Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mao v AMP Superannuation Limited [2017] NSWCA 296 Hearing dates: 13 November 2017 Date of orders: 13 November 2017 Decision date: 13 November 2017 Before: White JA Decision: Refer to [18] and [19] of judgment. Catchwords: CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — interlocutory relief sought to stay orders made by primary judge pending application for leave to appeal — orders appointing NSW Trustee & Guardian as manager of part of applicant's estate under s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) — mere filing of application for leave to appeal is not a basis to grant stay — no demonstrable basis for staying orders CIVIL PROCEDURE — Parties — Joinder — application to substitute tutor — appropriate to join solicitors of current tutor to proceedings — leave granted to amend notice of motion Legislation Cited: Civil Procedure Act 2005 (NSW), s 76 NSW Trustee and Guardian Act 2009 (NSW), s 41(2) Superannuation Industry (Supervision) Act 1993 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 7.14 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Chen v Lym International [2009] NSWCA 121 Texts Cited: Nil Category: Principal judgment Parties: Youhua Mao (Applicant) AMP Superannuation Limited (1st Respondent) BT Funds Management Limited (2nd Respondent) AMP Life Limited (3rd Respondent) AIA Australia Limited (4th Respondent) NSW Trustee and Guardian (5th Respondent) Maurice Blackburn Pty Ltd (6th Respondent) Representation: Counsel: Self Represented (Applicant) E Esber (1st and 3rd Respondents) D F Villa (2nd and 4th Respondents) J Brouwer (5th Respondent) N/A (6th Respondent) Solicitors: N/A (Applicant) Turks Legal (1st-4th Respondents) NSW Trustee and Guardian (5th Respondent) N/A (6th Respondent) File Number(s): 2017/230266 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2017] NSWSC 987 Date of Decision: 26 July 2017 Before: Ward CJ in Eq File Number(s): 2013/232241 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. WHITE JA: On 26 July 2017 Ward CJ in Eq made orders including an order on the Court's own motion pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) appointing the NSW Trustee and Guardian (the "NSW Trustee") as manager of so much of the estate of the plaintiff as pertains to the plaintiff's right, title and interest in proceedings 2013/232241 and in proceedings 2013/244238 (the "Equity proceedings"). Although the statements of claim in those proceedings are not before me, it appears from the judgment of her Honour and other judgments in relation to the applicant (Ms Mao) that she commenced proceedings in 2013 against what has been called the "AMP entities" and the "BT entities", claiming an entitlement to benefits under superannuation trust deeds for claimed total and permanent disabilities. 2. The background to the orders made by Ward CJ in Eq is set out in her Honour's judgment and I will not repeat it. 3. On 5 October 2017 the applicant, Ms Mao, filed a summons seeking leave to appeal from the orders of Ward CJ in Eq of 26 July 2017 having previously filed and served a notice of intention to appeal. That summons was served shortly after Mr Jarrad McCarthy of the Office of the NSW Trustee advised Ms Mao that the NSW Trustee would consent to act as tutor in the proceeding to which it had been appointed as manager on terms that it be indemnified as to costs. 4. On 10 October 2017 the registrar of the Equity Division made orders in the Equity proceedings that the NSW Trustee be appointed as Ms Mao's tutor and noted the undertaking of the defendants given to the NSW Trustee that they would not seek to enforce any adverse costs order against the NSW Trustee in its capacity as tutor with respect to any costs orders that might be made against the plaintiff. 5. The matter was listed for directions on 11 December 2017. The registrar was advised that the parties intended to seek to convene an informal settlement conference prior to that date. I was advised by the respondents to the present applications, including the NSW Trustee, that the progress of the proceedings in the Equity Division are effectively on hold pending such settlement discussions and I was also told that such settlement discussions have also been postponed pending the determination of Ms Mao's application for leave to appeal from the orders made on 26 July 2017. 6. Before me today is paragraph 4 of a notice of motion filed by Ms Mao on 11 October 2017 in which she seeks a stay of the orders of 26 July 2017 and also a notice of motion filed by her on 24 October 2017 in which she seeks an order that the NSW Trustee send to her a copy of all documents it has received in relation to the Equity proceedings, an order prohibiting the NSW Trustee from releasing any information or documents in relation to those proceedings, similar orders against Maurice Blackburn Pty Ltd (who has been engaged by the NSW Trustee to act on her behalf in the Equity proceedings), and an order that Maurice Blackburn delete all of its records in relation to the two 2013 proceedings. 