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

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

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

The protected person, who I will refer to as DEF, is now aged 51. In March 1993 he suffered a severe closed head injury in a motor vehicle accident in Queensland. In very broad terms, his mental capacity has improved somewhat since the accident. The most recent medical report dated 28 February 2005 from Ms Alderton, a clinical neuropsychologist, reports that while he has some cognitive strengths, he also has some very severe deficits. The detail of his abilities and restrictions need not be gone into for the purpose of this advice and direction.
On 13 October 1998, in proceedings brought in the name of DEF in the Supreme Court of Queensland seeking damages for personal injury, Muir J made an order sanctioning a settlement of the action. Judgment was entered against two of the defendants for $1,350,000 plus costs. Another order made detailed provision for the way in which that $1,350,000 was to be paid. $120,000 was to be paid to the trust account of the solicitors acting for the plaintiff in those personal injury proceedings, on those solicitors undertaking:
“… upon receipt of the money to attend to payment for
(i)the purchase of a house for the plaintiff at Byron Bay, New South Wales at $103,333 in relation thereto;
(ii)any modifications to be made to the said house and the purchase of items of furniture and equipment for the house and property.
In the event that a house is not purchased within six months, or if any sum shall remain after purchase, modifications to and furnishing of such house, then such sum shall be paid by [those solicitors] to the Protective Commissioner and shall become subject to the Protection order hereinafter made.”
Other amounts were to be paid to various people and institutions, including “St Vincent’s Hospital” (which I infer from medical reports relating to DEF in the time after his accident means St Vincent’s Hospital Lismore) and Northern Rivers Hospital. The final provision for payment was that the balance of the judgment sum was to be paid to the Protective Commissioner.
The order continued:
“4.AND IT IS FURTHER ORDERED that notice to the Plaintiff pursuant to s.65 of the Public Trustee Act, 1978 having been dispensed with, a Protection Order be made appointing the Protective Commissioner manager to take possession of and to control and manage so much of the estate of the Plaintiff as is constituted by the sum paid by the First and Second Defendants to the Protective Commissioner.
5.AND IT IS FURTHER ORDERED that the Protective Commissioner, after making all proper disbursements therefrom, hold the balance of the said sum as a separate trust fund for the Plaintiff to be controlled and managed in such a manner as the Protective Commissioner thinks fit for the maintenance, education, medical expenses or otherwise for the benefit of the Plaintiff.
6.AND IT IS FURTHER ORDERED that the Protective Commissioner be authorised to invest the said fund in any of the investments in which, pursuant to the laws of the State of New South Wales, trustees are authorised to invest trust funds and to re-invest the proceeds of any such investments in a similar investment.”
A house was purchased in January 1999 by the solicitors who had acted for DEF in the Queensland personal injury proceedings, using the $120,000 which by then had been paid to them. That property is registered in the name of DEF, though the title deed for the property is held by the Protective Commissioner. At least in recent years it has been held as an investment. The office of the Commissioner receives the rental income and pays the insurances and other outgoings on the property.
The rest of the property of DEF is under the control of the Protective Commissioner.
In or about April 2000 DEF returned to live in New Zealand, the country where he had been born. In September 2002 he executed an Enduring Power of Attorney in favour of his mother and sister. It purported to be made under Part IX of the Protection of Personal and Property Rights Act 1988 (NZ), and said that it conferred on the Attorneys “general authority to act on my behalf in relation to the whole of my property”. It stated “I intend that the authority in paragraph 1 of this instrument shall not be revoked if I become mentally incapable”.
DEF returned to Australia in October 2004, and since then has been living in a city in rural New South Wales.
The Protective Commissioner seeks advice and direction as to the validity of the orders of Muir J on 13 October 1998, and the extent of the powers, if any, of the Protective Commissioner to manage the estate of DEF.

PART B – RELEVANT LEGISLATION

The following provisions of the PE Act were relevant at the time:
“4(1)In this Act, except in so far as the context or subject matter otherwise indicates or requires:
…
Court means the Supreme Court of New South Wales
…
4(4)In this Act, a reference to the estate of a person is a reference to the property and affairs of the person. However, if a part of a persons estate is excluded from an order under any Act that the person’s estate be subject to management under this Act, a reference in this Act to the estate of the person is a reference to so much of the property and affairs of the person as is subject to the order.
5(1)There shall be a Protective Commissioner … who shall be employed under, and hold office subject to, the Public Sector Management Act 1988.
…
5B(1)The Protective Commissioner is, by this section, incorporated as a corporation sole under that name for the purposes of:
(a)investing money in the common fund and related accounts in accordance with this Act, and
(b)exercising any related or incidental functions.
…
13(1)Where the Court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect, and order that the estate of the person be subject to management under this Act.
…
14Where the Court is satisfied that a person has been found to be incapable of managing his or her affairs by any legal inquiry in any part of the Commonwealth of Nations outside New South Wales or in any other country, state or territory to which the Governor by proclamation published in the Gazette, extends the provisions of this section, the Court may:
(a)direct a copy of the inquiry or finding on the inquiry, duly certified by an officer of the court or other authority to which the finding has been returned, to be filed of record in the Court,
(b)make a declaration that the person is incapable of managing his or her affairs, and
(c)order that such of the estate of the person as is situated in New South Wales be subject to management under this Act.
…
22The Court may, by order, appoint a suitable person as manager of the estate of a protected person in respect of whom it has made an order under section 13 or may, by such an order, commit the management of the estate of the protected person to the Protective Commissioner.
…
23A(1)The power of a protected person to deal with his or her estate is suspended in respect of so much of that estate as is, under this Act or the Guardianship Act 1987, committed to the management of the Protective Commissioner or another person.
24(1)In respect of the estate of a protected person … the management of which is committed to the Protective Commissioner, the Protective Commissioner shall have, and may exercise:
(a)all functions necessary and incidental to its management and care, and
(b)such other functions as the Court may direct or authorise the Protective Commissioner to have or exercise.
(2)Without limiting the generality of subsection (1) but subject to subsection (3), the Protective Commissioner shall have, and may exercise, the following functions in respect of the estate of a protected person … the management of which is committed to the Protective Commissioner, that is to say, the Protective Commissioner may:
[here follows a long list of types of transaction]
Other powers, and limitations of power, are conferred by sections 25 to 28. The PE Act continues:
“32(1)The Court may make such orders as appear to it necessary for rendering the property and income of a protected person available for the payment of the debts of, and the maintenance and otherwise for the benefit of, the protected person and the family of the protected person and otherwise as it thinks necessary or desirable for the care and management of the estate of a protected person.
…
(2)Without limiting the generality of subsection (1) or (1A), the Court may:
[here follows a list of types of transaction which can be ordered, authorised or directed]
When this court exercises its powers under the PE Act, it does so in accordance with the provisions of Part 76 of the Supreme Court Rules 1970. When the order was made in October 1998, the rules included:
“1 In this Part …
(d)subject Act means the Protected Estates Act 1983.
(e)subject person means a person in respect of whom an application is made for the purposes of section 13 of the subject Act
…
5(1)Proceedings in the Court under the subject Act shall be commenced by summons.
…
9The subject person shall be made a defendant.
…
11 The evidence shall include—
(a)an affidavit or affidavits setting out—
(i)the conduct and conversation or conversations claimed to establish that the defendant is incapable of managing his or her affairs;
(ii)the nature and amount of the property of the defendant;
(iii)the kindred and nearest relatives, so far as the same are known, of the defendant and the attitude of each of them to the application;
(iv)the name of and reason for selecting the proposed manager;
(b)the affidavits of at least two medical practitioners or persons qualified to give an expert opinion upon the defendant's condition, each of whom shall set out—
(i)his formal qualifications, the extent of his experience in practice and his special qualifications in regard to questions relating to the defendant's condition;
(ii)his diagnosis of the defendant's condition explained in his own words and set out in his own handwriting;
(iii)that in his opinion the defendant is incapable of managing his affairs;
(iv)the reasons for that opinion or the tests conducted upon which that opinion is based, set out in his own words and handwriting;”
The following provisions of the Public Trustee Act 1978 (Qld), in the form it had in October 1998 (reprint No. 2, 7 August 1998) are relevant:
“64        In this part - …
“protection order” means an order of the court appointing the public trustee manager to take possession of and control and manage the estate or part of the estate of the person to whom the order relates.
65(1)Where, upon the application of the public trustee, the court is satisfied that a person—
(a)by reason of age, disease, illness, or physical or mental infirmity or of the person’s taking or using in excess alcoholic liquors, or any intoxicating, stimulating, narcotic, sedative or other drug is, either continuously or intermittently—
(i)unable, wholly or partially, to manage the person’s affairs; or
(ii)subject to, or liable to be subjected to, undue influence in respect of the person’s estate, or any part thereof, or the disposition thereof; or
(b)is otherwise in a position which in the opinion of the court renders it necessary in the interest of that person or of those dependent upon the person that the person’s property should be protected;
the court may make a protection order appointing the public trustee manager to take possession of and to control and manage all or such part or parts as the court directs of the estate of that person.
(2)Notice of every application under this section shall be served upon the person whose property is sought to be protected, unless the court in any special case otherwise directs.
(3)Upon such an application the court may receive in evidence a report by the public trustee and may have regard to the matters contained therein (including any medical or other reports incorporated therein).
…
67(1)Where in any action in the court (whether commenced before or after the commencement of this Act) by a person for damages for personal injury sustained by the person it appears to the court that that person (the “plaintiff”) is a person in respect of whom a protection order might be made under section 65, the court may, subject to subsection (2), make such a protection order.
(2)The court may make such protection order of its own motion or on the application of any of the following—
(a)          the plaintiff;
(b)          the next friend of the plaintiff;
(c)          the spouse of the plaintiff;
(d)          the public trustee;
(e)any other person who appears to the court to have a proper interest in making such application.
(3)The court shall, before making a protection order under this section, of its own motion or on the application of any person other than the plaintiff, cause notice of its intention to consider the making of a protection order to be given personally to the plaintiff, unless the court in any special case otherwise directs.
(4)The person on whose application a protection order has been made under this section or, if the protection order has been made by the court of its own motion, the person having the carriage of the action, shall within 24 hours after the making of the protection order serve on the public trustee notice in writing of the making of the protection order.”
The Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the “Cross-Vesting Act”) contains the following provisions:
“3(1) In this Act …
State Matter means a matter –
(a)in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or
…
4(3)The Supreme Court of another State … has and may exercise original and appellate jurisdiction with respect to State matters.”

