NBL [2019] NSWCATGD 5

NBL [2019] NSWCATGD 5

The Tribunal determined it has jurisdiction because the determinations sought are not 'matters' between residents of different States within the meaning of s 75(iv) of the Constitution, and the power being exercised is administrative, not judicial. The proceedings are protective and relate primarily to the welfare and best interests of NBL, not to determining pre-existing private rights between adversarial parties.

Parties
The Person: NBL; Applicant, Attorney, Enduring Guardian: TZN; Attorney, Enduring Guardian: LYJ; Attorney, Enduring Guardian: PAJ; Attorney, Enduring Guardian: VBQ; Carer: NTI
Jurisdiction
Australia
Judgment Date
29 January 2019
Procedural Posture
Review of Enduring Power of Attorney and Enduring Guardianship Appointment / Preliminary (jurisdictional Ruling)
Outcome
Tribunal has jurisdiction to hear the applications. Matters to be listed for directions.
Legal Topics
Review of Enduring Guardianship, Review of Enduring Power of Attorney, Diversity Jurisdiction, Extraterritoriality
Guardianship Administrative Law Jurisdiction Review of Enduring Guardianship Review of Enduring Power of Attorney Diversity Jurisdiction Extraterritoriality

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Parties

NBL

The Person

TZN

Applicant, Attorney, Enduring Guardian

LYJ

Attorney, Enduring Guardian

PAJ

Attorney, Enduring Guardian

VBQ

Attorney, Enduring Guardian

NTI

Carer

Procedural Posture

Review of Enduring Power of Attorney and Enduring Guardianship Appointment / Preliminary (jurisdictional Ruling)

Legal Issues

  1. 1 Whether the Tribunal has jurisdiction to hear applications for review of enduring power of attorney and enduring guardianship appointment given some parties reside in different states
  2. 2 Whether proceedings constitute a 'matter' between residents of different States under s 75(iv) of the Constitution
  3. 3 Whether Tribunal's power is judicial or administrative in character

Ratio Decidendi

The Tribunal determined it has jurisdiction because the determinations sought are not 'matters' between residents of different States within the meaning of s 75(iv) of the Constitution, and the power being exercised is administrative, not judicial. The proceedings are protective and relate primarily to the welfare and best interests of NBL, not to determining pre-existing private rights between adversarial parties.

Court Disposition

Tribunal has jurisdiction to hear the applications. Matters to be listed for directions.

Orders

  • The Tribunal has jurisdiction to hear the applications for review of an enduring power of attorney and review of an enduring guardianship appointment.
  • The applications are to be listed for further directions on a date to be advised by the Registry.