Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mao v AMP Superannuation Limited (No. 2) [2017] NSWCA 297 Hearing dates: 13 November 2017 Date of orders: 13 November 2017 Decision date: 13 November 2017 Before: White JA Decision: Refer to para [10] of judgment. Catchwords: CIVIL PROCEDURE – Court of Appeal – judgments and orders of – setting aside own orders – UCPR r 36.16 – application seeking direction that court's own orders not be entered and seeking declaration that there was a miscarriage of justice in earlier hearing by court as constituted – need for finality of litigation – court did not fail to consider applicant's submissions – court did not fail to consider applicant's materials and evidence – orders to be entered – application refused Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 36.16 Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Mao v AMP Superannuation Ltd [2017] NSWCA 296 Category: Procedural and other rulings 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 [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: I will deal now with Ms Mao's application that I direct that the orders I made earlier today not be entered and that I should declare that there has been a miscarriage of justice. I am not persuaded that I should give any such direction or make any such declaration. 2. The orders that I made earlier today have not been entered yet. [Interruptions by Ms Mao.] 1. After further repeated interruptions I will resume my reasons for saying that I decline to make a direction that the orders I made earlier today on Ms Mao's stay application should not be entered and why I decline to make a declaration that there was a miscarriage of justice in relation to that application. 2. As I started to say, the orders that I made earlier today have not been entered yet. There is therefore power to set aside the orders under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). However, as the High Court said in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6, in deciding whether or not such a course should be taken so as to allow the application to be re-ventilated, consideration has to be given to the importance of the public interest in the finality of litigation. The jurisdiction is to be exercised cautiously. The Court must be astute that it is not used to provide a back door method by which unsuccessful litigants can seek to re-argue their cases. The jurisdiction may be exercised if it appears that the Court has proceeded according to a misapprehension of the facts, or the relevant law, where that misapprehension cannot be attributed solely to the neglect or default of the party seeking a re-hearing. 3. The first ground upon which the application is made is that through no fault of the applicant, but through it is said, the fault of the Court, when the hearing of the application for a stay commenced, I did not have all of the relevant documents. I did not have the exhibits to Ms Mao's affidavits of 19 October 2017 and 23 October 2017. Nor did I have her affidavit and the exhibits to her affidavit of 24 October 2017. During the course of the hearing I was provided by counsel with a copy of the exhibits to the affidavit of 19 October 2017 and before the application concluded I was provided with further copies of the affidavit and the exhibits to the affidavit of 23 October 2017 and with the affidavit of 24 October 2017. I was referred by Ms Mao to such documents as she then considered to be relevant and I considered those and some additional documents. 4. Ms Mao was given the opportunity to identify any further documents to which express reference was not made before I delivered my earlier judgment (see Mao v AMP Superannuation Ltd [2017] NSWCA 296). In that connection she referred me to correspondence from Maurice Blackburn of 2 October 2015 in which that firm served on her certificates of judgment filed in the Local Court in respect of costs in relation to the two proceedings in which she is plaintiff. One was for a sum of $30,454.78 and the other was for $29,182.05. During the course of argument this morning, Ms Mao did refer me to the fact of disputes that she had had with Maurice Blackburn in the Local Court. I do not consider that the fact that Maurice Blackburn has had its claim for costs for the period when it was acting for Ms Mao assessed, and judgment obtained against her, as a reason for staying the orders of 26 July 2017 or for making any of the more particular orders as sought in Ms Mao's notice of motion of 24 October 2017. I do not think that those documents indicated that I proceeded on some misapprehension of the facts or the law in declining to grant the relief by way of stay that she sought. 5. Ms Mao said at some length that she had explained that she had no knowledge of what was going on in the Equity proceedings and complained that I refused her leave to call Mr McCarthy to give oral evidence in her case. As I understood her submission, she also complained that I did not allow her to cross-examine Ms Dunn. No application was made for her to cross-examine Ms Dunn whose affidavit was read. 6. In any event, leave would have been required for that purpose and leave was required if Ms Mao was to be allowed to adduce evidence from Mr McCarthy. I sought from Ms Mao an explanation of the grounds upon which she sought to adduce oral evidence from him, and I did not consider that that course was warranted. Ms Mao complains that she was thereby denied the right to "find out the truth". But it is inherent in the nature of the appointment of the NSW Trustee as manager of her causes of action that the conduct of the litigation, or responsibility for the conduct of the litigation, is to lie with the NSW Trustee. The extent to which the NSW Trustee should provide information to Ms Mao is, at least in the first instance, a matter for it. Her complaints in this regard are not in my view a sufficient ground for staying the orders of Ward CJ in Eq. 7. Ms Mao said that I failed to understand the complaints she made in relation to constitutional matters. I have dealt with the constitutional matters that Ms Mao has sought to raise in the course of my earlier reasons. Nothing that she has pointed to indicates that the constitutional issue she has raised are grounds for granting a stay. 8. It is for these reasons that I refuse the application that the orders not be entered and I refuse what I assume to be her application that I should set aside the orders I made earlier today. ********** 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