YQW v YRH

1. [1]

   By notice of motion filed 12 May 2026, the applicant seeks that certain orders made by Lindsay J on 21 April 2026 be stayed pending determination of her summons seeking leave to appeal and, if leave is granted, pending determination of the appeal. The applicant also seeks a referral for pro bono assistance pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. [2]

   In support of her application, the applicant relied upon three affidavits dated 1 May 2026 (which was filed with the summons seeking leave to appeal), 12 May 2026, and 28 May 2026. The applicant also provided three sets of written submissions, respectively dated 14 May 2026, 28 May 2026, and 1 June 2026.

3. [3]

   The first respondent, who is the aunt and guardian of the second respondent, relied on one affidavit that she affirmed 28 May 2026 which broadly set out her submissions on the application, opposing the orders sought in the notice of motion. The second respondent, who is the protected person, also prepared an affidavit affirmed 22 May 2026, in which she stated her preference that the first respondent be her guardian. The second respondent confirmed this orally at the hearing before me on 2 June 2026.

4. [4]

   At the hearing, I indicated to the parties that I would receive the affidavits from the applicant and the respondents as setting out their respective positions on the orders sought in the notice of motion.

Background to the applicant’s notice of motion

1. [5]

   Most of what follows by way of background is taken from court orders proposed and/or made in the proceedings below on 3 February 2026, 4 March 2026, 17 April 2026 and 21 April 2026. It is the last set of orders that are the subject of the application for leave to appeal.

2. [6]

   On 14 January 2025, the Guardianship Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) made orders appointing the first respondent as a continuing guardian of the second respondent, for a period of one year from that date. The applicant appealed from the Tribunal’s orders to the Appeal Panel of the Tribunal. On 2 October 2025, the Appeal Panel dismissed the appeal.

3. [7]

   On 9 October 2025, the applicant commenced proceedings in the Supreme Court, seeking leave to appeal from the Appeal Panel’s decision, purportedly pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”). The proceedings were commenced in the Administrative Law List. On 3 February 2026, Wright J made orders that included vacating a listing before the Common Law Registrar and listing the matter before the Protective List Judge.

4. [8]

   On 4 March 2026, Lindsay J made directions in which his Honour noted that the second respondent had attended Court and informed his Honour that she was happy in her current accommodation and managing her own finances, and was content with the first respondent having the responsibilities and functions that the Tribunal conferred on her by the orders made on 14 January 2025. His Honour continued the Tribunal’s guardianship order subject to further order of the Court or Tribunal (order 8). His Honour also made the following note and orders:

5. [9]

   At a further directions hearing on 17 April 2026, his Honour provided to the parties a copy of orders that he proposed to make on 21 April 2026. According to the applicant’s evidence, the proposed orders included the following:

6. [10]

   In addition to the written note and short minutes that the applicant had provided in advance of the directions hearing on 17 April 2026 (referred to in the above proposed orders as “MFI P1”), the applicant sent an email to his Honour’s Associate, containing written submissions dated 20 April 2026, giving notice that she did not seek to appear at the hearing on 21 April 2026 and relied on her written submissions, and requesting administrative directions concerning the listing of her matter. In the written submissions, the applicant objected to the proposed appointment of the first respondent as a committee of the person, submitting that it may have significant and potentially irreversible consequences, particularly in light of her pending s 83 appeal. She also sought a range of directions in relation to the further conduct of the proceeding.

7. [11]

   In an email sent to the Court on the evening of 20 April 2026, the applicant sought to clarify whether leave was required to file and serve a further amended notice of motion seeking administrative and procedural relief and requested that the email be placed before his Honour before any further orders were made.

8. [12]

   On 21 April 2026, Lindsay J made a series of notations and orders, which it is convenient to set out in full:

9. [13]

   Unless otherwise specified in these reasons, a reference to a particular order or note is a reference to the orders of 21 April 2026.

10. [14]

    By summons dated 11 May 2026, the applicant applied for leave to appeal from the decision of Lindsay J. The draft notice of appeal contains various grounds, including that his Honour denied her procedural fairness, failed to determine her statutory appeal, mischaracterised the proceedings, erred in purporting to restrict her right to seek appellate review, and erred in ordering the removal of the New South Wales Public Guardian and the New South Wales Trustee and Guardian as parties to the proceedings.

