MGV - [2017] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MGV [2017] NSWCATGD 40
Hearing dates: 17 November 2017
Date of orders: 17 November 2017
Decision date: 17 November 2017
Jurisdiction: Guardianship Division
Before: A Britton, Principal Member
A M Matheson, Senior Member (Professional)
F E Hilson, General Member (Community)
Decision:
The application is dismissed because the Tribunal has no jurisdiction.

Catchwords: GUARDIANSHIP – interlocutory issues – whether the Tribunal has jurisdiction to make a guardianship order where subject person is resident of Queensland at the time of the hearing – extraterritorial application of Guardianship Act 1987 (NSW) – rebuttable presumption – application dismissed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
Guardianship and Administration Act 2000 (Qld)
Cases Cited: JAK [2007] NSWGT 23
Jumbunna Coal Mine the Victorian Cold Miners’ Association (1908) 6 CLR 309; [1908] HCA 95
Kumagai Gumi Co Ltd v FCT [1999] FCA 235; (1999) 161 ALR 699
Pearce v Florence (1976) 135 CLR 507; [1976] HCA 26
Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55
Texts Cited: Nil
Category: Principal judgment
Parties: Mr MGV (the person)
Mr QAV (applicant)
Ms HZA (enduring guardian, spouse)
Ms SYG (enduring guardian)
The NSW Public Guardian
Representation: D Emery (Solicitor for Mr MGV)

File Number(s): 2017/00205062
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

Until four weeks ago, 80-year-old Mr MGV lived in Inner West Sydney. On 9 October 2017, Mr MGV and his wife of ten years, Ms HZA, moved to Queensland.
In July 2017, Mr MGV’s son, Mr QAV, made an application to the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) seeking a guardianship order in respect of his father (the Application). Mr QAV wrote that the reason he made the Application was because he believed his father was receiving inadequate medical care. Days after the Application was made, Mr MGV appointed Ms HZA as his attorney and joint enduring guardian with his step-daughter, Ms SYG. Three months earlier, Mr MGV had revoked a power of attorney made in 1998 which appointed his three children, Mr NXC, Mr DJV, and Mr QAV as attorneys.
For the reasons that follow we conclude that we do not have jurisdiction to determine the Application.

The move to Queensland

Mr MGV and Ms HZA now live on the ground floor of a two-story property located in Queensland. Ms SYG and her immediate family live on the top floor of the property.
Ms SYG apparently purchased the Inner West Sydney property from her step-father in early-November 2017. In these proceedings, Ms SYG claimed that the ground floor of the Queensland property is owned by her step-father and is on a different title…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MGV

Details

AGLC: MGV [2017] NSWCATGD 40
Case: [2017] NSWCATGD 40
Decision Date: 17 November 2017

CaseChat Overview and Summary

In MGV, the dispute centred around whether the New South Wales Civil and Administrative Tribunal had the authority to issue a guardianship order concerning an individual who resided in Queensland at the time of the hearing. This matter involved complex jurisdictional questions regarding the applicability of the Guardianship Act 1987 (NSW) beyond New South Wales borders.

The primary legal issue was whether the Tribunal could exercise its powers to make a guardianship order over a person who was not physically present in New South Wales. This required the court to examine the statutory language and legislative intent of the Guardianship Act 1987 (NSW), particularly in relation to its extraterritorial application. The court needed to determine if the Act’s provisions could be applied to a resident of another state and whether any rebuttable presumptions supported such jurisdiction.

The court concluded that the Guardianship Act 1987 (NSW) did not confer jurisdiction upon the Tribunal to make a guardianship order in respect of a person residing outside New South Wales. The court found that the Act’s provisions were intended to apply within the territorial limits of New South Wales, and there was no clear statutory language or legislative intent that would support an extraterritorial application. Consequently, the presumption in favour of territorial jurisdiction was not rebutted, and the application was dismissed on the basis that the Tribunal lacked jurisdiction.

Orders

Orders of the court

The application is dismissed because the Tribunal has no jurisdiction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	MGV [2017] NSWCATGD 40
Hearing dates:	17 November 2017
Date of orders:	17 November 2017
Decision date:	17 November 2017
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member A M Matheson, Senior Member (Professional) F E Hilson, General Member (Community)
Decision:	The application is dismissed because the Tribunal has no jurisdiction.
Catchwords:	GUARDIANSHIP – interlocutory issues – whether the Tribunal has jurisdiction to make a guardianship order where subject person is resident of Queensland at the time of the hearing – extraterritorial application of Guardianship Act 1987 (NSW) – rebuttable presumption – application dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Guardianship and Administration Act 2000 (Qld)
Cases Cited:	JAK [2007] NSWGT 23 Jumbunna Coal Mine the Victorian Cold Miners’ Association (1908) 6 CLR 309; [1908] HCA 95 Kumagai Gumi Co Ltd v FCT [1999] FCA 235; (1999) 161 ALR 699 Pearce v Florence (1976) 135 CLR 507; [1976] HCA 26 Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mr MGV (the person) Mr QAV (applicant) Ms HZA (enduring guardian, spouse) Ms SYG (enduring guardian) The NSW Public Guardian
Representation:	D Emery (Solicitor for Mr MGV)
File Number(s):	2017/00205062
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).