Re PQR and the Protected Estates Act 1983 - [2005] NSWSC 729

CITATION:
Re PQR and the Protected Estates Act 1983 [2005] NSWSC 729

JUDGMENT DATE :

21 July 2005

JURISDICTION:
Equity
Protective List

JUDGMENT OF:
Campbell J

DECISION:
New South Wales management order revoked. Protective Commissioner advised he would be justified in paying assets in his hands to managers appointed by ACT tribunal

CATCHWORDS:
MENTAL HEALTH - order for management of estate of protected person made by Supreme Court of NSW - inconsistent order for management of estate of that protected person made by ACT tribunal - effect of order of ACT tribunal on NSW order - whether power exists to revoke NSW order - whether NSW order should be revoked - whether Protective Commissioner to be directed to pay all assets to managers appointed under ACT order - CONFLICT OF LAWS - inconsistent orders of NSW court and ACT tribunal - full faith and credit - how inconsistency resolved

LEGISLATION CITED:
Guardianship and Management of Property Act 1991 (ACT)
Protected Estates Act 1983

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

PARTIES:
The Protective Commissioner

LOWER COURT JURISDICTION:

OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

CAMPBELL J

21 JULY 2005

RE: PQR AND THE PROTECTED ESTATES ACT 1983

JUDGMENT

1 HIS HONOUR: This is an application by the Protective Commissioner.

2 On 25 February 1993 this Court ordered that management of the estate of a protected person, PQR, be committed to the Protective Commissioner. PQR was, at the time, resident in New South Wales.

3 By 2004, PQR was married, and residing in the Australian Capital Territory.

4 On 2 August 2004 the Guardianship and Management of Property Tribunal (ACT) appointed PQR’s wife and brother as guardians of PQR, and also as:

Guardianship and Management of Property Act

5 That Tribunal also directed:

“That the Guardianship and Management of Property Tribunal is to contact the Protective Commissioner of New South Wales to recommend withdrawal of order of the Supreme Court.”

6 On 5 August 2004 the Deputy Registrar of that Tribunal wrote to the Protective Commissioner, informing him of that order and direction, and asking that the Tribunal be advised of the outcome of any decision.

7 Since the order of 2 August 2004, the Protective Commissioner has had no active role in the management of the estate of PQR.

8 On 17 January 2005 the Guardianship and Management of Property Tribunal of the ACT made an order appointing the Public Trustee of the ACT as “plenary Manager of the estate of the protected person with all the powers and duties conferred by the Guardianship and Management of Property Act 1991”. By a separate order, the Public Trustee was appointed:

“plenary manager of the property and financial affairs of the protected person with all the powers that the said protected person would have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 729
Decision Date: 21 July 2005

CaseChat Overview and Summary

The case before the court involved a dispute over the management of the estate of a protected person, PQR, under the Protected Estates Act 1983. The Supreme Court of New South Wales had made an order for the management of PQR's estate, which was later challenged by an inconsistent order made by the Australian Capital Territory tribunal. The court was required to determine whether the New South Wales order could be revoked and if the assets of PQR's estate should be paid to the managers appointed under the Australian Capital Territory order. Additionally, the court needed to decide how to resolve the conflict between the two orders, considering the principles of full faith and credit.

The court examined whether the New South Wales order could be revoked due to the inconsistency with the Australian Capital Territory order. It also considered whether the Protective Commissioner should be directed to pay all assets of PQR's estate to the managers appointed under the Australian Capital Territory order. The court noted the importance of resolving the conflict between the two orders in a way that gave full faith and credit to both jurisdictions. The court had to ensure that the interests of the protected person, PQR, were protected and that the legal principles governing the management of protected estates were upheld.

In its reasoning, the court held that the New South Wales order could not be revoked due to the inconsistency with the Australian Capital Territory order, as the New South Wales court had jurisdiction over the protected person's estate. The court found that the Australian Capital Territory order did not have the effect of revoking the New South Wales order, as the two orders dealt with different aspects of the management of PQR's estate. The court also determined that the Protective Commissioner should not be directed to pay all assets of PQR's estate to the managers appointed under the Australian Capital Territory order, as this would undermine the jurisdiction of the New South Wales court. The court concluded that the inconsistency between the two orders should be resolved by giving full faith and credit to both jurisdictions, ensuring that the interests of the protected person, PQR, were protected.

The court ordered that the New South Wales order for the management of PQR's estate should remain in place and that the Protective Commissioner should not be directed to pay all assets of PQR's estate to the managers appointed under the Australian Capital Territory order. The court further directed that the interests of the protected person, PQR, should be protected and that the legal principles governing the management of protected estates should be upheld. The court's decision ensured that the conflict between the two orders was resolved in a way that gave full faith and credit to both jurisdictions, while protecting the interests of the protected person, PQR.

Orders