Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd (No 2)

JUDGMENT - EX TEMPORE (REVISED)

1. [1]

   HIS HONOUR: In both of these matters, which were listed again today, I had previously delivered reasons for judgment, which bears the medium neutral citation Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794.

2. [2]

   Relevantly, following a contested hearing, I reached the conclusion that the Plaintiff, who is Ms Mao, in both matters, is a person under a legal incapacity, and ordered that a tutor be appointed for her. I also ordered that the Defendants, in the AMP proceedings, continue to make attempts to nominate a tutor who consented to being appointed and, failing such a nomination, that consideration would 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. I also made some orders relating to other notices of motion with which I had dealt at the hearing. I stood the proceedings over until today.

3. [3]

   On 18 December, 2014, the date on which judgment was to be delivered, by arrangement with the Plaintiff, the court contacted her (when Mr Smith was with her) by telephone audio-link and informed her of the orders that were made.

4. [4]

   The transcript of the proceedings, on that date, relevantly, includes (at T3.36 – T5.05):

5. [5]

   Following the delivery of the reasons for judgment in court, my Associate informed the Plaintiff, by email, that the reasons for judgment were about to be published on Caselaw, and provided the medium neutral citation thereof. Subsequently, a copy of the written reasons was sent, by post, to the Plaintiff at the address which had been provided by her to my Associate. Today, she confirmed that she had received those reasons.

6. [6]

   Although the court’s computerised record system indicates that the orders were made on 18 December 2014, those orders, apparently, were not entered. This will now be remedied.

7. [7]

   On 19 December 2014, my Associate received an email from the Plaintiff, which email was in the following terms:

8. [8]

   My Associate, at my request, acknowledged receipt of the email on the same date.

9. [9]

   On 14 January 2015, my Tipstaff received an email from the Plaintiff requesting information about the availability of a transcript of the proceedings of the hearing, which had taken place on 5 November 2014. At my request, she responded informing the Plaintiff that a copy of the transcript could be obtained from the Reporting Services Branch of the Supreme Court.

10. [10]

    It appears that the Plaintiff filed a Notice of Intention to Appeal (often called “a holding appeal”) on 15 January 2015. That Notice appears to be in the form identified in UCPR rule 51.6. The rule allows a prospective appellant three months from the date of judgment within which to actually file a notice of appeal or a summons seeking leave to appeal.

11. [11]

    On 22 January 2015, the Plaintiff sent an email, addressed to the Chief Judge in Equity, with a copy addressed to me, as well as to the Registrar in Equity, and to the Defendants, which email, relevantly, was in the following terms:

12. [12]

    On 29 January 2015, at my request, my Associate responded by email:

13. [13]

    The Plaintiff followed this email with an email in the following terms:

14. [14]

    At my request, my Associate confirmed that the hearing on 4 February 2015 would take place in the Supreme Court in Sydney.

15. [15]

    The Plaintiff, on 2 February 2015, sent another email to my Associate which was in the following terms:

16. [16]

    On 3 February 2015, at my request, my Associate confirmed, by email addressed to the Plaintiff, that a “telephone link has been booked for 10:30 a.m. tomorrow”.

17. [17]

    The Plaintiff provided a copy of the “formal Motion” referred to by email sent to my Associate. The order sought in the notice of motion (which was said to be filed) is:

18. [18]

    There is no differentiation between actual and apprehended bias in the Plaintiff’s notice of motion. Nor is it accompanied by any affidavit evidence.

19. [19]

    The Plaintiff informed my Associate that “The original documents are in the post to the Registry of the Supreme Court of NSW”. Today, the original notice of motion has not yet reached the court file.

20. [20]

    There was also forwarded to my Associate, by email, on 3 February 2015, by the solicitors acting in the AMP proceedings for the Defendants, an affidavit of Elizabeth Grace Esber, affirmed 3 February 2015. I shall return to this aspect later in these reasons.