PART C – ADVICE

Construction of the Order

There is no officer established under the law of Queensland with the title “The Protective Commissioner”. There are various references in the order of Muir J of 13 October 1998 to connections of DEF with New South Wales – the authorisation to pay “St Vincent’s Hospital” and Northern Rivers Hospital, the reference to purchase of a house for DEF at Byron Bay, and the express reference to New South Wales in Clause 6 of the order. In these circumstances, as a matter of construction “the Protective Commissioner” referred to in the order of Muir J is the Protective Commissioner established by the PE Act.

Validity of the Order

There were significant departures from the way in which the making of a protective order would have been done in the Protective List in this Court. First, there were no separate proceedings seeking such an order. In NSW practice, an order appointing a manager of a protected person’s estate is a final order, and is not appropriately made pursuant to a motion in proceedings seeking common law damages; cf Re Jay-O-Bees; Rosseau v Jay-o-Bees [2004] NSWSC 818, (2004) 50 ACSR 565 at [63] – [72] and cases there cited. As well, it is implicit in the extracts from Part 76 Supreme Court Rules 1970 quoted at para [12] above that there will be separate proceedings seeking a protective order. Second, DEF was not made a defendant in any such proceedings, as Part 76 rule 9 Supreme Court Rules 1970 requires. Third, there has been no declaration, of the type contemplated by section 13 PE Act, that DEF is incapable of managing his affairs, nor any express order, of the type contemplated by section 13, that the estate of DEF be subject to management under the PE Act. Section 22 of the PE Act contemplates that the making of an order under section 13 is a step to be carried out before the Court makes an order committing the management of the estate of a protected person to the Protective Commissioner. Fourth, at least in its express terms section 13(1) PE Act contemplates that when the Court makes an order under section 13(1) it will be the entirety of the estate of a person which is subjected to management under the PE Act, not merely a part of it. As well, it is at least a possibility – the material on which my advice is sought does not enable me to decide with certainty – that no attention was given to whether the evidence was of a type which satisfied Part 76 Rule 11 Supreme Court Rules 1970. I shall assume without deciding that the evidence did not comply with Part 76 Rule 11.

Deciding whether the order of Muir J is one which confers power on the Protective Commissioner, and if so to what extent, involves predicting what a court would be likely to decide about the validity and extent of the order, if proceedings were ever taken to challenge the Protective Commissioner’s powers under it. That question could possibly depend upon what court it is that is making that decision – whether it is a court in Queensland, elsewhere in Australia, or overseas. That is because different principles are involved in the recognition given to an order of a Queensland court in Queensland itself, in the rest of Australia, and in overseas jurisdictions. I will confine this advice to how the order would be regarded by a court in Queensland and in the rest of Australia.
Because the appointment is one of an officer established under a NSW statute, the question is most conveniently approached in three stages. The first considers what the effect of the order would have been in NSW if it had been made by the NSW Supreme Court. The second considers what the effect of the order is in Queensland. The third considers how the order would be regarded within Australia but outside Queensland.

