SQM

Case [2015] NSWCATGD 41 8 October 2015

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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…

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

AGLC: SQM [2015] NSWCATGD 41
Case: [2015] NSWCATGD 41
Decision Date: 08 October 2015

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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Citations

SQM [2015] NSWCATGD 41

Most Recent Citation

CJC [2024] WASAT 79

Cases Citing This Decision

CJC [2024] WASAT 79
Citation 1 (Para 2)

…Counsel for the applicant provided examples of cases determined by the NSW Guardianship Tribunal: KDT [2010]NSWGT 5 ( KDT ) and SQM [2015] NSWCATGD 41 where guardianship orders were made by that Tribunal when the represented person was overseas, the Tribunal finding the represented person's domicile remained in New S…

See all citing cases →

Cases Cited

P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 1 (Para 103)

…The test for determining a person's capability to manage his or her affairs has been described as follows ( P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):…
CJ v AKJ [2015] NSWSC 498
Citation 2

…87 (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 23 Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309 IF v IG [2004] NSWADTAP 3 KDT [2010] NSWGT…
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Citation 3 (Para 105)

…reasonably foreseeable future ( McD v McD (1983) 3 NSWLR 81 at [86]). See Lindsay J in Re W and L (Para meters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]:…
PB v BB [2013] NSWSC 1223
Citation 4 (Para 102)

…In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at paragraph [7]:…
Re D [2012] NSWSC 1006
Citation 5 (Para 101)

…In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person’s own capacity to do what…
IF v IG [2004] NSWADTAP 3
Citation 6 (Para 67)

…ion 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in section 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).…
P v R [2003] NSWSC 819
Citation 7 (Para 101)

…l appreciation” of assets test to determine a person’s capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances:…
Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27
Citation 8 (Para 49)

…In Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 , Gaudron, Gummow, and Hayne JJ stated at footnote 145:…
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
Citation 9 (Para 47)

…In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, His Honour Justice Young considering whether the Guardianship Act applied to persons physically outside of NSW noted that the Guardianship Act does not define the persons who are subject to its operation. However, His Honour did not determ…
Jumbunna Coal Mine NL v Victorian Coal Miners' Association [1908] HCA 95
Citation 10 (Para 48)

…the common law presumption against the extraterritorial operation of State legislation (see Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309 per O’Connor J at p363. See also section 12 Interpretation Act 1987 (NSW)). However, the presumption is rebuttable.…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 20)
Domicile Act 1979 (NT)
1 mention (from Para 41)
Guardianship Act 1987 (NSW)
1 mention (from Para 15)
Guardianship and Administration Act 1986 (Vic)
1 mention
Guardianship and Administration Act 1990 (WA)
1 mention
Guardianship and Administration Act 1993 (SA)
1 mention
Guardianship and Administration Act 1995 (TAS)
1 mention
Guardianship and Administration Act 2000 (Qld)
1 mention
Guardianship and Management of Property Act 1991 (ACT)
1 mention
Interpretation Act 1987 (NSW)
1 mention (from Para 48)
Mental Health Act 2007 (NSW)
1 mention (from Para 3)
Protection of Personal and Property Rights Act 1988 (NZ)
1 mention

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…