SQM

Case [2015] NSWCATGD 41


NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: SQM [2015] NSWCATGD 41
Hearing dates:8 October 2015
Date of orders: 08 October 2015
Decision date: 08 October 2015
Jurisdiction:Guardianship Division
Before: G Moin, Senior Member (Legal)
M Matheson, Senior Member (Professional)
J Newman, General Member (Community)
Decision:

Public Guardian appointed for 12 months to make decisions about accommodation, health care, medical and dental treatment, services, advocacy, and legal services.

 

Financial management order made; NSW Trustee and Guardian appointed.

 

Ms EGE joined as a party to the guardianship and financial management applications.

 

Leave granted to Ms NBF to represent Mr SQM at the hearing.

Leave granted to Ms KPX and Mr QFO to represent Ms EGE at the hearing.
Catchwords:

GUARDIANSHIP AND FINANCIAL MANAGEMENT – – interlocutory issues – whether the Tribunal has jurisdiction to make a guardianship order where there is a Californian Superior Court order for the appointment of a temporary conservator of the person and the estate of the subject person in place – recognition in NSW of Californian order – where subject person is a dual citizen of the United States of America and Australia and resides in both California and NSW – where subject person is in California at the time of the hearing – Californian Court order not recognised in NSW – whether subject person’s domicile is NSW – extraterritorial application of Guardianship Act 1987 (NSW) – rebuttable presumption – welfare and interests of the person considered

 

GUARDIANSHIP – need for a guardian to facilitate person’s return to their home in NSW in cooperation with the appointed guardian in California – public guardian appointed for 12 months

 

FINANCIAL MANAGEMENT – significant debts incurred as a result of illness whilst in California to be paid – need for a financial manager to make decisions about assets held in NSW and insurance claim – NSW Trustee and Guardian appointed as financial manager

 

INTERLOCUTORY – join party application – s 44(1) and cl 7(1) of sch 6 of the Civil and Administrative Tribunal Act (NSW) – person appointed as guardian and financial manager under Californian Court order joined as a party to Tribunal’s proceedings –

 

Applications for leave made by foreign lawyers to represent subject person and the person appointed as guardian and financial manager under a Californian Court order

INTERLOCUTORY – consideration of s 45(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – Guardianship Division Procedural Direction on Representation – where the proceedings involve complex legal and factual issues – subject person’s ability to participate in the hearing by telephone – where representatives are acting for the parties in related Californian Court proceedings – leave granted to two representatives to represent one party
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Domicile Act 1979 (NSW)
Guardianship Act 1987 (NSW)
Interpretation Act 1987 (NSW)
Mental Health Act 2007 (NSW)
Cases Cited: CJ v AKJ [2015] NSWSC 498
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
JAK [2007] NSWGT…

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Details
AGLC
SQM [2015] NSWCATGD 41
Case
[2015] NSWCATGD 41
Decision Date

CaseChat Overview and Summary

In this case, the court was presented with a complex matter involving the guardianship and financial management of SQM, a dual citizen of both the United States and Australia. The subject person, who resides in both California and New South Wales, was in California at the time of the hearing. The court was required to determine whether it had jurisdiction to make a guardianship order in light of a Californian Superior Court order for the appointment of a temporary conservator of SQM's person and estate. The court also needed to decide whether the Californian Court order was recognised in New South Wales, where SQM's domicile was located, and whether the Guardianship Act 1987 (NSW) applied extraterritorially in this case.

The court held that the Californian Court order was not recognised in New South Wales. However, the court found that SQM's domicile was in New South Wales, and therefore the Guardianship Act 1987 (NSW) applied. The court considered the welfare and interests of SQM and concluded that a guardian was needed to facilitate SQM's return to their home in New South Wales in cooperation with the appointed guardian in California. The court also found that a financial manager was required to make decisions about assets held in New South Wales and an insurance claim, as SQM had incurred significant debts as a result of illness while in California.

The court appointed the Public Guardian for 12 months to make decisions about accommodation, health care, medical and dental treatment, services, advocacy, and legal services for SQM. Additionally, the court appointed the NSW Trustee and Guardian as the financial manager. The court also granted leave to Ms EGE, who had been appointed as guardian and financial manager under the Californian Court order, to be joined as a party to the proceedings. Furthermore, the court granted leave to Ms NBF to represent SQM at the hearing and to Ms KPX and Mr QFO to represent Ms EGE at the hearing.

The final orders of the court were that the Public Guardian would be appointed for 12 months to make decisions about various aspects of SQM's care and wellbeing, while the NSW Trustee and Guardian would be appointed as the financial manager. Ms EGE was joined as a party to the guardianship and financial management applications, and leave was granted to Ms NBF to represent SQM at the hearing, as well as to Ms KPX and Mr QFO to represent Ms EGE at the hearing.

Orders

Orders of the court

Public Guardian appointed for 12 months to make decisions about accommodation, health care, medical and dental treatment, services, advocacy, and legal services.

Financial management order made; NSW Trustee and Guardian appointed.

Ms EGE joined as a party to the guardianship and financial management applications.

Leave granted to Ms NBF to represent Mr SQM at the hearing.

Leave granted to Ms KPX and Mr QFO to represent Ms EGE at the hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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