Effect of the order of the South Australian Guardianship Board
9In the early part of 2008, the defendant made applications in both New South Wales and South Australia that she be appointed the guardian of the deceased. The application in South Australia was supported by medical evidence, which included specific statements to the effect that the deceased lacked testamentary capacity.
10Clearly that evidence was the basis for Order 4 made by the Guardianship Board on 12 May 2008. That order was in the following terms:
"THAT the protected person shall not make any will or other testamentary disposition after this date except in the presence of, and with the consent of, the Public Trustee."
11The source of the Board's power to make that order was section 56 of the Guardianship and Administration Act 1993 (SA). That section is in the following terms:
"56-Restriction of testamentary capacity of protected person
(1) The Board may direct that any testamentary provisions by a protected person be made only after compliance with such precautions as the Board thinks fit to direct.
(2) If, after the Board has given a direction under subsection (1), the protected person makes a testamentary provision otherwise than in accordance with that direction, the testamentary provision is ineffectual.
(3) Except as provided by subsection (2), nothing in this section affects the law relating to testamentary dispositions."
12The defendant was aware of the order at the time she took her father to see Mr Mann to make the second will on 5 August 2008. It is clear that the condition imposed by the Board was not satisfied.
13The defendant asserts by paragraph 4 of the defence that the second will is valid because the effect of the section is not to remove testamentary capacity and has no effect where the deceased was domiciled in New South Wales.
14It was the submission of the plaintiff that as the bulk of the estate of the deceased is represented by the real property in South Australia and is thus an immovable, the capacity of the deceased to dispose of the Property by will is governed by the lex situs, that is, the law of South Australia. See Re Hernando; Hernando v Sawtell (1884) 27 Ch D 284; Nygh's Conflict of Law in Australia 8th ed at [38.8]; Certoma The Law of Succession in New South Wales 4th ed at [2.50].
15It was submitted that the effect of the Order and s 56 was to remove the capacity of the deceased unless certain directions were met. They were not. It was said that this did not require an enquiry into the deceased's capacity in fact, and was not relevantly different to provisions such as section 5 of the Succession Act 2006 (NSW) which invalidates wills made by minors (with some limited exceptions).
16An alternative route to the same outcome, it was submitted, is provided by the "full faith and credit" provision contained in s 185 of the Evidence Act 1995 (Cth).
17On the first point, as there are some movables in New South Wales and the deceased was domiciled here both at the time of making the will and at the time of his death then his capacity to make a will disposing of that movable property is determined by the law of his domicile. As the present proceedings are to set aside the New South Wales grant of probate if one looked simply to the law in New South Wales then arguably one would have no regard to the South Australian order. It matters not that the preponderance of property is in South Australia. No doubt when it came to the question of resealing the grant in South Australia the application of the law of the situs of the property, namely South Australia, may well lead that court to refuse to reseal the grant.
18The more important point is whether this court in determining the matter must have regard to the South Australian provisions as a result of s 185 of the Evidence Act (Cth). That section is in the following terms:
"Faith and credit to be given to documents properly authenticated.
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.
Note: The NSW Act has no equivalent provision for section 185."
19A similar provision exists in the Commonwealth of Australia Constitution Act (The Constitution), namely s 118. However the plaintiff did not seek to rely on that section at the hearing given that notice had not been given to the Attorney-General as required by s 78B of the Judiciary Act 1903 (Cth).
20Section 185 of the Evidence Act (Cth) applies by its terms in all State and Territory courts: Odgers, "Uniform Evidence Law", at [1.5.240]; Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534.
21The order of the South Australian Board has been proved before me in accordance with s 157 of the Evidence Act (Cth). However it is not immediately clear whether the proceedings before the Guardianship Board amounted to "judicial proceedings" for the purpose of s 185. The plaintiff submitted correctly that the Guardianship Board falls within the definition of "Australian court" contained in the Dictionary to the Evidence Act (Cth), which defines the terms to mean, amongst other things, "a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence". It does not follow from this that the Board's proceedings are "judicial proceedings".
