Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mao v AMP Superannuation Ltd [2018] NSWCA 20 Hearing dates: 12 February 2018 Date of orders: 12 February 2018 Decision date: 16 February 2018 Before: Simpson JA Decision: Application dismissed. Catchwords: JURISDICTION – Court of Appeal – order sought to refer matters to Royal Commission – whether Court of Appeal has jurisdiction to grant the orders Cases Cited: Mao v AMP Superannuation Ltd [2017] NSWSC 987 Category: Principal judgment Parties: Youhua Mao (Applicant) AMP Superannuation Ltd (First Respondent) BT Funds Management Ltd (Second Respondent) AMP Life Ltd (Third Respondent) AIA Australia Ltd (Fourth Respondent) AMP Ltd (Fifth Respondent) Westpac Banking Corporation (Sixth Respondent) TurksLegal (Seventh Respondent) James Duncan (Eighth Respondent) Colin Purdy (Ninth Respondent) Raphael Perla (Tenth Respondent) D F Villa (Eleventh Respondent) Representation: Counsel: In person (Applicant) No appearance (Respondents) 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. SIMPSON JA: By a document entitled "Ex Parte Application for an Order to Refer", Ms Youhua Mao seeks an order referring a "matter" to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry ("the Royal Commission"). The "matter" that she seeks to have referred is not clearly identified. Background 1. In July and May of 2013 Ms Mao commenced two proceedings in the Supreme Court of New South Wales, in each case naming a financial institution as defendant. In each proceeding Ms Mao claimed benefits under a superannuation deed. 2. In 2014, at a time when a date fixed for the hearing of the Supreme Court proceedings was imminent, a sequence of events concerning the future progress of the matter began. These were concerned with Ms Mao's capacity to conduct proceedings, to understand the nature of the proceedings, and to make relevant decisions. The relevant history is comprehensively set out in the decision of Ward CJ in Eq in Mao v AMP Superannuation Ltd [2017] NSWSC 987. The events culminated in Ward CJ in Eq making the following order: "(2) Of the Court's own motion, pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) appoint 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 [the two proceedings]." 1. By Summons filed on 5 October 2017 Ms Mao seeks leave to appeal against that decision. That application is pending. 2. In her "Ex Parte Application", Ms Mao recited the establishment of the Royal Commission and attached the Letters Patent. She asserted that the Terms of Reference to the Royal Commission were "based on" nine separate "Notices of Constitutional Matters" that she had served on the then Attorney-General for the Commonwealth, and arose out of her proceedings, outlined above, against two financial institutions. The order she sought was: "… an order referring the matters within the Terms of Reference for this Royal Commission inquiry, said to arise out of the [Supreme Court] proceedings …" 1. It was Ms Mao's choice to identify the application as one to be heard "ex parte". Given that the present application could have implications for the defendants in the Supreme Court proceedings, it may be doubted that that was an appropriate course. However, given the view to which I have come, it is not necessary to explore that question further. 2. Ms Mao was given a number of opportunities, and, indeed, express invitations, to identify a source of power pursuant to which this Court could make the order she seeks. She was unable to do so. She said, on more than one occasion, that her proceedings ought to be heard "in conjunction with" the proceedings of the Royal Commission. 3. I was and am satisfied that the order sought by Ms Mao is beyond the jurisdiction of this Court and, at the conclusion of the hearing, declined to make the order. I dismissed the application. These are my reasons for that decision. ********** 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: 16 February 2018