Conclusions on Validity of the Order in Australia Outside Queensland
70 I conclude that, even if it were made in excess of jurisdiction, the order of Muir J would be recognised as effective throughout Australia pursuant to section 185 Evidence Act 1995 (Cth).
71 It is a consequence of the principle that decisions of a superior court are valid unless and until set aside that actions which are taken in reliance upon a judgment which is later set aside are themselves valid, although once the judgment is set aside a person who has paid money or transferred property in consequence of it is entitled to restitution: The Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR 220 at 224-5, 227-8 The Commonwealth v McCormack (1984) 155 CLR 273 at 276-7; Production Spray Painting & Panel Beating Pty Ltd & Ors v Newnham & Others (No 2) (1992) 27 NSWLR 659 at 661 per Handley JA (with whom Mahoney and Priestley JJA agreed); Wilde v Australian Trade Equipment Pty Co Pty Limited (1981) 145 CLR 590 at 595 (Gibbs J), 602 (Stephen, Murphy and Wilson JJ); MacIntosh v Lobel (1993) 30 NSWLR 441 at 459 - 465 per Kirby P (with whom Cripps JA agreed). Thus, if the Protective Commissioner acts within Australia in reliance on the order of Muir J, its actions in doing so will be valid, even if that order were to be later set aside. I emphasise that in saying this I am expressing no view about whether the order is one which ought be set aside if there were to be an appeal against it, pursuant to leave to appeal granted out of time.
The Decision in Re FCC
72 In Re An Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541 Powell J considered the effect of an order, made in the Supreme Court of Queensland, in circumstances not materially different from the present ones. His Honour set out the relevant provisions of the legislation and Supreme Court Rules 1970, and went on, at 546, to note the following matters of New South Wales practice:
"…first, that, except in exceptional cases, the plaintiff in proceedings under the Protected Estates Act 1983 should not be the person who acted as the next friend for the allegedly incapable person in proceedings earlier brought on behalf of that person to recover damages for negligence, or the allegedly incapable person's solicitor in those earlier proceedings ( McD v McD [1983] 3 NSWLR 81) and, secondly, that the practice of the court is that, although, if it can be shown that service of the summons upon an allegedly incapable person will dangerously excite that person, service may be dispensed with, in the normal course service will not be dispensed with; in particular, it is not regarded as a sufficient ground for dispensing with service that service upon the allegedly incapable person will exacerbate an existing antipathy felt by that person towards the plaintiff: Re Craven (1901) 18 WN (NSW) 243."
73 His Honour then reasoned as follows, at 546-7:
"Although it seems tolerably plain that it is now open to the Supreme Court of Queensland, in an appropriate case, to exercise the powers vested in this Court by (inter alia) s 13 and s 21 of the Protected Estates Act 1983 , and although I have no wish to discourage the judges of any of the Supreme Courts of the other States or of the Territories from exercising those powers in any case in which it is thought appropriate to do so, I am unable to accept that, in the present case, the declaration and orders made by Ambrose J constituted a valid exercise of these powers.
While, in the normal course, an order of a superior court of record of general jurisdiction cannot be treated as void, or non-existent, and, even if made beyond power, that order stands, and remains binding on those subject to it, unless, and until, it is set aside on appeal ( Scott v Bennett (1871) LR 5 HL 234 at 245; Revell v Blake (1873) LR 8 CP 533; Re Piper (1960) 60 SR (NSW) 328; 77 WN (NSW) 197) and while both s 118 of the Constitution (Cth) and s 18 of the State and Territorial Laws and Records Recognition Act 1901 (Cth) require full faith and credit to be given to (inter alia) the judicial proceedings of another State or Territory (see, eg, Harris v Harris [1947] VLR 44; Cowen: "Full Faith and Credit: the Australian Experience" Essays on the Australian Constitution , ed Else Mitchell 2nd ed (1961) at 293), I am unable to accept that that principle applies, or that those provisions apply, in the very special situation which is revealed in the present case. I say this since, although the powers which Ambrose J purported to exercise are powers to make declarations and orders affecting the status - and, thus, what would otherwise be the rights, privileges, powers, and property - of a person who has been joined as a party-defendant to proceedings commenced for such purpose - and this, as it seems to me, is a matter of substance, and not a mere matter of procedure - what I have recorded above would seem clearly to indicate that no such proceedings were ever commenced in Queensland, as the declaration and orders which Ambrose J purported to make were made against FCC in the Common Law proceedings which had been brought by him or on his behalf."