Stage 1 – Effect in NSW if the Order had been made by NSW Supreme Court

A principle which is fundamental to the operation of our legal system is that an order of a superior court of a law district is valid within that law district unless and until it is set aside. This is so even if the order is one which is made without jurisdiction (save perhaps in the case where the court is exercising a jurisdiction which depends on the existence of particular facts, and lacks the power to make a conclusive determination of the existence of those facts): Peacock v Bell and Kendal (1667) 1 Wms Saund 73 at 74; 85 ER 84 at 87 - 88; Ex parte Williams (1934) 51 CLR 545; Cameron v Cole (1944) 68 CLR 571 at 590 per Rich J (with whom Latham CJ at 585 agreed on this point), 596 per Starke J, 598 per McTiernan J; Harris v Harris [1947] VLR 44 at 46, 48; R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 per Latham CJ at 240-241, Sanders v Sanders (1967) 116 CLR 366 at 376 per Barwick CJ (with whom McTiernan J agreed), 381 per Windeyer J; In the Application of Harrod [1978] 1 NSWLR 331 at 333 per Hutley JA (with whom Reynolds and Glass JJA agreed); Caltex Oil (Australia) Pty Ltd v Feenan [1980] 1 NSWLR 724 at 730-1, para [30]; Dorney v Commissioner of Taxation; Simons v Commissioner of Taxation [1980] 1 NSWLR 404; (1980) 30 ALR 93; (1980) 42 FLR 6; (1980) 80 ATC 4206; (1980) 10 ATR 827 at [13] - [14], 410 of NSWLR; DMW v CGW (1982) 151 CLR 491 per Gibbs CJ at 504 - 505; per Dawson J at 509; R v Gray; Ex parte Marsh (1985) 157 CLR 351 per Dawson J at 393; Isaacs v Robertson [1985] 1 AC 97 at 101-102; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 per Wilson and Dawson JJ at 618; Censori v Holland [1993] 1 VR 509 at 512; Ousley v The Queen (1997) 192 CLR 69 per McHugh J at 107 - 108; Matthews v Australian Securities And Investments Commission (2000) 97 FCR 396 at 401 and Federal Court authority there cited; Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177 [20]-[23] per Gleeson CJ, 184 [49] per Gaudron J, 209-21 esp [136], [138], [149] – [152], [156] per McHugh J, 235-6 [216] per Gummow J, 248-9 [255] – [256] per Kirby J, 274-5, 279, [328] – [329], [343] – [344] per Hayne & Callinan JJ; Continental Venture Capital Ltd v Amann Aviation Pty Ltd (2001) 53 NSWLR 687; (2001) 40 ACSR 303; [2001] NSWCA 476; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 633 [107] per Kirby J, 645 - 646 [150-151] per Hayne J.
Re Macks; Ex parte Saint (2000) 204 CLR 158 was a decision concerning an order of the Federal Court – a superior court, but one on which limited jurisdiction is conferred – when, as it eventuated, the Federal Court had no jurisdiction to make that order. The reasoning and result in Re Macks; Ex parte Saint support by analogy the conclusion that (subject to any possible limitations arising under the Commonwealth Constitution, none of which are relevant in the present case) the principle that an order of a superior court is valid until set aside continues to apply to Australian Supreme Courts even when it is recognised that under Australian law since the enactment of the Judiciary Act 1903 (Cth) not even the State Supreme Courts are courts of general or unlimited jurisdiction.
Nothing in the PE Act gives reason to believe that the power of the NSW Supreme Court to appoint a manager is subject to the existence of facts, the existence of which the NSW Supreme Court does not have power to make a conclusive determination about. In consequence, if the NSW Supreme Court were to make an order of the type which Muir J made, and in the circumstances in which he made it, that order would be a valid order within NSW, notwithstanding all the irregularities which were, or might have been, involved in its making. Even if the deficiencies in the order were so serious as to entitle DEF to have it set aside on appeal ex debito justitiae (a matter which is not necessary for me to decide) an order of the Supreme Court of NSW, in the words and made in the circumstances of Muir J’s order, would remain valid unless and until it was set aside.
Indeed, there have been instances of orders made in the Common Law Division of this court, by a judge who has awarded a large sum of money in an action for damages for personal injury brought by a person who has suffered brain injury, in which a manager of the estate of the plaintiff has been appointed. Windeyer J, the judge administering the Protective List, sent a memorandum to the judges of the Common Law Division on 8 July 2004 which explained the proper procedure for appointment of managers and the reasons for it, and asked that they not try to short circuit it. Such orders, made in this court, are valid, even though irregular and not to be encouraged.
Effect of Doubt about Source of Instructions to Have Manager Appointed
There is a mystery, which the facts given to me do not enable me to fathom, about how solicitors, supposedly acting for DEF, could ever have had instructions to make the application for the appointment of the manager, given that they asked the court to make the order without notifying DEF that it was to be sought. That they sought such an order at all suggests that they were not acting on the direct instructions of DEF. If they were acting on the instructions of someone who was acting, whether formally or informally, as a tutor to DEF in the proceedings, being a tutor for the purposes of an action for damages for personal injuries does not ordinarily confer authority to give instructions to bring an application for appointment of a manager. If they were acting on their own initiative, it is likewise difficult to see how they had any legal right to bind DEF by their action in so doing. It may be that the solicitors took themselves to have authority to bring the application pursuant to section 67 Public Trustee Act 1978 (Qld) however, the “protection order” to which section 67 applies is defined by section 64 to be one under which the Public Trustee is appointed manager. The order actual sought was for the appointment of a different manager, the Protective Commissioner.
However, for the purposes of the advice I am asked to give, these considerations do not matter. What matters is that the order has been made, by a superior court.
Effect of the Order being Only as to Part of the Estate
I have mentioned that the order of Muir J was one which appointed the Protective Commissioner to be manager of part only of DEF’s estate. Even though section 13 PE Act contemplates that when a manager is appointed to someone’s estate, the manager will be appointed to the whole of the estate, there is a principle of statutory construction whereby a grant of jurisdiction to a superior court is construed so as to give effect to the full breadth of the language employed: Knight v FP Special Assets Pty Ltd (1992) 174 CLR 178 at 191-2, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 639-40; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 462, [64] per Kirby J. It would be strange if Parliament thought it appropriate to confer on the Court power to appoint a manager of the whole of a person’s estate, but not the lesser power to appoint a manager of only part of his or her estate. Further, section 23A(1) of the PE Act contemplates that only part of an estate might be committed to the management of the Protective Commissioner. No doubt the circumstance in which it will most commonly happen that only part of the estate of a person is committed to the management of the Protective Commissioner is when the Guardianship Tribunal makes an order to that effect under section 25E Guardianship Act 1987, but that does not in itself provide a reason for concluding that the Court does not have power to appoint a manager of part of someone’s estate. Section 4(4) PE Act allows “estate of a person” to refer to part of the estate of a person, but only “if a part of a person’s estate is excluded from an order under any Act”. It is at the least arguable that “any Act” in this expression includes the PE Act itself. A further indication that Parliament intended the Court to have power to appoint a manager of part of someone’s estate is found in the definition of “protected person” in section 4 as meaning:
“A person in respect of whom an order is in force under this Act or the Guardianship Act 1987 that the estate (or any part thereof) of the person the subject to management under this Act.” (italics added)
It is not necessary to reach a final view concerning whether it would be beyond jurisdiction for the NSW Supreme Court to appoint a manager of part of someone’s estate, as the order of Muir J is still one of a superior court.