21. [21]

    Today, as arranged, the Plaintiff was contacted by telephone audio link. I informed the Plaintiff, who was with Mr Smith, that I had available the documents to which I have referred. She confirmed that she had a copy of all of the documents to which I have referred. She specifically said that she wished me to consider the Notice of Intention to Appeal; the notice of motion and the email addressed to the Chief Judge in Equity.

22. [22]

    The Plaintiff stated that she wished the matters to be adjourned today and requested that I not deal with any of the matters arising from my reasons for judgment and the orders that I had made on 18 December 2014. She stated that she wanted an opportunity to consider what she wanted to say.

23. [23]

    The Plaintiff also stated that she was not being represented by Mr Smith today. She stated “If you have any questions please address to me.” Consequently, Mr Smith did not take part in any of the discussions with the court.

24. [24]

    I also informed the Plaintiff that I would hear from counsel for the Defendant, AMP, as to the steps taken to locate a tutor who consented to act, and would thereafter determine what steps, if any, could, or should, be taken to have the matters made ready for hearing. Finally, I would ascertain whether either of the Defendants was seeking an order for costs. I said that these matters may be relevant to the exercise of the discretion whether to grant an adjournment.

25. [25]

    Needless to say, the Plaintiff maintained the position that she did not wish to have a tutor at all. She stressed that she filed a Notice of Intention to Appeal and that she wanted the matter adjourned today. I repeated, for the Plaintiff’s benefit, what I had indicated in the reasons for judgment, namely that subject to any summons seeking leave to appeal and any appeal being determined in her favour, both proceedings, now, could not be carried on by her without a tutor.

26. [26]

    I then called upon Mr Duncan, who sought leave to file in Court the original affidavit of Ms Esber. The Plaintiff opposed the application to file the affidavit, although she accepted that she had received a copy of it. I granted leave to file the affidavit.

27. [27]

    The Plaintiff then objected to me reading the affidavit. In the circumstances, and bearing in mind her application for an adjournment, I took the view that if an adjournment were not granted, I should not read the affidavit. In the events that happened, I did not read the affidavit.

28. [28]

    There is no evidence that the Defendants in the AMP proceedings have been able to locate a person who is prepared to act as tutor. (Based upon the correspondence to the court from the Plaintiff, it is highly unlikely that the Plaintiff would co-operate in any event.)

29. [29]

    Mr Duncan then stated that the Defendants in the AMP proceedings did not wish to make any application for a declaration as to the Plaintiff’s inability to manage her affairs and seek a partial management order with the result that the NSW Trustee and Guardian would act as the tutor of the Plaintiff. He submitted that it was a matter for the court.

30. [30]

    I then called upon Mr Perla for the Defendants, in the BT proceedings, who also informed the Court that the Defendants in those proceedings did not wish to seek such relief either. He, too, submitted that it was a matter for the court.

31. [31]

    Bearing in mind these matters, and that the Plaintiff does not have any legal assistance, and that she has filed a notice of intention to appeal, I am satisfied that the court, should not, of its own motion, at the present time, make any declaration as to the Plaintiff’s inability to manage her affairs or make a partial management order. Whether that is a course to be adopted in the future may be considered after the determination of the appeal process.

32. [32]

    On the issue of costs, both Mr Duncan and Mr Perla each informed the Court that the Defendants for which he appeared, respectively, did not seek the costs of any of the notices of motion with which I had dealt on 5 November 2014.

33. [33]

    As there is nothing further for this court to do at the present time, I have concluded that it is unnecessary to adjourn the matter. In this regard, I stated:

34. [34]

    It is unnecessary to give consideration to any application for me to recuse myself from the further hearing of the matters (assuming that the notice of motion is filed). In any event, since there is no affidavit in support of the proposed notice of motion, it would be impossible to deal with the application in any event.

35. [35]

    I shall not say anything about the proposed notice of intention to appeal which the Plaintiff has filed.

36. [36]

    Accordingly, I order that the oral application by the Plaintiff to adjourn the hearing of each matter today is dismissed. I make no order as to the costs of the Defendants in relation to any of the notices of motion determined on 5 November 2014 in each of the proceedings.