Julie (a pseudonym) v John (a pseudonym) (No 2)

HIS HONOUR: Many families function and live out their lives delighting and disappointing each other without resort to legal processes. Sometimes legal processes may be necessary to determine disputed relational matters and property entitlements within families.

Not all such litigation is unwelcome or vexed. Uncontested adoption applications are a quintessential example of a legal proceeding which in many respects gladdens hearts and generally enriches the adoptive family. However, many family grievances or disputes worked out in the context of litigation have the opposite tendency, especially where conducted by a family member by means of unrestrained disparaging correspondence and materials of no probative value for any legitimate forensic purpose.

Such family litigation will often be particularly challenging where questions arise regarding the capacity or motives of one or more of the family members.

On 8 May 2025, I dismissed with costs an application of the first defendant (John) [1] for a financial management order in respect of the third defendant, his mother (Olivia) (application). These reasons for judgment set out the basis for my dismissal of the application.

The history to the dismissal is important and I will recite salient parts of it below. It brings to an end a long-standing attempt (approximately 2.7 years) by John to achieve through the application certain disclosed financial objectives which were very remote from the proper purpose of a financial management order and far from evident as being for the welfare of his mother. John was initially legally represented but since early September 2024 has been self-represented.

Evidence at a prior hearing before me revealed that over 25 years ago, certain medical professionals ventured an opinion that John had what was then described as “Asperger’s syndrome”. [2] Without opining on that, certainly on one view, John exhibits sufficient functioning qualities to conduct litigation. However, the tragic irony in this matter is that John’s conduct of the application raised more questions regarding his own sagacity, than that of his mother to conduct her affairs.

To give context to the dismissal of the proceedings, it will be necessary to outline certain of John’s conduct of the application. Even so, it is not appropriate nor the purpose of this judgment to venture into any examination of John’s capacity nor the reasons for his conduct. No application was made by any party challenging John’s capacity to conduct litigation. Expressly, I do not proceed on the basis that John has been diagnosed with or has any form of autism spectrum disorder or other condition that may impact upon his capacity or conduct.

The reasons make reference to reasons for judgment delivered by me on 9 August 2024, Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 (principal judgment or PJ) and will adopt its nomenclature and abbreviations.

Up to the time of the principal judgment, John was represented by solicitors and counsel. Thereafter, as will be detailed below, he was relevantly self-represented.

Between the time of the principal judgment, on which occasion I made orders (see below), up to (but not including) the hearing on 8 May 2025, there were 5 listings before me of the matter, on 4 September 2024, 15 October 2024, 10 December 2024, 20 February 2025 and 5 March 2025. In addition, I made listing and other orders in Chambers on 4 separate occasions. [3]

On 8 October 2022 John signed and on 21 October 2022 filed, in the Guardianship Division of the New South Wales Civil and Administrative Tribunal (Tribunal), an application pursuant to the provisions of the Guardianship Act 1987 (NSW) (Guardianship Act). [4]

On 5 November 2022, Julie (John’s sister) and Robert (Julie’s husband) lodged a submission with the Tribunal seeking an order that John’s application be dismissed on the basis that it was vexatious, spurious, lacking in substance and misconceived. [5]

The Tribunal held two hearings in relation to the application.

The first hearing was held on 14 December 2022. On that day, the Tribunal made orders committing Olivia’s estate to management under the NSW Trustee and Guardian Act 2009 (NSW) (NSWTG Act) and appointing the NSW Trustee and Guardian (NSWTG) as financial manager under an interim financial management order for a period of six months (first orders). The Tribunal provided reasons for the first orders on 19 January 2023. [6]

The second hearing was held on 22 March 2023. On that day, the Tribunal made orders committing Olivia’s estate to management under the NSWTG Act and appointing the NSWTG as financial manager. The orders specifically excluded part of Olivia’s estate from the financial management order, consisting of two bank accounts and a credit card (second orders). The Tribunal provided reasons for the second orders on 5 May 2023. [7]

On 2 June 2023, by a notice of appeal, the Plaintiff (Julie) appealed the decision of the Tribunal. [8]

On 4 September 2023, pursuant to leave given on 14 August 2023, Julie filed an amended summons. The amended summons sought the following relief: [9]

Appended to the amended summons were points of claim which (omitting formal parts) set out 7 grounds of appeal. The grounds of appeal were detailed and spanned over 6 pages. [10] Julie contended that, in making the financial management order, the Tribunal erred in law for various reasons, including errors of procedural fairness, applying the incorrect legal test, and acting in a legally unreasonable way. [11]

Julie and John were the active parties in the proceedings. The NSWTG was named as the second defendant but did not file any appearance nor participated on the hearing of the appeal. Olivia was named as the third defendant and Mr Schmidt-Liermann, solicitor, filed a submitting appearance on her behalf on 1 February 2024. [12]

In dealing with an appeal from the Guardian Division, the Court may decide to do so by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) Sch 6 cl 14(3)(2). However, no party at that stage contended that the Court should do so in this case. [13]

The hearing of the appeal was listed before me on 14 June 2024 and, on that occasion, Mr O Jones of counsel appeared for the plaintiff instructed by Clear Lawyers, and Ms A Poukchanski of counsel appeared for John instructed by SLF Lawyers. The hearing progressed on that day and I reserved judgment.

On 9 August 2024, I delivered reasons for judgment in the matter, allowing the appeal.

A significant part of the grounds of appeal related to the question of John’s standing to make the application. I made various findings regarding the standing issue, including that:

In addition, I made various other findings.

On 9 August 2024, I made the following orders:

On 23 August 2024, Julie’s solicitor Mr Clear foreshadowed that she sought an order for costs of the proceedings and proposed a number of orders. On 26 August 2024 by email, my Associate enquired whether there was any dispute regarding costs and whether the parties wished to be heard orally and be provided with reasons. On 27 August 2024, Mr Clear indicated that he did not seek any oral hearing and was content for the matter to be dealt with on the papers, but did seek reasons for any decision on cost.

On 27 August 2024 and 4 September 2024, I made orders to facilitate the determination of costs.

On 11 February 2025, I made the following orders regarding costs of the first hearing, which orders (incorporating a slip rule amendment) were as follows:

The 9-month period between the making of orders allowing the appeal (9 August 2024) and the date for the new hearing (8 May 2025) was marked by a number of aspects, being:

I will briefly address the first three matters listed above. I will deal with the last two matters under separate main headings.

As, noted, at the appeal hearing on 14 June 2024, John was legally represented.

Notwithstanding that legal representation, from 2 September 2024, John commenced to send email correspondence to my chambers email, being an email address superintended by my staff (Associate and Tipstaff).

Generally, for the purposes of the case management directions before me, John requested and I permitted John to appear by AVL, with my Associate sending the link to John and the legal representatives for the other parties. [18]

From 3 September 2024, John, particularly in a context for an upcoming hearing, insisted that AVL details be emailed to his wife’s (Kylie) email to permit her to “attend the hearing”. [19] On 15 October 2024, at the listing of the matter, I discussed with John arrangements regarding AVL attendance and made an order (Order 7) as follows:

Thereafter, for the purposes of each directions listing, John attended the court listing at times by requesting and being permitted an AVL connection to the court. Further, consequent upon requests by John for an AVL to be sent to Kylie, I permitted Kylie to appear by that means but on the basis outlined above. [20]

On 4 September 2024, at the listing of the matter, Ms Ram (an employed solicitor) attended in a context in which SLF Lawyers had served on John a Notice of Intention of Ceasing to Act.

On 7 September 2024, John emailed my Associate requesting that she include any (email) correspondence to email addresses apparently of two solicitors, [21] Lawyer A and Lawyer B.

On 11 September 2024, Mr Smith of SLF Lawyers filed a Notice of Ceasing to Act on behalf of John.

On 1 October 2024, one of the solicitors to whom John had referred to (namely Lawyer B) sent an email to my Associate and other parties stating that he did not act for John and had confirmed this with John and separately with Mr Clear.

On 3 October 2024, notwithstanding the above-mentioned email from Lawyer B, John by email to my chambers email asserted that Lawyer B had been in discussions with Witness A and Lawyer A, intimating that Lawyer B would likely act. [22] In fact, Lawyer B never commenced to act.

Further emails were sent by John to my Associate’s email asserting that Lawyer A was representing him and should be copied into email correspondence by my Associate. [23] Notwithstanding that, Lawyer A never commenced to act for John in these proceedings.

On 4 November 2024 and at various times thereafter, John sent another email to my Associate asserting that another lawyer, Lawyer C, “is our new lawyer”. [24] John asserted that he did not wish Julie and Robert to contact his new lawyer. [25]

On 10 February 2025 (just prior to the listing before Registrar Walton), John sent an email to my chambers under the subject heading “COSTS” asserting that he and Kylie were represented by Lawyer A and Lawyer C, and provided their email addresses. He stated that “Our lawyers have taken over from [prior lawyers] for us” and that they were seeking costs from Robert and Julie, and enquired when I would hold a hearing in the court to hear from witnesses and evidence regarding “COSTS……”. [26]

On 19 February 2025, John sent emails to my chambers email requesting that an AVL be sent to Lawyer C being “our lawyer” [27] and to Lawyer A “our other lawyer”. [28]

Having regard to the lack of any of John’s nominated solicitors formalising any application to appear on his behalf, my Associate at 4:50 PM on 19 February 2025, sent the following email to the parties:

On 10 March 2025 at 7:43 PM, John sent an email to my chambers under the subject heading “Affidavits” requesting that copies of affidavits that Robert and Olivia had made be sent to a further lawyer, Lawyer D, who it was said “might” be representing John. An email address was provided. After the sign off, the email further stated that he did not wish Julie’s or Olivia's solicitors to contact [Lawyer D] “until [Lawyer D] has officially contacted the Supreme Court…”.

On 11 March 2025 at 8:51 AM, my Associate at my request sent to John and to the other legal representatives the following email in response to John's email.

At no stage did any of Lawyers A, B, C and D who John alleged were acting for him ever confirm that he or she was representing or acting on behalf of John. Another lawyer, Lawyer E, employed at a firm that had previously acted for John, was mentioned by John as having given him (at prior stages seemingly before the Tribunal) certain advice. None of these lawyers ever relevantly communicated with the Court or attempted to formalise a position of acting for John by, for example, filing a Notice of Change of Solicitor or Notice of Appointment of Solicitor. [29]

The orders made by me on 9 August 2024, whilst setting aside the decision and orders of the Tribunal expressly did not dismiss John’s application.

On 2 September 2024, Mr Clear sent to my Associate an email [30] noting that he had written to John's solicitor (Mr Smith) enquiring as to whether John intended to proceed with his application for appointment of a financial manager and that John’s solicitor had stated that they had not been able to obtain instructions to respond to the request. Mr Clear outlined certain orders that he sought. In the absence of any consent, I ordered that the matter be listed 9 AM on Wednesday, 4 September 2024.

Later on 2 September 2024, John by email to my chambers email [31] indicated that he did wish to continue with what he described as being an application to have a public guardian look after Olivia and her affairs.

On 4 September 2024, at the listing before me, I expressly enquired of John what he intended to do in relation to the application instituted in the Tribunal and he indicated that he wished to proceed. [32]

I made a number of orders, including the following orders:

On 13 September 2024, Mr Clear sent to my Associate submissions, a Notice of Motion and affidavit of the plaintiff. The orders sought in the Notice of Motion included for John’s application to be dealt with by way of new hearing in this Court and directions for filing of evidence and other case management. The Notice of Motion also foreshadowed that Julie would seek at the final hearing of the application dismissal of the application and an order prohibiting John from bringing any further proceedings in relation to the affairs of Olivia without leave of the Court.