Stage 2 – Effect of the Order in Queensland

Because of its definition of “Court” the PE Act confers jurisdiction only upon the NSW Supreme Court to make an order appointing the Protective Commissioner as manager of a person’s estate. However the Supreme Court of Queensland has conferred on it, by section 4 Cross-Vesting Act, all the jurisdiction of the NSW Supreme Court under the PE Act. Thus, if and to the extent that the order of Muir J is one which would have been within the jurisdiction of the NSW Supreme Court to make, the order is likewise one which was within the jurisdiction of the Supreme Court of Queensland to make.
Section 4 Cross-Vesting Act confers the jurisdiction which the Supreme Court of NSW actually has, but does not itself operate to confer on the Supreme Court of Queensland more jurisdiction than the Supreme Court of NSW actually has. Thus, section 4 Cross-Vesting Act is not enough by itself to enable an order of the Supreme Court of Queensland which is made in excess of the jurisdiction possessed by the NSW Supreme Court to be recognised as valid. Rather, it is the common law principle that an order of a superior court in excess of jurisdiction is valid unless and until set aside, which operates to make an order of the Supreme Court of Queensland made in the circumstances of Muir J’s order, valid within Queensland, even if it were in excess of the jurisdiction which the NSW Supreme Court actually had under the PE Act.
However, the Cross-Vesting Act has some relevance to the way in which the order of Muir J should be treated, even if it is an order which would have been outside the jurisdiction of the Supreme Court of NSW to make. In all the cases which I have mentioned in para [19] above which have invoked the principle that an order of a superior court is valid unless and until it is set aside, no mention was made of there being any limitation upon the operation of that principle. However, in each of those cases the court in question was acting in a way which had, in a broad sense, an appearance of regularity. There may well be another requirement for that principle to operate, namely that the court which is making the order must have a “colourable authority” to make an order of the type which it has made: Dixon, “De Facto Officers”, in Jesting Pilate (Law Book Company 1965) p 229 at 230 – 236 and cases there cited. Sir Owen Dixon states at 236:
“The exact nature of this requirement has not been worked out by English authority. Probably it will be found to be satisfied by the existence of any set of circumstances which reasonably justifies a general assumption by those dealing with or coming under the supposed authority of the de facto officer that he is a lawful officer”.
Whatever the situation might have been before the enactment of the Cross-Vesting Act concerning whether the Queensland Supreme Court had colourable authority to make an order under the PE Act of the type which Muir J made, after the Cross-Vesting Act had conferred on the Queensland Supreme Court all the jurisdiction of the Supreme Court of NSW to make orders under the PE Act the Queensland Supreme Court had, at the least, colourable authority to make the type of decision which Muir J made.
Effect of Mis-Stating Source of Authority for Dispensing with Notice to DEF
There is an irregularity in the order additional to those I identified at para [16] above. Even though Clause 4 of the order referred to notice to DEF pursuant to section 65 of the Public Trustee Act 1978 (Qld) having been dispensed with, that reference was inapposite. Section 65 of the Public Trustee Act 1978 (Qld) can only apply, in its terms, when an application is made by the Public Trustee of Queensland, and when the order which is sought from the court is one appointing the Public Trustee of Queensland as manager of all or part of the estate of a person. The order which was sought concerning DEF had neither of those attributes – it appears to have been sought by the solicitors who were acting on behalf of the plaintiff in the common law proceedings in Queensland, and sought the appointment of the Protective Commissioner as controller and manager of part of DEF’s estate. Section 67 Public Trustee Act 1978 (Qld) might possibly have given the applicant for the order standing to apply for a “protection order” within the meaning of the Public Trustee Act 1978 (Qld), and section 67 contains its own power to dispense with notice to the person concerning whom the order is proposed to be made, but section 67 was not relied upon. In any event, because it did not appoint the Public Trustee as manager, the order applied for was not a “protection order” within the meaning of the Public Trustee Act 1978 (Qld) (see para [13] above), and so was not the type of order that could be made under section 67.
However, this mis-statement of the source of the power of the Court to dispense with notice to DEF does not affect either the validity of the court’s order to dispense with notice to DEF, or of the order appointing the manager that was made in consequence.
There is authority that even in relation to administrative decisions the mis-statement by the decision maker of the source of power to make them does not necessarily result in their invalidity (Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 and cases there cited), and that legislative acts will be treated as valid if they have an available source of power, even if they have been made in supposed reliance on some other (and unavailable) source of power (Moore v The Attorney-General for the Irish Free State and others [1935] AC 484 at 498). But, it would be a mistake to search for some analogue of those principles, which was applicable to courts, and seek to apply it in the present context. That is because those principles were stated in a context of a court which was examining the validity of an administrative decision, or a legislative act, for the purpose of deciding whether it was valid, where the court which was conducting that examination had the power to authoritatively hold that the decision, or act, was invalid, in a way which had legal effect. I am not sitting on an appeal from the decision of Muir J, or considering whether to grant any order in the nature of prerogative relief concerning it – I am giving administrative advice to the Protective Commissioner about whether he should recognise the validity of the orders of Muir J. In deciding the validity of that order within Queensland, the only relevant principle is that the decision of a superior court is valid unless and until it is set aside.
Effect of Any Failure to Comply with NSW Rules of Court
There is no obligation on the Supreme Court of Queensland to comply with rules of the NSW Supreme Court, when the Queensland court exercises under the Cross-Vesting Act the jurisdiction of the NSW Supreme Court. The usual rule, when a statute vests a court with jurisdiction, is that it is the court in its existing structure, and with its existing procedures, that is so vested, unless the statute contains an indication to the contrary: Electric Light and Power Supply Corp Ltd v Electricity Commission of NSW (1956) 94 CLR 554 at 560; Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88; (1982) 38 ALR 577; (1982) 56 ALJR 217 at 96 of CLR; Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237 at 239. In the case of the Cross-Vesting Act, the closest that the legislation comes to stating how a court which exercises jurisdiction vested in it by the Cross-Vesting Act is to exercise that jurisdiction is section 11(1), which says:
“Where it appears to a court that the court will, or will be likely to, in determining a matter for determination in a proceeding, be exercising jurisdiction conferred by this Act or by a law of the Commonwealth or a State relating to cross-vesting of jurisdiction:
(a)subject to paragraphs (b) and (c), the court shall, in determining that matter, apply the law in force in the State or Territory in which the court is sitting (including choice of law rules);
(b)subject to paragraph (c), if that matter is a right of action arising under a written law of another State or Territory, the court shall, in determining that matter, apply the written and unwritten law of that other State or Territory; and
(c)the rules of evidence and procedure to be applied in dealing with that matter shall be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory.”
I shall assume, without deciding, that the “court” to which section 11 refers can be (in the present case) the Supreme Court of Queensland, and that a statute of the NSW Parliament can tell the Queensland Supreme Court how it was to behave. Making that assumption, section 11(1) does not oblige the Supreme Court of Queensland to apply New South Wales rules of practice and procedure, including rules arising under the Supreme Court Rules 1970, when it exercises jurisdiction vested in it under the Cross-Vesting Act. There may well be a lot to be said in favour of the Queensland court deciding that, for reasons of comity, equal application of the law, and discouragement of forum-shopping, it ought to decide a case it has jurisdiction to hear under the Cross-Vesting Act in as close a way as possible to the way in which the New South Wales Supreme Court would decide it, but there is no obligation on it to do so. Even less is it acting outside the jurisdiction conferred on it if it fails to do so. That the Queensland Court had no obligation to comply with the NSW Supreme Court Rules provides a separate reason why those matters which, if the order of Muir J had been made by this Court, would have been an irregularity because of non-compliance with the Rules, do not result in its invalidity within Queensland.

