Yan Wu v Nursing and Midwifery Board of New South Wales

[2022] NSWCA 70

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Yan Wu v Nursing and Midwifery Board of New South Wales [2022] NSWCA 70

Hearing dates:

02 May 2022

Decision date:

02 May 2022

Before:

White JA

Decision:

Notice of motion dismissed with costs

Catchwords:

NOTICE OF MOTION – Application to remit to Common Law Division – Notice of motion dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), ss 25, 38, 48

Civil and Administrative Tribunal Act 2013 (NSW), cl 29 (1) and (7), Pt 6, Sch 5

Category:

Procedural rulings

Parties:

Yan Wu (Applicant)
Nursing and Midwifery Board of New South Wales (Respondent)

Representation:

Counsel:
Applicant self-represented
M Minucci (Respondent)

Solicitors:
Applicant self-represented
Minter Ellison (Respondent)

File Number(s):

2021/349873

Judgment – EX TEMPORE

1. HIS HONOUR: By notice of motion filed on 15 March 2022 the applicant, Ms Wu, seeks an order that the proceeding be moved to the Common Law Division of the Supreme Court.

2. The proceeding was commenced in the Court of Appeal by Ms Wu by notice of appeal filed on 9 December 2021. She purportedly appealed on a question of law from orders of the Civil and Administrative Tribunal of 18 November 2021.

3. On that day, the Tribunal sitting in its Occupational Division confirmed a decision of the Nursing and Midwifery Board of Australia refusing provisional registration of Ms Wu as a nurse. It dismissed Ms Wu's appeal from that decision with costs. The presiding member of the Tribunal was the Honourable J Boland, Deputy President, who has formerly held office as an acting judge of the District Court.

4. Pursuant to cl 29(1)(d), (2)(b) and (4)(b) of Pt 6 of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) the appeal lies to the Supreme Court as of right on a question of law or otherwise by leave. The Court of the Appeal is part of the Supreme Court (Supreme Court Act 1970 (NSW), s 38 and see also s 25). Section 48(2)(f) of the Supreme Court Act assigns to the Court of Appeal proceedings in the Court on an appeal from a "specified tribunal". A "specified tribunal" includes a tribunal that was constituted by one or more judges or members when exercising the functions to which the proceedings relate (s 48(1)(vii)). A "judge or member" includes a person who has been a judge of the District Court (s 48(1)(a)(iv) and (b)(ii)).

5. Accordingly, the notice of appeal was correctly filed in the Court of Appeal and not in the Common Law Division. This fact and the reasons for it were pointed out to Ms Wu by the registrar and by the respondent.

6. At the hearing today, Ms Wu relied upon cl 29(7) of Pt 6 of Sch 5 to the Civil and Administrative Tribunal Act. That provides that in a "non lawyer appeal", of which this is one, the Court may decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and may permit fresh evidence, or evidence in addition to or in substitution for the evidence received in the Tribunal at first instance to be given in the new hearing as it considers appropriate in the circumstances. That would be a decision for the Court hearing the appeal.

7. As I apprehend her submission, Ms Wu submits that it is appropriate that the matter be remitted to the Common Law Division because she will seek a new hearing in the appeal that she has filed, or the adducing of new or fresh evidence.

8. Insofar as her appeal is based upon a point of law, that would seem to be an entirely inappropriate procedure. Insofar as Ms Wu may seek leave to appeal on a matter other than a question of law, it suffices to say that no application for leave has been determined and the question of leave to appeal is not before me. There was no elaboration or explication of an argument that the matter should proceed by way of a new hearing on the basis of further evidence. I am not prepared to assume that that would be appropriate.

9. For these reasons I order that the notice of motion filed on 15 March 2022 be dismissed.

10. Ms Wu was invited by the respondent to withdraw her notice of motion before further costs were incurred. She did not do so. There is no reason she should not be ordered to pay the respondent's costs of the notice of motion. Accordingly, I order that the applicant's notice of motion filed on 15 March 2022 be dismissed with costs.

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