On 15 October 2024, John confirmed that he intended to prosecute his application to the Tribunal and the parties agreed that the application would be dealt with by way of new hearing in this Court, which hearing was listed before me on 8 May 2025.

In an email dated 2 September 2024, [33] John asserted that Lawyer E in August 2023 “started talking about having [Olivia] independently assessed”. He observed that he and Kylie were waiting for that to occur and queried why it was taking so long. Comments regarding delay in an independent assessment and promises by Lawyer E were made by John in subsequent emails. [34] On 24 December 2024 John sent an email asserting that he would like to show me a copy of an independent assessment regarding Olivia, [35] but did not then nor at any later stage provide it to the Court. There is no indication that Lawyer E, at least in these proceedings on the appeal of the new hearing before me, ever sought for Olivia to be formally assessed and John never sought a specific order to that effect.

On 2 September 2024, John sent the first of many emails to my chambers email. The correspondence by John to my chambers email continued at varying frequency up to the time of the listing of the matter for hearing on 8 May 2025. Over 60 such emails were sent by John to my chambers email. Indeed, even after I dismissed John’s application, further emails were sent by John to my chambers email [36] as well as emails from third-party suppliers to John. [37]

Characteristics of the correspondence included:

On 3 September 2024, my Associate at my request sent an email to John, and also to Julie's representatives, noting that several emails had been received from John and indicating the correspondence should not be sent without being copied to the representatives of the other parties. In this regard, I referred to my comments in Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 (Wyatt) at [153]-[157] regarding email communications with judges’ chambers. [38] In Wyatt, I stated:

Principles regarding communications with Judge’s chambers apply to all practitioners and litigants, including self-represented litigants. In Al Dakhili v Al Kheurallah [2023] NSWSC 47 (Al Dakhili) at [65]-[72], I stated:

Evident from my observations in Al Dakhili, the approach that will be taken by the Court to self-represented litigants sending impermissible communications to a judge’s chambers will vary according to the particular circumstances of each case.

Despite numerous requests from my Associate at my request to ensure that other parties were copied into any email correspondence sent to my chambers, [39] John consistently and steadfastly ignored that direction.

Broadly speaking, the vast majority of John’s email communications did not fall within any of the exceptions noted above. Deplorably, a significant number of John’s communications contain very serious allegations against various persons including legal representatives.

During the listing of the hearing on 8 May 2025 before me, John asserted that Lawyer E had informed him not to send anything to the other parties’ lawyers, stating “it’s up to my lawyer to do that”. When I made the observation that he had no current lawyer, John simply responded “Well, we did have a lawyer but he retired”. [40] My impression is that John, by his response, was seeking to provide some excuse or rationale for why he had disregarded the (numerous) directions that I had given by my Associate that he should not engage in any correspondence with my chambers without notice to the other party. If John’s comments were purportedly an excuse or a rationale, I do not accept them.

There is little doubt that, where a party is legally represented, correspondence for the purposes of court proceedings should ordinarily (excepting cases of extreme urgency or other specified exceptions) [41] be with the solicitor for the party as distinct from correspondence to the party. [42] However, there is no legal conduct rule or convention that permits or justifies a self-represented litigant from not copying to legal representatives of other parties his or her email correspondence to a Judge’s Associate or to a Judge’s chambers.

By dint of the procedure which I adopted, with my Associate copying in legal representatives of other parties to her replies to John’s emails, in which she reminded him to ensure the other active parties were copied into email communication, I attempted to ensure, both for the purposes of transparency and procedural fairness, that the legal representatives for the other parties were made aware of the correspondence from John to my chambers.

The legal representatives for Julie (the only active respondent to John’s application) exhibited to some degree the “patience of Job”. [43] Whilst they did not acquiesce to John’s transgressions regarding my direction in respect of communications, they did not make complaints nor seek any specific orders or relief in respect of his impermissible communications.

Themes and issues which were raised in (and sometimes strongly pervaded) John’s correspondence included gratuitous disparaging remarks by John regarding Robert as a “con-man”, a “thief”, a “sweet talker” [44] and assertions by John that:

Other aspects of John’s correspondence initially left unclear precisely what John was seeking. Thus for example, he claimed “No more NEW items are to be made for [Company A] during the Supreme Court case”. [77] It appears that John was seeking some form of orders that the decision-making powers of the directors of Company A should be superintended by the Court. [78]

John also made assertions that he was seeking to appeal other decisions made by the Tribunal and requesting me to conduct appeals in respect of such matters [79] and sent to the chambers email miscellaneous pages of the Tribunal’s decisions. [80]

Further to what I have indicated above, John not merely adverted to liquidation of Company A but appeared to be under the misapprehension that his application sought an order for the appointment of an independent liquidator to Company A [81] (which it clearly did not).

On 4 September 2024, on the listing of the matter before me, Mr Jones appeared for Julie and Ms Ram appeared in court, noting that on the prior day her firm had filed a Notice of Intention to Cease to Act. John appeared by AVL.

John having indicated that he wished to proceed with his application, [82] I made the following orders:

On 3 October 2024, John sent an email to my chambers email. The opening part of the email was disparaging of Robert and provided a “list of people who can confirm what [Robert] is like”. The email named a number of persons from whom John subsequently provided what I will loosely describe as “witness statements”. [83] This included Witnesses A and B.

On 15 October 2024 at the listing of the matter, Mr Jones appeared on behalf of Julie. John appeared by AVL and Ms Gardiner appeared for the NSWTG.

