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

1. 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.

2. 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.

3. For the reasons that follow we conclude that we do not have jurisdiction to determine the Application.

The move to Queensland

4. 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.

5. 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 to the top floor of the property, which she owns.

6. At the hearing, Mr MGV participated by phone and confirmed he was happy with the decision to move to Queensland and had no intention of returning to NSW.

7. Solicitor for Mr MGV, Mr Emery rejected the assertion made by Mr QAV that his client moved to Queensland to “escape the jurisdiction”.

Does the Tribunal have jurisdiction to determine the Application?

8. A key issue raised by this Application, is whether the Tribunal has power to make a guardianship order in circumstances where the subject person no longer resides in NSW.

9. NCAT is a creature of statute. Its powers are conferred by the legalisation which created it, the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and any enabling legislation, relevantly the Guardianship Act 1987 (NSW).

10. Neither the Guardianship Act nor the NCAT Act expressly address whether the person the subject of an application made under the Guardianship Act, must be in NSW at the time the application is made or be a resident or domiciled in NSW. However, being legislation enacted by a State Parliament, at common law the Guardianship Act is presumed not to have extraterritorial operation: Jumbunna Coal Mine the Victorian Cold Miners’ Association (1908) 6 CLR 309; [1908] HCA 95 at [363].

11. The presumption against extraterritorial operation will generally only be displaced where there is some clear connection or nexus between the enacting state and the extraterritorial, thing, person or event: 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. (See, also JAK [2007] NSWGT 23 at [26]-[33].) If the application of the presumption against extra-territoriality would defeat the purpose of the legislation, then it can be assumed that it was the intention of the legislature to override the presumption: Kumagai Gumi Co Ltd v FCT [1999] FCA 235; (1999) 161 ALR 699 at [707].

12. While there is an historic connection between Mr MGV and NSW, he is no longer physically present in NSW, or a resident of NSW. In addition, the available evidence indicates that he no long owns property in NSW and intends to reside indefinitely in Queensland. In our view, the connection between NSW and Mr MGV is too remote to rebut the presumption against the extraterritorial operation of the Guardianship Act. In addition, it could not reasonably be argued that the presumption against extra-territoriality would defeat the purpose of the Guardianship Act.

13. It follows that the Tribunal is not permitted to make an order under the Guardianship Act in respect of Mr MGV. Therefore, the Application must be dismissed. We note that it is open to any person concerned for his welfare to make an application under the Guardianship and Administration Act 2000 (Qld) in respect of Mr MGV.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 05 July 2018