7. The principles in relation to whether a stay of the orders subject to the application for leave to appeal should be granted are summarised in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, and by Beazley JA (as her Honour then was) in Chen v Lym International [2009] NSWCA 121 and I will not repeat them, save to say this: that the mere filing of the application for leave to appeal is not a sufficient basis for granting a stay pending the determination of the application for leave and an appeal if leave is given. The onus is on Ms Mao to demonstrate a proper basis for a stay. The strength of her claim for leave to appeal and of any appeal if leave were granted, can be a relevant question in determining whether it is appropriate to grant a stay, but the question is whether in all of the circumstances it is appropriate to stay the orders. The more particular orders sought in the notice of motion filed on 24 October 2017 relating to the provision of documents and a restrain on the NSW Trustee and Maurice Blackburn from using documents in the proceedings are ancillary to the principal question as to whether or not the orders of 26 July 2017 should be stayed. 8. In the light of the information provided to the Court by the respondents it does not appear to me that any particular prejudice will be caused to Ms Mao if the orders sought are not made. That is because, in substance, the Equity proceedings are not being progressed further pending the outcome of Ms Mao's leave application. In any event, even if circumstances were to change before that application was determined, and even if which, from what I am told would appear to be unlikely, settlement discussions were held and resulted in an agreement for resolution of the two proceedings, any compromise of those proceedings would in any event require the approval of the Court because Ms Mao is under legal incapacity (Civil Procedure Act 2005 (NSW) s 76). 9. The grounds upon which Ms Mao, who has represented herself on this application, advanced her application were, with respect, not clearly articulated. That is perhaps not surprising given the findings of Ward CJ in Eq. But they included the following. First, and perhaps primarily, Ms Mao objects to the NSW Trustee's having retained Maurice Blackburn to provide legal services in connection with her claim. Ms Mao has given evidence that on 8 April 2014 she terminated the retainer of Maurice Blackburn and on 9 April 2014 Maurice Blackburn advised her that they had appeared before the registrar in the Equity Division on that day and had explained to the Court that they were unable to obtain meaningful instructions from her. They confirmed that they remained committed to fighting for her interests and expressed the hope that they would be reinstructed. 10. The question of what solicitors should be retained to act for Ms Mao in the proceedings is very much a question for the NSW Trustee as financial manager of Ms Mao's causes of action and as tutor. The fact that Ms Mao terminated Maurice Blackburn's retainer and that there has apparently been disputation between that firm and her is not to my mind a sufficient reason for granting a stay of the orders of 26 July 2017. There would be obvious advantages to Ms Mao in her matter being handled by a solicitor who is familiar with the proceedings, particularly one who, as the NSW Trustee advised, was prepared to act on a no win/no fee basis. 11. Ms Mao complains that costs agreements were entered into by the NSW Trustee on her behalf with Maurice Blackburn. She complains that the costs agreements were entered into on 6 October 2017, being four days before the order was made for the NSW Trustee as her tutor. I see nothing wrong in that. Clearly the NSW Trustee as financial manager and as the proposed tutor would be expected to engage a solicitor. 