YQW v NSW Trustee and Guardian

1. YPU is in her late twenties and has been diagnosed with schizophrenia. In January 2025, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made a guardianship order in respect of YPU and appointed her aunt, YRH, as guardian. In April 2025, YPU's mother, YQW, made an application to NCAT requesting the Tribunal to review that order and to remove the Aunt as guardian, asserting that the "current arrangement significantly restricts my ability to participate in my daughter's life and contribute to her care, especially in financial matters". Two months later, YQW made a further application to NCAT requesting that a financial management order be made in respect of her daughter.
2. Because of the sensitive and personal nature of the matters discussed in this appeal, in these reasons we have not used the real names of the parties. Instead, we will refer to YPU as "the Daughter", YRH, YPU's guardian and aunt, as "the Aunt" and YQW, YPU's mother, as "the Mother".
3. The Mother appeals from two decisions made by the Tribunal in the proceedings which relate to her application to NCAT seeking review of the guardianship order made in January 2025 and her subsequent application seeking a financial management order in respect of the Daughter (the substantive proceedings). These decisions are as follows:

(1) A decision made on 19 August 2025 to decline to appoint a "separate representative" for the Daughter (the representation decision).

(2) A decision made on 5 September 2025 to prohibit the disclosure of a document filed by the Mother (the non-disclosure decision).

1. Because they are in the nature of "interlocutory decisions", the Mother requires leave to appeal from those decisions: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), definition of "interlocutory decision" in s 4(1) paras (b) and (i).
2. We explain below our reasons for declining to give the Mother leave to appeal the representation decision and the non-disclosure decision.

Should the Mother be given leave to withdraw the internal appeal to NCAT?

1. The Mother has filed appeals against the non-disclosure decision and the representation decision (the decisions under appeal) in both NCAT and the NSW Supreme Court. She now seeks leave to withdraw the appeals filed in NCAT. We explain below our reasons for declining to approve that request.

Statutory framework: internal appeals and appeals to the NSW Supreme Court

1. Each decision under appeal is an "internally appealable decision" and an "appealable Division decision": NCAT Act, s 32(4); Sch 6, cl 12(1).
2. As a party to the proceedings in which those decisions were made, the Mother may appeal against each decision by an appeal to an NCAT Appeal Panel (an internal appeal), or an appeal to the NSW Supreme Court: NCAT Act, Sch 6, cl 12(1). An internal appeal precludes an appeal to the Supreme Court against the same decision unless the internal appeal is withdrawn with the approval of an Appeal Panel for the purpose of enabling an appeal to the Supreme Court against the decision, and vice versa: NCAT Act, Sch 6, cls 12(3), 12(4).

Background to the Mother's appeals to NCAT and the Supreme Court

1. On 8 September 2026, the Mother filed a Notice of Appeal with NCAT in relation to the representation decision. The following week the Mother filed a Notice of Appeal with NCAT in relation to the non-disclosure decision.
2. On 9 October 2025, the Mother filed a "Summons commencing appeal" and a "Summons seeking leave to appeal" in the Supreme Court. The Mother requested the Supreme Court to make several orders, including:

(1) An order that the guardianship order made by NCAT on 14 January 2025 and "the associated appeal and procedural decisions" be stayed, pending final determination of this appeal.

(2) An order that an interim guardianship order be made in respect of the Daughter and that she and/or the Daughter's father (the Father) be appointed as the Daughter's guardian.

(3) An order that the appellant and/or the Father be appointed on an interim basis as the Daughter's financial manager.

(4) A declaration that the Appeal Panel's "handling of the confidentiality and stay applications on 2 October 2025 was affected by error of law and was legally unreasonable".

(5) An order remitting the matter to NCAT "for re-determination by a differently constituted panel, with directions including the immediate appointment of a Separate Legal Representative for [the Daughter]".

1. On 10 November 2025 the Mother filed in the Supreme Court an "Amended Summons Commencing an Appeal". On 21 November 2025, the Mother filed a "Further (Amended) Notice of Motion". In those summonses, in addition to the order sought in the initiating summonses, the Mother sought:

(1) An order staying "all current and future decisions and proceedings" in NCAT.

(2) An order that the NSW Trustee and Guardian provide written confirmation to the Mother as to "whether outstanding debts have been resolved".

(3) An order requiring NCAT to produce the "record of proceedings in the guardianship matter and the four stay applications".

1. The Mother urged us to approve her request to withdraw the internal appeal. She claimed that the Supreme Court had already accepted her appeal against the representation decision and the non-disclosure decision. The Mother said that she believed the Supreme Court was more likely to be fair and to grant the orders she sought than NCAT.
2. The Aunt and the Daughter oppose the Mother being given leave to withdraw the internal appeal.
3. The Aunt said that she had not received any information about the Supreme Court appeal until 10 days before the hearing of the internal appeal in NCAT. She said that she came to that hearing ready to respond to the issues raised by the appellant and opposed the determination of that appeal being delayed. She said "everyone" was confused, exhausted and inconvenienced by the Mother making multiple applications in the substantive proceedings and now running appeals in both NCAT and the Supreme Court. She claims that the real reason the Mother wants to run her appeal in the Supreme Court is because to date she has been unsuccessful in the numerous applications she has made to NCAT.
4. The Mother said that the Daughter was "under the influence" of the Aunt and that we should disregard any submissions she made in respect of the appeal.

1. Neither the NCAT Act nor the Guardianship Act 1987 (NSW) provides express guidance about the factors to consider in the exercise of the discretion to approve a request made by an appellant to withdraw an internal appeal "for the purpose of enabling an appeal to the Supreme Court" conferred by cl 12(3) of Sch 6 of the NCAT Act, or the corresponding provision, which permits the Supreme Court to approve a request to withdraw an internal appeal, cl 12(4) of Sch 6 of the NCAT Act.
2. In deciding whether to allow or not to allow the Mother to withdraw the internal appeal for the purpose of enabling an appeal to the Supreme Court, we must seek to give effect to the guiding principle of the NCAT Act, "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36(1).
3. We decided that proceeding to hear the internal appeal at the hearing of that appeal listed on 12 February 2026 is consistent with our duty to seek to give effect to the guiding principle for the following reasons:

(1) On 2 October 2025, the Appeal Panel listed the internal appeal for hearing. As directed by the Appeal Panel, in the intervening four months the parties have filed submissions in relation to that appeal.

(2) The Mother first requested the Appeal Panel to approve her request to withdraw the internal appeal at the hearing on 12 February 2026, listed to determine the internal appeal hearing. She did not notify the other parties to the appeal, in particular the Aunt or the Daughter, of her intention to make that request. Further, it appears from documents filed in the internal appeal, the Mother did not notify the parties about the Supreme Court proceedings until a week before the hearing of the internal appeal.

(3) The issues raised by the appeal are narrow in scope and are neither complex nor novel.

(4) If the Mother is given leave to withdraw the internal appeal for the purpose of enabling an appeal to the Supreme Court, the determination of the appeal will be delayed. That delay will subject the Aunt and the Daughter to further stress and inconvenience.

(5) Proceeding to determine the internal appeal in circumstances where that appeal has been listed for hearing for over four months, the parties are ready to address the issues raised in the appeal and the Appeal Panel has allocated time to hear the appeal, makes best use of the scarce resources available to the Supreme Court and NCAT.

1. We decline to approve the Mother's request to withdraw the internal appeal for the purpose of enabling an appeal to the Supreme Court against the decisions under appeal.

Principles governing exercise of the discretion to grant leave to appeal

1. In Houda v Seraphim [2025] NSWCATAP 135 at [31]- [35], an NCAT Appeal Panel summarised the principles which govern the exercise of the discretion to grant leave to appeal from internally appealable decisions. These principles include:

(1) Leave to appeal should only be granted when there are substantial reasons to warrant leave being granted. These reasons include the presence of an error of principle in the decision under appeal resulting in substantial injustice.

(2) Leave will only be granted if the decision is affected by sufficient doubt to warrant its reconsideration on appeal.

(3) Usually, it is only appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable for leave to be granted.

1. The appellate courts have emphasised that particular caution should be exercised in granting leave to appeal from an interlocutory decision concerning a matter of practice and procedure: see, for example, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; [1981] HCA 39; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. In Houda v Seraphim, the Appeal Panel noted at [34] that NCAT Appeal Panels have consistently adopted that approach, citing as an example, Collins v Urban [2014] NSWCATAP 17 at [84(3)].

