EMG v Guardianship and Administration Board of Victoria

[1999] NSWSC 501

CITATION:	EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
CURRENT JURISDICTION:	Equity Division Protective List
FILE NUMBER(S):	59/97
HEARING DATE(S):	19/04/99
JUDGMENT DATE:	28 May 1999
PARTIES :	EMG (P) Guardianship and Administration Board of Victoria (D1) Guardianship Tribunal of NSW (D2)
JUDGMENT OF:	Young J

COUNSEL :	Plaintiff: E Strasser 1st Defendant: S Habib Solicitor for Attorney General: P Singleton (I V Knight)
SOLICITORS:	Plaintiff: Clarissa Huegill 1st Defendant: Connery & Partners Attorney General: I V Knight
CATCHWORDS:	Mental Health [3]; Guardianship; Victorian order; Recognition in NSW; What that entails; When revoked; Procedure [88]; Parties; Whether Tribunal may be sued by name
ACTS CITED:	(NSW) Guardianship Act 1987, ss 67, 57, 48B, 25U, 25P (Vic) Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (Vic) Guardianship and Administration Board Act 1986, ss 43, 61, 63, 58B (NSW) District Court Act 1973 (NSW) Interpretation Act 1987, s 34 (Cth) Constitution s 118 (Cth) Family Law Act 1975 Pt XII (NSW) Adoption of Children Act 1965 Pt V (Vic) Civil and Administrative Tribunal Act 1998
DECISION:	Appeal dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

YOUNG, J

Friday 28 May, 1999

59/97 - EMG V GUARDIANSHIP AND ADMINISTRATION BOARD OF VICTORIA & ANOR

JUDGMENT
1 HIS HONOUR : This is an appeal from a determination of the Guardianship Tribunal of NSW, the second defendant, pursuant to s 67 of the Guardianship Act 1987 (NSW) against a determination of the Tribunal made on 13 October 1998. The determination was made in respect of an application by EMG to revoke the recognition of a management order made against her in Victoria by the first defendant whereby the second defendant was appointed administrator or manager of her affairs. The Guardianship Tribunal declined to revoke the recognition and instead confirmed its previous determination that the Victorian order be recognised.
2 Section 57 of the Guardianship Act 1987 (NSW) restricts publication of the name of any person who is under guardianship. It is difficult to comply with the Court’s obligation as to publishing all its judgments, especially those like this one which deal with questions of principle, yet not involve people in a possible breach of s 57. Section 57 clearly does not apply to the Court itself, but the Court does not wish people who are involved in publishing the Court’s judgments in the ordinary course of their business innocently breaching the section. Accordingly, matters which may identify EMG have been put in the appendix to this judgment which will only be available to the parties plus in the copy that remains in the Court files and in my retained copy of the judgment. This should enable the questions of principle to be exposed without embarrassing EMG.
3 EMG’s history shows that in 1980 the Victorian Public Trustee, acting on the advice of two medical practitioners, certified that EMG was not capable of managing her affairs. This had the result that the Public Trustee was the guardian of EMG’s affairs. EMG then obtained two medical certificates that she was no longer incapable and applied to the Supreme Court of Victoria to declare that she was no longer incapable. The Court in considering that application, considered the test laid down by Powell J in this Court in PY v RJS [1982] 2 NSWLR 700, rejected that test and said that the appropriate test was a subjective test as to whether the alleged incapable person was able to manage the actual affairs that she had to manage and held that she was not so able.
4 The jurisdiction then passed to the Guardianship and Administration Board of Victoria which, from time to time, confirmed orders that the plaintiff was incapable. It would seem that in Victoria the procedure was that such orders had to be reviewed every so number of years. The Victorian Tribunal vested the management of the affairs of EMG in a Victorian corporation, State Trustees Limited.
5 The latest order is 5 June 1997. The order shows that the Board was constituted by one Maureen Carruthers and its text reads as follows:
“UPON A REVIEW UNDER S 61 OF THE GUARDIANSHIP AND ADMINISTRATION BOARD ACT 1986 OF THE ADMINISTRATION ORDER MADE ON 17 MARCH, 1993 in respect of (EMG) of (a north coast NSW address was given)
AND UPON THE BOARD BEING SATISFIED THAT (EMG) is disabled within the meaning of s 3(1) of the Act and is unable by reason of the disability to make reasonable judgments in respect of HER ESTATE and needs to be a “represented person” under the Act
THE BOARD HEREBY ORDERS:
1. THAT STATE TRUSTEES LIMITED ... be appointed Administrator(s) of the Estate of the Represented Person with all the powers and duties conferred by Part 5 Division 3 and 3A of the Guardianship and Administration Board Act 1986.
2. That this administration order be reviewed by the 5th June 1999.
3. That subject to the provisions of Section 61, this order continue to have effect until otherwise ordered.

And that the Represented Person, the Applicant and any other person entitled thereto, may apply to the Board for a review of its order at any time.”

6 The facts are that EMG moved to the north coast of NSW in 1994 and has been residing in NSW ever since. EMG’s husband lives with her. Before 1994 EMG and her husband lived in Victoria, where her children still live.
7 There was no material at all before the Tribunal as to EMG’s domicile on the date the Victorian Board made its order. As this is an appeal from the Guardianship Tribunal and as the point is not taken, I do not need to dwell on the matter for this case. So far as the Supreme Court is concerned, the Court has jurisdiction to deal with the estate of an incapable person where it is in the interests of the person to do so if that person is physically present within the State or if that person has property within the State which needs to be protected: MS v ES [1983] 3 NSWLR 199. That jurisdiction probably comes from the Royal Prerogative. However, as the power to make a guardianship order is committed to an inferior tribunal, there is no question of the Royal Prerogative being invoked. The statute must be construed to see what persons are within its purview. The Guardianship Act (NSW) does not actually define the persons who are subject to its operation. However, as the alleged incapable person must be served and as there does not appear to be any provision for service interstate, it would appear that its only jurisdiction is to deal with people who are physically present within NSW at the date of service. Whether that is so or not can be reserved for another day.
8 The Victorian Act under which the order was made, the Guardianship and Administration Board Act 1986 (Vic) has now been drastically amended by the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (Vic). The 1998 Act abolished the Guardianship and Administration Board and gave its jurisdiction to the Victorian Civil and Administrative Tribunal.
9 The Victorian Civil and Administrative Tribunal was set up under the Civil and Administrative Tribunal Act 1998 (Vic). There is no provision in that Act allowing the Tribunal to be sued by its name.
10 Although in England it is common for such bodies to be sued by their public name, see eg the cases involving the Criminal Injuries Compensation Boards such as Reg v Criminal Injuries Compensation Board; Ex parte Tong [1976] 1 WLR 1237, in NSW the procedure was different in that usually the members of an unincorporated tribunal were named as defendants though it was the custom not to name them as the first defendant.
11 More recently, proceedings have been brought against tribunals consisting of more than one person by their official name. To take a recent example, in Torrealba v District Court of New South Wales (1996) 40 NSWLR 327, and in other cases the Court of Appeal has dealt with a matter where the respondent is the District Court even though a particular Judge constituted the Court on that occasion and the District Court Act 1973 (NSW) does not contain any provision allowing it to be sued in and by its corporate name. No objection is made in the instant case to either the former Board or the present Tribunal being sued, but again that is a matter which may need to be reconsidered in other cases.
12 I return now to consider the jurisdiction of the Victorian Guardianship Board because it is necessary to consider whether that Board made an order that was intended to be operative only within Victoria or on property in Victoria or was intended to be an order to apply throughout Australia or the world.
13 Section 43 of the Guardianship and Administration Board Act 1986 (Vic) provides for people to make an application for an administration order. The section as it existed in 1997 provided in subsection (1) for a person to make an application for guardianship, subsection (2) then was as follows:
“Where a person with a disability who has attained the age of 18 years does not reside in Victoria but has an estate the whole or part of which is in Victoria, any person may apply to the Board for an order appointing an administrator in respect of so much of the estate as is in Victoria.”
Section 61, in its then form, provided that the Board must within three years of the making of a guardianship order or an administration order hold a hearing to review the order.
Section 63 provided that upon completing a review “The Board may by order amend, vary, continue or replace the order subject to any conditions or requirements it considers necessary or revoke the order.”
14 As can be seen from the order that I have already set out, the Board in Victoria did none of the things referred to in s 63 but made a fresh order appointing an administrator. That order as I have said, purported to give the administrator all the powers and duties under Divisions 3 and 3A of the Guardianship and Administration Board Act (Vic). Section 58B which is contained within Division 3A purports to empower the administrator to sell, exchange, partition or convert into money any property of the incapable person or to pay, settle, adjust or compromise any debt or demand. As an initial order could only have been made in respect of property in Victoria because of s 43(2), the order made by the Victorian Board was too wide. In so far as it extended beyond giving power to deal with EMG’s property in Victoria, the order had no effect. It was not an order of a superior court, it was an order of an administrative tribunal. It thus had no effect outside Victoria or with respect to anything to do with the incapable person other than her property within Victoria.
15 I might note here that there was little evidence as to where the incapable person’s property was. There was evidence that she held shares in a company which owned a property in Sorrento Victoria, but there was no evidence at all at least before the NSW Tribunal as to where that company was incorporated or where the shares were situated. If I were permitted a guess (which I am not), I would guess that the shares actually were in Victoria, but it would have been nice had there been some evidence before the Board in Victoria or the Tribunal in NSW.
16 The significance of this sort of analysis becomes plain when one looks at Re Hancock (1962) 80 WN (NSW) 56. Although this decision has been criticised academically, as far as I am aware its status has never been questioned in the court system. In Hancock’s case, the mother of an ex-nuptial child had her legitimated under a Victorian Act of Parliament. The question was whether that legitimation would be recognised in NSW. Myers J held that at common law the legitimation would only be recognised if done in accordance with the law of the father’s domicile. He also held that the full faith and credit provisions did not require courts in NSW to do anything more than recognise that in Victoria the child was legitimate. As the Victorian law did not have the power to declare that a person was legitimate outside the bounds of Victoria, that was its only operation. Accordingly, the child legitimated under the law of Victoria could not inherit in NSW as a child.
17 I should note that I was asked by Mr E Strasser who appears for the plaintiff/appellant to consider the Parliamentary debates in Victoria before reaching a conclusion as to the meaning of the Victorian Act. Section 34 of the Interpretation Act 1987 (NSW) allows me to look at the relevant Parliamentary papers where the meaning of a statutory provision is unclear. However that section does not permit me to look at Victorian Parliamentary papers if in the course of making a decision I need to construe Victorian legislation. In any event, the Victorian Act appears to me to be fairly plain.
18 I now turn to the question as to whether s 48B of the Guardianship Act 1987 (NSW) affects the scope of the Victorian order if it is recognised. Section 48B(1) stripped of unnecessary verbiage, merely provides “A person who, under a corresponding law, is appointed as the guardian of another person may apply to the Tribunal for recognition of his or her status as such.” Subsection (2) then provides “The Tribunal must recognise the applicant if satisfied that the applicant has been so appointed”. Subsection (5) provides “The applicant’s recognition may be reviewed, varied and revoked as if it were an appointment under this Act.”
19 The question is, what is the effect of recognition of the Victorian order in the present case?
20 No legislation would be needed if all that was happening was that this State recognised that the Victorian administrator was able to administer property in Victoria. There would be no necessary nexus with NSW nor any utility. Accordingly one must suppose that the legislation was intended to do something else.