12. A more significant issue was raised in relation to Ms Mao's request to be provided with copies of … [Interruption by Ms Mao.] 1. Before being interrupted I referred to what I considered might potentially be a more significant issue raised by Ms Mao, being the response given by Mr Jarrad McCarthy of the NSW Trustee to her request to be provided with copies of documents that the NSW Trustee had received in relation to the proceedings. She said that Mr McCarthy told her that the NSW Trustee had received some 4,000 pages of documents. On 10 October 2017 he advised her that all documents the NSW Trustee had received in relation to the proceedings were "public records" and as such the NSW Trustee did not consider that it was an appropriate use of resources or funds to photocopy the documents to provide her with a copy. The court documents could not have been public records. During the course of Ms Mao's submissions, she appeared to me to become upset and, in my view understandably so, by the thought that the NSW Trustee would regard matters such as medical reports and affidavits which had been served in her proceedings claiming permanent incapacity as being public records that were available to the public. It is accepted by Ms Brouwer for the NSW Trustee that the documents are not public records. In so far as they consist of documents that have been filed in the Supreme Court they may be available to Ms Mao if an application were made for leave to inspect the court file, although that would depend upon the nature of the documents for which access is sought and the exercise of the Court's discretion. 2. But it does not follow that the NSW Trustee's refusal to provide to Ms Mao copies of all of the documents it has received is a sufficient basis for staying the orders of 26 July 2017. It is the NSW Trustee and not Ms Mao herself who has been charged with the duty of managing her proceeding to her best advantage. There would be undoubted costs in carrying out that photocopying and would seem to me even a simple refusal would not have been a sufficient basis for staying the orders. 3. Ms Mao also raised some arguments in relation to notices of constitutional matters that she has filed since 26 July 2017. In those notices she asserts, amongst other things, the invalidity of the Superannuation Industry (Supervision) Act 1993 (Cth). How the invalidity of that legislation might assist her in the prosecution of the proceedings against the first to fourth respondents is not explained. In any event, I do not think that that is a matter relevant to the present application. 4. In short, no sufficient basis has been demonstrated to my satisfaction to stay the orders of 26 July 2017. Nor has a significant basis been demonstrated to seek to interfere with the conduct by the NSW Trustee and by Maurice Blackburn of the proceedings pending the determination of Ms Mao's application for leave to appeal. I do not think that it has been shown that it would be in her own interests for her to be provided with the apparently voluminous documentation in connection with the proceedings. Prima facie, in accordance with the findings of Ward CJ in Eq, she is not capable of forming appropriate judgments in relation to those proceedings. I am not satisfied that it would be in her interests to receive the information that she has sought. It is certainly not in her interests for orders to be made prohibiting the NSW Trustee or Maurice Blackburn from releasing information in relation to the two proceedings. 5. Ms Mao has brought this application herself and without a tutor. However, it is not disputed that an order should be made dispensing with the operation of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) and I will do so. 6. For these reasons I order that: 1. rule 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) be dispensed with in relation to the applicant's application for an order in accordance with paragraph 4 of her notice of motion filed on 11 October 2017 and in relation to her notice of motion filed on 24 October 2017. 2. the claim for relief in paragraph 4 of the notice of motion filed on 11 October 2017 and that the claims for relief in the notice of motion filed on 24 October 2017 be dismissed. [Parties address on costs.] 1. Order that the applicant pay the costs of the first to fourth respondents. 1. [Ms Mao applied for an order that the NSW Trustee be removed as her tutor and that Mr Smith be appointed as tutor in its place. After discussion the following orders were made by consent.] 1. Give leave to the applicant, Ms Mao, to amend the notice of motion filed 11 October 2017 to include as an additional claim for relief, paragraph 1A: 2. "An order that the New South Wales Trustee and Guardian be removed as my tutor and that Mr Simon Smith be appointed in its place." 3. Grant leave to the applicant to amend the notice of motion by joining Maurice Blackburn Pty Ltd as a respondent to the notice of motion filed 11 October 2017. 4. Remit the balance of the notice of motion filed 11 October 2017 (being the claims for relief in paras 1, 1A-3 and 5) to the Equity Division. 5. Order that the applicant serve any further evidence to be relied upon in respect of her notice of motion by 17 November 2017. 6. Order that by 24 November 2017 the respondents serve any evidence upon which they propose to rely in respect of the notice of motion. 7. Stand over the notice of motion to the Equity Registrar's list on 28 November 2017. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2017