The orders that I made were as follows:

On 1 November 2024, John sent a further email to my Associate asserting Witness B would be attending court on 10 December 2024 “to give his verbal statement”. [84] The email indicated that they would also like to ask Olivia's solicitor (who is playing a non-active role in the proceedings) a number of questions. Leaving aside the fact that the listing on 10 December 2024 was not an opportunity for Witness B to simply turn up at court and start giving verbal evidence, Witness B did not in fact attend on that date nor had John formally arranged for him to do so, such as by the issue of a subpoena.

On 10 December 2024, on a listing before me, Mr Jones appeared for Julie and John appeared again by AVL. Mr Jones confirmed that Julie's affidavit evidence was complete. I raised with John the question of when he would be able to provide his evidence. He indicated to the Court that he was “working on it at the moment” and proffered that he would be able to put the material on in “maybe a week”.

I made the following orders:

On 10 February 2025, there was no listing before me. There was a listing before Registrar Walton at 9:30 AM.

It became evident that there was some confusion at least on John’s part in being able to formally appear in that occasion. He was apparently thinking that the matter was listed before me.

Prior to the listing, John sent a number of emails to my chambers email including relevantly:

No leave had been sought by John to amend his application to seek any such relief. No evidence in support of any such application (nor any rationally probative evidence in support of such relief) was then or later provided by John. Further, there was no indication that he had given any notice of intention to seek such orders to the respondents nor to potentially affected parties including Company A and Robert.

The Court’s record of proceedings reveals the Mr Jones attended but there was no appearance by or on behalf of John. Mr Jones later confirmed to me that John had been connected to the Court for the listing of the matter before Registrar Walton on 10 February 2025 but had not been connected when the matter was called at the start of the list. [87] This was consistent with an email from a Client Services Officer of the Court (CSO) to my Associate. [88] The Registrar listed the matter for hearing before me at 10 AM on 8 May 2025, with an estimated hearing time of one day.

John engaged in correspondence with my chambers about the matter.

My Associate sent to John copied to the other legal representatives the following: [89]

Later on 10 February 2025, John sent an email to my chambers email requesting confirmation that that “the next Supreme Court hearing is May 8th at 10am”. [90] On 11 February 2025, my Associate responded at my request indicating that John should contact the Equity Registrar with any questions relating to the listing before her (relevantly by which the hearing date had been allocated). [91]

On 14 February 2025, John emailed my chambers identifying witnesses that he and Kylie would like to give verbal statements about Company A, the property, and Robert and Oscar's Will. The witnesses being Witnesses A and B, were asserted to be long-term family friends. The email indicated that there were various Company A customers and ex-distributors who would like to give their verbal statements, and he also had a “VIP from overseas” who would like to give a verbal statement to the Court by video. [92]

On 19 February 2025, my Associate sent to the practitioners and to John notification of listing of the matter for directions on 20 February 2025 at 9:15 AM in my Court and provided an AVL link. [93]

On 20 February 2025, the CSO alerted my Associate that a Notice of Listing had been sent to John for the hearing on 8 May 2025, but it had been returned as being the wrong address and requested contact details to notify him of the hearing date. [94] My Associate provided the CSO with the correct email address for John for the purposes of sending out the Notice of Listing for the hearing on 8 May 2025. [95]

At the listing on 20 February 2025, Mr Jones appeared in person on behalf of Julie and John appeared by AVL. I raised with John a number of matters.

I noted that in a number of his emails, John had referred to a number of lawyers who he asserted had been representing him in some way and asked whether that had been formalised. [96] He asserted that he had been promised by Lawyer E when the case was started (I infer at the point of time of the initial filing of the application in the Tribunal) that he was going to call a number of witnesses to give evidence and that it had not happened. [97] To clarify the situation, I asked John whether he was able to indicate with any certainty whether one of various named lawyers would be acting for him. John indicated that Lawyer A still had his file. [98]

I asked whether there had been a specific request to Lawyer A for him to act for John in relation to the new hearing of the application. He indicated that whilst Kylie had spoken to Lawyer A, he had not spoken to him for some while. I noted that there is a distinction between a solicitor holding files or papers on the one hand and being asked to or being prepared to act for someone going forward. I indicated that unless there was some specific request for Lawyer A or Lawyer C to act in relation to a new hearing they would not ordinarily act of their own volition. I noted that ordinarily a solicitor needs a specific retainer to act for a particular purpose. [99]

I discussed the position regarding witnesses and attempted to elicit from John what his intentions were. John asserted (consistent with his correspondence to my chambers email) that he had been “trying to achieve since the beginning of the whole case” to have a liquidator appointed to Company A, to close down the business and “sell our property”, so that the money could be “split evenly between” Olivia, Julie and himself. He asserted that that was what Lawyer E had promised would happen. Following John's response, I indicated that it was not obvious to me that the application for the appointment of a financial manager was something that would achieve his stated objective and that, if that was what he was seeking to achieve, he ought to reflect deeply into whether the application had any prospect at all of being able to achieve that sort of outcome for him. [100]

I further indicated that when matters are fixed for hearing, ordinarily that is done on the basis that the evidence that the parties wish to put forward has been identified and, if one or other party wished to rely on further evidence, they would need to seek leave or permission to do that. [101]

I informed John that he would not be permitted simply to have various people attend the hearing and start giving oral evidence because that would not be procedurally fair to Julie. [102] I noted that there would need to be certainty as to names of the witnesses John proposed to call and certainty regarding their evidence in chief. John indicated that he could make a list of persons and request them to make written statements. [103] I indicated that those steps would be necessary before any leave was given (to rely upon such material) and indicated to him that, in light of the 3-month period prior to the hearing taking place, he may wish to reflect upon whether he is able to obtain some form of legal advice from someone. [104]

Mr Jones raised two matters prior to the conclusion of the listing. The first related to the concern regarding John questioning Olivia and concerns about that being done in an appropriate way. [105] The second related to a disconnect between the express purpose which John sought to achieve by means of the application and whether that may potentially be an abuse of process in light of the rationale for the application for making a financial management order. [106] I observed to John that I would not make any particular notation about those matters but indicated that it was something that he should give his attention to.

Ultimately, in order to ensure that John had an opportunity to put on evidence and that Julie had an opportunity to know the nature of the evidence that was being relied upon by John, I made a number of orders as follows:

On 24 February 2025, John sent an email to my chambers email with the subject heading “Witnesses” and listing in the email a list of 10 witnesses. [107] After his sign off there was a type of PS to the email which stated as follows:

On 3 March 2025, John emailed to my chambers email material described as being “witness statement” from each of Witnesses A and B. [108] What was attached were a number of “JPG” files which were photos of a phone screen in which was embedded a further photo of a phone screen which contained seemingly an email from each of Witnesses A and B.

On 4 March 2025, my Associate on my behalf, sent an email to John copied to the other legal representatives, observing that the witness statements had proved difficult to read and requesting that that he forward the email version of the statement to my chambers or provide a hard copy. [109] Later that evening, John emailed to my chambers email further “JPG” files. [110] These were seemingly pictures of actual printed statements albeit pieced together.

Further on 5 March 2025, following a further email from my associate noting that the witness statements provided remained difficult to read and print, [111] John eventually simply forwarded emails from Witnesses A and B setting out the details of their evidence. [112]

On 6 March 2025, John sent a further email to my chambers email [113] attaching copies of SMS messages from Witnesses C and D. The emails inter alia stated, “See what [Witnesses C and D] think of [Robert and Julie]” and contained historical messages relevantly with the descriptors “bitch” regarding Julie and “dickhead” and “scum bag” regarding Robert.

On 6 March 2025, the listing before me proceeded. Mr Jones again appeared on behalf of Julie and John appeared by AVL.

I raised with John the fact that on 24 February 2024 he had sent an email with a list of ten witnesses and referred to the fact that since that time he had sent statements from Witnesses A and B and the SMS messages that morning. I asked him whether that was the extent of the material he had sent. He indicated that was the case, although there may be one “coming at the end of the month”. I enquired about that and eventually he disclosed Witness E as being the person. [114]

I asked Mr Jones whether he had any objection to Witness A’s statement. He indicated that he did, broadly on the basis that the material was irrelevant to the issues in dispute and expressed in such a general and vague form as to have no probative value. He confirmed the position was the same in relation to the statement of Witness B. [115] I noted that the material was not sworn or affirmed and on the face of it was simply pure assertion. I pause to observe that neither “statement” rationally bore upon Olivia’s capacity. Indeed, the statement from Witness A concluded [116] with a recommendation which bore close resemblance to John’s objective of a liquidation and division of the family’s wealth:

Mr Jones confirmed that if the material was to be received in any shape or form, he would require those persons for cross-examination. [117] I enquired of John whether he understood that, to rely upon the material, those witnesses would be susceptible to being cross-examined and asked him whether he had spoken with them about that. He indicated he had. [118]

I then turned to the SMS messages from Witnesses C and D. I asked him to explain to me their relevance. He indicated that it showed what they thought of Julie and Robert in the past. He indicated that Witnesses C and D were located in Brisbane. [119] I indicated that my present view was that the material was not relevant to John's application for the appointment of a financial manager. I indicated to John that it was not relevant or of assistance to the Court for persons to simply assert that Julie is a “bitch” or that Robert is a “dick head” and did not propose to give him leave to rely upon material from Witnesses C and D. [120]

In relation to the other material from Witnesses A and B, Mr Jones asked me to make a ruling regarding that. I declined permission to rely upon that material. [121]

I made the following orders:

On 7 March 2025, John sent an email to my chambers email [122] addressing a number of matters including relevantly intimating that he wished to ask Olivia and Robert some questions at the court hearing.

On 10 March 2025 (10:08 AM), my Associate at my request sent to John and to the other legal practitioners the following email:

On 24 March 2025, John emailed to my chambers a series of four separate emails with 9 attachments in total, all being photos of a phone showing text messages from a number described in the first email to be from Witness B. The initial email stated “4 emails coming with 3 attachments running in order for Justice Meek to read”. The first attachment contains a text message regarding “why [Julie] sacked [Lawyer A]”. The remainder of the 8 attachments, pieced together, contain one long text message titled “Speech to the Judge”. It starts with “I stand before you today to bring to your attention the significant changes that have taken place regarding my family’s legal representation following my father, [Oscar] passing”. Accordingly, it seems that text message is written by John or from John’s perspective rather than Witness B.

On 3 April 2025, John sent a further email to my chambers email, [123] this time attaching a photograph of what appeared to be an SMS message on a phone from (according to the email) “a gentleman named [Witness F]”.

The SMS message contains the following content:

Pausing here, I observe that, apart from John's assertion in the email to my chambers that the SMS came from the person named Witness F, the attached document does not in any way identify the sender. In any event, the SMS did not express any statement relevant to the question of whether Olivia required a financial manager, as distinct from assertions regarding Julie and Robert. Lastly, the SMS gives no intimation at all that the sender intends his statement to be some form of evidence to be relied upon, nor any awareness that the sender would be liable to be called as a witness and potentially cross-examined.

Later in the morning on 3 April 2025, John sent a further email attaching what purported to be photos from the inside of Olivia's house taken by [Witness B] and making various assertions regarding Olivia’s capacity and intentions. [124] A further email was later sent in the early afternoon of 3 April 2025 from John making assertions that various family members had learnt to drive in the backyard of the [family property] and that Robert was precluding John’s daughter from driving, and seeking intervention of the Court to prevent Robert’s actions. [125]

On 2 May 2025, John sent a further email to my chambers, which content appeared to be an extract of some of the message dated 9 November 2023. The email concluded with the sentence:

On 5 May 2025, Mr Clear sent to my chambers email, copied to John's email, the plaintiff’s filed submissions and links to the 2 volumes of the Court Book. [126]

On 7 May 2025, John sent an email to my chambers email as follows: [127]

The email concluded with a request to send AVLs to 5 email addresses relevantly being John, Kylie, Lawyer C and two witnesses, one of which was seemingly Witness A, the other one being unidentified.

At my request, my Associate sent to John, copied to the other legal representatives, the following email: [128]

John responded by email as follows: [129]

Later John sent the following email: [130]

Subsequently my Associate at my request sent to John, copied to the other legal representatives, the following email: [131]

Finally, John responded by email to my chambers email as follow: [132]

Very early on 8 May 2025, John sent an email to my chambers attaching a photograph apparently of John with another person requesting as follows: [133]

My Associate sent to John, copied to the other legal representatives, an email permitting Kylie to attend by AVL on the same basis as had been previously permitted for her. [134]

When the matter was called on for hearing, Mr Jones appeared on behalf of Julie and eventually a video connection was secured by which John was able to be connected. There were some difficulties with the connection. He disconnected and then was able to recommence the video link. [135]

He confirmed that he was indeed in Shanghai, China and asserted that he and Kylie had no idea that they had to attend in person. [136]

There were a number of issues. One issue related to the fact that ordinarily, whilst the Court from time to time permits people to appear for directions, listings and other purposes via AVL, that is the exception rather than the general rule and that ordinarily court proceedings are held in person. Secondly, I raised with John the fact that there was an issue as to whether John could seek to conduct the hearing or give evidence from China.

I asked him how he anticipated he was going to be able to conduct or operate a hearing via AVL. He simply responded, “by video”. [137] I asked him whether he asserted that he had evidence that he wished to put forward in respect of the hearing to which he responded, “yeah, lots of it”. [138]

I drew to his attention that I had made directions on a number of occasions for him to bring forward his evidence in an orderly way as a matter of fairness to the other parties so that they would know what evidence they had to address in the matter. [139] He asserted that Witnesses A and B both wanted to come into the courtroom and make statements by verbal means. [140]

I indicated to him that I did not permit that to happen by the orders that I had made on 6 March 2025 and that, since that time, he had made no further application for permission to rely upon evidence from either of them or from anyone else. Whilst making certain assertions about what Lawyer E had done, he confirmed that he had not made any application since 6 March 2025 to rely upon any evidence for the purposes of the hearing. [141] Nonetheless, he asserted that he wished Witnesses A and B to appear in court to make verbal statements. I asked him whether he had taken steps to enable them to appear today and whether he had issued subpoenas to them. He indicated that he had not, and he was “hoping that the court can do that”. [142]

I observed that, in relation to a person who is self-represented, the role of the judge of the Court is to ensure that there is a fair trial according to law for all the parties in the proceedings, not just the person who is self-represented. I noted that the judge could explain the Court procedure to a self-represented person and provide information in relation to that procedure and practice of the Court, but that it was not the function of the Court to give that self-represented litigant advice nor to conduct the case on behalf of that person, nor to take steps to involve itself in a way to issue subpoenas of its own initiative. [143]

Mr Jones had only become aware the day before that John was in China. He took the position that he did not object to John appearing by AVL [144] but, having regard to the late notice, was (understandably) not in a position to address the question regarding whether any evidence or listing of the proceeding might in some way violate the sovereignty of China. [145]

I made reference to caselaw, noting William J’s decision In the matter of Sunnya Pty Ltd [2023] NSWSC 1286 addressing the question of whether the giving of evidence from someone via AVL from a location in China was permissible. [146] I also referred to my decision in Zhou v Birriga Holding Pty Ltd [2024] NSWSC 1425. [147]

I indicated to the parties that I was prepared to provisionally continue with the matter on the basis that John would appear by AVL though noting that he had no evidence in support of his application for a financial management order. [148]

I returned to the question of evidence from Witnesses A and B. John indicated that Witness A “would be in a truck” and that Witness B was “flying up to the Gold Coast”. I asked him whether he had told them of the court hearing today and he indicated that he had, clarifying that “they both are waiting to receive a court order for them to appear in the courtroom”. [149]

John further clarified “once they have a court order to appear they will appear and make a verbal statement”. I noted that John had not sought permission from the Court to adduce evidence, nor given notice to the other side of any such application. [150] Whilst he asserted that he had been trying for a “long, long time” to get them to appear, he was not able to point to any formal application and Mr Jones confirmed that he was not cognisant of any such application having been made. [151]

There are differences between the adducing and admission of evidence in the Tribunal and the Supreme Court. The statutory framework which principally governs the practice and procedures of the Tribunal is set out in the NCAT Act. In hearing an application for a financial management order, the Tribunal is: (a) not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice; [152] and (b) to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. [153]

In proceedings in the Supreme Court commenced by summons, subject to the rules of court and the Evidence Act 1995 (NSW) (Evidence Act), evidence in chief of any witness at any hearing must be given by affidavit unless the Court orders otherwise. [154]

The character of a new hearing in the Supreme Court where the Court has allowed an appeal from a decision of the Tribunal to make a financial management order is understood by reference to the statutory provisions under the NCAT Act [155] and also to the nature of the jurisdiction being exercised.

