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- Unreported Judgment
Re JDE QCAT 341
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
JDE  QCAT 341
In an application about matter concerning JDE
Guardianship and administration matters for adult
8 November 2019
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – JURISDICTION, PROCEDURE AND EVIDENCE
WHERE ESTATE OF PERSON WITH IMPAIRED CAPACITY PLACED UNDER MANAGEMENT BY SUPREME COURT – WHERE LEGISLATION RELATING TO MANAGEMENT ORDER HAD SUBSEQUENTLY BEEN REPEALED
WHERE APPLICATION MADE TO TRIBUNAL TO REGISTER COURT ORDER IN QUEENSLAND – WHERE JURISDICTION TO REGISTER INTERSTATE ORDERS LIMITED BY REGULATION TO ORDERS MADE UNDER SPECIFIED ACTS – WHETHER INTERSTATE ORDER NOT MADE UNDER AN ACT SPECIFIED BY REGULATION ABLE TO BE REGISTERED
Guardianship and Administration Regulation 2010 (Qld), Schedule 1.
Guardianship and Administration Act 2000 (Qld), s 168, s 166.
Guardianship Act 1987 (NSW), s 25E, Schedule 3.
NSW Trustee and Guardian Act 2009 (NSW), Schedule 1.
Protected Estates Act 1983 (NSW), s 13.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- A solicitor in Queensland acting on behalf of the NSW Trustee & Guardian applied under s 168 of the Guardianship and Administration Act 2000 (Qld) (GAA Act) to register in the Tribunal (QCAT) an order made by the Supreme Court of New South Wales on 19 December 1991 that made the estate of JDE (formerly SDE) subject to management under the Protected Estates Act 1983 (NSW) (the 1983 Act).
- The Tribunal has power to register an order made in another State if that order is a registrable order as defined in the GAA Act. A registrable order is defined in s 166 of the GAA Act as a provision, Act or law prescribed under a regulation for s 167.
- The prescribed recognised provisions in the Guardianship and Administration Regulation 2010 (Qld) are set out in Schedule 1 of the Regulation. The recognised provisions for New South Wales are those made under the Guardianship Act 1987 (NSW) (the 1987 Act).
- The order referred to in the application by BL was not made under the 1987 Act. It was made under s 13 of the 1983 Act. That Act was repealed in 2009 by the NSW Trustee and Guardian Act 2009 (the 2009 Act).
- The repeal of the 1983 Act did not discharge or revoke the management order made by the Court. S 6 of Schedule 1 of the 2009 Act provided that a certificate issued by the Protective Commissioner stating that the estate of a specified person was subject to management under the 1983 Act was admissible in any legal proceedings and was evidence of the matters so certified. The Tribunal readily accepts that the management order over the estate of JDE is still in effect. However, such a conclusion does not necessarily mean that the Court order from 1991 is able to be registered in QCAT.
- It is submitted by the applicant that the Court order can be registered in QCAT as a result of the provisions contained in s 6 of Schedule 3 of the 1987 Act which provide that orders made under the 1983 Act are to be taken to be an order of the Guardianship Tribunal under s 25E of the 1987 Act. However, that submission is not accurate.
- s 6 of Schedule 3 does not refer to management orders made by the Court: the saving provisions in Schedule 3 only refer to orders made by the former Guardianship Board. There is no provision in the 1987 Act that has the effect of deeming an order made by the Court on 19 December 1991 to be an order of the former Guardianship Tribunal under s 25E of the 1987 Act.
- The Court made management order was neither made under the 1987 Act nor is it deemed to be an order made under that Act. The submission made by the applicant that s 13 of the 1983 Act is analogous to s 25E of the 1987 Act is not determinative of the issue. The power held by QCAT to register an interstate order is directly limited to those orders made under specified statutory provisions. In the case of New South Wales orders, the specified statutory provision in the Guardianship and Administration Regulation 2010 (Qld) is made under the 1987 Act. The 1991 order was not made under that Act or deemed to have been so made.
- There is no basis on which QCAT can register the order of the Supreme Court of New South Wales made on 19 December 1991 and the application is without substance and is dismissed.
- Published Case Name:
In an application about matter concerning JDE
- Shortened Case Name:
 QCAT 341
08 Nov 2019