Re DEF and the Protected Estates Act 1983

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NEW SOUTH WALES SUPREME COURT

CITATION:    Re  DEF and the Protected Estates Act 1983 [2005]  NSWSC 534

CURRENT JURISDICTION:           Equity
Protective List

FILE NUMBER(S):   131/98

HEARING DATE{S):             

JUDGMENT DATE:               02/06/2005

PARTIES:
Undisclosed

JUDGMENT OF:      Campbell J      

LOWER COURT JURISDICTION:             Not Applicable

LOWER COURT FILE NUMBER(S):      Not Applicable

LOWER COURT JUDICIAL OFFICER:   Not Applicable

COUNSEL:

SOLICITORS:

CATCHWORDS:
MENTAL HEALTH - guardians, committees, administrators, managers and receivers - appointment by Queensland Supreme Court of Protective Commissioner as manager of part of a person's estate - procedural irregularities in circumstances in which appointment made - whether order recognised as a valid order in Queensland - whether order recognised as a valid order elsewhere in Australia - MENTAL HEALTH - effect of mental illness or disability on civil rights and duties - effect of appointment of Protective Commissioner as manager of part of a person's estate on that person's ability to give a power of attorney - steps Protective Commissioner should take when a power of attorney has been given by such a person - JUDGMENTS AND ORDERS - orders of a superior court of a law district - treated as valid within that law district unless and until set aside - effect on validity of superior court acting beyond jurisdiction - effect of court mis-stating the source of its authority to make an order - effect of full faith and credit provision in section 185 Evidence Act 1995 (Cth) on interstate recognition of a judgment - EVIDENCE - full faith and credit provision in section 185 Evidence Act 1995 (Cth) - meaning of "full faith and credit" - whether section 185 has substantive effect or only evidentiary effect - STATUTES - construction - grant of jurisdiction to superior court - STATUTES - construction - procedures to be followed by a court in exercising the jurisdiction conferred upon it by a statute - PRACTICE - jurisdiction - effects of conferral of jurisdiction by Jurisdiction of Courts (Cross-Vesting) Act 1987 of the various States upon the jurisdiction of the Supreme Court of other States and Territories

ACTS CITED:
Commonwealth Constitution
Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth)
Evidence (Transitional Provisions and Consequential Amendments) Act 1995 (Cth)
Guardianship Act 1987
Judiciary Act 1903 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Protected Estates Act 1983
Protection of Personal and Property Rights Act 1988 (NZ)
Public Trustee Act 1978 (Qld)
Service and Execution of Process Act 1992 (Cth)
State and Territorial Laws and Records Recognition Act 1901 (Cth)
Supreme Court Rules 1970

DECISION:
Queensland order recognised as valid throughout Australia.  Advice given about action to take concerning power of attorney.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

CAMPBELL J

2 JUNE 2005

131/98  RE:  DEF AND THE PROTECTED ESTATES ACT 1983

JUDGMENT

HIS HONOUR: 

Nature of the Decision

  1. This is an application by the Protective Commissioner for the advice and direction of the Court, under section 12 Protected Estates Act 1983 (“PE Act”). 

PART A – FACTUAL BACKGROUND

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Details
Case
[2005] NSWSC 534
Decision Date

CaseChat Overview and Summary

In the case of Re DEF and the Protected Estates Act 1983, the parties involved were DEF and the Protective Commissioner appointed by the Supreme Court of Queensland. The dispute centred around the validity of the appointment of the Protective Commissioner as the manager of part of DEF's estate, given procedural irregularities in the appointment process. The Queensland Supreme Court was tasked with determining the legal issues surrounding the recognition of this order within Queensland and other Australian states.

The court had to decide whether the order, despite procedural irregularities, should be recognised as a valid order under Queensland law. Additionally, the court needed to determine whether such an order could be recognised as valid in other Australian jurisdictions. The court also considered the implications of DEF's mental health on their ability to execute a power of attorney and the responsibilities of the Protective Commissioner in such scenarios. Furthermore, the court examined the full faith and credit provisions in section 185 of the Evidence Act 1995 (Cth) and their effect on the interstate recognition of the Queensland Supreme Court's order.

The court's reasoning was grounded in the understanding that, under section 157 of the Evidence Act 1995 (Cth), the order of Muir J was valid unless set aside. The court emphasised that the full faith and credit provision in section 185 required other states to recognise the Queensland order as valid, unless there was a compelling reason not to do so. The court concluded that despite procedural irregularities, the order should be recognised as valid within Queensland. The court also found that the order should be recognised as valid in other Australian jurisdictions, given the full faith and credit provision. The court further clarified the responsibilities of the Protective Commissioner when dealing with powers of attorney executed by individuals under their management.

The final orders of the court recognised the validity of the appointment of the Protective Commissioner as manager of part of DEF's estate within Queensland and other Australian jurisdictions, despite the procedural irregularities. The court also outlined the steps the Protective Commissioner should take when DEF, or someone under their management, executes a power of attorney.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the present case, the order of Muir J is proved before me by a document which purports to be the order itself, sealed with the seal of the Supreme Court of Queensland. That means of proof satisfies section 157 Evidence Act 1995 (Cth). It would be available in any other proceedings in Australia in which the question of the validity or effect of the order came into question. Meaning and Effect of Section 185 Evidence Act 1995 (Cth) The meaning of “full faith and credit” has been explained by Deane J in Breavington v Godleman (1988) 169 CLR 41 at 129:“To give full faith and credit to something does not, as a matter of ordinary language, mean merely to acknowledge the fact that it exists. Thus, to give full faith and credit to a person’s word does not mean merely to accept the fact that the person says something. It means to accept and act upon the content of what he says. To give full faith and credit to a judgment meams, as a matter of ordinary language, not only to recognise its existence but, while it stands, to accept and abide by its contents …” The effect of the full faith and credit provisions on the recognition in one State of an order made in another State has been expounded in a series of decisions. Posner v Collector for Interstate Destitute Persons (Victoria) (1946) 74 CLR 461 concerned a maintenance order made in a Western Australian Court of summary jurisdiction against a defendant. That defendant had never been served with notice of the proceedings, although the Magistrate had been led to believe that service had occurred. An attempt was made to enforce the order in Victoria, and objection was taken that the order was a nullity because the proceedings had not been served. All the judges in the High Court held that it was not a nullity. As well, Dixon J (the only Justice in the High Court to consider this particular question) at 479 said:“Further, under s 18 of the State and Territorial Laws and Records Recognition Act 1901-1928 (Cth) the Victorian magistrate was bound to give to the Western Australian order such faith and credit as it has by law or usage in Western Australia, that is assuming that the order was proved as required by that Act.”It is noteworthy that Dixon J considered section 18 Recognition Act 1901 sufficient to achieve that purpose, without reliance upon section 118 Constitution. Harris v Harris [1947] VLR 44 concerned whether a divorce decree pronounced by the NSW Supreme Court should be recognised in Victoria. Fullagar J found that the NSW court lacked jurisdiction to make the divorce decree because the petitioner was not domiciled in NSW. However, the decree was one which would have been recognised as valid in NSW notwithstanding that lack of jurisdiction. On the common law principles for recognition of foreign judgments, it would not be recognised in Victoria because it was made outside jurisdiction. However, Fullagar J held that it should be recognised pursuant to section 18 Recognition Act 1901.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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