22The effect of s 185 was considered in detail by Campbell J in Re DEF. His Honour considered the effect of s 185 of the Evidence Act (Cth) at length by reference to past cases and as it is a very clear explanation I will include his Honour's analysis in these reasons:
"48 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 means, as a matter of ordinary language, not only to recognise its existence but, while it stands, to accept and abide by its contents ..."
49 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.
50 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.
51 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"."
52 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."
53 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."
54 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."
55 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."
56 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."
57 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."
58 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."
23His Honour went on to consider recent Dicta in the High Court and decided that they supported the correctness of Harris v Harris [1947] VLR 44.
24In Re PQR and the Protected Estates Act 1983 [2005] NSWSC 729 Campbell J considered the matter again and held that the orders of the ACT Guardianship and Management of Property Tribunal "are entitled to full faith and credit throughout Australia" and relied on his own decision in Re DEF and the Protected Estates Act 1993 to support that proposition. Campbell J therefore gave full faith and credit to the orders made by the Tribunal in the ACT and as a result revoked an order in New South Wales, which had no further effect. However, his Honour did not specify whether he was relying on s 118 of the Constitution or s 185 of the Evidence Act (Cth) in reaching his decision. Given his reliance on Re DEF, it seems that Campbell J was extending the application of s 185 to give full faith and credit to an order of the ACT Tribunal.
25The hearing before the South Australia Board was certainly a proceeding, however the question remains whether it amounted to "judicial proceedings". That term is not defined in the Evidence Act (Cth). The Encyclopedic Australian Legal Dictionary defines "judicial proceedings" as a "Proceeding instituted in a competent court of law to seek relief, remedy, or redress" and "judicial" as:
"A description of that which emanates from a judge or judges when exercising the power to determine liability or otherwise affect the legal rights of subjects through the application of law to particular facts and circumstances."
26Although not applicable to the present proceedings, "Judicial proceedings" is defined in s 31 of the Crimes Act 1914 (Cth) to mean:
"(a) a proceeding in or before a court; or
(b) a proceeding:
(i) before a body, or a person, acting under a law of the Commonwealth, of a State or of a Territory; and
(ii) in which evidence may be taken on oath."
27The Crimes Act 1900 (NSW) also contains a similar definition in s 311 whereby "'judicial proceeding' means a proceeding in or before a judicial tribunal in which evidence may be taken on oath". In Brandy v HREOC (1995) 183 CLR 245, "judicial determination" was defined as "an enforceable decision reached by applying the relevant principles of law to the facts as found".
28It is clear that inferior tribunals (of which the Board is one, despite its name) can exercise judicial power in some circumstances. See for example Kable v New South Wales [2012] NSWCA 243 at [140]. In that case the Court of Appeal referred to the possibility that the scope of judicial power can arguably be broader in State jurisdiction, where the doctrine of the separation of powers has a lesser operation than under the federal Constitution (at [141]).
29In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 344 the majority of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) said at [56] that:
"Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case." (citations omitted)
30Section 14 of the Guardianship and Administration Act (SA) gives the South Australian Board the power to summon witnesses and to "require any person to make an oath or affirmation to answer truthfully all questions put by a member of the Board, or a person assisting or appearing before the Board, relating to a matter before the Board". The Act also relevantly contains the following:
(a)The Board must include the President or a Deputy President (s 6) and the President and Deputy Presidents must be a magistrate, a legal practitioner of not less than five years' standing or a person who has retired from judicial or magisterial office (s 7);
(b)The Board has the power to summons persons before the Board and require a person to answer any question before the Board and it is an offence to refuse to answer a relevant question when required by the Board (s 14);
(c)Counsel may appear before the Board (s 14);
(d)Hearings before the Board are to be open, unless the Board orders otherwise (s 14);
(e)The Board must give reasonable notice of the time and place of the hearing of the proceedings to the applicant and the person to whom the proceedings relate, as well as to other persons. The Board must give the applicant and the person to whom the proceedings relate a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses and to make submissions to the Board (s 14);
(f)On making any decision or order under the Act the Board must give the person affected a written statement outlining the effect of the decision or order and his or her rights of appeal against the decision or order (s 55);
(g)Appeals and review of the decisions and orders of the Board by the District and Supreme Courts of South Australia are provided for in Part 6.
