Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No. 4)

HIS HONOUR: This is yet another occasion that these two matters are before me for consideration. Together, they have been listed on many occasions, for directions, prior to my judgment of 18 December 2014, and after the appeal from that judgment was determined. Indeed, this is the fourth occasion that the matters have been before me since I returned from long leave at the commencement of this year.

One aspect of the matters was listed for determination following a directions hearing on 10 May 2016, at which the Plaintiff appeared by telephone. It will be necessary to return to what occurred on that occasion later in these reasons.

The two matters were remitted to the Equity Division, by the Court of Appeal, following the determination of an application for leave to appeal from orders made by me on 18 December 2014. I simply note that the medium neutral citation of the Court of Appeal’s reasons for judgment is Mao v AMP Superannuation Ltd [2015] NSWCA 252. (My reasons for judgment bear the medium neutral citations Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794; and Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 2) [2015] NSWSC 33).

My most recent reasons for judgement, which deal with events at a directions hearing, at which the Plaintiff did not appear, bear the medium neutral citation Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2016] NSWSC 382. Those reasons were delivered on 4 April 2016. In those reasons I set out some of the procedural history, which I shall not repeat.

The question whether to appoint a tutor for the Plaintiff in both of the proceedings, having been remitted to the Equity Division in August 2015, remains unanswered, and there is still no application, by any party, following the reasons for judgment of the Court of Appeal, to have that question determined.

However, that is not the subject of these reasons for judgment. Rather, these reasons deal with an application, without a notice of motion, by the Plaintiff, that the further conduct of the proceedings should be heard and determined by another Judge of this Court. I shall return to the reasons for the Plaintiff’s application later in these reasons.

At my behest, for the reasons set out in Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2016], I had the matter listed on 4 April 2016. I directed the Defendant’s solicitors to forward a copy of the ex tempore judgment delivered on that date to the Plaintiff with written notice confirming both matters were to be listed again on 10 May 2016. For the reasons that follow, I am satisfied that the directions made were complied with.

At about 4:30 p.m. on 8 May 2016, my Associate received an email, in the following terms, from the Plaintiff:

(I have omitted the Plaintiff’s telephone number in order to ensure her privacy.)

It did not appear from the Plaintiff’s email, that it had been sent to the legal representative for either of the Defendants, a fact each counsel confirmed at the directions hearing on 10 May 2016.

My Associate, at my request, responded to the Plaintiff’s email (with a copy to each of the legal representatives for the Defendants) in the following terms:

My Associate, on 10 May 2016, received an email in the following terms (which appears to have been sent at 11:25 p.m. on 9 May 2016) by, or on behalf of, the Plaintiff:

(I have omitted the reference to the link referred to in the email to ensure the Plaintiff’s privacy.)

Needless to say, none of the documents were provided to the Court in hard copy prior to 10 May 2016. Nor have they been provided since that date.

Furthermore, it did not appear from the Plaintiff’s email that either the email, or any of the documents referred to in it, had been served upon the legal representative of each of the Defendants. This fact was confirmed by each of the counsel who appeared at the hearing.

As the only document that seemed to be immediately relevant to the directions to be made was the affidavit said to have been affirmed by the Plaintiff on 9 May 2016 that was the only document that I requested my Associate to print.

It was in this document that it was revealed that the Plaintiff objected to me continuing to hear each of the proceedings. No prior notice of any such application had been given to the Court, or to either of the legal representatives of the Defendant in each matter.

In the Plaintiff’s affidavit of 9 May 2016, the Plaintiff stated, amongst other things:

Because the matters had been listed on 10 May 2015 before me for directions only, I was not prepared to deal with the Plaintiff’s application.

On 10 May 2016, each of the Defendants was represented, and shortly after 9:30 a.m., the Plaintiff was contacted by telephone.

After some prevarication regarding whether she had served each of the Defendants by its solicitors, the Plaintiff asserted that she had served the documents on each of the Defendants personally. How this was done, was not made clear by her.

I am unable to state, from the transcript of the hearing, precisely the terms of the discussion between the Bench and the parties (as the transcript is not currently available). However, I am able to state that the Plaintiff was specifically informed that her application for me to recuse myself would be heard, commencing at 11:45 a.m. today. The date and the time for the hearing was a date and time suitable to the parties. Indeed, the matter was set down with some degree of urgency at the behest of the Plaintiff, and at a time to suit her convenience since she had to travel to Sydney.

In an email dated 16 May 2016, from the Plaintiff to my Associate, the following appears:

Once again, the email did not appear to have been sent to the legal representative of each Defendant.

At my request, my Associate, upon receipt of the email, sent an email to the Plaintiff and to the legal representative of each Defendant that was in the following terms:

No further correspondence from the Plaintiff in response to that email was received by the Court.

However, this morning my Associate provided me with a copy of an email, apparently from the Plaintiff, sent at 9.37 p.m. on 25 May 2016 which email was in the following terms:

The application for special Leave to Appeal was “from whole of the judgment of New South Wales Court of Appeal, Acting Chief Justice, Margaret Joan Beazley; Justice Arthur Robert Emmett and Justice Mark James Leeming given on 27 August 2015.”

Relevantly to the application presently listed today, the following subparagraphs appears:

Also attached to the email of 25 May 2016 was a copy affidavit of the Plaintiff affirmed 25 May 2016, which affidavit concluded:

I have not encumbered these reasons by setting out all of what is in the affidavit relating to members of the Court of Appeal. Although I have read the affidavit and the Application for Special Leave to Appeal, the matters raised are not particularly relevant to the decision that I am required to make today.

When the matter was called at 11.46 a.m., and then again at 11.55 a.m., there was no appearance by, or on behalf of, the Plaintiff. There was, however, an appearance by counsel for the Defendant in each matter. In addition, an instructing solicitor for each Defendant was present.

Each counsel confirmed that her, and his, solicitor respectively, had not received a copy of the email sent to my Associate by the Plaintiff, or the documents attached to it. Counsel for the Defendant, AMP Superannuation Fund, however, acknowledged that a letter of notice from the Registry of the High Court had been received by her instructing solicitors.

There being no appearance by, or on behalf of, the Plaintiff when the matter was called, each counsel sought an order that the Plaintiff’s application for me to recuse myself should be dismissed.

I have no doubt that such a course is open to the Court. It is prescribed by the overriding purpose enshrined in s 56 of the Civil Procedure Act, to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the Court’s duty to give effect to the overriding purpose when it exercises any power given to it by the Civil Procedure Act, the objects of case management (s 57); the requirement for the Court to follow the dictates of justice (s 58); the stated object for the practice and procedure of the Court in any proceeding to be the elimination of delay (s 59); and the object of the practice and procedure of the Court in any proceeding to be implemented “in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute”.

Another basis that could ground the application to dismiss the Plaintiff’s application is that it is one that cannot be made by the Plaintiff alone. In this regard, it is to be pointed out that the Court of Appeal has noted at [55]:

I shall not repeat the reference to UCPR rule 7.14 in the Court of Appeal’s judgment. However, I am satisfied that any prohibition against carrying on with the application could be dispensed with, as the Court of Appeal did in relation to the application for leave to appeal and the appeal. Accordingly, I would not be prepared to dismiss the Plaintiff’s application for recusal on that ground.

I also considered the question whether there is any prospect of success in relation to the application to recuse myself from any further hearing in each proceeding. Since I have not heard any submissions from the Plaintiff on that topic, I shall not express any view, tentative, or otherwise.

There is much to be said in support of the submission that the Plaintiff’s application should be dismissed since she has not appeared. However, it seems to me that this would only prompt further interlocutory skirmishes between the parties and further delay the hearing of her substantive claims.

I also bear in mind that she is a litigant in person and that I have earlier held that she is a person under a legal incapacity.

In order to allow the Plaintiff to continue with her application in the High Court, and in order to avoid each of the Defendants incurring further costs by appearing in this Court when the Plaintiff does not appear in order to deal with an application that she, herself, has made, I am of the view that, rather than dismissing the Plaintiff’s application for me to recuse myself, I should, pursuant to s 67 of the Civil Procedure Act, stay that application and any other extant application brought in this Division, until such time as any party seeks to have the stay lifted.

As I apprehend it, other than the principal claims for relief, the only two extant applications, in this Division of the Court, are the notice of motion remitted back to this Court by the Court of Appeal and the Plaintiff’s application that I recuse myself from further involvement in either proceeding.

Section 67 empowers the Court to stay any proceedings before it, either permanently, or until a specified day. The section does not identify any particular criteria as relevant to the exercise of the power. The section appears to me to be wide enough to allow part of proceedings in the Court to be stayed. In considering whether to make such an order, all relevant factors should be considered.

I am satisfied that the stay of extant applications in the Equity Division would not work an injustice to any party since it will not prevent her, or it, making any application that she, or it, wishes to make in order to have the stay in respect of the extant applications lifted.

Furthermore, a stay is not equivalent to a discontinuance, or judgment for the plaintiff or the defendant and may be removed if proper grounds are shown: Cooper v Williams [1963] 2 QB 567 at 580, 582.

As was written in Lambert v Mainland Market Deliveries Ltd [1977] 1 W.L.R. 823, by Lawton L.J. at 834:

Prior to making any order, I asked counsel for each of the Defendants whether she, or he, wished to say anything in opposition to the grant of the stay of each of those two applications. Neither wished to be heard in opposition to such an order being made.

I do not think that making such an order without hearing from the Plaintiff would cause any injustice to her since a stay is part of the relief to which she referred in the documents sent to the Court.

The other alternative is to adjourn the Plaintiff’s application to a specific date, but that may simply involve more costs being incurred by the Defendants since the date to which the matter is adjourned may not be suitable to the Plaintiff (as occurred earlier in the proceedings).

The Court orders pursuant to s 67 of the Civil Procedure Act, that the extant applications, in the Equity Division, be stayed until such time as any party makes such application in this Division, as she, or it, wishes to make, including one for the hearing of the Plaintiff’s application to have me recuse myself or for the determination of the notice of motion for the appointment of a tutor for the Plaintiff.

It does not seem to me, bearing in mind the failure of the Plaintiff to attend today, taken with her failure to inform each of the legal representatives of the Defendants that she would not be present, there is any reason for her not to pay the costs of each Defendant for their appearance today. The Plaintiff’s application was listed for hearing today and it has not proceeded because of her absence.

The Court orders the Plaintiff to pay the costs of today of each Defendant.