Should the Mother be given leave to appeal the Representation decision?

1. On 19 August 2025, the Tribunal (Senior Member Mulvey) declined to order that the Daughter be separately represented and gave brief reasons for that decision (the Reasons):

"I had to consider whether to appoint a separate representative for [the Daughter]. [The Daughter] did not want to have a separate representative appointed. She indicated to the Tribunal registry officer and her guardian that she can provide her own views. [The Aunt] submitted that [the Daughter] can provider [sic] her own views. I considered [the Mother's] submission that she has a concern that [the Daughter] can easily [be] influenced and may not provide her own view. I was satisfied that the Tribunal is able to employ appropriate practices during the hearing to take evidence from [the Daughter] without others present should that be an issue at the hearing. Given [the Daughter's] objection to having a separate representative appointed, I decline to appoint one."

1. Section 45(4)(c) of the NCAT Act states that the Tribunal may order that a party be separately represented. NCAT Fact Sheet, What is a separate representative? https://ncat.nsw.gov.au/documents/factsheets/ncat-fact-sheet-separate-representatives.pdf, explains that where the Tribunal orders that a party be separately represented, the Tribunal will request Legal Aid NSW to appoint a separate representative for that person. A separate representative is an independent person, usually a lawyer, whose role is to obtain the views of the party they are appointed to represent and to give to the Tribunal "any relevant information about that party".
2. The Mother submits that at the directions hearing on 19 August 2025, in which the Tribunal considered whether to order that the Daughter be separately represented, she was given insufficient time to "fully present my evidence including the false evidence provided to NCAT as evidence". The purported false evidence is apparently: (i) the statement made by the Aunt that the Daughter did not want to be separately represented in the proceedings, and (ii) a report prepared by an NCAT Registry officer which recorded that that officer spoke to the Daughter who said she did not want to be separately represented in the substantive proceedings.
3. The Mother argues that because she has schizophrenia, the Daughter is "highly vulnerable to undue influence", by which we understand her to mean the influence of the Aunt. The Mother claims that she has been isolated from the Daughter since February 2025.
4. Further, she contends that the Tribunal was obliged to cross-examine the Aunt about her claim that the Daughter said she did not want to be separately represented. By not doing so, the Mother claims that the Tribunal failed to act "fairly, justly and according to the substantial merits of the case".
5. In support of these submissions, the Mother filed a large amount of material of no apparent relevance to the appeal from the representation decision.
6. The Daughter and the Aunt oppose the appellant being given leave to appeal the representation decision. The Daughter said it was the "right decision". She confirmed, as recorded by the Tribunal in its reasons for that decision, that she did not want to be separately represented in the substantive proceedings and that in her opinion she was capable of expressing her own views to the Tribunal.

1. In deciding whether to order that the Daughter be separately represented, the Tribunal was required to observe the principles in s 4 of the Guardianship Act (the section 4 principles), which include that the welfare and interests of the Daughter should be given paramount consideration (s 4(a)), the freedom of decision and freedom of action of the Daughter should be restricted as little as possible (s 4(b)), and the views of the Daughter should be taken into consideration (s 4(d)).
2. The Reasons indicate that in deciding whether to order that the Daughter be separately represented, the Tribunal considered significant the Daughter's reported opposition to that order. The Tribunal considered the Mother's stated concern that the Daughter could be easily influenced and any views she expressed to the Tribunal in the substantive proceedings may not be her own. However, the Tribunal reasoned that given its ability "to employ appropriate practices during the hearing to take evidence from [the Daughter] without others present should that be an issue at the hearing", those concerns could be addressed. The Tribunal concluded that those concerns did not warrant the exercise of the discretion to order that the Daughter be separately represented, especially given the Daughter's opposition to that order being made.
3. The Mother cited no authority to support the contention that the Tribunal was obliged to cross examine the Aunt and the NCAT Registry officer about their "false evidence". Nor did she file a transcript of the directions hearing to support her claim that she was not given a reasonable opportunity to put her concerns to the Tribunal.
4. There is no apparent basis for the Mother's argument that the representation decision could be construed as involving an erroneous exercise of discretion. The Tribunal considered and addressed the submissions made by the Mother and gave cogent and persuasive reasons for its decision.
5. The proposed appeal has insufficient prospects of success. The issues raised in the proposed appeal do not involve an issue of principle, a question of public importance or a reasonably clear injustice going beyond what is merely arguable. The interests of justice do not warrant a departure from the restrained approach taken by NCAT Appeal Panels to granting leave to appeal from an interlocutory decision.
6. Leave to appeal is refused.

Should the Mother be given leave to appeal the non-disclosure decision?

1. On 5 September 2025, following a hearing, the Tribunal (Principal Member Booby) made the following order:

"The disclosure to all parties of the content of [NOT FOR PUBLICATION] is prohibited. The Tribunal notes that the [NOT FOR PUBLICATION] will also be confidential from the Tribunal constituted to hear the matter and will not be considered by the Tribunal. This order is made under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013."

1. NCAT issued to all parties (except the Mother) a notice of the decision in the form as set out above. NCAT issued an unredacted version of that notice to the Mother. In that notice, in substitution for the words "[NOT FOR PUBLICATION]", NCAT inserted the name of the document the subject of that order. In addition, the Tribunal prepared two versions of reasons for the non-disclosure order (Reasons 2). In the version provided to the parties (except the Mother), the Tribunal redacted those parts which identified the document the subject of its decision, and the submissions made by the Mother about its relevance to the substantive proceedings. NCAT issued an unredacted version of those reasons to the Mother.
2. The non-disclosure order was made in answer to an "Application for Miscellaneous Matters" (the Miscellaneous Application) in which the Mother requested:

"That the following documents be treated as confidential and not disclosed to the respondent or other parties without prior leave of the Tribunal:

Letter: Sensitive information disclosed by Witness A, explicitly requesting anonymity."

1. Despite the considerable efforts made by the Tribunal to avoid disclosing the identity of Witness A and the contents of the document the subject of the Miscellaneous Application, the Mother identified and spoke at length about both in written and oral submissions made in the internal appeal. In addition, the Mother disclosed the substance of the redacted parts of Reasons 2.
2. Notwithstanding the Mother's actions in disclosing to the parties the content of the document the subject of the non-disclosure order, we will not do so in these reasons. Suffice to say for the purpose of this appeal, that document is the transcript of a phone conversation between the Mother and a third party (the Transcript), and the Mother claims that it contains adverse statements made by the third party about the Aunt's conduct as the Daughter's guardian.

1. The appellant contends that leave to appeal the non-disclosure decision should be granted because the Tribunal:

(1) made the non-disclosure decision "without notice";

(2) misapplied s 64(1) of the NCAT Act by making an "unjustifiable broad blanket prohibition on [the Transcript]" and failing to consider alternative orders, such as "redaction or in-camera review";

(3) misled her by saying that it had only two options: to admit the Transcript or make a blanket prohibition;

(4) failed, as required by s 4 of the NCAT Act, to have regard to the welfare and interests of the Daughter;

(5) denied her procedural fairness at the hearing on 5 September 2025 by providing "non-standard Cantonese interpretation" forcing her to "guess the intended meaning" of what the Tribunal said;

(6) denied her procedural fairness by conducting the hearing where the sound quality was poor.

1. The Daughter and the Aunt oppose the appellant being given leave to appeal the non-disclosure decision. The Aunt said it would be procedurally unfair for the Tribunal to consider the Transcript and not give her an opportunity to comment on its reliability or the allegedly adverse comments made by Witness A.

NCAT's power to make non-disclosure and non-publication orders

1. Section 64 of the NCAT Act gives NCAT power to make certain kinds of non-disclosure and non-publication orders:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders -

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

1. The objects of the NCAT Act include, at s 3(f), to ensure that the Tribunal is accountable and has processes that are open and transparent and, at s 3(g), to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.
2. In Houda v Seraphim, the Appeal Panel endorsed the view consistently taken by NCAT and one of its predecessors, the NSW Administrative Decisions Tribunal, that s 64 of the NCAT Act should be interpreted as being subject to the presumption in favour of open justice.

1. The appellant does not complain about the Tribunal's decision to exercise the discretion to prohibit the disclosure of the Transcript to the other parties. Her real complaint is that having made that order, the Tribunal went on to decide not to admit or to consider the Transcript in the substantive proceedings.
2. In the redacted version of Reasons 2, the Tribunal said:

"17 During the hearing I advised [the Mother] of my views as noted above. I advised that as a result I was not minded to make an order preventing disclosure to [the Aunt], whilst other parties and the panel as constituted to hear the matter were privy to the contents of the Document. Accordingly, I could either refuse the application, with the result that the Document and its contents would be disclosed to all parties, including [the Aunt], and to the panel hearing the matter, or I could order the Document not be disclosed to parties and also not be seen by the panel hearing the matter. [The Mother] submitted that the latter course should be followed [NOT FOR PUBLICATION]

18 I considered whether the relevance and probative value of the Document was such that it was in the best interests of [the Daughter] that it should be seen by the panel despite potential breach of procedural fairness to [the Aunt]. [NOT FOR PUBLICATION]

19 Having regard to the expressed confidential nature of the material [NOT FOR PUBLICATION] the potential breach of procedural fairness to [the Aunt] and the limited relevance and probative value of the Document, I made the non-disclosure order preventing disclosure of the Document, and its contents to all parties, and ordered that the Document not be considered as evidence before the Tribunal as constituted to hear the matter, To maintain the confidentiality of the Document and its contents, I also made non-disclosure orders about the order itself and the recording of the directions hearing."

1. Contention 1 - the non-disclosure decision was made without notice to the Mother - is not established. As the Mother acknowledges, at the hearing on 5 September 2025 to determine the Miscellaneous Application, after the Tribunal outlined the types of orders it could make in answer to that application she said she supported the non-disclosure order being made "to protect the privacy of [Witness A]". Her complaint is not that she was taken by surprise by the Tribunal's decision to make that order, rather that she was allegedly misled by the Tribunal into agreeing to that order being made.
2. Contentions 2 and 3 are based on the premise that the Tribunal misled the Mother. The Mother is correct that the Tribunal said that two types of orders could be made, "either [to] refuse the application, with the result that the [Transcript] and its contents would be disclosed to all parties, including [the Aunt], and to the panel hearing the matter, or I could order the [Transcript] not be disclosed to parties and also not be seen by the panel hearing the matter": Reasons 2 at [17]. However, she fails to mention, as is apparent from the opening sentence in [17] and the immediately preceding paragraph, that the Tribunal acknowledged that an alternative order under s 64 of the NCAT Act would be that the Transcript not be disclosed to the Aunt. The Tribunal said it decided not to exercise the discretion to make that order for several reasons, including that to do so would deny the Aunt procedural fairness by not giving her the opportunity to comment on the Transcript.
3. As to Contentions 5 and 6 that the Tribunal provided "non-standard Cantonese interpretation" and that the quality of the sound in the hearing was poor, the Mother has provided no evidence in support of either contention. As to the former we note that the Tribunal recorded that the Mother "participated in a hearing and was assisted by an interpreter in the Cantonese language". Reasons 2 at [14].
4. Finally, Contention 4, that the Tribunal failed to consider the interests of the Daughter, finds no support in Reasons 2. At [16(5)], the Tribunal said if the Transcript was the subject of a non-disclosure order and the Tribunal considered its contents "relevant to its decision, it would be unable to properly reflect its reasoning in its reasons for decision". The Tribunal said it was in the "best interests" of the Daughter that she be given a "proper explanation" if it decided to change the guardianship order. At [18], the Tribunal considered whether the relevance and probative value of the Transcript was such that it was in the best interests of the Daughter that it be admitted into the proceedings despite a "potential breach of procedural fairness to [the Aunt]". The Tribunal concluded it was likely to be of "little relevance" to the issues raised in the substantive proceedings.
5. The non-disclosure decision is not affected by sufficient doubt to warrant its reconsideration on appeal. No error is apparent in the manner in which the Tribunal exercised the discretion to make the non-disclosure decision and to not admit the Transcript. Like the representation decision, the issues raised in the proposed appeal do not involve an issue of principle, a question of public importance or a reasonably clear injustice.
6. Leave to appeal is refused.

(1) The Mother's request to withdraw the internal appeal under cl 12(3) of Sch 6 to Civil and Administrative Tribunal Act 2013 (NSW) for the purpose of enabling an appeal to the Supreme Court against the decisions made by NCAT on 19 August 2025 and 5 September 2025, is refused.

(2) Leave to appeal the decisions made by NCAT on 19 August 2025 and 5 September 2025, is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.