74 With the greatest respect, I find I am unable to agree with his Honour's reasoning. Regardless of the procedural deficiencies in the order made in the Supreme Court of Queensland, it is still an order of a superior court, which has all the powers of the Supreme Court of New South Wales, and an order which must be accorded full faith and credit in all Australian courts. That it involves a matter of status, and was made in the course of proceedings in which FCC was a plaintiff, does not make it any less so. To follow the decision would, in my view, involve going against the significant body of authority mentioned earlier in this advice.
75 His Honour went on to give detailed consideration to whether the orders made by Ambrose J could be "filed of record" pursuant to section 14 of the PE Act. Section 14 is a provision which was designed to facilitate the recognition and enforcement in New South Wales of decisions appointing a manager of a protected person's estate, made by courts in other parts of the Commonwealth of Nations, or other jurisdictions whose legal systems were regarded with sufficient trust to justify a proclamation authorising the recognition in New South Wales of such decisions of their courts. If the Supreme Court of another Australian State or Territory, exercising jurisdiction under the Cross-Vesting Act has made an order appointing the Protective Commissioner as manager of all or part of the estate of a protected person, that order does not need to be "filed of record" in this Court to be recognised as valid and enforceable. The effect of the enactment of the Cross-Vesting Act, and its corresponding legislation in other Australian States and Territories, is that, so far as the possession of jurisdiction is concerned, it is as though there is a single Australia-wide court, which has all the jurisdiction of all the Supreme Courts of the Australian States and Territories. There continue to be differences between the Supreme Courts of the various Australian States and Territories concerning various matters including procedure and rights of appeal. However, once the Supreme Court of Queensland has made an order which is an exercise, or a colourable exercise, of the jurisdiction of the Supreme Court of New South Wales, conferred on the Queensland Court by the Cross-Vesting Act which appoints the Protective Commissioner as manager of an estate, that order is recognised as valid in New South Wales pursuant to section 185 Evidence Act 1999 without any need to be registered.
76 I have given consideration to whether I, as a judge of first instance giving administrative advice, ought decline to follow the decision in Re An Alleged Incapable Person FCC and the Protected Estates Act 1983 (1990) 19 NSWLR 541. Often, if a decision of a judge of first instance has stood for a significant time, another judge of first instance ought be slow to decline to follow it, because of the possibility that people, other than the parties to the first decision, have ordered their affairs on the basis that the first decision is correct. In the present case, I do not see how the decision in Re FCC that a particular Queensland order is invalid, is one which is likely to have been relied upon by anyone other than the parties to the decision, in a way such that their interests might be prejudiced if I were now to decline to follow Re FCC. As well, the 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. Other parts of the task of achieving that integrated system are achieved by the Service and Execution of Process Act 1992 (Cth), by the provisions now common in the rules of the Supreme Courts whereby process of one court can be served outside the law district of that particular court but within Australia (eg Part 10 rule 2B Supreme Court Rules 1970), and by the various Acts of the Commonwealth and the States and Territories analogous to the Cross-Vesting Act, which vest the jurisdiction of the superior court of the law district whose legislature has enacted the legislation on other superior courts within Australia, and provide for transfer of proceedings between superior courts so that a particular set of proceedings can be heard in the most appropriate court regardless of where it might have been started. I mention that the rules analogous to Part 10 rule 2B Supreme Court Rules 1970 operate only to show that there is nothing in the process of the court which makes it inherently unsuitable for service outside the law district of the court which issued it, and actual service must now be carried out under the Service and Execution of Process Act 1992 (section 8(4), or under some other legislation like the Corporations Act 2001 (Cth) that contains its own provision permitting service of process). The system falls short of complete integration, because of the constitutional limitations in the cross-vesting legislation exposed by Re Wakim; ex parte McNally (1999) 198 CLR 511, and the reservation of "special federal matters" from the cross-vesting scheme, but a significant and very important degree of integration has been achieved. 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.