Stage 3 – Effect of the Order in Australia Outside Queensland

Stage 1 and Stage 2 of this advice have each considered only the effect of an order of a superior court of a law district, within that law district. The effect which is accorded to an order of the Supreme Court of Queensland in Australia but outside Queensland depends, to some extent, upon additional considerations.
The Full Faith and Credit Provisions
Section 118 Constitution provides that
“Full faith and credit shall be given, throughout the Commonwealth to … the judicial proceedings of every State”.
Section 51(xxv) Constitution provides that the Federal parliament has power to make laws with respect to “[t]he recognition throughout the Commonwealth of the laws, public Acts and records, and the judicial proceedings of the States”.
In exercise of that power, section 18 State and Territorial Laws and Records Recognition Act 1901 (Cth) (the “Recognition Act 1901”) used to provide that:
“All … judicial proceedings of any State… if proved or authenticated as required by this Act, shall have such faith and credit given to them in every Court and public office as they have by law or usage in the Courts and public offices of the State .. from whence they are taken”.
That section was repealed by section 3 of the Evidence (Transitional Provisions and Consequential Amendments) Act 1995 (Cth), but section 185 Evidence Act 1995 (Cth) now provides:
“All public acts, records and judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, and in every public office in Australia, such faith and credit as they have by law or usage in the courts and public offices of that State or Territory.”
That provision differs from the previous section 18 Recognition Act 1901 (Cth) in matters of expression but not in substance.
So far as judicial proceedings are concerned, section 185 Evidence Act 1995 (Cth) is confined in its operation to events which happen in a court or a public office – it cannot be availed of elsewhere. In this respect it is unlike section 118 of the Constitution, which applies “throughout the Commonwealth”. However, there are many transactions which occur outside the confines of a court or public office which are significantly influenced by knowledge or prediction of how a court would decide a particular controversy concerning that transaction, if it were to be asked to decide it. In this way, section 185 achieves a practical effect wider than its direct field of operation.
There is no analogue of section 185 in the Evidence Act 1995 (NSW). However, section 185 Evidence Act 1995 (Cth) by its terms applies in all State and Territory courts.
Can the Order of Muir J be “proved … in accordance with this Act”?
One way in which a judgment of a court can be “proved or authenticated in accordance with this Act” is pursuant to section 157 Evidence Act 1995 (Cth), which provides:
“Evidence of a public document that is a judgment, act or other process of an Australian court … may be adduced by producing a document that purports to be a copy of the public document and that:
(a)is proved to be an examined copy; or
(b)purports to be sealed with the seal of that court; or
(c)purports to be signed by a judge, magistrate, registrar or other proper officer of that court.”
Alternatively, it might be given under section 178, which provides:
“(1) This section applies to the following facts:
…
(c) an order by an applicable court;
…
(2)Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or a registrar or other proper officer of the applicable court:
(a)showing the fact, or purporting to contain particulars, of the … order … in question; and
(b)stating the time and place of the … order;
and
(c)stating the title of the applicable court.
(3)A certificate given under this section showing a[n] … order is also evidence of the particular … matter in respect of which the … order was had, passed or made, if stated in the certificate.
…
(5)A certificate given under this section purporting to contain particulars of a[n] … order … is also evidence of the matters stated in the certificate.
(6)In this section:
“applicable court” means an Australian court or a foreign court.”
Section 5 Evidence Act 1995 (Cth) makes section 157 applicable in all proceedings in an Australian court. Section 178 is not made applicable to State courts either by its own terms or by section 5 Evidence Act 1995 (Cth). However if section 178 were to be availed of for the purpose of proving an order for the purposes of section 185, it would follow by necessary implication from the express terms of section 185 that the means of proof under section 178 was one of the ways in which proof might be obtained “in accordance with this Act”. Another way in which an interstate judgment might possibly be proved under the Evidence Act 1995 (Cth) is if the Court decided to exercise its powers under section 190 Evidence Act 1995 (Cth) concerning the document, and the document was tendered.
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.
His Honour examined the American case law on the full faith and credit provision in the United States Constitution, and recognised that the course of United States authority had sometimes permitted the court of one State to refuse to recognise a court order of another State on the ground that it was made without jurisdiction. His Honour saw some basis for distinguishing the American Constitutional provision concerning full faith and credit from the Australian provision, but did not need to decide whether there was actually a difference in application of the two provisions. His Honour decided the case by reference to section 18 Recognition Act 1901, saying, at 59:
“I have said that I prefer to rest my decision on the Act rather than on the Constitution. The two may mean the same thing, as is held in the United States, or either may be wider or narrower than the other. But the one is a broad general pronouncement or direction such as one would expect to find in a Constitution, and such as may be expected to be the subject of much argument and much difference of opinion, fluctuating perhaps from time to time as social and political conditions change. The other seems to me to be a specific and precise direction to me to accord to a judgment given in New South Wales the same effect as that judgment would receive in the Courts of New South Wales. I have already expressed my opinion that that judgment conclusively determines a status in and for New South Wales, and, in my opinion, the meaning of the Act is that it conclusively determines a status in and for Victoria and every other State of the Commonwealth.
It seems necessary only to add that a judgment of an inferior Court of a State, being open to challenge “at home” for want of jurisdiction, would seem to be equally open to challenge on that ground in a “sister state”.”
In the Estate of Searle, Deceased [1963] SASR 303 concerned whether a person who was the natural child of a testatrix, but who had been adopted pursuant to an order of the Supreme Court of NSW, counted as a child of the testatrix for the purpose of a gift in the testatrix’s will. The problem arose because the child had been domiciled in South Australia at the time of making the adoption order (though the adopting parents were domiciled in NSW), and there was a question about whether the NSW court had jurisdiction to make such an order. Chamberlain J, at 309, referred to section 118 of the Constitution, section 18 of the Recognition Act 1901 and Harris v Harris [1947] VLR 44, and said:
“The order of adoption in this case was made in a judicial proceeding in the State of New South Wales, and there is no doubt that it would operate in that State to deprive the respondent of a claim to be regarded as a child of the testatrix for any purpose except intestate succession, and I see no reason why it should not be given the same effect in this State.”
In G v G (1986) 64 ALR 273; (1985) 10 FamLR 718 McLelland J dealt with an order which had been made by the Supreme Court of Queensland concerning custody of a child. The order was clearly within jurisdiction. An application was made to the New South Wales Supreme Court to make a different order. McLelland J held that the case before him did not involve questions like those in Harris v Harris [1947] VLR 44, because the Supreme Court of Queensland clearly had jurisdiction. His Honour decided the case on the principle that a custody order was inherently an interim order, and so the New South Wales court had its own jurisdiction to make a different order. Concerning section 118 Constitution and section 18 Recognition Act 1901, his Honour said, at 276 of ALR, 719 of FamLR:
“In my opinion the Constitutional and statutory provisions to which I have referred require this Court to treat the Queensland order … as having the same degree of finality and conclusiveness (but no more) as that order would have in Queensland.”
Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517 arose when the Victorian Supreme Court had made an ex parte order appointing receivers and managers of Bond Brewing Holdings Ltd and various of its subsidiaries. On the day that order was made, Bond Brewing Holdings and those subsidiaries applied to the Supreme Court of Western Australia for an order restraining the receivers from acting until a further application could be made to the Supreme Court of Victoria. The Western Australian court was approached, it seems, because that court was accessible to the plaintiffs owing to the time difference between Victoria and Western Australia. Ipp J refused to grant the plaintiffs relief. Ipp J referred, at 528, to Harris v Harris [1947] VLR 44, and the statement by Fullagar J at 59 that section 18 Recognition Act 1901 was “… a specified and precise direction to me to accord to a judgment given in New South Wales the same effect as that judgment would receive in the courts of New South Wales.” Ipp J said, at 528, “With great respect I consider that I should follow that approach particularly in this day and age in Australia.”
Rowe v Silverstein (1996) 1 VR 509 arose when the Supreme Court of New South Wales had, by interlocutory injunction, prohibited a mortgagee of land from disbursing money which he received as mortgagee pursuant to certain mortgages. An application was made to the Supreme Court of Victoria, at a time before the New South Wales proceedings were concluded, seeking permission to disburse part of the proceeds of the mortgage. Batt J declined that relief, holding that the New South Wales interlocutory injunction should be recognised, pursuant to section 118 Constitution. His Honour said, at 511:
“Even if the New South Wales order were made without jurisdiction – and I do not think that is the case – it is clear from Harris v Harris [1947] VLR 44 and Bond Brewing Holdings Ltd v Crawford (1989) 1 WAR 517 that full faith and credit, that is, recognition, is to be accorded by me to the New South Wales order.”
His Honour proceeded on the basis of section 118 Constitution alone, notwithstanding that Harris v Harris [1947] VLR 44 and Bond Brewing Holdings v Crawford (1989) 1 WAR 517 were based on section 18 Recognition Act 1901 because he was aware of the repeal of section 18 Recognition Act 1901, but counsel had not been able to inform him of any section which had replaced it. His Honour said, at 511-512:
“The one matter that troubled me was the interlocutory nature of the order in New South Wales and whether the common law exceptions to the recognition of foreign judgments were applicable under s 118. Harris v Harris and Bond Brewing are authority for the proposition that the exception based on want of jurisdiction and the exception based on denial of natural justice, if that be different, are not imported into s 118. One would therefore think that none of the exceptions, save possibly that of fraud, is imported into s 118.”
In Evans v Strachan (1999) 167 ALR 159 the Tasmanian Supreme Court was asked to exercise a power arising under Tasmanian legislation to make an order restricting the movement of a fisherman who had committed numerous offences against fishing legislation. Some of those offences had resulted in convictions, and penalties, in Victoria. The fisherman argued that he was being subjected to double jeopardy by having an additional penalty imposed on him in Tasmania. In considering that argument, Slicer J said, at 168 that by virtue of section 118 “[T]he Victorian convictions are to be regarded in the same manner as if they were Tasmanian convictions.”
I conclude that there is ample and longstanding authority leading to the conclusion that it is the effect of section 185 Evidence Act 1995 (Cth) that an order of the Supreme Court of Queensland, proved as required by that Act, is treated by all Australian courts as having the same status and effects as the courts of Queensland would accord to that order.
Recent High Court Dicta
Lipohar v R (1999) 200 CLR 485 concerned a criminal conspiracy to defraud, the elements of which had been committed through activity in three Australian States and two overseas countries. One of the relevant States was South Australia. The question at issue concerned the power of the South Australian courts to try the alleged crime. In the joint judgment of Gaudron, Gummow and Hayne JJ two relevant dicta occur. The first is at para [117], where their Honours referred to the obligation under section 83(8) Service and Execution of Process Act 1992 (Cth) for a Magistrate who receives an interstate warrant to send the person referred to in that warrant to the place which is specified in the State which issued the warrant. Their Honours continued:
“The judicial proceedings which then follow in the State to which there has been this rendition attract the requirement that they be given full faith and credit throughout the Commonwealth: Harris v Harris [1947] VLR 44. Full faith and credit is to be given to any sentence passed by that court: Censori v Holland [1993] 1 VR 509 at 520.”
When their Honours cite Harris v Harris [1947] VLR 44 as authority for the particular proposition in relation to which it is quoted they are, it seems to me, approving the correctness of the decision in Harris v Harris [1947] VLR 44. As well, at [119], their Honours quoted with approval the statement of Ipp J in Bond Brewing Holdings (1989) 1 WAR 517 at 528 that:
“The cases in which the full faith and credit provisions have been held to have been merely evidentiary (that is requiring the courts in one State to have regard to the laws of other States, but not displacing the common law rules of private international law) have been concerned with the domestic laws of the other States, not the judgments or orders of the courts of those States.”
Their Honours also, at footnote 215, said “See also G v G (1986) 64 ALR 273” in connection with the passage just quoted. The only passage in G v G which bears upon whether full faith and credit provisions have only evidentiary force concerning judgments and orders of courts, is the passage quoted at para [53] above. It is inconsistent with full faith and credit provisions having only evidentiary force concerning judgments and orders.
In the course of Breavington v Godleman (1988) 169 CLR 41 there was some discussion in the High Court concerning whether section 118 Constitution or section 18 Recognition Act 1901 was purely evidentiary. The significance of any remarks on that topic in that case should be decided bearing in mind that section 118 Constitution and section 18 Recognition Act 1901 were argued in that case to have the substantive effect of providing a choice of law rule, when a tort committed in one part of Australia was sued for in another, and the law governing recovery of damages for that tort differed in the two places. Their Honours were unanimous that neither section 118 Constitution nor section 18 Recognition Act 1901 played that role. However, at 80, Mason CJ said “for my part I doubt that s 18 is merely evidentiary in its consequences.” At 94 Wilson and Gaudron JJ say that, as a whole, the Recognition Act 1901 “was substantially concerned with evidentiary matters”. As an exception, however, “section 18, then as now, travelled beyond the merely evidentiary, but confined its substantive effects to ‘public acts records and judicial proceedings, if proved or authenticated as required by this Act’.”
Deane J, at 140, said of section 18 Recognition Act 1901
“It is strongly arguable that it should, in its particular context, be construed as being essentially concerned with evidentiary matters.”
His Honour was not there considering, however, any possible effect which section 18 might have outside the role which was under consideration in Breavington v Godleman (1988) 169 CLR 41. Toohey J at 166 found it unnecessary to decide whether section 18 was merely an evidentiary provision or a substantive one.

I conclude that these dicta in Breavington v Godleman (1988) 169 CLR 41 do not suggest that Harris v Harris [1947] VLR 44, and the various cases which have followed it, should be reconsidered, and those in Lipohar v R (1999) 200 CLR 485 support the correctness of Harris v Harris.
Inherent Territorial Limitation to the Order ?
There is a principle, when section 118 Constitution is applied to the recognition or application in one State of legislation of a different State, that section 118 cannot be used to confer upon that legislation any wider effect than it has as a matter of its own proper construction. For example, Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 concerned a testatrix domiciled in New South Wales, who died leaving very few assets in New South Wales, and significant personalty in the ACT. She appointed separate executors for her New South Wales and ACT estate. New South Wales death duty was payable by the New South Wales executor, assessed on the total value of the property of which she died possessed wherever it might be. However, the High Court held there was no obligation on the ACT executor to pay any part of that duty from the assets which came into its hands. That was because on the proper construction of the New South Wales legislation imposing the death duty, the amount of the duty was payable by the New South Wales executor, out of the assets over which that executor had control. The full faith and credit provisions could not alter the meaning of that legislation, so that the death duty became payable by someone else, namely the ACT executor. Similarly, Rothwells Ltd (in liq) v Connell (1993) 119 ALR 538 concerned a Western Australian statute under which an unstamped document was not admissible in evidence, and a Queensland statute, under which an unstamped document could be admitted into evidence. When such an unstamped document was tendered in Queensland proceedings to enforce a debt payable under the document, it was held it was the Queensland statute which applied. One reason was because the Western Australian statute had an inherent territorial limit, limiting its operation to Western Australian courts, and full faith and credit provisions could not give it any wider effect.
A similar approach is evident in a decision which has held that a court order was, notwithstanding full faith and credit provisions, to have a different effect in the courts of an “away” State to that which it had in the courts of the “home” State.
Re Butler (1969) QWN 48 concerned an application to the Supreme Court of Queensland to appoint an administrator ad litem of a deceased. The deceased’s only asset was a right, located in Queensland, to indemnity under an insurance policy. The deceased had died in a motor accident. The nominal defendant had been sued in New South Wales in connection with the accident, and had a verdict entered against it. It sought the appointment of the administrator ad litem, so that the nominal defendant could sue the administrator in New South Wales to recover an indemnity under the policy. The application was refused, on the ground that an administrator ad litem would be appointed by the Queensland court only for the purposes of an action in that court. Notwithstanding section 118 Constitution, the inherent powers of such an administrator were limited so that he could not be sued in New South Wales. Section 118 did not result in the administrator having any capacity to be sued in New South Wales which he did not have under the law of Queensland.
In the Will of Lambe [1972] 2 NSWLR 273 concerned the will of a testator who died domiciled in Portugal, having made his last will while a resident of Argentina. The will was invalid according to the laws of Portugal and Argentina. If the testator had been domiciled in New South Wales, the will would have been valid according to the law of New South Wales. The New South Wales choice of law rules were, however, such that when it was not valid according to the law of his domicile at the date of death, it would not be recognised in New South Wales. Probate of the will had been granted in Victoria (which had a provisions which permitted a will to be admitted to probate if it was valid according to the law of the testator’s nationality, which in this case was assumed to be Australian), and a re-seal of that probate was sought in New South Wales. Helsham J refused to grant it. He said, at 279-280:
“An argument was put to me that this Court would re-seal the Victorian grant because of the full faith and credit required by s 18 of the State and Territorial Laws and Records Recognition Act 1901 – 1964 (Cth) to be given to the provisions introduced into the Wills Act (Vic) by the Wills (Formal Validity) Act (Vic). But to do this would be to go beyond giving recognition to such provisions and to give to that Act an effect of altering the law in New South Wales, that is to say of requiring the rules of private international law operative in New South Wales to be ignored. The State and Territorial Laws and Records Recognition Act does not have this effect: Permanent Trustee Co (Canberra) Ltd v Finlayson (122 CLR 338 at 343), and the application for re-sealing cannot be supported on this ground.”
It is to be observed that an argument was not put that the grant of probate in Victoria was itself a judicial act, which should be recognised in New South Wales. However, such an argument might not have succeeded, because:
“The grant of probate does not of its own force carry the power of dealing with goods beyond the jurisdiction of the court which grants it, though that may be the court of the testator’s domicile.”: Blackwood v R (1882) 8 App Cas 82 at 92.
Thus, even when a Victorian grant of probate was accorded full faith and credit in New South Wales, that might not result in the executor appointed under it having any authority to deal with New South Wales assets. It is not necessary to express any final view concerning that.
The present situation is different to that considered in Re Butler (1969) QWN 48 and In the Will of Lambe [1972] 2 NSWLR 273. There is nothing in the PE Act 1983 which limits an order appointing someone as manager of an estate so that it confers authority to act only within a limited territorial area.
Conclusions on Validity of the Order in Australia Outside Queensland
I conclude that, even if it were made in excess of jurisdiction, the order of Muir J would be recognised as effective throughout Australia pursuant to section 185 Evidence Act 1995 (Cth).
It is a consequence of the principle that decisions of a superior court are valid unless and until set aside that actions which are taken in reliance upon a judgment which is later set aside are themselves valid, although once the judgment is set aside a person who has paid money or transferred property in consequence of it is entitled to restitution: The Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220 at 224-5, 227-8 The Commonwealth v McCormack (1984) 155 CLR 273 at 276-7; Production Spray Painting & Panel Beating Pty Ltd & Ors v Newnham & Others (No 2) (1992) 27 NSWLR 659 at 661 per Handley JA (with whom Mahoney and Priestley JJA agreed); Wilde v Australian Trade Equipment Pty Co Pty Limited (1981) 145 CLR 590 at 595 (Gibbs J), 602 (Stephen, Murphy and Wilson JJ); MacIntosh v Lobel (1993) 30 NSWLR 441 at 459 – 465 per Kirby P (with whom Cripps JA agreed). Thus, if the Protective Commissioner acts within Australia in reliance on the order of Muir J, its actions in doing so will be valid, even if that order were to be later set aside. I emphasise that in saying this I am expressing no view about whether the order is one which ought be set aside if there were to be an appeal against it, pursuant to leave to appeal granted out of time.

The Decision in Re FCC

In Re An Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541 Powell J considered the effect of an order, made in the Supreme Court of Queensland, in circumstances not materially different from the present ones. His Honour set out the relevant provisions of the legislation and Supreme Court Rules 1970, and went on, at 546, to note the following matters of New South Wales practice:
“…first, that, except in exceptional cases, the plaintiff in proceedings under the Protected Estates Act 1983 should not be the person who acted as the next friend for the allegedly incapable person in proceedings earlier brought on behalf of that person to recover damages for negligence, or the allegedly incapable person's solicitor in those earlier proceedings (McD v McD [1983] 3 NSWLR 81) and, secondly, that the practice of the court is that, although, if it can be shown that service of the summons upon an allegedly incapable person will dangerously excite that person, service may be dispensed with, in the normal course service will not be dispensed with; in particular, it is not regarded as a sufficient ground for dispensing with service that service upon the allegedly incapable person will exacerbate an existing antipathy felt by that person towards the plaintiff: Re Craven (1901) 18 WN (NSW) 243.”
His Honour then reasoned as follows, at 546-7:
“Although it seems tolerably plain that it is now open to the Supreme Court of Queensland, in an appropriate case, to exercise the powers vested in this Court by (inter alia) s 13 and s 21 of the Protected Estates Act 1983, and although I have no wish to discourage the judges of any of the Supreme Courts of the other States or of the Territories from exercising those powers in any case in which it is thought appropriate to do so, I am unable to accept that, in the present case, the declaration and orders made by Ambrose J constituted a valid exercise of these powers.
While, in the normal course, an order of a superior court of record of general jurisdiction cannot be treated as void, or non-existent, and, even if made beyond power, that order stands, and remains binding on those subject to it, unless, and until, it is set aside on appeal (Scott v Bennett (1871) LR 5 HL 234 at 245; Revell v Blake (1873) LR 8 CP 533; Re Piper (1960) 60 SR (NSW) 328; 77 WN (NSW) 197) and while both s 118 of the Constitution (Cth) and s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth) require full faith and credit to be given to (inter alia) the judicial proceedings of another State or Territory (see, eg, Harris v Harris [1947] VLR 44; Cowen: "Full Faith and Credit: the Australian Experience" Essays on the Australian Constitution, ed Else Mitchell 2nd ed (1961) at 293), I am unable to accept that that principle applies, or that those provisions apply, in the very special situation which is revealed in the present case. I say this since, although the powers which Ambrose J purported to exercise are powers to make declarations and orders affecting the status - and, thus, what would otherwise be the rights, privileges, powers, and property - of a person who has been joined as a party-defendant to proceedings commenced for such purpose - and this, as it seems to me, is a matter of substance, and not a mere matter of procedure - what I have recorded above would seem clearly to indicate that no such proceedings were ever commenced in Queensland, as the declaration and orders which Ambrose J purported to make were made against FCC in the Common Law proceedings which had been brought by him or on his behalf.”
With the greatest respect, I find I am unable to agree with his Honour’s reasoning. Regardless of the procedural deficiencies in the order made in the Supreme Court of Queensland, it is still an order of a superior court, which has all the powers of the Supreme Court of New South Wales, and an order which must be accorded full faith and credit in all Australian courts. That it involves a matter of status, and was made in the course of proceedings in which FCC was a plaintiff, does not make it any less so. To follow the decision would, in my view, involve going against the significant body of authority mentioned earlier in this advice.
His Honour went on to give detailed consideration to whether the orders made by Ambrose J could be “filed of record” pursuant to section 14 of the PE Act. Section 14 is a provision which was designed to facilitate the recognition and enforcement in New South Wales of decisions appointing a manager of a protected person’s estate, made by courts in other parts of the Commonwealth of Nations, or other jurisdictions whose legal systems were regarded with sufficient trust to justify a proclamation authorising the recognition in New South Wales of such decisions of their courts. If the Supreme Court of another Australian State or Territory, exercising jurisdiction under the Cross-Vesting Act has made an order appointing the Protective Commissioner as manager of all or part of the estate of a protected person, that order does not need to be “filed of record” in this Court to be recognised as valid and enforceable. The effect of the enactment of the Cross-Vesting Act, and its corresponding legislation in other Australian States and Territories, is that, so far as the possession of jurisdiction is concerned, it is as though there is a single Australia-wide court, which has all the jurisdiction of all the Supreme Courts of the Australian States and Territories. There continue to be differences between the Supreme Courts of the various Australian States and Territories concerning various matters including procedure and rights of appeal. However, once the Supreme Court of Queensland has made an order which is an exercise, or a colourable exercise, of the jurisdiction of the Supreme Court of New South Wales, conferred on the Queensland Court by the Cross-Vesting Act which appoints the Protective Commissioner as manager of an estate, that order is recognised as valid in New South Wales pursuant to section 185 Evidence Act 1999 without any need to be registered.
I have given consideration to whether I, as a judge of first instance giving administrative advice, ought decline to follow the decision in Re An Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541. Often, if a decision of a judge of first instance has stood for a significant time, another judge of first instance ought be slow to decline to follow it, because of the possibility that people, other than the parties to the first decision, have ordered their affairs on the basis that the first decision is correct. In the present case, I do not see how the decision in Re FCC that a particular Queensland order is invalid, is one which is likely to have been relied upon by anyone other than the parties to the decision, in a way such that their interests might be prejudiced if I were now to decline to follow Re FCC. As well, the full faith and credit provisions are ones that play an extremely important role in creating and maintaining an integrated system for administration of the law in Australia. Other parts of the task of achieving that integrated system are achieved by the Service and Execution of Process Act 1992 (Cth), by the provisions now common in the rules of the Supreme Courts whereby process of one court can be served outside the law district of that particular court but within Australia (eg Part 10 rule 2B Supreme Court Rules 1970), and by the various Acts of the Commonwealth and the States and Territories analogous to the Cross-Vesting Act, which vest the jurisdiction of the superior court of the law district whose legislature has enacted the legislation on other superior courts within Australia, and provide for transfer of proceedings between superior courts so that a particular set of proceedings can be heard in the most appropriate court regardless of where it might have been started. I mention that the rules analogous to Part 10 rule 2B Supreme Court Rules 1970 operate only to show that there is nothing in the process of the court which makes it inherently unsuitable for service outside the law district of the court which issued it, and actual service must now be carried out under the Service and Execution of Process Act 1992 (section 8(4), or under some other legislation like the Corporations Act 2001 (Cth) that contains its own provision permitting service of process). The system falls short of complete integration, because of the constitutional limitations in the cross-vesting legislation exposed by Re Wakim; ex parte McNally (1999) 198 CLR 511, and the reservation of “special federal matters” from the cross-vesting scheme, but a significant and very important degree of integration has been achieved. Having decisions of the courts of one State or Territory accorded the same effect in courts and public offices throughout Australia as they are accorded in the State or Territory of the court that pronounced the decision is a very important part of that integrated system. It would be undesirable to allow the exception of indeterminate width which Re FCC creates to the full operation of full faith and credit to continue to be recognised when it detracts from the integration of the system of administration of the law, and is in my view wrong in principle. In those circumstances, it is preferable to give this advice on the basis of what seems to me to be correct principle, and to decline to follow Re FCC.

Extent of Powers Conferred on the Protective Commissioner

Upon the proper construction of the order, the power of management of the Protective Commissioner relates only to the money which the first and second defendants in the Queensland proceedings pay to the Protective Commissioner. Hence the house which was purchased for DEF (para [6] above) is not subject to the Protective Commissioner’s management.
As to the property which is subject to the Protective Commissioner’s management, sections 24 – 28 of the PE Act automatically confer all the powers there listed on the Protective Commissioner in relation to any property of which the Commissioner is manager. Thus, the powers conferred by orders 5 and 6 are in the nature of additional powers. Section 24(1)(b) of the PE Act empowers the Supreme Court of New South Wales to confer on the Protective Commissioner additional powers to those set out expressly in sections 24 – 28. Section 4 of the Cross-Vesting Act enables that power to be exercised by the Supreme Court of Queensland. Quite apart from that, orders 5 and 6 would be valid simply because they are orders of a superior court which have not been set aside, relating to a topic on which (in a broad sense) the Court has power to act.
If it were to be the case that orders 5 and 6 conferred powers which in any respects were wider than the powers expressly conferred by sections 24 - 28 of the PE Act, to that extent I advise that those powers should not be exercised without further advice or direction of the Court.

The Enduring Power of Attorney

The effect in New Zealand of the order of Muir J is a matter which, strictly, will be decided in accordance with New Zealand law concerning recognition of foreign judgments. I do not purport to advise, at this stage, about the New Zealand law on that topic. Nor do I advise on the difficult topic of whether the New Zealand power of attorney would be recognised as valid in an Australian court. However, if one assumes that the New Zealand law is the same as the New South Wales law, then the enduring power of attorney would be inoperative at least to the extent that it purports to relate to the whole of DEF’s property. Section 23A PE Act makes express what would probably in any event have been implicit in the appointment of a manager of the estate of a protected person, that, to the extent to which the appointment is made, the protected person lacks power to deal with his estate. If section 23A stood by itself, that lack of power would extend to executing a power of attorney which confers powers over the part of the estate that has been subjected to management. However, section 76 PE Act contains special provisions relating to powers of attorney, as follows:
“(4)A person may give a power of attorney notwithstanding that the estate of the person is subject to management under this Act.
(5)A power of attorney is suspended while the estate of the principal is subject to management under this Act.
…
(6)Notwithstanding subsection (5), where an attorney under a power of attorney does an act within the scope of the power while the estate of the principal is subject to management under this Act, the act of the attorney has no less validity and effect than the act of the attorney would have had if this section had not been enacted, but this subsection does not affect the operation of subsection (9).
(7)While a power of attorney is suspended by this section, the Court may restore the power of attorney to operation to such extent, and on such terms and conditions, as the Court thinks fit.
…
(9)Where the estate of a principal is subject to management under this Act, the Court may:
(a)terminate the power of attorney, or
(b)order that the power of attorney be subject to such conditions as the Court thinks fit.”

Whether DEF had mental capacity to grant a power of attorney over that part of his estate not committed to the Protective Commissioner’s management is a separate question to whether he had legal power to make an effective appointment while the management order was in force. That separate question would require further factual investigation, though the medical reports which have been supplied to the Protective Commissioner show that there is a very real basis for doubting whether he had capacity. There is also a legal question, upon which I do not now advise, about whether the lack of power to deal with the part of his estate committed to the Protective Commissioner means that the power of attorney is wholly suspended, or valid in relation to the part of the estate not under the Protective Commissioner’s management – ie whether it is severable. The practical course for the Protective Commissioner to take concerning this power of attorney is to:
(a)enquire whether there are any assets of DEF in New Zealand which are in need of management, and if so give consideration to whether it would be desirable to appoint the Commissioner’s New Zealand counterpart as a delegate to deal with that property. If yes, further advice should be sought on the recognition of the appointment in New Zealand;
(b)enquire whether the people appointed attorneys are willing to hand over the original and all copies of the document and, if it has been registered anywhere, revoke the registration;
(c)if these steps do not result in the power of attorney ceasing to be an apparent source of authority to the alleged attorneys, seek further advice about whether litigation should be brought to terminate it and compel its delivery up.
(d)enquire if any transactions have been purportedly carried out by the alleged attorneys, and
(e)if transactions have been carried out by the alleged attorneys, give consideration to whether they are contrary to the interests of DEF, and if the view is arrived at that they are contrary to the interests of DEF seek further advice about what should be done to rectify that situation.
Many of the legal problems considered or adverted to in this advice would disappear if a new order for management were to be made, in a way that was beyond question. However, seeking such an order would have costs of some magnitude associated with it, and nothing in the material provided to me suggests there is any prospect that such an order might be sought.

**********

LAST UPDATED: 02/06/2005