EMG v Guardianship and Administration Board of Victoria

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

Does the Tribunal have jurisdiction to deal with these applications?

1. We considered as a preliminary issue whether the Tribunal had jurisdiction to deal with the applications.
2. The Guardianship Act 1987 (NSW) (the Act) does not specify that the subject person must be in NSW or that the subject person must be a resident in or domiciled in NSW in order for there to be jurisdiction to make an order.
3. There is, however, a common law presumption against the extra territorial operation of State legislation. As stated by O'Connor J in Jumbunna Coal Mine v Victoria Coal Miners' Association (1908) 6 CLR 309; [1908] HCA 87 at [363]: In the interpretation of general words in a statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most statutes if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.
4. The common law presumption is reflected in ss 12 and 15 of the Interpretation Act 1987 (NSW) which provide respectively that a reference in any (NSW) Act or instrument to an officer, office, statutory body, locality, jurisdiction or other matter or thing is a reference to such in, for or of NSW and that an Act should be interpreted so as not to exceed the scope of the legislature's power.
5. The legislature's intent that a statute is to have extraterritorial operation must be provided for by express words or arise by necessary implication.
6. The presumption against extraterritoriality is not rebutted by any express words in the Act. It has been remarked that the fact that the Act does not provide for service of an interstate application supports the presumption against extraterritoriality not being rebutted. This was an obiter remark made by Young J in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501.
7. There is authority for the proposition that if the application of the presumption against extra-territoriality would defeat the purpose of the legislation, then it can be assumed that it was the intention of the legislature to override the presumption: Kumagai Gumi Co Ltd v FCT [1999] FCA 235; (1999) 161 ALR 699 at [707].
8. As noted by the then Guardianship Tribunal in JAK [2007] NSWGT 23 (31 October 2007) ("JAK decision"), there is authority for the proposition that a domicile of a person proposed to be protected by an order can be used as a sufficient connecting factor to validate the extra territorial exercise of a protective jurisdiction: Re S (Hospital Patient: Foreign curator) [1995] 4 All ER 30; Re G [1966] NZLR 1028; NCK [2004] WAGAB6 [1995] 4 ALL ER 30; Re G [1966] NSLR 10; NCK [2004] WAGAB 6. The legal concept of domicile involves both the intention to reside indefinitely in a particular placer and the fact of residing there.
9. The Tribunal in the JAK decision held that they did not have jurisdiction to deal with the guardianship application before it. The JAK decision involved an application for a 68-year-old man who was residing in a nursing home in South Australia and arose in the context of previous applications and orders made by the Tribunal concerning JAK. In considering whether there were any reasons to rebut the presumption against extra-territorial presumption the Tribunal took into account, amongst other factors, that the subject person had the benefit of protective guardianship legislation in South Australia and the difficulty of the subject person participating in NSW proceedings if residing outside of NSW. The Tribunal noted that provision for interstate recognition of orders is a factor weighing on the side of the presumption rather than against it.
10. In the JAK decision the Tribunal noted that the Tribunal "does not decide the issue of jurisdiction as an in vacuo question of law" but rather decides the application "in relation to particular people". The Tribunal on that occasion stated they "were not deciding whether the Tribunal could ever make an order in relation to a person who is resident outside NSW but whether we may now do so in relation to Dr JAK".
11. Each case of course turns on its own facts to which we will now turn.
12. Ms MAC's evidence was that it was not her intention that Mr UEB return to NSW and live with her. She expressed concern about whether Mr UEB was receiving good support in Queensland and in particular in relation to his ongoing receipt of services provided through his NDIS package. She expressed misgivings that Mr UEB was no longer participating in the service provider program as this had been beneficial for him. Ms MAC told us she had initially hoped that communications between herself and Ms KIG following the death of Mr JUB would be amicable, however, said that animosity had now arisen in their communication. Ms MAC's evidence was that there was a loving relationship between Mr UEB and his mother. She said Mr UEB was very attached to his mother and wanted to go with her when she came to Regional NSW to pick him up after his father's death.
13. Ms KIG told us Mr UEB was settled living with her and her partner, Mr NAT. They have a two-bedroom cabin at a caravan park in Regional Queensland. She wants Mr UEB to continue to live with her. Ms KIG arranged to become Mr UEB's Centrelink Nominee and is now managing his disability support pension. Her partner, Mr NAT, is receiving a carer's pension for Mr UEB. Ms KIG said Mr UEB is enjoying fishing, music, and cooking. She said it was her intention to transfer services through the NDIS for Mr UEB to Queensland, however, had not taken steps as yet to arrange this. Ms KIG also told us it was her intention to make application to the Queensland Civil and Administrative Tribunal (QCAT) to be appointed guardian and financial manager for Mr UEB.
14. Our ability to communicate with Mr UEB about the application was restricted both by reason of his disability and the limitations arising from obtaining his evidence by telephone. Ms MAC told us Mr UEB has cerebral palsy and intellectual disability. He has minimal ability to communicate and is able to say a few words only. When we spoke with Mr UEB he answered our questions with yes and no responses only. He said yes when we asked him whether he wanted to live with his mother and live in Queensland.
15. As previously noted, the circumstances surrounding Mr UEB's move to Queensland are not agreed between Ms MAC and Ms KIG. Ms MAC states Ms KIG told her that she was taking Mr UEB to Queensland for a two-week holiday. Ms KIG states Ms MAC asked her to come and get Mr UEB as she was having difficulty coping.
16. Whilst we have some misgivings about the circumstances of the move, ultimately, we do not make a finding on this issue in view of Ms MAC's evidence that she does not propose that Mr UEB return to NSW to live with her. This, in addition with Ms KIG's evidence, points to a finding that Mr UEB no longer has residence or domicile in NSW. It appears he is now a Queensland resident.
17. Ms MAC presented as a caring person who has Mr UEB's best interests at heart. Whilst we accept that Ms MAC has concerns about ongoing receipt of services through the NDIS for Mr UEB, we are not persuaded the presumption against the Act having extra territorial operation should be overridden in the circumstances. We note that it is open to the parties to make application under the relevant legislation to the Queensland Civil and Administrative Tribunal (QCAT). QCAT may be viewed is a more appropriate vehicle given Mr UEB's location. This would also facilitate Mr UEB's participation in the proceedings in person.
18. Our decision is that we do not have jurisdiction to deal with either the guardianship or the financial management application.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 January 2018