The application for a stay

1. [15]

   The applicant seeks a stay of orders 12, 15, 16(a) to (c), 20 and 21 made by Lindsay J on 21 April 2026. The applicable principles were summarised by Payne JA in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 (“Michael Hill”) at [5]:

2. [16]

   In the grounds section of the notice of motion, the applicant contended that the proposed appeal raised reasonably arguable grounds and the orders the subject of her stay application may, if not stayed, substantially impair the utility of the appellate process and cause her ongoing prejudice. Specifically, the applicant contended the following:

3. [17]

   The applicant also contended that the proposed stay would not leave the second respondent without protection, as the guardianship orders previously made by the Tribunal would remain in place. Further, the balance of convenience favoured preservation of the status quo (by which she meant the orders made by the Tribunal and extended by Lindsay J on 3 March 2026) pending determination of the appellate proceedings.

4. [18]

   In her written submissions, the applicant elaborated upon the proposed grounds of appeal and her contention that the appeal was reasonably arguable, having regard to what she alleged was an unresolved appeal under s 83 of the CAT Act, the absence of evidence on which the primary judge made the orders of 21 April 2026, the absence of an opportunity for her to be heard about the final form of orders made on that occasion, and the absence of reasons. The applicant submitted that the primary judge erred in characterising the proceedings as falling within what she described as “transitional provisions” in the CAT Act rather than s 83, and that this characterisation materially affected his Honour’s exercise of jurisdiction. The applicant also submitted that there was a real issue as to whether order 16(b) is valid to the extent that it purported to restrict appellate review.

5. [19]

   The applicant also submitted that her grounds complained about the removal of the Public Guardian and NSW Trustee and Guardian as parties, as well as the operation of order 10. She submitted that these orders deprived the proceedings of a contradictor and prevented her from filing further evidence, creating a state of “procedural isolation” that materially contributed to the making of the orders on 21 April 2026.

6. [20]

   In relation to the risk of the applicant suffering prejudice or damage if a stay is not granted, the applicant submitted that order 12, combined with the matters recorded in Note 14 (which referred to the possibility of the second respondent conferring an enduring power of attorney on the first respondent), created a real risk of practical prejudice that may not be reversible even if the appeal were to succeed, effectively entrenching her long-term exclusion from meaningful involvement in the second respondent’s affairs. She also submitted that the scope of order 16 was uncertain, which created a risk of inadvertent non-compliance on her part.

7. [21]

   The applicant also submitted that the combined effect of orders 15 and 21 was to foreclose every available avenue for the applicant, noting the dismissal of the Supreme Court proceedings and the stay of all Tribunal proceedings, which she submitted risked the leave application becoming nugatory. Further, as the costs order (order 20) would likely be set aside were the appeal to succeed, she should not be required to pay costs until the determination of the leave application.

8. [22]

   In the submissions dated 28 May 2026, the applicant submitted that refusal of the stay would cause her serious prejudice, stating:

9. [23]

   The applicant advanced a similar submission in her 1 June 2026 written submissions. The applicant was particularly concerned about orders 12 and 14, which she submitted created a risk of irreversible entrenchment before appellate review could occur. She submitted that the balance of convenience strongly favoured the grant of a stay, with any prejudice to the respondents being limited and temporary pending determination of the application for leave to appeal and any appeal.

10. [24]

    The second of the two matters that Payne JA identified in Michael Hill as warranting consideration on a stay application is determinative in the present case. The applicant has not demonstrated any risk of prejudice or damage to her position if orders 12, 15, 16(a)-(c), 20 and 21 are not stayed pending the hearing and determination of her application for leave to appeal, and any appeal if leave were granted.

11. [25]

    By order 12, made pursuant to the court’s protective jurisdiction, Lindsay J sought to give longer term effect to the guardianship order that the Tribunal made on 14 January 2025. As the applicant herself submitted, as a practical matter the current position is substantially the same as it was under the Tribunal’s order. There is thus no prejudice to the applicant if the Court’s order 12 remains in place pending the appeal. In so far as the applicant sought to rely on order 12 combined with note 14, as entrenching the position, note 14 refers only to the possible creation of an Enduring Power of Attorney, a future potential development that is not required by or dependent on any of the orders made by Lindsay J.

12. [26]

    The stay of proceedings and the prohibition on further commencement or prosecution of proceedings, in orders 15 and 16, are also not prejudicial in the requisite sense. Those orders prevent the applicant from using collateral or parallel proceedings to undermine the Court’s orders or to interfere with the welfare regime in place for the second respondent. The applicant did not identify how, if at all, those orders caused her prejudice, save for submitting that order 16 impeded her conduct of the present appeal proceedings. I do not accept that is the case, the applicant having been able to file her application for leave to appeal from the orders.

13. [27]

    In her submissions dated 14 May 2026, the applicant clarified that she sought only a limited stay of order 16(c), confined to permitting communications necessary for her to pursue the appeal, which requires a grant of leave. This is said to include the preparation, filing and service of documents relating to the application for leave to appeal. It is not clear that those activities would fall within the terms of order 16(c), which prohibits “stalking, harassing or intimidating the defendants or either of them by emails, telephone, personally or otherwise”. The ordinary course of an appeal or application for leave to appeal does not require stalking, harassing or intimidating the respondents to the proceeding. To the extent that the applicant seeks to conduct herself in that manner (she maintains that she has not done so), it should remain prohibited.

14. [28]

    The applicant’s submissions regarding order 20, which provides that “each party pay their own costs, if any”, appear to reflect a misapprehension of the order. Contrary to the assumption implicit in the applicant’s submissions, that order does not require that she pay anyone’s costs except her own. In any event, a stay of that order, or of order 21, would be of no practical effect.

15. [29]

    It is unnecessary to consider the first of the two matters that Payne JA identified in Michael Hill as warranting consideration on a stay application. Even if I were to consider that the appeal raised one or more serious questions, the absence of any risk of prejudice or damage if the orders the applicant sought to stay continue to operate pending her application for leave to appeal tells strongly against the grant of a stay. Further, contrary to the applicant’s submission, the balance of convenience on the stay application strongly favours the respondents. The second respondent, whose interests are paramount in the protective jurisdiction, confirmed on this application, as she did before Lindsay J, that she is content with her present living situation, which she described as happier and more stable.

16. [30]

    It is apparent from the procedural history of this matter that the applicant has repeatedly instituted proceedings and made associated interlocutory applications. The present application is an example, with the applicant filing two affidavits and three sets of written submissions on the stay application. These filings, which were in large measure repetitive, generated a not insignificant volume of material for the individual and unrepresented respondents to work through. It is particularly in the interests of the second respondent that orders 15 and 16 of Lindsay J’s orders remain in place pending the application for leave to appeal.

The application for a pro-bono referral

1. [31]

   Rule 7.36 of the UCPR provides as follows:

2. [32]

   In support of a referral, the applicant submitted that she was presently unrepresented in proceedings that involved complex issues, including procedural fairness, the court’s protective jurisdiction, and the construction of s 83 of the CAT Act. She also submitted that conducting proceedings in English, which is not her first language, presented some difficulties for her. The applicant submitted that a pro-bono referral would assist in the administration of justice.

3. [33]

   The first respondent, in her affidavit dated 28 May 2026, opposed the making of a referral. She observed that the applicant had enjoyed an extensive opportunity to present her case, and that each proceedings largely repeated issues previously raised and determined, including the present proceedings, by which I understood her to mean the underlying s 83 proceeding.

4. [34]

   In Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 (“Renshaw”), Brereton J explained the application of the rule as follows:

5. [35]

   It must also be borne in mind that the effect of a referral is to request that a member of the profession provide their services without compensation, which is a not insignificant imposition. As Basten JA said in Land v Northern NSW Local Health District (No 2) [2014] NSWCA 32 at [8]:

6. [36]

   Bearing in mind the scarcity of the resource, I am not satisfied that it is in the interests of the administration of justice to make a referral in the present case. As Brereton J observed in the passage of Renshaw to which I have referred, satisfaction that a litigant cannot otherwise obtain legal assistance is an insufficient reason to make a referral under r 7.36.

7. [37]

   Although the underlying proceedings concern the protective jurisdiction, the application for leave to appeal is focused on the orders that Lindsay J made on 21 April 2026. It concerns a small volume of material about which the applicant has already prepared submissions. It is also of some relevance that the applicant does not face a relative disadvantage in appearing against a party represented by a legal practitioner, as all parties in the present matter are unrepresented.

8. [38]

   On the basis of the material before me, and having listened to the applicant make oral submissions at the hearing, I consider that the applicant is able to articulate and advocate for her position and in support of the proposed grounds of appeal that she wishes to advance on the application for leave to appeal. Further, on the basis of what has been put before me in relation to the litigation history, I am concerned that if a referral was made, with the time that might entail, the applicant would not accept the advice. Guided by the principles to which I have referred, and having regard to the matters I have outlined above, I am not satisfied that it is in the interests of justice to make a referral for legal assistance. I decline to make a referral.

Conclusion

1. [39]

   The notice of motion filed 12 May 2026 will be dismissed.