31Section 12 of the Act provides for decisions of the Board and its constitution by different members of the board. The section is as follows:
12-Decisions of Board
(1) In proceedings before the Board under this Act or any other Act-
(a) if the Board is constituted of 2 or more members (1 of whom is the President or a Deputy President)-
(i) the President or Deputy President will preside; and
(ii) any question of law or procedure will be determined by the President or Deputy President; and
(iii) any other question will be determined by unanimous or majority decision of the members;
(b) if the Board is constituted of 2 or more panel members-
(i) the President or a Deputy President will nominate 1 of the members to preside; and
(ii) any question of law that arises must be referred to the President or a Deputy President for decision (and a decision made on the reference is a decision of the Board); and
(iii) any other question will be determined by unanimous or majority decision of the members;
(c) if the Board is constituted of a panel member sitting alone-any question of law that arises must be referred to the President or a Deputy President for decision (and a decision made on the reference is a decision of the Board).
(2) If the Board when constituted of 2 or more members is unable to reach a decision on a question (other than a question of law or procedure) before the Board, the decision of the presiding member will prevail as the decision of the Board.
(3) The Board must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.
Of importance is subsection (3). The fact that it is not bound by the rules of evidence would not be sufficient to make the proceedings non-judicial. The ability to inform itself on any matter in such manner as it thinks fit obviously is subject to particular provisions of section 14 and in particular section 14(6)(a).
32In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, Young J (as his Honour the was) said, without deciding the issue, that proceedings before the Victorian Guardianship Board were not judicial proceedings:
"[21] Counsel submit that the full faith and credit provisions are not applicable in this area because what happened before the Guardianship Board in Victoria was not a judicial proceeding within the meaning of s118 of the Constitution. Although I do not know of any case directly in point, the answer would appear to be that the proceedings are not judicial proceedings and this view is reinforced by the decision of Powell J in Re an Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541." (emphasis added)
33However the decision in Re an Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541 was not followed by Campbell J in Re DEF. His Honour determined that the case was wrong in principle and said at [76]:
"[T]he 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 ... 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."
34It is clear that the applicant before the South Australian Board sought relief in the form of an order pursuant to s 56 of the Guardianship and Administration Act (SA) and that the order was granted by the Board, constituted in part by a legally trained decision-maker. Furthermore the Board was entitled to take evidence on oath and, in reaching its decision in this case, applied the terms of the South Australian Act. The orders made (and subsequently reviewed and amended) were enforceable in South Australia and determined the rights of the applicant and of other persons, including, relevantly, the deceased.
35In my view s 185 operates on an order by the South Australian Board to give its order full force and effect throughout Australia. In reaching this decision I am mindful of the "basic propositions" put forward by Callinan J in Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 224 ALR 625, whereby the legislation of one Australian state may have legal consequences for persons in others but that the polity of a state will have the primary responsibility for, and hegemony over the people, institutions, lands and activities within its boundaries. If it were otherwise, then the borders of the states and statehood would be meaningless (at [101]). However given the terms of s 185 and the decisions of Campbell J in Re DEF and Re PQR I consider that s 185 applies in this case so that I must give "full faith and credit" to the order of the South Australian Board.
36This means that I must apply the terms of that order to the application before me. The Guardianship and Administration Act (SA) is clear that the making of the deceased's second will has no effect given the order made by the Board. In those circumstances the grant should be set aside. I will however turn to deal with the alternative case of whether there was a lack of capacity as demonstrated by the evidence before me.