Properly characterised, it may be seen as part of the Court’s protective jurisdiction directed to administration of the affairs of a person in need of protection. This applies not merely in relation to a new hearing but also, for example, where an application for the appointment of a financial management order is removed from the Tribunal into this Court to be determined. [156]

The Court may permit such fresh evidence, or evidence in addition to or in substitution of the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. [157]

The guiding principle of the jurisdiction is that the welfare of the person in respect of whom the protection of the Court is sought is the paramount consideration. [158]

In the exercise of its protective jurisdiction, this Court acts “without strife in the simplest and least expensive way” [159] and is “not bogged down with any technicalities”. [160] The Court is not necessarily bound by strict rules of evidence, but has a discretion to act on material which is rationally probative, even though excluded by such rules. [161] Thus, it has been said that:

The comments of Sackar J in Sobalirov are to like effect: [163]

The paramountcy principle, in the operation of the protective jurisdiction, “prevails, where it must, over technical rules of evidence” [164] and Lindsay J has observed that nothing in the Evidence Act compels a contrary approach. [165]

Nonetheless, “even if particular provisions of the Evidence Act do not, in terms, apply, the operation of the protective jurisdiction might usefully be informed by them as a counsel of good practice or procedural fairness”. [166]

There are profound effects consequent upon the making of a financial management order on the person upon whom it is imposed. It changes the status of that person, who was once regarded as being legally autonomous and able to choose how he or she manages his or her estate, to a “protected person” and suspends by law his or her ability to deal with his or her own estate. [167]

Proceedings in Supreme Court are generally held in person. [168]

Nonetheless, the Court may permit parties or witnesses to the proceedings to give evidence and make submissions by telephone, audio visual link or other forms of communication. [169] There has been an increase in the number of cases heard remotely since the commencement of the COVID-19 pandemic. [170]

The considerations of whether it is convenient for the Court to take evidence remotely for the purposes of the E(A& AVL) Act were recently commented upon by the Court of Appeal in Dougan v Mann [2025] NSWCA 109. Bell CJ at [8] stated: [171]

Ultimately, it was not necessary for me to determine the question of convenience.

Prima facie, China is not a “participating State” for the purposes of Pt 1A of the E(A& AVL) Act. However, without the benefit of argument, it is not necessary for me to make any concluded determination regarding that.

An order permitting parties or witnesses to the proceedings to give evidence and make submissions by telephone, audio visual link or other form of communication may be characterised in a number of ways, but at least one of the characterisations of it is that it is a form of case management order within the meaning of s 58 of the Civil Procedure Act 2005 (NSW) (CPA).

The Court in deciding whether to make any order for the management of the proceedings, must seek to act in accordance with the dictates of justice. [172]

In determining the dictates of justice in a particular case, the Court must have regard to the provisions in ss 56 and 57 of the CPA and may have regard to the matters set out in s 58(2)(b) of the CPA to the extent to which the Court considers them relevant. [173]

A consideration of some significance to be taken into account in determining whether to permit a witness to give evidence by telephone, audio visual link or other form of communication is whether the issues in the case will involve assessing the credibility of the witness. [174]

If a party fails to comply with a case management direction, the Court may do a number of things including, relevantly, dismiss the proceedings, whether generally, in relation to a particular cause of action, or in relation to the whole or part of a particular claim. [175]

The legal principles dealing with applications under s 61(3)(a) of the CPA are addressed in a number of authorities, including Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 (Hans Pet). [176] In that case, Allsop ACJ (Campbell and Young JJA agreeing) emphasised that, in exercising its powers under s 61(3), the Court must seek to act in accordance with the dictates of justice, which relevantly require the Court to have regard to the provisions of s 56 of the CPA (the overriding purpose of case management), s 57 of the CPA (the objects of case management) and the matters, to the extent the Court considers them relevant, set out in s 58(2) of the CPA.

The tenor and content of John’s repeated and impermissible email correspondence to my chambers email revealed purposes very remote from legitimate purposes in an application for a financial management order. I expressly raised this with John at the listing on 20 February 2025 (almost 3 months prior to the hearing) and asked him to reflect upon it.

Much of John’s correspondence to my chambers email raised very serious allegations in respect of one of the active parties (Julie), one of the family members (Robert) and various legal representatives. That correspondence was pitched at a level of pure assertion without any regard to due process or provision of any appropriate let alone rationally probative form of evidence.

The vast majority of the correspondence was entirely remote from proper considerations in respect of the committing of the estate of Olivia to financial management and the appointment of the financial manager.

John’s assertion that his father Oscar left his estate equally to Olivia, Julie and himself is demonstrably incorrect having regard to Oscar’s Will (provided by John) [177] which reveals that in events that occurred, Oscar left his entire estate to Olivia. In any event, the notion that a company not directed by Olivia should be the subject of liquidation and that other so-called family real estate should in some way be realised under some form of sale and conversion order and divided equally between Olivia, Julie and John, was entirely unsupported by Oscar’s purported testamentary intentions and any other rationally probative evidence.

A financial management order might in some respects have incidental or collateral consequences for companies associated with the person in respect of whom such an order is sought. However, a financial management order, per se, is not a vehicle for achieving liquidation of the company or some form of Court supervision of the directors of the company, nor a means of commandeering and otherwise realising and dividing family wealth by reference to purported intentions of the deceased family members or otherwise than in accordance with the principles that properly inform the jurisdiction to make a financial management order.

There was no suggestion that the position which prevailed in the last hearing, namely that Julie had an enduring power of attorney in respect of Olivia, [178] and that Olivia had at least as at January 2024 resigned directorships of Company A and Company B, [179] had materially altered. In fact, on one of the pre-hearing listings before me, Olivia’s resignation of directorship of both companies was confirmed (relevantly without any dispute by John). [180]

To ensure that John’s application was dealt with appropriately and fairly to all parties, directions were made for the provision of affidavit evidence in respect of his application.

John failed initially to comply with directions regarding service of evidence on 15 October 2024 and specifically for affidavit evidence to be served by 17 December 2024.

On 10 February 2025, the Registrar relisted the matter for hearing before me in a context in which John had failed to serve any such evidence.

On 20 February 2025, notwithstanding the above defaults and cognisant that John had foreshadowed seeking to have various witnesses adduce evidence, I made orders for the provision of names of witnesses and affidavits or witness statements to be provided. As noted above, on that occasion I had expressly indicated to John that he would not be permitted simply to have various people attend the hearing and start giving oral evidence because that would not be procedurally fair to Julie. [181]

On 6 March 2025, I addressed the question of leave to rely upon material provided by John to that point. Having regard to procedural fairness and the fact that the proposed material was not sworn or verified, not relevant nor rationally probative of a fact in issue, I declined permission for John to rely upon material.

At no stage after 6 March 2025 did John make any formal application to me to adduce evidence or amend his application. The material in the form of attachments sent to the chambers email after that date is limited to that which I noted above, namely: (a) the four consecutive emails of 24 March 2025 attaching the SMS messages purportedly of Witness B; (b) the email of 3 April 2025 attaching an SMS message purportedly of Witness F; and (c) the further email of 3 April 2025 attaching images of Olivia’s house. None of the content in those messages was sworn or verified. The writers of the messages are not identified in the messages themselves and at least one of the messages attached on 24 March 2025 seem to be written by John. Further, the content is not rationally probative of a fact in issue. For example, with respect to the message purportedly of Witness F, assertions that Robert “doesn’t sound like a nice person at all” does not go to the question of whether a financial management order should be made in respect to Olivia.

On the hearing, I inquired whether Mr Jones would be in any difficulty if some evidence was able to be elicited from the witnesses identified, given he had no awareness of what was proposed to be said nor presumably the ability to prepare for cross-examination in any informed or considered way. Mr Jones confirmed that he would be prejudiced by a departure from orders requiring evidence to be served and non-compliance with the Court’s orders. [182] His indication in that regard was entirely consistent with his earlier intimation on 6 March 2025. [183]

I specifically addressed with Mr Jones what he asserted ought to be done in light of the fact that there was no evidence in support of John’s application. He submitted that there was no arguable basis to pursue the application and, on clarification by me, confirmed that he said that the application should be dismissed. [184]

In light of that submission, I gave John an opportunity to indicate whether there were any reasons why I ought not to dismiss his application. [185]

In response, John asserted that “business should be closed down”, that Olivia “is being taken advantage of by” Julie and Robert, and that Witnesses A and B “are keen to make verbal statements in the courtroom, once they have received a court order”. [186]

The discussion touched upon the fact that John was not represented. He asserted that Olivia had failed to pay “for our lawyer through the [Company A] account” and asserted that Julie’s lawyer was being paid by [Company A]. [187] I observe that those assertions were not supported by evidence. In any event, it is unclear why John thought that Olivia should fund John’s application to seek to have her estate committed to financial management by payment from a company of which she was not a director.

Having made the observation that John had not put on any evidence which he intended to rely upon in support of his application nor given the other side notice of such an intention, John returned to the assertion that he had been trying for a long time to have the Court order Witnesses A and B to appear in the courtroom to make verbal statements, which had been promised by Lawyer E. [188] I note that at no stage has any such application been made to me for the issue of such subpoenas.

Lastly, John asserted that Olivia should be having an independent assessment for her capacity which Lawyer E had (according to John) promised to arrange and that had never occurred. [189] I record, as noted above, no such application had been made (let alone supported by any relevant evidence) at any material stage of the proceedings on the new hearing before me.

As I have indicated above, a material part of the context of the making of the orders for the serving of affidavit evidence in support of the application arose out of John’s correspondence to my chambers email, and confirmed by John on 20 February 2025, which I have outlined above. Namely, his actuating purposes regarding the new hearing was very remote from those which appropriately attend an application for the making of a financial management order (including whether Olivia is incapable of managing her affairs, whether there is a need for another person to manage Olivia’s affairs and whether it is in her best interests for a financial management order to be made).

In light of the history of the matter and the opportunities given to John to apply to adduce evidence in a form which would be notified to the other side and to the Court, it was clear that he was not in a position to proceed. He had provided no statement from himself, nor any statement from Kylie, notified to Julie's representatives. Even assuming that John expected or perhaps hoped that Witness A and Witness B might somehow give evidence, he had not arranged to serve any statement of the evidence that they might be expected to give on Julie’s representatives.

Further, John had not arranged for any subpoenas to be issued to Witnesses A and/or B. Clearly, they were not in any position (having regard to John’s statements regarding Witness A driving a truck and Witness B flying to the Gold Coast) to easily connect to the Court.

In the above circumstances, fundamentally, John had not provided any evidence in any rationally probative form, such as would permit Julie to be fairly appraised of the nature of the evidence and to address it. In these circumstances and having regard to the ample opportunity John had since late last year to adduce evidence, I determined to dismiss the application.

Even if it be assumed that John’s repeated emails regarding the appointment of a liquidator to Company A were to be considered as raising a live issue, there is no suggestion that John had any standing to seek such a liquidation. Details of Company A were set out in the principal judgment. At the time, John was neither a shareholder nor a director of Company A. [190] Further, none of the content in John’s emails sent to my Associate or chambers email suggested that John is a creditor, director or shareholder of Company A. In the same way that John did not provide rationally probative material for the application for a financial management order, he did not provide any evidence giving any plausible basis for seeking, let alone justifying, the appointment of a liquidator to Company A (or indeed any of the other topics raised in his email correspondence).

Ultimately, in light of my findings above, it is not necessary for me to me further explore the considerations of whether John ought to be permitted to conduct the hearing by AVL and in a context in which he was located in a foreign jurisdiction, namely China.

The Orders made by me were as follows: