QPJ

[2016] NSWCATGD 31

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	QPJ [2016] NSWCATGD 31
Hearing dates:	19 July 2016
Date of orders:	19 July 2016
Decision date:	19 July 2016
Jurisdiction:	Guardianship Division
Before:	C Murray, Senior Member (Legal) M Martin, Senior Member (Professional) R Manga, General Member (Community)
Decision:	Revocation of financial management order; adjourned for three months.
Catchwords:	FINANCIAL MANAGEMENT – application to revoke financial management order – NSW Trustee and Guardian current manager of estate – subject person subject to administration orders of the Queensland Civil and Administrative Tribunal (QCAT) – subject person resides interstate – adjourned
Legislation Cited:	Guardianship Act 1987 (NSW), ss 25N, 25P, 25P(2)(b), 25R
Category:	Principal judgment
Parties:	Mr QPJ (protected person and applicant) NSW Trustee and Guardian (statutory party and manager of Mr QPJ’s estate) Public Trustee of Queensland (administrator of Mr QPJ’s estate)
Representation:	Nil
File Number(s):	22497
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

APPLICATION TO REVOKE A FINANCIAL MANAGEMENT ORDER

ADJOURNMENT

Contents

1. These Reasons for Decision are arranged under the following headings:

• What the Tribunal decided

• Background concerning Mr QPJ

• The hearing

• What would the Tribunal have to decide?

• The adjournment of the application to revoke the financial management order

What the Tribunal decided

2. The Tribunal adjourned the application for the revocation of the financial management order in respect of Mr QPJ’s estate for approximately three months to a date to be fixed by the registry. At the same time the Tribunal made a recommendation and gave directions as set out below.

3. The Tribunal recommended that the Public Trustee of Queensland and the NSW Trustee and Guardian liaise with each other to determine, in the light of the laws of their respective states, the most appropriate course to be followed to ensure the continued protection of Mr QPJ’s estate consequent upon his change of residence from NSW to Queensland and the intended transfer of the administration of his financial affairs from the NSW Trustee and Guardian to the Public Trustee of Queensland.

4. The Tribunal directed the NSW Trustee and Guardian and the Public Trustee of Queensland to prepare and provide to the Tribunal a detailed submission or submissions outlining the course proposed and explaining how that course fits within the legislative frameworks of the respective states. The submission(s) should address the issues raised by the Tribunal today including the issue of the potential effect of the revocation of the order of the NSW Guardianship Tribunal made on 24 June 2003 (incorrectly stated as 2013 in the Queensland Civil and Administrative Tribunal (QCAT) order of 27 January 2016) which has been registered in QCAT ‘for the term of the original order’ and under which the Public Trustee of Queensland has been appointed administrator of Mr QPJ’s financial matters, and any other legal (including jurisdictional) issues arising from the proposed course.

Background concerning Mr QPJ

5. Mr QPJ is a 69-year old man who lives in villas run by a community services organisationin Far North Queensland. Mr QPJ has a history of mental illness. He is also supported by a mental health service provider in Queensland.

6. On 21 June 2001, while he was living in New South Wales, the Guardianship Tribunal of NSW, now the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), committed Mr QPJ’s estate to management and appointed the Protective Commissioner, now the NSW Trustee and Guardian, as manager of his estate. This initial financial management order was to be reviewed within two years.

7. On 24 June 2003, upon the review of the financial management order made on 21 June 2001, the Guardianship Tribunal of NSW confirmed the order. The order has remained in place since then.

8. Approximately seven years ago, Mr QPJ moved to Queensland where he has remained.

9. It is reported that for some years Mr QPJ has been wishing to have the management of his affairs moved to Queensland as well. It is also reported that Mr QPJ’s support services have been assisting him to that end, including liaising with the NSW Trustee and Guardian as to the procedure needing to be followed.

10. On 27 January 2016, on the application of one of Mr QPJ’s support services, QCAT gave the following decision:

IT IS THE DECISION OF THE TRIBUNAL THAT:

RECOGNITION OF AN ORDER MADE UNDER ANOTHER LAW

The administration order being file number C/22497 Matter No. [2001/34XX] of the New South Wales Guardianship Tribunal in the matter of [Mr QPJ] made on 24 June 2013 (sic – 2003) is registered in this Tribunal for the term of the original order.

ADMINISTRATION

The administration order made by the Tribunal on 27 January 2016 is changed by removing The Protective Commissioner as administrator and appointing The Public Trustee of Queensland as administrator for [Mr QPJ] for all financial matters.

The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

The Tribunal directs the administrator to provide accounts to the Tribunal when required.

This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.

11. On 23 June 2016, NCAT received from the NSW Trustee and Guardian, an application to revoke the financial management order made by the Guardianship Tribunal of NSW on 24 June 2003 in respect of Mr QPJ’s estate.

The hearing

12. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing of the application on 19 July 2016. [Appendix removed for publication.] The hearing was conducted by telephone. Mr QPJ attended the hearing by telephone and participated.

13. The Tribunal did not consider it appropriate in the circumstances of these proceedings to use resolution processes other than those inherently available to it during its informal hearing process. During the hearing the Tribunal endeavoured to draw out agreement from the parties in respect of the issues or, otherwise, to narrow those issues.

What would the Tribunal have to decide?

14. The NSW Trustee and Guardian’s application to revoke the financial management order in respect of Mr QPJ’s estate was an application pursuant to s 25R of the Guardianship Act 1987 (NSW). On such an application the Tribunal must review the financial management order – s 25N.

15. Section 25P of the Guardianship Act states in part that:

25P   Action on review

(1) On reviewing a financial management order under section 25N, the Tribunal:

(a)   must vary, revoke or confirm the order, …

(b)   …

(2)   The Tribunal may revoke a financial management order 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).

16. The NSW Trustee and Guardian’s application relied on the best interests ground in s 25P(2)(b). It was said that it was in the best interests of Mr QPJ now to revoke the NSW order in the light of the QCAT decision of 27 January 2016. It was stated that after the revocation, Mr QPJ’s financial affairs would be looked after by the Public Trustee of Queensland and that there were no risks to Mr QPJ in revoking the order.

The adjournment of the application to revoke the financial management order

17. At the commencement of the hearing, the Tribunal raised with the participants its concern whether, in the light of the form of the decision by QCAT, the revocation of the Guardianship Tribunal’s order of 24 June 2003 might undermine the Public Trustee of Queensland’s appointment as administrator of Mr QPJ’s estate, as that appointment was pursuant to the Guardianship Tribunal order as registered in QCAT ‘for the term of the original order’. If that order was now revoked would its registration in QCAT also come to an end with the effect that there would be no order supporting the Public Trustee of Queensland’s appointment? If that was the case, it would seem that Mr QPJ’s estate would no longer be protected, an outcome that no-one was intending and which no-one was suggesting was in Mr QPJ’s best interests.

18. The issue appeared principally to be one of the effect of Queensland law, that is the proper meaning and effect under Queensland law of the QCAT decision of 27 January 2016. In the circumstances, the only prudent course in the Tribunal’s view was to adjourn the application to revoke the Guardianship Tribunal order until material could be put before the Tribunal to satisfy it that the revocation would not have the unintended and inimical effect referred to above. The participants in the hearing, including the representatives of the NSW Trustee and Guardian and the Public Trustee of Queensland, were not in a position to provide that assistance to the Tribunal at that time.

19. The Tribunal notes [2] and [5] of QCAT’s decision, which may indicate that the Guardianship Tribunal order is, upon registration, taken to be an administration order of QCAT, but that still leaves the issue of whether its revocation in NSW would have the effect of bringing its registration in Queensland to an end given the wording of [1] of QCAT’s order and, particularly, its concluding words. It may be that those concluding words should be taken to mean ‘for the term of the order as originally made’ (which was unlimited) but they do not necessarily say that. Had the concluding words said ‘for the original term of the original order’ or even ‘for the original term of the order’ that may have excluded the possible effect of a subsequent revocation if Queensland law permitted such things. The present wording, however, does leave open the possible effect of a subsequent revocation in NSW. Of course, QCAT may not have been made aware of the intention to seek the subsequent revocation of the NSW order. In the circumstances, it was appropriate and prudent to adjourn the application to enable further assistance about the meaning and effect of QCAT’s order to be obtained. Without that assistance, the Tribunal could not be satisfied that the revocation of the order was in Mr QPJ’s best interests.

20. Before adjourning, the Tribunal inquired of Mr QPJ as to his intentions concerning his residency. He told the Tribunal that he had been in Queensland for approximately seven years and that his definite intention was to remain in Queensland as the remainder of his family was there including his grandson. He told the Tribunal that he was born in Germany and came to Australia as a young child, aged three, in 1949. He lived in NSW with his parents (including initially in a migrant camp and then in South West Sydney), and following the separation of his parents, he moved to Sydney with his mother and then to Central NSW when she re-partnered. It appears that Mr QPJ may now have changed his place of domicile, by choice, to Queensland.

21. The Tribunal indicated to the participants that it intended to make a recommendation and directions along the lines set out in [3] and [4] above to ensure that the assistance it was seeking would be available to it after the adjournment. The representatives of the NSW Trustee and Guardian and the Public Trustee of Queensland agreed that an adjournment of three months would be appropriate in those circumstances. The Tribunal suggested to those representatives that it would be wise to seek the input of the legal departments of their respective organisations in considering the issues.

**********

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: 23 December 2016