearing and in the hearing of the notices of motion. Whether she would be able to do so during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses) is difficult to predict.
I am not satisfied that the Plaintiff has the capacity to understand that she could, possibly, lose one or both cases, in whole, or in part, if this matter were explained to her. Her answers to my questions regarding compromise demonstrate that she is unable to even contemplate that possibility, or if she does, she is not properly able to appreciate the risks that face her. Her belief that she is in the absolute right would, in my view, prevent any rational discussion regarding compromise.
Similarly, even though the Plaintiff is a university graduate, I doubt that she is able to consider the possibility that a particular claim made in the Statement of Claim could fail. She would not be capable, in my view, 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 is made. Her unwavering belief that she has been wronged by the conduct of the Defendants and what she described as her "personality" will prevent rational consideration of any settlement offer. As she stated:
"I believe it is wrong and I just conduct the case. I will see through this case. I will bring this case to the very end. That is my determination."
I have earlier mentioned the risk that the stress and pressure of the litigation might harm the plaintiff's physical or mental health. The Plaintiff stated that she was "exhausted" shortly prior to the long adjournment on the day of the hearing dealing with these issues. Much more time is likely to be required to deal with the substantive hearing. In this regard, the conclusion of Dr Westmore to which I have earlier referred is very persuasive.
I also take into account that she states a wish to continue to act for herself and that she does not state any intention to retain other legal representatives. In fact, she seems to believe that legal assistance would not be of any benefit to her.
In this regard, I am satisfied that the Plaintiff does not have the insight, or the understanding, of the fact that she has significant difficulties in relation to conducting these two proceedings in respect of which she needs legal advice and guidance.
Even if I were wrong, and even if the Plaintiff did seek legal advice, I consider it is highly unlikely that she would be able to locate a legal representative who she regarded as appropriate, and to instruct him, or her, with sufficient clarity, to enable that legal representative to understand the problem and to advise her appropriately.
Even if she were able to locate an appropriate legal representative, she needs sufficient capacity to understand, and to make decisions, based upon, or otherwise give effect to, such advice as she may receive. I consider that she does not have that capacity.
Some of her statements, taken with other expressions of determination to proceed no matter what, demonstrates, in my view, the Plaintiff's inability to understand the nature of the litigation engaged in, the possible outcomes of the litigation, and the risks associated with it, including the possibility of an adverse costs order if she is unsuccessful. She is not capable of exercising any reasonable judgment on a possible settlement. Capacity to pursue a claim requires capacity to take a decision to compromise that claim; and that capacity to compromise requires an understanding of what will be the effects of a compromise.
I have given careful consideration to the opposition of the Plaintiff 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 the Plaintiff is a person under a legal incapacity and that an order should be made for the appointment of a tutor.
I sincerely regret that the Plaintiff will be very upset by this conclusion, but the making of such an order is clearly in the interests of justice, and, even though she might not see it that way, in her best interests also.
UCPR rule 7.14 provides that, as such, the Plaintiff 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.
The more difficult question is what should now be done to have the matters proceed as expeditiously as possible.
As stated earlier in these reasons, the evidence reveals that there have been unsuccessful attempts to find a tutor. The only solicitor who is prepared to act has placed a significant condition on his appointment. It follows, for reasons stated earlier, that the Plaintiff's proceedings may be stultified if a tutor cannot be identified. That would not be to the Plaintiff's benefit or to the benefit of the Defendants. All of the parties would have these two proceedings undetermined but remaining on foot.
The court must next consider what can now be done to avoid this most unfortunate consequence bearing in mind the oft-quoted s 56 and s 57 of the Civil Procedure Act 2005 (NSW) which set out the overriding purpose (to facilitate the just, quick and cheap resolution of the real issues in the proceedings) and the objects of case management (the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties).
Of course, in deciding whether to make an order, s 58 requires the court to consider what are the dictates of justice (relevantly in this case, the degree of difficulty or complexity to which the issues in the proceedings give rise, the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, and the degree of injustice that would be suffered by the respective parties as a consequence of any order).
I have considered following the course adopted by Slattery J by, on my own motion, making an appropriate declaration as to the Plaintiff's inability to manage her affairs and a partial management order. Clearly, there is power to do so: s 41(2) NSW Trustee and Guardian Act 2009 (NSW).
However, no submissions were made, at the hearing, about whether, in fact, the Plaintiff meets the test for being incapable of managing her affairs within the meaning of the NSW Trustee and Guardian Act. Also, because capacity is issue and context specific, the Plaintiff may have capacity for one purpose but lack capacity for another purpose.
While there is evidence that does bear upon that question, the substance of some which I have stated, it was read for a purpose other than elucidating an answer to the question whether the Plaintiff is incapable of managing her affairs.
There could be certain advantages to appointing the NSW Trustee and Guardian as the manager of part of the estate of the Plaintiff (the litigation brought by the Plaintiff against the Defendants). In the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee and Guardian Act, the tutor of that person is to be the person who has the management of the person's estate under that Act: UCPR rule 7.15(3).
In addition, the NSW Trustee, also, is likely to approach the matter with objectivity and detachment and would conduct the case with a view to promoting the Plaintiff's interests, and, in accordance with s 39(d), taking her views in relation to the exercise of that function into consideration.
In the circumstances, I propose to make an order that a tutor be appointed for the Plaintiff and allow the parties a further opportunity to consider these reasons and to take further steps to see whether there is someone who could be nominated and who might be prepared to act as the Plaintiff's tutor.
I shall stand the matter over to a date to a convenient date to the parties and the court. This will give the Plaintiff an opportunity to consider whether, in light of the orders of the court, she wishes to have a tutor of her own choice. The adjournment will also allow the Defendants to consider what further steps could be taken to appoint a tutor and whether the issue of potential liability for costs that will be incurred might be relevant to someone being prepared to act.
I turn then to the Plaintiff's application for the trial of the AMP Proceedings and the BT Proceedings to be heard by a jury.
The general rule regarding proceedings of the type brought by the Plaintiff is that they are to be tried without a jury: s 85(1) of the Civil Procedure Act. The court has a power to order otherwise if the court is satisfied that the interests of justice require trial by jury.
In considering the interests of justice, the required consideration is the timely and appropriate administration of justice, with justice to all parties to the litigation: Lee v Keddie [2011] NSWCA 2, per Allsop P, at [11].
The Plaintiff, in support of her application, relies upon "the inequality between the defendants and me of the above two cases that has caused the Brutality to me". She goes on to state that she (and Mr Smith) are likely to have difficulty understanding the language and the legal jargon which are used by lawyers at court when they present the two cases. She adds that a jury would include members of the community and "if the members of the jury understand what the defendants' counsel say, so do I and Mr Smith. This will be a fair trial." She also says that a jury would have "greater empathy and greater understanding".
None of these matters leads me to being satisfied that a jury is "required". A jury will not enable the Plaintiff to better understand what is going on if she is otherwise unable to do so. In my view, she is a person under a legal incapacity for the reasons I have identified. A jury hearing the matter will not result in her capacity being improved.
The court 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 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.
(iii) Orders that the Plaintiff's notice of motion to have the proceedings heard with a jury be dismissed.
(iv) Orders that the Plaintiff's notice of motion for leave to issue subpoenas be dismissed.
(v) Stands the proceedings over to a date convenient to the parties and the court.
(vi) 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.
(vii) Orders that the Plaintiff's application to set aside the order made by Young AJ that the AMP Proceedings and the BT Proceedings be heard together, with the evidence in one being evidence in the other, be adjourned to the adjourned date.
(viii) Orders that the Plaintiff's notice of motion to amend the Statement of Claim be adjourned to the adjourned date.
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Amendments
22 December 2014 - corrected formatting
Amended paragraphs: coversheet and 68
Decision last updated: 22 December 2014
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