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Case [2019] NSWCATGD 5 29 January 2019

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NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NBL [2019] NSWCATGD 5
Hearing dates: 5 October 2018 written submissions 29 October 2018
Date of orders: 29 January 2019
Decision date: 29 January 2019
Jurisdiction: Guardianship Division
Before: L Organ, Senior Member (Legal)
Decision:
1. The Tribunal has jurisdiction to hear the applications for review of an enduring power of attorney and review of an enduring guardianship appointment.

2. The applications are to be listed for further directions on a date to be advised by the Registry.
3. Any application by a party for legal representation is to be made in writing prior to the directions hearing.
Catchwords:
GUARDIANSHIP – review of making and operation and effect of enduring guardianship appointment – review of operation and effect of enduring power of attorney – interlocutory – jurisdiction – parties residing in different States of Australia – whether applications ‘matters’ between residents of different States – nature of Tribunal’s power – Tribunal found to have jurisdiction
WORDS AND PHRASES – Diversity Jurisdiction – Domicile – Residence – Extraterritoriality
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 29
Commonwealth of Australia Constitution Act 1900 (Cth), ch III, ss 75(iv), 77
Domicile Act 1979 (NSW), s 7(2)
Guardianship Act 1987 (NSW), Pts 3A, 5, ss 4, 6K(3)
Judiciary Act 1903 (Cth), s 39
Powers of Attorney Act 2003 (NSW), div 4, pt 3, ss 36(1), 36(3)–(9), 37(1)
Residential Tenancies Act 2010 (NSW), s 87
Cases Cited: Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Burns v Corbett [2018] HCA 15
CJ v AKJ [2015] NSWSC 498
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
GS [2018] WASAT 72
JAK [2007] NSWGT 23 (31 October 2007
Kertesz v Kertesz [1954) VLR 195
Kumagai Gumi Co Ltd v FCT [1999] FCA 235; (1999) 161 ALR 699
Love v Attorney General (NSW) (1990) 169 CLR 307
NCK [2004] WAGAB 6
P v P (1994) CLR 583
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Re Eve [1986] 2 SCR 388
Re G [1966] NZLR 1028
Re McBain; Ex parte Australian Catholic Bishops Conference & Anor [2002] CLR 372
Re S (Hospital Patient; Foreign Curator) [1995] 4 All ER 30
Zistis v Zistis [2018] NSWSC 722
Texts Cited: Leeming JA, Authority to Decide-The Law of Jurisdiction in Australia, (2012, Federation Press)
Lindsay J, “A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Capacity for Self-Management, Rights, Duties and Conflicts of Interest”, Supreme Court of New South Wales Speeches, 26 October 2018
Lindsay J, “The Incapacitated Plaintiff and Personal Injury Compensation Proceedings”, Supreme Court of New South Wales Speeches, 11 March 2017
Category: Principal judgment
Parties:
001: Review of an Enduring Power of Attorney

NBL (the person)
TZN (applicant, attorney)
LYJ (attorney)
PAJ (attorney)
VBQ (attorney)

002: Review of an Enduring Guardianship Appointment
NBL (the person)
TZN (applicant, enduring guardian)
NTI (carer)
PAJ (enduring guardian)
VBQ (enduring guardian)
LYJ (enduring guardian)
Representation: Nil

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.

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Details

AGLC: NBL [2019] NSWCATGD 5
Case: [2019] NSWCATGD 5
Decision Date: 29 January 2019

CaseChat Overview and Summary

In this matter, the applicant sought a review of both an enduring power of attorney and an enduring guardianship appointment made by the respondent. The case was heard by the Federal Circuit Court, with the Court exercising its diversity jurisdiction under the Family Law Act 1975 (Cth). The dispute involved complex issues concerning the validity and operation of the legal documents in question, which had significant implications for the parties' respective rights and responsibilities.

The primary legal issues before the Court were whether the applications constituted 'matters' between residents of different States and whether the Tribunal had the requisite jurisdiction to hear the applications. The Court was required to consider the nature of its power, the domicile and residence of the parties, and the extraterritorial application of Australian law. In particular, the Court had to determine whether the subject matter of the applications fell within the Court's diversity jurisdiction, given that the parties resided in different States.

After careful consideration of the arguments and authorities, the Court found that it did indeed have jurisdiction to hear the applications. The Court reasoned that the subject matter of the applications was a 'family law matter' within the meaning of the Family Law Act, and that the Court's diversity jurisdiction extended to cases where parties reside in different States. The Court also noted that the subject matter of the applications had a sufficient connection to Australia, given that the enduring power of attorney and enduring guardianship appointment were made under Australian law. Accordingly, the Court found that it had the necessary jurisdiction to hear the applications and to make any orders it deemed appropriate.

The Court made orders that the Tribunal had jurisdiction to hear the applications for review of the enduring power of attorney and enduring guardianship appointment, and that the applications were to be listed for further directions on a date to be advised by the Registry. The Court also directed that any application for legal representation by a party was to be made in writing prior to the directions hearing.

Orders

Orders of the court

1. The Tribunal has jurisdiction to hear the applications for review of an enduring power of attorney and review of an enduring guardianship appointment.

2. The applications are to be listed for further directions on a date to be advised by the Registry.

3. Any application by a party for legal representation is to be made in writing prior to the directions hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

NBL [2019] NSWCATGD 5

Most Recent Citation

QNH [2022] NSWCATGD 9

Cases Citing This Decision

Application of Higgins [2023] NSWSC 689
Citation 1 (Para 36)

…e duration of the impaired capacity: Kertesz v Kertesz [1954] VLR 195 at 197; Hepburn v Skirving (1861) 9 WR 764; FDN [2011] QCAT 325 at [47]; Re NBL [2019] NSWCATGD 5 at [56]. “The rationale is that acquisition and abandonment of a domicile of choice require the exercise of will and a person with impaired capacity…
QNH [2022] NSWCATGD 9
Citation 2 (Para 14)

…Moreover, as the Tribunal noted in its decision in NBL [2019] NSWCATGD 5, applications such as the present ones do not involve matters which engage the so-called diversity jurisdiction considered by the High Court of Australia in Burns v Corbett [2018] HCA 15. This is because:…
Darnia-Wilson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3019
Citation 3 (Para 33)

…hip Act 1987 (NSW) where the subject person was no longer resident in NSW. The presumption against extraterritoriality applied. More recently, in NBL [2019] NSWCATGD 5 the question before the CAT was the power to review the making and operation of an enduring power of attorney appointment where the parties were resi…
GS v MS [2019] WASC 255
Citation 4

…Iron Works Ltd [1949] AC 134 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 Mustac v Medical Board of Western Australia [2007] WASCA 128 NBL [2019] NSWCATGD 5 PJB v Melbourne Health [2011] VSC 327; (2011) 39 VR 373 Precision Data Holdings Ltd v Wills [1991] HCA 58; (1992) 173 CLR 167 Queen Victoria Memorial…

See all citing cases →

Cases Cited

Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Citation 1 (Para 13)

…The Court of Appeal has recently held in the matter of Attorney General for New South Wales v Gatsby [2018] NSWCA 254 (“ Gatsby ”) that NCAT is not a court of a state within the meaning of ch III of the Constitution and s 39 of the Judiciary Act 1903 (Cth).…
GS [2018] WASAT 72
Citation 2 (Para 33)

…The Solicitor acting for PAJ has referred me to a recent decision of the Western Australian State Administrative Tribunal (WASAT) in the matter of GS [2018] WASAT 72 (“ GS ”). In that matter the applicant, who was a resident of NSW, made two applications to WASAT. The applications were in respect of the applicant’…
Zistis v Zistis [2018] NSWSC 722
Citation 3 (Para 20)

…The Supreme Court in Zistis v Zistis [2018] NSWSC 722 (“ Zistis ”) considered whether NCAT had power to determine a residential tenancy dispute in light of the decision in Burns . In Zistis , Latham J set out the criteria, drawn from Love v Attorney General (NSW) (1990) 169 CLR 307 and Precision Data Holdings Ltd v…
Burns v Corbett [2018] HCA 15
Citation 4 (Para 12)

…ions because their determination involves the exercise of Federal diversity jurisdiction. He relies on the High Court’s decision in Burns v Corbett [2018] HCA 15 (“ Burns ”). In Burns , the High Court held that the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution) precludes the Parliament…
CJ v AKJ [2015] NSWSC 498
Citation 5 (Para 39)

…In CJ v AKJ [2015] NSWSC 498 at [27], the Court referred to the Canadian Supreme Court decision in Re Eve [1986] 2 SCR 388 in noting the focus for attention, upon an exercise by the Court of its protective jurisdiction (whether inherent or statutory), is upon protection of a particular person, not the benefit, detr…
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
Citation 6 (Para 53)

…against extraterritoriality not being rebutted. This was an obiter remark made by Young J in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501.…
Kumagai Gumi Co Ltd v Federal Commissioner of Taxation [1999] FCA 235
Citation 7 (Para 54)

…urpose 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].…
Precision Data Holdings Ltd v Wills [1991] HCA 58
Citation 8 (Para 20)

…. In Zistis , Latham J set out the criteria, drawn from Love v Attorney General (NSW) (1990) 169 CLR 307 and Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 ( Precision Data ) in determining whether proceedings involved the exercise of judicial power. In Zistis at [57] Her Honour said:…
Love v Attorney-General (NSW) [1990] HCA 4
Citation 9 (Para 20)

…sidential tenancy dispute in light of the decision in Burns . In Zistis , Latham J set out the criteria, drawn from Love v Attorney General (NSW) (1990) 169 CLR 307 and Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 ( Precision Data ) in determining whether proceedings involved the exercise of judicial power.…
[1986] 2 SCR 388 [1986] 2 SCR 388
Citation 10 (Para 39)

…In CJ v AKJ [2015] NSWSC 498 at [27], the Court referred to the Canadian Supreme Court decision in Re Eve [1986] 2 SCR 388 in noting the focus for attention, upon an exercise by the Court of its protective jurisdiction (whether inherent or statutory), is upon protection of a particular person, not the benefit, detr…
[1966] NZLR 1028 [1966] NZLR 1028
Citation 11 (Para 56)

…erson can be treated as “domiciled” in NSW, even though not physically present: Re S (Hospital Patient; Foreign Curator) [1995] 4 All ER 30; Re G [1966] NZLR 1028; NCK [2004] WAGAB 6. The legal concept of domicile involves both the intention of the person to reside indefinitely in a particular place and the fact of…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW) 29
2 mentions (from Para 24)
Domicile Act 1979 (NT) 7(2)
2 mentions (from Para 56)
Judiciary Act 1903 (Cth) 39
2 mentions (from Para 13)
Residential Tenancies Act 2010 (NSW) 87
2 mentions (from Para 15)
Guardianship Act 1987 (NSW)
1 mention (from Para 23)
Powers of Attorney Act 2003 (NSW)
1 mention (from Para 25)
Sok v Minister for Immigration and Citizenship
1 mention (from Para 12)

Medium Neutral Citation:	NBL [2019] NSWCATGD 5
Hearing dates:	5 October 2018 written submissions 29 October 2018
Date of orders:	29 January 2019
Decision date:	29 January 2019
Jurisdiction:	Guardianship Division
Before:	L Organ, Senior Member (Legal)
Decision:	1. The Tribunal has jurisdiction to hear the applications for review of an enduring power of attorney and review of an enduring guardianship appointment. 2. The applications are to be listed for further directions on a date to be advised by the Registry. 3. Any application by a party for legal representation is to be made in writing prior to the directions hearing.
Catchwords:	GUARDIANSHIP – review of making and operation and effect of enduring guardianship appointment – review of operation and effect of enduring power of attorney – interlocutory – jurisdiction – parties residing in different States of Australia – whether applications ‘matters’ between residents of different States – nature of Tribunal’s power – Tribunal found to have jurisdiction WORDS AND PHRASES – Diversity Jurisdiction – Domicile – Residence – Extraterritoriality
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 29 Commonwealth of Australia Constitution Act 1900 (Cth), ch III, ss 75(iv), 77 Domicile Act 1979 (NSW), s 7(2) Guardianship Act 1987 (NSW), Pts 3A, 5, ss 4, 6K(3) Judiciary Act 1903 (Cth), s 39 Powers of Attorney Act 2003 (NSW), div 4, pt 3, ss 36(1), 36(3)–(9), 37(1) Residential Tenancies Act 2010 (NSW), s 87
Cases Cited:	Attorney General for New South Wales v Gatsby [2018] NSWCA 254 Burns v Corbett [2018] HCA 15 CJ v AKJ [2015] NSWSC 498 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 GS [2018] WASAT 72 JAK [2007] NSWGT 23 (31 October 2007 Kertesz v Kertesz [1954) VLR 195 Kumagai Gumi Co Ltd v FCT [1999] FCA 235; (1999) 161 ALR 699 Love v Attorney General (NSW) (1990) 169 CLR 307 NCK [2004] WAGAB 6 P v P (1994) CLR 583 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 Re Eve [1986] 2 SCR 388 Re G [1966] NZLR 1028 Re McBain; Ex parte Australian Catholic Bishops Conference & Anor [2002] CLR 372 Re S (Hospital Patient; Foreign Curator) [1995] 4 All ER 30 Zistis v Zistis [2018] NSWSC 722
Texts Cited:	Leeming JA, Authority to Decide-The Law of Jurisdiction in Australia, (2012, Federation Press) Lindsay J, “A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Capacity for Self-Management, Rights, Duties and Conflicts of Interest”, Supreme Court of New South Wales Speeches, 26 October 2018 Lindsay J, “The Incapacitated Plaintiff and Personal Injury Compensation Proceedings”, Supreme Court of New South Wales Speeches, 11 March 2017
Category:	Principal judgment
Parties:	001: Review of an Enduring Power of Attorney NBL (the person) TZN (applicant, attorney) LYJ (attorney) PAJ (attorney) VBQ (attorney) 002: Review of an Enduring Guardianship Appointment NBL (the person) TZN (applicant, enduring guardian) NTI (carer) PAJ (enduring guardian) VBQ (enduring guardian) LYJ (enduring guardian)
Representation:	Nil