21 Counsel submit that the full faith and credit provisions are not applicable in this area because what happened before the Guardianship Board in Victoria was not a judicial proceeding within the meaning of s 118 of the Constitution. Although I do not know of any case directly in point, the answer would appear to be that the proceedings are not judicial proceedings and this view is reinforced by the decision of Powell J in Re an Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541.
22 What then, does s 48B of the Guardianship Act (NSW) mean by “recognition”?
23 I have seen the Minister’s Second Reading Speech in the Legislative Council when the Guardianship Amendment Bill was introduced and I agree with counsel that it is of no assistance on the resolution of the current problem.
24 The word “recognition” or “recognise” is a commonly used word when a law is indicating that a judgment with regard to status made outside the State is to have as much force within the State as it had in the place where it was made. Thus one finds the heading to Part XII of the Family Law Act 1975 (Cth) a group of sections on recognition of decrees outside Australia and one finds similar provisions in the Adoption of Children Act 1965 Part V (NSW).
25 However, s 48B seems to go further than merely recognising within NSW a person’s status. This is because subsection (3) says, “On recognition, the applicant is taken to be appointed under this Act as guardian or manager of the estate ...”.
26 The section has a rather strange effect. So long as there are corresponding laws, then if a person has been appointed guardian in another State the Tribunal must recognise not the order but the applicant and then the applicant is taken to be appointed under this Act as guardian.
27 Thus it is not the foreign order that is recognised, but the applicant’s right to represent the alleged incapable person in NSW. The Guardianship Board is given no discretion to decline to recognise the applicant, but at least on one argument, under subsection (5) it may as soon as it has recognised the applicant, revoke that recognition “as if it were an appointment under this Act”. Under the Guardianship Act 1987 (NSW), s 25U, the Tribunal may revoke an appointment of a manager only in three situations: (a) if the manager seeks revocation, (b) “the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or (c) the financial management order in respect of the estate concerned is revoked”. Under s 25P a financial management order may be revoked “only if: (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).”
28 In the instant case, the Guardianship Tribunal on 24 March 1998 issued a determination alleging that pursuant to s 48B “the order dated 5 June 1997 made by the Guardianship and Administration Board of Victoria ... is hereby recognised.” This, in my view, was not an accurate statement; it was only the status of the applicant, State Trustees of Victoria, which was recognised. However, the order then went on to say that “This order having been recognised the State Trustees of Victoria is now taken to be appointed as manager of the estate of EMG under the Act.”
29 EMG, by her solicitor’s letter of 21 July 1998, applied to revoke a financial management order on the ground that EMG “considers herself capable of managing her own financial affairs”.
30 The Tribunal in its determination of 13 October 1998 treated that application as an application to revoke recognition of a financial management order, which of course, it was not, both because the Tribunal should never have recognised the foreign order but only the status of the foreign manager, and in any event that was not what EMG had applied for the Tribunal to do. However, the Tribunal said “In view of the wording of section 48B(5), this application should strictly have been couched as an application to revoke the Tribunal’s recognition of the Victorian order. The Tribunal treated EMG’s application as such. ...
“Putting aside the technical legal label of the current application, its effect if successful would have been to revoke the NSW financial management order. It would not have revoked the appointment of the State Trustees under the Victorian Legislation. The NSW Tribunal has no such power.

“If EMG’s application was successful, the control of the State Trustees over EMG’s Victorian assets (which include savings and an interest in a family company) would have remained.
“It would also appear that the State Trustees may have retained legal control over any movable property of EMG in NSW. (The only significant such property appeared to be a car). However and very significantly here, it would appear that EMG would have resumed full legal control over the house that she owns in Ballina, NSW. ...
“EMG asked the Tribunal to revoke its recognition of the Victorian order on the basis that she was capable of managing her own financial affairs. The Tribunal thus needed to be satisfied that this was the case (s 25P(2)(a)).”

31 The Tribunal then set out its reasons for determining that EMG had not shown she was capable of managing her own financial affairs. Mr Strasser was critical of the way in which the Tribunal went about its determination of fact. He said that although material was presented to the Tribunal on behalf of EMG by her solicitor, the Tribunal also, without any forecasting of what the material might be, took evidence by telephone whilst it was sitting in Lismore. EMG had no notice of what this material was, no opportunity to confer with her lawyers about it, and no opportunity to reply to it. Furthermore, the Tribunal prevented EMG from taping the hearing and thus prevented her from making any accurate record of what was happening.
32 It is also put that one of the witnesses, a Ms Sue Packer who describes herself as a neuropsychologist was a person who was too close to the Tribunal to be able to give evidence fairly.
33 One of the people who gave evidence by phone was EMG’s son, AM. AM said that there was a family company in Victoria in which EMG had a one-sixth interest worth approximately $45,000. AM did not give very material evidence, but at what appeared to be the end of it, the Chairman of the Board said, “I will just check whether your mother wants to ask you anything. Is there anything you wanted to ask your son?” to which EMG said “Yes, give him my love”. However, then there were another two pages of conversation between the Chairman and AM during which AM said that the Victorian Tribunal took the view that none of the doctors’ reports warranted revocation of the Victorian order and “This has been I’m afraid a very long harrowing matter for the family and my mother but at the end of the day we are firmly of the view, based on the medical evidence which has been obtained over the years, that she unfortunately is not managing her affairs. ... That is purely because of her memory difficulties I mean she is not getting any younger”.
34 EMG was not asked to reply to this “evidence”.
35 The Tribunal then took a short break and after it resumed, the following appears in the transcript:

“(inaudible)
(EMG’s husband): She is one of your mob is she?
Speaker: Yes.”

36 The Chairman then rang up Ms Packer and said “Is that Sue Packer?” The respondent replied in the affirmative and the Chairman then said “The Guardianship Tribunal, Sue” to which the reply was “Hi, how are you?” Each member of the Tribunal then said “Hello” to the witness and after various preliminaries the Chairman said “You have suggested there that with the assistance from someone like a financial planner that EMG would be able to manage.”
Ms Packer: “Yes”.
Chairman: “How would she go if she didn’t have that sort assistance?”
Ms Packer: “I think it would be very difficult for her. I think she could make basis decisions that she could probably manage small amounts of money on a day to day basis but I think with larger amounts they could become quite confusing for her mainly due to the fact that she has quite a significant memory impairment. So it would be hard for her to keep track of things and that is why I felt she needed that kind of support.
I understand that she manages very well on a day to day basis in managing the household affairs and her own banking needs, but I felt that if it came to investing a large amount of money and that sort of thing she could really benefit from some outside help. Certainly her husband is very supportive of her ... and he seems to be sufficient to provide a certain amount of that kind of support but I still felt it doesn’t hurt to have some external input and advice into managing one’s estate.”
37 The community member of the Board then said, “Sue, its Freda”. Ms Packer: “Hi”.
Community member: “How do you think EMG would go about choosing a financial adviser...”
38 When she finally answered this question, Ms Packer said: “I think she would probably be in a position of vulnerability. I wouldn’t feel totally confident that she could manage effectively, you know, if she were left totally alone”.

Chairman: “Okay, alright. EMG is there anything you would like to ask Sue Packer while we have her on the phone?”
EMG: “Not really”.
EMG’s husband: “Thank her for her report”.
Ms Packer: “Okay, it is no problem”.

39 Tribunals such as the Guardianship Board have to be extremely careful about the way they proceed. They are presented with a number of difficulties inherent in their makeup. They are not bound by the rules of evidence and may inform themselves in any way they think appropriate. However, this is subject to the rules of natural justice that people should be given an opportunity to answer the allegations that are made against them. The proceedings need to be conducted with a minimum of formality, but care must be taken that informality does not lead to denial of natural justice. Such Tribunals need also to remember that what is “informal” in one setting may be almost insulting in another. Many elderly ladies who have been used to being called “Mrs Smith” throughout their lives do get offended if some person on a tribunal much younger than themselves calls them by their first name.
40 There are inherent dangers for a Tribunal when a person is working as a psychologist in close harmony with the Protective Office or the Guardianship Tribunal and gives evidence on many occasions and is doubtless known professionally to members of the Tribunal. The temptation is for that person’s evidence to be taken at face value in all cases. That must be avoided. Furthermore, the impression that one witness, because of her association with the Tribunal, is more likely to be accepted than others must also be avoided.
41 Mr Strasser was very critical of the way in which he says the Chairman would put words into witnesses’ mouths which they would then acknowledge as being correct. It is certainly true that all judges and members of tribunals must be particularly careful not to put words or suggestions into witnesses’ minds and mouths because experience shows that witnesses will tend to agree with the tribunal because they think that that is the respectful thing to do. This problem occurs with certain types of witnesses more than others, but it applies generally.
42 However, I do not consider, having looked at the transcript as a whole, that the Tribunal went too far in this direction on this particular occasion such as would lead it to be subject to review by the Supreme Court. The Court has to be particularly careful where there is a tribunal that is expected to go about its business in an informal and pastoral way not to be over-delicate about the way in which evidence is gathered.
43 Furthermore it is again true that the Tribunal must give the defendant or applicant the chance of contradicting material which is put before it and if need be, may have to grant an adjournment for that to be done. In a tribunal such as the present where lawyers are only allowed with the permission of the tribunal, a tribunal may indeed have a duty to point out to an applicant or defendant that if he or she does consider that an adjournment is needed, they have a right to ask for it. It may not be sufficient in any particular case to just say to an unrepresented person at the end of evidence which has been given by telephone (or by a witness personally present) against them for the first time, of which they had no notice, that they can ask questions over the telephone of the witness if they want to.
44 However, having said all this it does not seem to me that in the instant case the Board went into the area where its proceedings denied natural justice in any of these respects.
45 The next question is whether the Board applied the wrong test.
46 The Board said that it was applying the test in PY v RJS [1982] 2 NSWLR 700. In that case Powell J held that a person is incapable of managing his or her own affairs if that person appears incapable of dealing in a reasonably competent fashion with ordinary routine affairs and that any lack of such competence may disadvantage him or her in the conduct of such affairs or his or her money or property may be dissipated or lost. That test which has been followed in this State from time to time is easier for the alleged incapable person to satisfy than the test which prevails in Victoria known in NSW as “the subjective test” which was expounded by Starke J in Re MacGregor [1985] VR 861. In that case his Honour said that the test is whether the alleged incapable person is able to manage his or her own affairs as they exist in actuality. Accordingly, a multi-millionaire with complex affairs would be more likely to be declared an incapable person than a pensioner living in a retirement village without any property interests.
47 As EMG was a Victorian, her initial incapacity was judged by the subjective test. She was more likely to succeed if the objective test set out in PY v RJS (supra) was applied and she can’t complain that that was the test which the Guardianship Tribunal purported to apply.
48 However, Mr Strasser says that when one reads the judgment of the Tribunal, although it said it was applying the objective test it in fact applied the subjective test. For this submission it is necessary to go back to the reasons of decision of the Tribunal.
49 At p 11 of its reasons, the Tribunal, after citing the test in PY v RJS (supra) said, “The Tribunal needed to be satisfied that EMG was capable of managing her affairs. Accordingly ... the Tribunal needed to first consider whether it was satisfied that EMG appeared capable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of people. If the Tribunal was satisfied of this, EMG was entitled to the order that she sought.” The Tribunal then set out the other limb of the test which does not call for consideration at this moment.
50 After reviewing the evidence the Tribunal said at p 15, “Could the Tribunal be satisfied that EMG was capable of dealing in a reasonably competent fashion with the ordinary routine affairs of people? It seemed to the Tribunal that such affairs encompass matters such as dealings with one’s home and the issues relating to health insurance, pensions and choice of financial advisers. It seemed to the Tribunal that, for EMG to be reasonably competent as required, she would need to be able to either personally carry out these tasks or be reasonably discerning in her choice of assistance and her capacity to evaluate the advice from such assistance. This assistance might be from a family member and/or professional advisers.

“Weighing up the above evidence, it seemed to the Tribunal that EMG’s ‘severe, generalised memory difficulties’ when combined with her ‘difficulties with her high level attentional processes and perceptual organisation’ and her dysphasia made it at least doubtful whether EMG was so competent.
“To the extent that Ms Packer’s conclusions suggested otherwise to the above, it relied upon others to compensate for EMG’s severe memory problems. It did not seem to the Tribunal that a person could be said to be capable if the person was dependent on others to compensate for such a basic cognitive deficit.
“The Tribunal could therefore not be satisfied that EMG was capable of dealing in a reasonably competent fashion with the ordinary routine affairs of people.”

51 It seems to me from that passage that the Tribunal kept the appropriate test before it and assessed EMG in the light of that test. Accordingly I do not consider that the plaintiff’s point that the wrong test was in fact applied has been established.
52 The next problem is whether the Tribunal misdirected itself that whatever it did could have no effect upon the Victorian order other than that order’s operation in NSW.
53 Mr Strasser submits that s 48B of the Guardianship Act (NSW) could not make practical sense unless the revocation of the Guardianship Tribunal’s order also neutered the foreign board’s order.
54 Although I was for a while attracted by Mr Strasser’s argument, in my view the key to understanding s 48B is to understand that the order of a foreign court or tribunal is not recognised but rather it is the status of the applicant, guardian or manager that is recognised. That status is automatically recognised under s 48B(2) and that then gives the applicant the same powers as if he, she or it had been appointed in NSW.
55 Thus it does not matter that, as in this case, the Victorian order was only over Victorian assets. The applicant before the Tribunal was a person who came within the description of s 48B(1) and upon recognition the applicant had power over the assets of EMG in NSW as if an initial order had been made under the NSW Act. The revocation of that order would take away the power to deal with NSW assets, but as the Tribunal ruled it would have no direct effect on the Victorian order.
56 The revocation of the NSW order may, however, have an indirect effect on the Victorian order. If the parties to the revocation application were, as they should be, the alleged incapable person on one side and the Victorian manager on the other side, and a tribunal in NSW makes a determination that the person is no longer incapable, it may be that that will operate as an estoppel before the Victorian Tribunal when an application is made to discharge the order there. The Guardianship Tribunal would appear to be a judicial statutory tribunal within the meaning of the issue estoppel rules rather than an administrative tribunal; see Pastras v The Commonwealth (1966) 9 FLR 152, 155.
57 It might be thought that there is some problem on issue estoppel because the test used in Victoria, the subjective test based on Re MacGregor [1985] VR 861, is more difficult for the alleged incapable person to establish that she is now capable as opposed to the objective test used in NSW. My present view, however, is that the ultimate fact is capacity and it would be that on which there would be an issue estoppel notwithstanding the fact the tribunals in the two different States apply a slightly different test.
58 An interesting question would arise if the Victorian order came to an end. If it came to an end because the Victorian Tribunal held that EMG was no longer incapable, then that would probably be an issue estoppel which would bind the NSW Tribunal when EMG made an application to revoke the recognition. However, if for instance, the Victorian order came to an end by effluxion of time, it may be that the alleged incapable person could not revoke the NSW order unless she could prove that she was no longer incapable in NSW. However, the better view would appear to be that once the Victorian order ceases then the status which was conferred by the Victorian order and is recognised in NSW comes to an end so that the NSW order would for all intents and purposes have no further operation. However I do not consider that this proposition means that one can argue the converse case.
59 I should mention one further matter, and that is, that the State Trustees Victoria are not a party to this appeal. I would have thought they should have been a party, but as there have been proper contradictors it is not a matter of great moment.
60 For these reasons the appeal should be dismissed. No argument has been put to me as to costs. Accordingly I will reserve the question of costs but on the basis that if no application has been made in respect of costs by any party by 15 June 1999 the formal order may be entered as “Appeal dismissed. No order as to costs”. An application for costs may be made by letter received by my Associate no later than 15 June asking that the matter be listed on a Monday when I am taking the Protective List.

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Last Modified: 05/28/1999