Extent of Powers Conferred on the Protective Commissioner
77 Upon the proper construction of the order, the power of management of the Protective Commissioner relates only to the money which the first and second defendants in the Queensland proceedings pay to the Protective Commissioner. Hence the house which was purchased for DEF (para [6] above) is not subject to the Protective Commissioner's management.
78 As to the property which is subject to the Protective Commissioner's management, sections 24 - 28 of the PE Act automatically confer all the powers there listed on the Protective Commissioner in relation to any property of which the Commissioner is manager. Thus, the powers conferred by orders 5 and 6 are in the nature of additional powers. Section 24(1)(b) of the PE Act empowers the Supreme Court of New South Wales to confer on the Protective Commissioner additional powers to those set out expressly in sections 24 - 28. Section 4 of the Cross-Vesting Act enables that power to be exercised by the Supreme Court of Queensland. Quite apart from that, orders 5 and 6 would be valid simply because they are orders of a superior court which have not been set aside, relating to a topic on which (in a broad sense) the Court has power to act.
79 If it were to be the case that orders 5 and 6 conferred powers which in any respects were wider than the powers expressly conferred by sections 24 - 28 of the PE Act, to that extent I advise that those powers should not be exercised without further advice or direction of the Court.
The Enduring Power of Attorney
80 The effect in New Zealand of the order of Muir J is a matter which, strictly, will be decided in accordance with New Zealand law concerning recognition of foreign judgments. I do not purport to advise, at this stage, about the New Zealand law on that topic. Nor do I advise on the difficult topic of whether the New Zealand power of attorney would be recognised as valid in an Australian court. However, if one assumes that the New Zealand law is the same as the New South Wales law, then the enduring power of attorney would be inoperative at least to the extent that it purports to relate to the whole of DEF's property. Section 23A PE Act makes express what would probably in any event have been implicit in the appointment of a manager of the estate of a protected person, that, to the extent to which the appointment is made, the protected person lacks power to deal with his estate. If section 23A stood by itself, that lack of power would extend to executing a power of attorney which confers powers over the part of the estate that has been subjected to management. However, section 76 PE Act contains special provisions relating to powers of attorney, as follows:
"(4) A person may give a power of attorney notwithstanding that the estate of the person is subject to management under this Act.
(5) A power of attorney is suspended while the estate of the principal is subject to management under this Act.
…
(6) Notwithstanding subsection (5), where an attorney under a power of attorney does an act within the scope of the power while the estate of the principal is subject to management under this Act, the act of the attorney has no less validity and effect than the act of the attorney would have had if this section had not been enacted, but this subsection does not affect the operation of subsection (9).
(7) While a power of attorney is suspended by this section, the Court may restore the power of attorney to operation to such extent, and on such terms and conditions, as the Court thinks fit.
…
(9) Where the estate of a principal is subject to management under this Act, the Court may:
(a) terminate the power of attorney, or
(b) order that the power of attorney be subject to such conditions as the Court thinks fit."
81 Whether DEF had mental capacity to grant a power of attorney over that part of his estate not committed to the Protective Commissioner's management is a separate question to whether he had legal power to make an effective appointment while the management order was in force. That separate question would require further factual investigation, though the medical reports which have been supplied to the Protective Commissioner show that there is a very real basis for doubting whether he had capacity. There is also a legal question, upon which I do not now advise, about whether the lack of power to deal with the part of his estate committed to the Protective Commissioner means that the power of attorney is wholly suspended, or valid in relation to the part of the estate not under the Protective Commissioner's management - ie whether it is severable. The practical course for the Protective Commissioner to take concerning this power of attorney is to: