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[2026] NSWCA 145
respondent. Application for an extension of time refused; summons seeking leave to appeal dismissed; applicant to pay the respondent’s costs.
The Court of Appeal refused Mr Luo's late attempt to appeal the Supreme Court decision. The proposed grounds mostly disputed what the Tribunal had found about the evidence, rather than showing that the primary judge had made an arguable legal error. The Court found no issue of principle, public importance or sufficiently clear injustice to justify leave. With leave refused, extra time to appeal would serve no purpose. Mr Luo was ordered to pay the Commission's costs.
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2,055 words · generated 07/10/2026
The Court of Appeal dealt with Yun Sen Luo's application for an extension of time and leave to appeal a decision of a Supreme Court judge. The underlying proceedings concerned disciplinary complaints about Mr Luo's practice as a Chinese medicine practitioner and his treatment of Patient A in 2018. The Tribunal found that three of four complaints were established, including findings of unsatisfactory professional conduct and professional misconduct under ss 139B and 139E of the Health Practitioner Regulation National Law 2009 (NSW) [2]-[5], [10]-[12].
8 cited instruments linked from this judgment.
The Tribunal proceedings had two stages. The first stage dealt with the factual allegations and disciplinary findings. A possible second stage, concerning protective orders, remained on hold pending the appeal proceedings [6]. The Court noted that a two-stage process was a convenient way to separate findings about conduct from consideration of any appropriate penalty, while also stating that bifurcation was not required [6].
Mr Luo appealed the Tribunal decisions to the Supreme Court. On 29 September 2025, the primary judge dismissed his further amended summons with costs [1], [7], [54]. The appeal there was confined to questions of law. The primary judge considered numerous alleged errors, including complaints about the cause of Patient A's death, expert evidence, professional standards, the weight given to evidence, notification of a criminal charge and procedural fairness [16]-[53].
The Court of Appeal proceedings followed an earlier procedural misstep. Mr Luo filed a notice of appeal in December 2025 that did not seek leave and identified the wrong appeal provision. The respondent applied to have that proceeding struck out. Free JA dismissed it as incompetent on 26 March 2026, on the basis that leave was required [55]-[56]. Mr Luo then commenced new proceedings seeking leave to appeal [57]. The Court stated that the deadline to file the application for leave was 29 December 2025 and that the extension summons was filed on 31 March 2026 [58].
The Court of Appeal ultimately refused an extension, dismissed the leave summons and ordered Mr Luo to pay the respondent's costs [90]. It did not rehear the Tribunal's findings as if it were a further first-instance hearing. Its task was to consider whether the primary judge's decision disclosed a sufficient basis for a further appeal.
The Court began with the leave threshold. It recorded that leave to appeal was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW) [74]. It drew on the principles in Gaynor v Attorney General of New South Wales [2020] NSWCA 48 and stated that leave generally requires identification of an issue of principle, a question of public importance, or reasonably clear injustice going beyond something merely arguable [74]-[75]. It also referred to Jaycar, Be Financial, The Age Company, Secretary, PPK Willoughby and Cheng as authorities for that general approach [75].
The main difficulty was that the proposed grounds largely repeated the applicant's disagreements with the Tribunal. The Court stressed that the appeal before the primary judge had been confined to “any question of law”, and no leave had been granted to raise factual issues [76]. The Court therefore considered whether Mr Luo had shown that the primary judge made an arguable error, rather than deciding afresh whether the Tribunal was right on the evidence.
The Court dealt with the grounds thematically. The complaint about Patient A's cause of death was, in substance, a challenge to the Tribunal's factual findings and its treatment of the scope of the stage-one proceedings. The Court said the primary judge had comprehensively demonstrated that the cause of death was not a matter the Tribunal had to determine in that stage. It found no arguable error in the primary judge's treatment of that issue [77], [83].
The challenge to Dr Ee's report also failed. The Court noted that the report's admissibility had been addressed in the second Tribunal decision and that Mr Luo had not sought leave to appeal that interlocutory decision [78]. The ground therefore did not establish an error by the primary judge in the appeal that was before the Court.
Several other grounds concerned the Tribunal's assessment of professional standards, the evidence it accepted, and the weight it assigned to competing evidence. The Court treated those matters as factual or evaluative complaints. It found that the primary judge had carefully explained why the Tribunal's approach was open to it and identified no arguable error in that explanation [79]-[82].
The notification complaint concerned which body was the “National Board” for the purposes of the notification obligation. The primary judge had found that the Chinese Medicine Board was the relevant National Board, and the Court of Appeal said that finding was plainly correct. It also considered that the primary judge had found the issue immaterial in the circumstances [84].
Finally, the Court rejected the procedural fairness ground as entirely without foundation [85]. It said the applicant's reply submissions added no point of substance affecting the decision [86]. Taking the grounds together, the Court found no issue of principle, public importance or error beyond the merely arguable [87]. It followed that an extension of time would be futile once leave was refused [88].
This judgment did not purport to establish a new general test for leave to appeal. It applied the existing approach under s 101(2)(r) of the Supreme Court Act, relying on the earlier Court of Appeal authorities identified at [74]-[75]. The stated threshold was that leave generally requires an issue of principle, a question of public importance, or reasonably clear injustice going beyond something merely arguable [75].
The judgment also illustrates the distinction between a question of law and a disagreement about facts or the evaluation of evidence. The Court described the primary appeal as confined to questions of law and noted that no leave had been granted to raise factual matters [76]. On that footing, repeated disagreement with the Tribunal's factual conclusions did not, without more, demonstrate error by the primary judge [77]-[84].
The Court's treatment of the extension application was tied to the outcome of the leave application. It did not set out a broader test for extensions of time. Instead, it concluded that an extension was futile because leave was to be refused [88]. The decision therefore records how the two applications were dealt with in this procedural context, rather than developing an independent general rule about extensions.
On the material provided, the “before” position was the existing leave threshold stated in the cited cases. The “after” position was that the Court applied that threshold to these grounds and refused leave. The judgment does not state that the underlying law changed.
At [75], the Court said that leave generally requires an issue of principle, public importance, or “a reasonably clear injustice going beyond something that is merely arguable.” In plain English, the Court was looking for a substantial reason to permit another appeal, not simply a point that could be debated.
At [76], the Court observed that most of the complaints were about factual determinations and evaluative decisions by the Tribunal, not alleged errors by the primary judge. It also emphasised that the appeal before the primary judge was limited to questions of law. The practical point is that a proposed appeal must address the decision under appeal and the applicable scope of review. Repeating a disagreement with the original fact-finder does not, on its own, identify legal error in a later judgment.
At [78], the Court noted that the admissibility of Dr Ee's report had been dealt with in an interlocutory Tribunal decision and that leave to appeal that decision had not been sought. The passage illustrates the importance of identifying which decision is being challenged and whether the procedural route permits that challenge.
At [84], the Court addressed the complaint about the relevant National Board. It recorded that the primary judge had identified the Chinese Medicine Board as the relevant body and described that finding as plainly correct. The Court also said that the alleged error was not material. In plain language, even if an argument identifies a point of disagreement, it must also show why that point matters to the result.
At [88], the Court said that refusing leave made an extension of time futile. That explains the relationship between the two applications in this case: without permission to pursue the appeal, extra time to file it would not change the outcome.
At [89], the Court rejected the argument against costs, stating that the applicant had been unsuccessful and had shown no reason to depart from the usual order that costs follow the event. This was the basis for the costs order made at [90].
The decision is most directly relevant to an application for leave to appeal where the proposed grounds largely restate factual complaints made in a lower appeal, while failing to identify an arguable error in the judgment that is actually under challenge. The Court's analysis repeatedly distinguished the Tribunal's factual findings from the primary judge's legal decision [76]-[84].
It is also relevant where a party seeks to appeal an interlocutory decision without having sought the required leave. The Court noted that the expert-evidence issue had been decided in a separate Tribunal decision and that no leave application had been made in relation to it [78]. The case therefore highlights the need to keep distinct the decisions, grounds and procedural routes involved. It does not decide the substantive merits of every possible challenge to expert evidence.
The case also speaks to applications that combine an extension of time with a request for leave. Here, the extension was refused because the Court first concluded that leave should be refused, making an extension futile [87]-[88]. The judgment does not decide how a different extension application should be treated where leave is otherwise available.
Finally, the decision addresses costs after an unsuccessful leave application. The applicant gave reasons for opposing costs, but the Court found no basis to depart from the usual order [66], [89]. The case does not suggest that costs must invariably follow the event in every leave application; its stated conclusion was that no reason to depart had been shown in this one.
The supplied judgment is dated 27 July 2026 and contains no citations to later decisions applying or interpreting this judgment. Accordingly, later judicial treatment cannot be determined from the supplied text.
The judgment itself identifies earlier authorities it relied on or cited. It applies the principles set out in Gaynor and cites Jaycar, Be Financial, The Age Company, Secretary, PPK Willoughby and Cheng in stating the general leave threshold [74]-[75]. It also cites Health Care Complaints Commission v Robinson in explaining the practical use of a two-stage disciplinary process [6]. Those are relationships to earlier authorities, not evidence of how later courts have treated Luo.
The judgment does not decide whether a different set of grounds, framed with greater precision and directed to an identified legal error by the primary judge, would satisfy the leave threshold. Its conclusion is about the grounds and submissions before it [61], [76]-[88].
It also does not determine the merits of the unresolved second stage of the Tribunal proceedings concerning possible protective orders [6]. Nor does it decide the ultimate consequences of the disciplinary findings beyond the procedural history described in the judgment.
The Court's treatment of cause of death was tied to the stage-one complaint and the way the case had been conducted. It held that the cause of death did not form part of the respondent's case in that stage and found no arguable error in the primary judge's handling of the issue [77], [83]. The judgment does not purport to determine how causation would be treated in a different complaint or proceeding.
Similarly, the Court's conclusion about the National Board addressed the notification ground before it. It stated that the Chinese Medicine Board was the relevant body and that the primary judge's finding was plainly correct [84]. The judgment does not analyse every possible application of the notification obligation.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Luo v Health Care Complaints Commission [2026] NSWCA 145
Hearing dates: 23 July 2026
Date of orders: 27 July 2026
Decision date: 27 July 2026
Before: Ward P; Payne JA
Decision: (1) Application for an extension of time refused.
(2) Summons seeking leave to appeal dismissed.
(3) Applicant to pay the respondent’s costs.
Catchwords: APPEALS — Leave to appeal — application for leave to appeal — no error of law identified — no issue of principle or question of public importance identified
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 63, Sch 5 cl 29(6)
Crimes Act 1900 (NSW), s 18(1)(b)
Health Practitioner Regulation National Law 2009 (NSW), ss 130, 139B, 139E
Health Care Complaints Act 1993 (NSW), s 30
Supreme Court Act 1970 (NSW), s 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 50.3(1)(c), 51.9
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Gaynor v Attorney General of New South Wales [2020] NSWCA 48
Health Care Complaints Commission v Luo (No 2) [2025] NSWCATOD 7
Health Care Complaints Commission v Luo (No 3) [2025] NSWCATOD 45
Health Care Complaints Commission v Luo [2025] NSWCATOD 5
Health Care Complaints Commission v Robinson [2022] NSWCA 164
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Luo v Health Care Complaints Commission [2025] NSWSC 1121
Luo v Health Care Complaints Commission [2026] NSWCA 42
Luo v R [2024] NSWCCA 58
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Texts Cited: Chinese Medicine Board of Australia, Code of Conduct, March 2014
Category: Principal judgment
Parties: Yun Sen Luo (Applicant)
Health Care Complaints Commission (Respondent)
Representation: Counsel:
Y S Luo (Self-represented) (Applicant)
P Lowson (Respondent)
Solicitors:
Health Care Complaints Commission (Respondent)
File Number(s): 2026/00130371
Publication restriction: None.
THE COURT: The applicant, Mr Yun Sen Luo, seeks leave to appeal against a decision of Griffiths AJA (the “primary judge”) delivered on 29 September 2025: Luo v Health Care Complaints Commission [2025] NSWSC 1121. The applicant also seeks an extension of time in which to bring his appeal.
The primary judge dismissed an appeal from a decision of the NSW Civil and Administrative Tribunal (“Tribunal”) which had upheld three of four complaints referred to it by the Health Care Complaints Commission, the respondent to this application. The Tribunal found the applicant guilty of unsatisfactory professional conduct and professional misconduct under ss 139B and 139E of the Health Practitioner Regulation National Law 2009 (NSW) (“National Law”) respectively.
The applicant is a Chinese medicine practitioner. His registration is currently suspended. On 14 November 2023, the Health Care Complaints Commission filed an application for disciplinary findings and orders against the applicant in the Tribunal. The complaints related to the applicant’s practice as a registered Chinese medicine practitioner and the death of one of his patients in 2018.
The Tribunal conducted a hearing into factual allegations against the applicant from 13 to 17 and 20 to 22 May 2024 (the “Stage 1 hearing”). On 30 January 2025, the Tribunal delivered its decision in which it found the applicant had engaged in professional misconduct under s 139E of the National Law: Health Care Complaints Commission v Luo [2025] NSWCATOD 5 (“first Tribunal decision”).
The Tribunal delivered two further decisions: one interlocutory decision of 30 January 2025 dismissing the applicant’s application for summary dismissal of the amended complaint and dismissing the applicant’s application for exclusion of the evidence of the respondent’s expert witness, Dr Ee: Health Care Complaints Commission v Luo (No 2) [2025] NSWCATOD 7 (“second Tribunal decision”), and another making amendments to the first decision pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”): Health Care Complaints Commission v Luo (No 3) [2025] NSWCATOD 45 (“third Tribunal decision”).
To date, the Tribunal has dealt only with “stage one” of the proceedings. Further proceedings in the Tribunal are currently on hold pending the outcome of the proceedings in this Court. The second stage of the Tribunal proceedings that are pending relates to a determination whether protective orders, if any, are appropriate. While there is no requirement for a bifurcated two-stage process, two stages is a convenient way to deal with (a) determination of factual allegations relevant to a finding about whether the practitioner has engaged in unsatisfactory or professional misconduct, and (b) determination of the appropriate penalty: Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [54]-[56], per Simpson AJA (Leeming and Kirk JJA agreeing).
Following the initial Tribunal decisions, the applicant filed an appeal against all three of the decisions but declined to seek leave in respect of the latter two decisions that were interlocutory in nature (and therefore required leave). The appeal was heard on 19 and 20 August 2025 and judgment was delivered on 29 September 2025. The primary judge dismissed the applicant’s further amended summons with costs.
“[6] Between 26 May 2018 and 8 June 2018, Mr Luo treated an elderly woman referred to in HCCC v Luo (No 1) and herein as ‘Patient A’. Although Patient A suffered from Type 2 diabetes, Mr Luo was asked to treat her for a long-term skin condition. The Tribunal found that he directed that she cease taking the Western medications prescribed to her by doctors treating her for high blood sugar and commence using herbal preparations prescribed by him. Mr Luo treated Patient A at his clinic in Burwood and later, when her health deteriorated, conducted home visits at the request of her daughter, who is referred to in HCCC v Luo (No 1) and herein as ‘Person B’. There were also ‘WeChat’ exchanges between Mr Luo and Person B.
[7] On 8 June 2018, Patient A was admitted to Hornsby Hospital where she was shortly thereafter pronounced dead. As the Tribunal noted in HCCC v Luo (No 1) at [96], the cause of death was given in Hornsby Hospital Assessment Documents as ‘Likely cardiac arrest from hyperkalemia in context of non-managed Type 2 managed Type 2 diabetes [sic]’. In a footnote to this paragraph, the Tribunal emphasised that it was not making a finding as to the cause of Patient A’s death but was simply recording what the Assessment Documents stated. As will be developed, the issue of the cause of Patient A’s death figured prominently and repeatedly in Mr Luo’s case and in a somewhat confused and contradictory manner. The HCCC’s position simply is that the cause of death was irrelevant to ‘stage one’ of the proceedings having regard to the terms of the amended complaint and the way in which the case was conducted below.
[8] Mr Luo was indicted on a single count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
[9] On 25 March 2022, Judge Pickering SC (sitting in a judge-alone trial) found Mr Luo not guilty, concluding that, while Mr Luo’s treatment of Patient A was ‘utterly incompetent’, he could not be satisfied to the requisite standard that it was criminal in nature. Mr Luo subsequently made an oral application to recover costs, which was heard on 4 November 2022. The application was declined.
[10] On 3 May 2023, the Court of [Criminal] Appeal granted limited leave to Mr Luo to pursue an appeal against the rejection of his application for costs (see Luo v R [2024] NSWCCA 58). This was on the basis that he was ‘disadvantaged by his poor English language skills and unrepresented, both in this Court and below on the costs application’ (at [28]). The appeal was dismissed.”
Complaint one alleged that the applicant engaged in unsatisfactory professional conduct under ss 139B(1)(a) or (l) of the National Law by engaging in conduct that: (a) demonstrated the judgment he possessed or care he exercised fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (b) was improper or unethical. This complaint was based on 14 particulars between 26 May 2018 and 8 June 2018 relating to the applicant’s treatment of Patient A. The primary judge noted that the Tribunal broadly accepted the expert opinion of Dr Ee in establishing most of the particulars and considered that Particulars 6 to 13, individually, constituted unsatisfactory professional conduct under s 139B(1)(a).
Complaint three alleged that the applicant engaged in unsatisfactory professional conduct by engaging in conduct which contravened s 130(1) of the National Law. The primary judge noted that this provision was relevant as s 139B(1)(b) of the National Law provides that unsatisfactory professional conduct includes a contravention of the National Law or associated regulations, whether or not the practitioner had been prosecuted for, or convicted of, an offence in respect of the contravention. This was supported by a single particular, being that Mr Luo contravened s 130 by failing to notify the National Board within seven days that, on 16 August 2018, he was charged with manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW). The Tribunal found that the practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(b)
Complaint four alleged that the applicant was guilty of professional misconduct under s 139E of the National Law by engaging in: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or (b) more than one instance of unsatisfactory professional conduct that, considered together, amounted to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration. The primary judge set out the evidence, submissions, and aspects of the Tribunal’s reasoning in respect of this complaint. The primary judge noted that the Tribunal, having found that the relevant particulars in relation to complaint one had been made out, also upheld complaint four.
The primary judge noted that the Tribunal had listed the matter for directions regarding a proposed “stage two” hearing, and that costs had been reserved.
The primary judge summarised at length two reports made by Dr Ee, who was a registered Chinese medicine practitioner retained as an expert witness by the respondent and who provided two reports and gave oral evidence. The applicant sought to challenge many aspects of Dr Ee’s evidence. Dr Ee’s evidence was about:
the manner in which Chinese medicine is competently and appropriately practised in conjunction with Western medicine in Australia and her opinion on the standard reasonably expected of a practitioner of an equivalent level of training or experience to the applicant; and
her opinion in relation to the applicant’s care and treatment of Patient A.
The primary judge set out Dr Ee’s findings in detail, including her opinion that the applicant’s practice fell significantly below the standard expected in respect of numerous matters.
“[2] … His allegations include that the Tribunal exceeded its jurisdiction, made findings of fact for which there was no evidence, failed properly to consider his submissions and failed to afford him procedural fairness. Many of these alleged errors of law reveal no real question of law and are better described as alleged errors of fact. As will be developed below, this has important implications for Mr Luo’s rights of appeal.”
“[69] During the present proceeding, the Court drew Mr Luo’s attention to the seriousness of these allegations relating to the tampering with and falsifying of evidence and perverting the course of justice. When he was asked to identify who he accused of such serious conduct, he identified a particular person. I will not name that person in these reasons for judgment, not merely because the person has not been given an opportunity to be heard, but primarily because the allegations are entirely baseless and ought never to have been made. The fact that Mr Luo is a self-represented litigant does not excuse him from abusing Court processes by repeatedly making these entirely unfounded allegations, which can properly be described as scandalous and vexatious. The redactions to the HCCC’s evidence were entirely proper and logical once it was clearly confirmed by the HCCC and accepted by the Tribunal that causation formed no part of the case against Mr Luo.”
*“*Error 1 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one and Complaint one by accepting and concluding the cause and manner of death was unascertained cause of death.
…
Error 3 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the complaint one and particulars of Complaint one that related to and or involved the causation issues while the Tribunal NCAT is not the role to conclude the cause of death and causation issues and the case was not base on causation and there is no evidences to support and or prove such causation issues and the Code of Conduct of CMBA.
Error 4 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by saying that the natural cause was not relevant to this case and then rejecting the evidences that were relevant to causation issues and opinions of expert and Complaint One and particulars of Complaint one while they all related to and or involved the causation issues.”
The primary judge noted that the applicant’s “essential complaint” in relation to these errors seemed to be that the Tribunal had “wrongly proceeded on the basis that Patient A’s cause of death was ‘unascertained’ and that it determined that various particulars were proved despite the fact that they raised ‘causation issues’”. His Honour noted that it was not clear in what sense these complaints raised a question of law. However, “[c]onstrued generously”, his Honour considered it could be accepted that the applicant alleged the Tribunal had regard to a prohibited consideration, determined questions beyond its statutory jurisdiction, or reasoned in a legally illogical manner. Nonetheless, the primary judge did not accept that any error of law had been demonstrated.
His Honour considered it was clear that the Tribunal had accepted the respondent’s submission that “[c]ause of death not being required to be established in these Stage One proceedings, the practical reality is that it could be treated as ‘unascertained’”. The primary judge held that, when read fairly, this simply amounted to an acceptance of the proposition that the cause of death was not an issue it had to determine. Further, the Tribunal explicitly accepted that cause of death was not an issue for it to determine and did not subsequently refer to or place any emphasis on the cause of death being “unascertained”.
The primary judge did not accept that the Tribunal determined “causation issues”. None of the particulars to complaint one concerned the cause of Patient A’s death; a fact which was explicitly recognised by the Tribunal.
The primary judge noted that the Tribunal did not refer to the cause of Patient A’s death in finding any of the particulars to be provided. Dr Ee was not briefed to provide an opinion on the cause of Patient A’s death and her evidence made clear that she did not purport to give an opinion on that topic. His Honour rejected the applicant’s claim that an earlier, separate report Dr Ee had given to the DPP had affected her opinion evidence in the present case.
The primary judge noted that the applicant’s case faced the “fundamental problem” of the applicant’s acquiescence; in particular, in agreeing not to press his medical evidence concerning cause of death when the respondent indicated to the Tribunal that it would not rely on its medical evidence relating to that issue. His Honour identified twelve aspects of the history of the proceedings in support of his finding about the applicant’s acquiescence.
The primary judge noted that although the applicant acknowledged that he no longer relied upon his medical evidence regarding cause of death after the respondent confirmed this was not an issue, he then appeared to complain on appeal that the Tribunal erred in its ruling on causation and that cause of death was, in fact, a relevant matter for the Tribunal to determine. His Honour noted that once both parties withdrew their expert evidence on the issue of causation, it was “difficult to see how the Tribunal could have proceeded to make meaningful findings on that issue, even if it had wished to do so.”
“[126] In the light of the conduct of the proceedings below and Mr Luo’s acquiescence in the position stated by both the HCCC and the Tribunal, there are formidable hurdles in the path of Mr Luo’s evident change of position. Furthermore, for reasons which I will further develop, the change of position takes him nowhere because there is simply no substance at all in his claim that different standards apply where a death is determined to be by natural causes…”
“Error 2 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by concluding and accepting the expert witness and expert opinions that were tempered tampered and became fault false statements and the expert witness became unsuitable expert and the evidences of expert opinions became inadmissible in illegal proceedings, as the expert witness was instructed to give opinions base on evidences of opinions of causations and HCCC told the Tribunal that the case of HCCC was not base on causation and removed the evidences of opinions of causation and the Tribunal is not the role to conclude the cause of death and causation issues.”
The primary judge noted that this alleged error repeated the applicant’s complaints concerning the issue of cause of death. His Honour accepted the respondent’s submission that the decision to admit Dr Ee’s evidence was an interlocutory decision for the purposes of cl 29(6) of Sch 5 of the CAT Act (that is, the second Tribunal decision), such that leave was required to appeal in relation to this issue, which the applicant had never sought. The primary judge noted that, in reply, the applicant had subsequently characterised the error as “tampering evidences and misleading as Pervert the course of Justice and Coroners Act and Coroner Inquest”. His Honour considered these comments to be “serious allegations” which were “entirely baseless and should never have been made”.
The primary judge considered, even putting those issues aside, that no error had been demonstrated. The Tribunal had given a “full and convincing explanation” for its rejection of the applicant’s objections to Dr Ee’s evidence. Further, his Honour noted that Dr Ee had plainly not been instructed to give an expert opinion on the cause of death.
“Error 5 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint One by having no evidences of particular Standards expected for particular situations of particulars of Complaint One for assessing which was required in order to conclude the particulars were established.
…
Error 7 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one and Complaint One by having no assessment of the Standards expected which is required in order to constitute unsatisfactory professional conduct.”
The primary judge noted that it was not clear whether these errors raised a question of law. His Honour was willing to accept, for present purposes, that questions of law were raised. His Honour did not accept, however, that there was no evidence to support the Tribunal’s finding that the applicant’s conduct was “significantly below the applicable standard”. The Tribunal referred to relevant evidence concerning each particular. It was also entitled to take into account and rely upon the specialist medical knowledge and experience of two of the members who constituted the Tribunal, as well as the Tribunal’s own assessment of whether the applicant’s conduct was below the relevant standard.
The primary judge also held that the applicant’s submission that only the Chinese Medicine Board of Australia (“Chinese Medicine Board”) was entitled to give evidence of the applicable standards found no support in the National Law and flew in the face of the express terms of s 30(1) and (4) of the Health Care Complaints Act 1993 (NSW). Nor did the primary judge find any merit in the applicant’s claim that Dr Ee’s evidence had addressed the incorrect version of the Code of Conduct of the Chinese Medicine Board. It was clear from her two expert reports that her opinions were based on the correct version.
His Honour rejected the applicant’s “ambiguous submission” that the Tribunal ignored evidence; which could be construed as a submission that the Tribunal acted unreasonably or illogically given the evidence before it. However, the primary judge did not accept that the Tribunal’s findings were unreasonable given the evidence before it. The Tribunal was well entitled to prefer the evidence of Dr Ee.
The primary judge rejected the potential reading of the applicant’s complaint as being that the Tribunal overlooked allegedly inconsistent evidence given by Dr Ee on the issue of a practitioner giving warnings about dangers. His Honour set out the sequence of relevant events at hearing, including cross-examination of Dr Ee by the applicant, and held that there was no inconsistency in Dr Ee’s evidence on the matter.
“Error 6 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars(2)(b) and other particulars of complaint One by ignoring and or not mentioning the evidences that supported and proved Person B was not present during the first consulting, and the evidences of Letter to the Chinese Medicine Council NSW February 2000 2020, and the evidences of medical records 2016 and China medical records, and other evidences, while they would support and prove that the particulars(2)(b) and other particulars of complaint One could not be established.”
The applicant alleged that the Tribunal ignored certain evidence, including evidence from Person B (the daughter of Person A, the deceased) which established she was not in attendance when her mother first consulted the applicant; and a letter from the applicant’s then solicitor to the Chinese Medicine Council of NSW regarding the proper interpretation of the applicant’s email to the Council of 18 June 2018.
The primary judge considered that, even if the Tribunal had erred in finding that Person B was present at the meeting in question, that disclosed no question of law.
The primary judge noted that the applicant’s complaint that the Tribunal had not referred to his solicitor’s letter was without foundation, as that correspondence was expressly referred to in the first Tribunal decision. His Honour considered that, in any event, this complaint did not raise a question of law. His Honour set out several difficulties with that aspect of the applicant’s case, including that it was hard to see the relevance of that letter, that there was “ample other evidence” before the Tribunal to support its finding that the applicant advised Patient A to stop taking Western medications, and that the applicant had made an admission in the s 150 proceeding relating to the impugned email. His Honour found that the weight to be given to the email was a question of fact, and one for the Tribunal.
“Error 8 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one by rejecting the evidences that were provided by HCCC and or police and or the Crown and or Trial and or NCAT hearing, while they supported and proved that the particulars (9)(10)(11)(12(13) of Complaint One could not be established.”
His Honour was prepared to accept that, insofar as the applicant’s complaint was that there was no evidence before the Tribunal as to the professional standard expected of him regarding the issues raised by Particulars 9 to 13 of complaint one (first complaint), this complaint raised a question of law.
His Honour was also willing to accept that the complaint that the Tribunal improperly rejected the applicant’s submissions in relation to Particulars 9 to 13 (second complaint) raised a question of law, “to the extent that it can be characterised as a complaint that the Tribunal failed to respond to a substantial and clearly articulated argument on an issue of significance, such that there was a constructive failure to exercise jurisdiction and/or a denial of procedural fairness (see generally Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088).”
His Honour rejected the applicant’s submission that the Tribunal required evidence of the standard expected of practitioners in his position in relation to each individual professional issue raised across Particulars 9 to 13. His Honour considered the Tribunal was entitled to rely on the evidence of Dr Ee as well as, in determining the appropriate standard, the matters set out at [32] above.
His Honour also rejected the submission that the applicant had raised with the Tribunal a substantial and clearly articulated argument on an issue of significance with which the Tribunal had not dealt (those arguments referred to by the applicant in his further amended summons regarding Particulars 9 to 13). The primary judge found that the applicant’s submissions to the Tribunal were “generally difficult to follow and obscure, as well as being highly repetitive and at times internally inconsistent. Moreover, some were of uncertain relevance to the questions before the Tribunal.” The particular submission which the applicant claimed the Tribunal had overlooked was in fact considered and described by the Tribunal as “irrelevant and unhelpful”.
“Error 9 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one by interpreting the terms and or the laws in error way by treating what Patient A said to her family as what Respondent said to Patient A, and by interpreting the terms of ‘failed consider’ as ‘failed to adjust it accordingly’, and the terms of ‘colleague’ as ‘medical colleague’, ‘advice’ as ‘medical advice’,’ when appropriate’ as ‘during treatment’, and or used other evidences in error way, in order to support and or prove the particulars.”
“Error 10 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the particulars of complaint one by shifting all liability from other persons and or natural causes to plaintiff.”
“Error 11 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the Complaint Three by having no evidences to support and or prove that HCCC was not notified about the Criminal Charge of manslaughter by Respondent within 7 days from the date of Criminal Charge.
Error 12 in law. The Tribunal NCAT acted without jurisdiction, or otherwise erred in law by determining the Complaint Three by wrongly interpreting laws in term of notify. The meaning of notify in term is that let someone know about something, and HCCC had given a notice of letter to Respondent saying that HCCC was knowing and or was notified about the Criminal Charge of manslaughter on 22 August 2018, also Respondent had confirmed that HCCC was notified about the Criminal Charge of manslaughter by any one in any way on behalf of Respondent by received this Notice of letter from HCCC”
The primary judge held that each of alleged Errors 11 and 12 raised questions of law, and leave was accordingly not required. His Honour considered that “at the heart” of each of these alleged errors was a need to identify which entity was the “National Board” for the purposes of notification as required by s 130 of the National Law. The respondent’s position was that the Australian Health Practitioner Regulation Authority (“AHPRA”) was the relevant entity, while the applicant submitted that the Chinese Medicine Board was the relevant entity but that, because the respondent acted as an agent on behalf of the Chinese Medicine Board, it was sufficient that the respondent itself was aware that the applicant had been charged with manslaughter.
His Honour considered that, in that particular case, the relevant National Board was the Chinese Medicine Board alone. However, that error was not material. His Honour “[saw] no utility” in remitting complaint three to the Tribunal, as there was no evidence that the applicant had notified the Chinese Medicine Board of the criminal charge notwithstanding that he had had “ample opportunity” to adduce that evidence in the Supreme Court proceeding and to suggest that such evidence was available.
“Error 13 in law. Further, it was a breach of procedural fairness and or judgement fairness, as the Tribunal was to make a finding of unsatisfactory professional conduct and or professional misconduct by determining the complaints by acted without jurisdiction, or otherwise erred in law in many different ways to constitute unsatisfactory professional conduct and or professional misconduct.”
On 17 October 2025, the applicant served a notice of intention to appeal on the respondent. A notice of appeal filed on 17 December 2025 purported to appeal the judgment of the primary judge to the Court of Appeal but identified the incorrect appeal provision and did not seek leave to appeal.
On 24 February 2026, the respondent filed a motion to strike out the putative appeal on the basis that it was incompetent given leave was required pursuant to s 101 of the Supreme Court Act 1970 (NSW). That motion was heard by Free JA. On 26 March 2026, his Honour dismissed the appeal as incompetent and ordered the applicant to pay the respondent’s costs.
The applicant then filed entirely new proceedings, this time seeking leave to appeal from the judgment of the primary judge.
The applicant requires leave to appeal: s 101(2)(r) of the Supreme Court Act. The present application for leave to appeal to this Court is confined to the decision of the Supreme Court and does not extend to the decision(s) of the Tribunal for the reasons explained below. To the extent this appeal intends to challenge the findings or decisions of the Tribunal, those challenges are inapposite.
The draft notice of appeal filed on 31 March 2026 contains 45 paragraphs of “appeal grounds”. Paragraphs 1 to 14 repeat errors the applicant alleges were made by the Tribunal.
The applicant does identify 9 putative “errors” in the judgment of the primary judge in the draft notice of appeal, but fails to identify with the necessary precision the form or nature of the errors asserted. The appeal grounds include a further four errors of law, but those are not addressed in the applicant’s summary of argument.
The orders sought by the applicant were, as set out in the draft notice of appeal:
“1 Time for filing an appeal be extended. And an order extending the time in which the appeal is to be filed to 29 December 2025, pursuant to r 50.3(1)(c) of the Uniform Civil Procedure Rules 2005.
2 An order staying the orders of the Supreme Court of New South Wales in the matter of relation to the whole decisions below in relation to [2025] NSWSC 1121 made on 29 September 2025, until the determination by this Honourable Court of the appeal of the decision.
3 An order staying the orders of the NSW Civil and Administrative Tribunal in the matter of relation to 1, 2, 3, 6, 7, 8, 9, 10 of [2025] NSWCATOD 5 made on 30 January 2025, and 1, 2, 3, 6, 7, 8, 9, 10 of Amended Order of [2025] NSWCATOD 5 made on 20 February 2025, and [2025] NSWCATOD 7 made on 30 January 2025, and [2025] NSWCATOD 45 made on 23 April 2025, until the determination by this Honourable Court of the appeal of the decision.
4 Appeal allowed.
5 The orders in relation to [2025] NSWSC 1121 of the court below as Supreme court of NSW be set aside.
6 The findings and orders in relation to 1, 2, 3, 6, 7, 8, 9, 10 of [2025] NSWCATOD 5, and 1, 2, 3, 6, 7, 8, 9, 10 of Amended Order of [2025] NSWCATOD 5, and [2025] NSWCATOD 7, and [2025] NSWCATOD 45 of the court below as Tribunal be set aside.
7 The Appellant seeks a new hearing to be held with new evidences of Chinese herbal medicine professional expert opinions report under the case with natural cause of death and Common Law of duty of care as the Standards of care and Standards expected, and or the parts of the case with the Grounds of Appeal to be reconsidered by the Tribunal at first instance, either with or without further evidence under the case with natural cause of death, in accordance with the directions of the court, for the non-lawyer Appeal, according to law of clause 29(7)(8) of Part 6 of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) (‘the CAT Act’). Or
8 The Appellant seeks the decisions of 1, 2, 3, 6, 7, 8, 9, 10 of [2025] NSWCATOD 5, and 1, 2, 3, 6, 7, 8, 9, 10 of Amended Order of [2025] NSWCATOD 5:
1 The respondent’s application that the proceedings be dismissed is allowed.
2 The Particulars of Complaint One are not established.
3 Complaint One is not established.
6 The Particular of Complaint Three is not established.
7 Complaint Three is not established.
8 Complaint Four is not established.
9 HCCC seeking cost is dismissed.
10 The matter is finished and there is no Stage Two hearing.
In place of the decisions of 1, 2, 3, 6, 7, 8, 9, 10 of [2025] NSWCATOD 5, and 1, 2, 3, 6, 7, 8, 9, 10 of Amended Order of [2025] NSWCATOD 5 of the court below:
1 The respondent’s application that the proceedings be dismissed is dismissed.
2 Particulars (1)(a) and (b), (2), (5), (6)(a) and (c), (7)(a) and (c), (9)(a), (c) and (d), (10)(a) and (d), (11)(a), (b) and (d), (12)(a), (c) and (d), (13)(a), (c), (d) and (e) and (14) (d) and (e) of Complaint One are established.
3 Complaint One is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW).
6 The Particular of Complaint Three is established.
7 Complaint Three is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW).
8 Complaint Four is established, in that the respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).
9 Costs are reserved.
10 The matter is to be listed for directions for a Stage Two hearing.
9 The Appellant seeks the decisions of [2025] NSWCATOD 7:
1 The respondent’s application for summary dismissal is allowed.
2 The respondent’s challenge to the expertise of the applicant’s expert witness Dr Carolyn Ee is allowed, and Dr Ee’s three reports relied on by the applicant become false statements and are inadmissible as HCCC altered the conditions of seeking expert reports from base on causations with evidences of experts opinions of causations to not base on causations and removed the evidences of experts opinions of causations.
3 HCCC seeking cost is dismissed.
In place of the decisions of [2025] NSWCATOD 7:
1 The respondent’s application for summary dismissal is dismissed.
2 The respondent’s challenge to the expertise of the applicant’s expert witness Dr Carolyn Ee is dismissed, and Dr Ee’s three reports relied on by the applicant may be tendered subject to objections by the respondent as to their content and relevance.
3 Costs are reserved.
10 The Appellant seeks the decisions of [2025] NSWCATOD 45:
1 A hearing is dispensed with.
2 As to Particular 11: Particular 11 is not established.
3 As to Particular 12: Particular 12 is not established.
In place of the decisions of [2025] NSWCATOD 45:
1 A hearing is dispensed with.
2 As to Particular 11:
(a) in the coversheet order (2) is amended so that the words “(11)(a), (b) and (d)” are amended so as to read “(11)(a), (c), (d) and (e)”;
(b) in [289], the words “(11)(a), (b) and (d)” are amended so as to read “(11)(a), (c), (d) and (e)”;
(c) in [292], the words “(11)(a), (b) and (d)” are amended so as to read “(11)(a), (c), (d) and (e)”;
(d) in [313], the words “(11)(a), (b) and (d)” are amended so as to read “(11)(a), (c), (d) and (e)”;
(e) in order (2) of the orders set out in [322], the words “(11)(a), (b) and (d)” are amended so as to read “(11)(a), (c), (d) and (e)”;
3 As to Particular 12:
(a) in the coversheet order (2) is amended so that the words “(12)(a), (c) and (d)” are amended so as to read “(12)(a), (c), (d) and (e)”;
(b) in the first sentence of par [257], the words “we find Particulars (12)(a), (c) and (d) established” are amended so as to read “we find Particulars (12)(a), (c), (d) and (e) established”;
(c) in the second sentence of [257], the words “We do not find Particular 12(c) established” should be amended so as to read “We do not find Particular 12(b) established”;
(d) in [289], the words “(12)(a), (c) and (d)” are amended so as to read “(12)(a), (c), (d) and (e)”;
(e) in [292], the words “(12)(a), (c) and (d)” are amended so as to read “(12)(a), (c), (d) and (e)”;
(f) in [313], the words “(12)(a), (c) and (d)” are amended so as to read “(12)(a), (c), (d) and (e)”;
11 Theo role of respondent HCCC pays the appellant’s costs.
12 An order to remove the suspension on the registration of Appellant.”
“Supreme court Error 1 in law**.** His Honour Justice acted without jurisdiction, or otherwise erred in law by dismissing the Appeal of Tribunal Error 1, 3, 4 in law of determining the particulars of complaint one and Complaint one by accepting and concluding the cause and manner of death was unascertained cause of death by accepting the illegal Submissions of HCCC of illegally rejecting and objecting the cause of death was natural causes and illegally saying that the cause of death was ‘unascertained’ and or non-natural and or not determined and Cause of Death formed no part of case of HCCC while the cause of death being ‘unascertained’ and or non-natural and or not determined formed the part and foundation of factual case of HCCC and the complaint one with unsatisfactory professional conduct and Complaint Four with professional misconduct of the case HCCC can not be established base on the natural cause of death.
Supreme court Error 2 in law**.** His Honour Justice acted without jurisdiction, or otherwise erred in law by dismissing the Appeal of Tribunal Error 2 in law by accepting and concluding the inadmissible evidences of expert witness Dr Ee report dated 30 April 2023 which is tampered and falsified by HCCC by changing the conditions of Dr Ee report1 dated 30 April 2023 from causation of to practice of Chinese Medicine as alternative medicine is dangerous does form the part and foundation of report to causations does not form the part of report.
Supreme court Error 3 in law**.** His Honour Justice acted without jurisdiction, or otherwise erred in law by dismissing the Appeal of Tribunal Error 5, 7 in law by accepting and concluding such illegal non-existent evidences of Standards expected of specialist of Members of Tribunal without stating and showing and reference and cross examination and no need to state why it thought it appropriate to depart from the evidence of Health Professional Standards that support the practice of Chinese herbal medicine of Appellant was within Standards expected if it decided to do so.
Supreme court Error 4 in law and or in fact**.** His Honour Justice acted without jurisdiction, or otherwise erred in law and or in fact by dismissing the Appeal of Tribunal Error 6 in law by wrongly applying the rule of the Tribunal is entitled to give different weight to the different evidences while the Tribunal is not entitled to make false decisions by not mentioning the crucial evidences provided by HCCC that support the particulars not established and there is no evidence to support particular (2) established.
Supreme court Error 5 in law**.** His Honour Justice acted without jurisdiction, or otherwise erred in law by dismissing the Appeal of Tribunal Error 8 in law by accepting the Tribunal rejecting crucial evidences that were provided by HCCC and or police and or the Crown and or Trial and or NCAT hearing while they clearly supported and proved that the particulars (9)(10)(11)(12(13) of Complaint One could not be established as tampering the evidences of the case of HCCC as whole and by saying the evidences of Standards expected are not required for Standards expected assessing for the particulars of Complaint One and by not allowing the Appellant to cross exam such evidences of Standards expected that are required for Standards expected assessing.
Supreme court Error 6 in law**.** His Honour Justice acted without jurisdiction, or otherwise erred in law by dismissing the Appeal of Tribunal Error 9 in law by accepting the Tribunal illegally interpreting the terms and or the laws in error way by treating what Patient A said to her family as what Respondent said to Patient A, and by interpreting the terms of ‘failed consider’ as ‘failed to adjust it accordingly’, and the terms of ‘colleague’ as ‘medical colleague’, ‘advice’ as ‘medical advice’, when appropriate’ as ‘during treatment’, and or used other evidences in error way, in order to support and or prove the particulars.
Supreme court Error 7 in law**.** His Honour Justice acted without jurisdiction, or otherwise erred in law by dismissing the Appeal of Tribunal Error 10 in law by accepting the Tribunal illegally rejecting the Common Law of duty of care as the Standards of care and the Standards expected of Health professional base on the illegal Submission of HCCC of causations do not form any part of case of HCCC and or case of HCCC not relying on causations while the Common Law of duty of care as the Standards of care and the Standards expected does apply to the Health professional officially and commonly and the causations do form the parts of factual case of HCCC and by breaching the law of the nature of the jurisdiction of the Tribunal is not to punish the Appellant but to protect the public and maintain proper standards in the profession of Chinese Medicine by making illegal decision of Complaint One with unsatisfactory professional conduct and Complaint Four with professional misconduct established.
Supreme court Error 8 in law**.** His Honour Justice acted without jurisdiction, or otherwise erred in law by dismissing the Appeal of Tribunal Error 11, 12 in law by accepting and concluding that it is no need of evidences to support the particular and the Standards requirement of necessary situation for the Complaint Three established while the Tribunal is breaching the law of the nature of the jurisdiction of the Tribunal is not to punish the Appellant but to protect the public and maintain proper standards in the profession of Chinese Medicine by making illegal decision of Complaint Three with unsatisfactory professional conduct established.
Supreme court Error 9 in law**.** Further, it was a breach of procedural fairness and or judgement fairness, as His Honour Justice was to dismiss the Appeal of Tribunal Error 13 in law by determining the Grounds of Appeal by acted illegally without jurisdiction, or otherwise erred in law by breaching the law of the nature of the jurisdiction of the Tribunal is not to punish the Appellant but to protect the public and maintain proper standards in the profession of Chinese Medicine by making illegal decision of unsatisfactory professional conduct and professional misconduct established in many different illegal ways with Errors in laws.”
The applicant’s submissions in reply were extensive but essentially repetitive of the complaints made by the submissions in chief save that the submissions contain a number of completely unfounded accusations of criminal and “illegal” conduct on the part of the respondent. It is sufficient for present purposes that we record that there is no evidence whatever of criminal or “illegal” conduct on the part of the respondent and these allegations should never have been made. In oral submissions, the applicant explained his persistent references to “illegal” conduct or submissions as being that the respondent understood and deliberately did not follow the law. Even if that was his intention, it does not excuse or explain the indiscriminate accusations of tampering with or falsifying evidence.
The applicant submitted that, even if his application was refused, there were reasons why an order for costs should not be made in favour of the respondent. It was further submitted that:
in its submissions in support of the Notice of Motion (the motion heard by Free JA), the respondent did not provide authority regarding the application of s 101(2)(r) of the Supreme Court Act, but rather raised the question of whether it applied and submitted the Court should make a decision about it;
the applicant “had the Authority to support that Applicant had the right to appeal to Court of Appeal base on questions of Law, as HCCC had used the same right to appeal to Court of Appeal base on questions of Law”;
the respondent did not warn the applicant, a self-representative, that the case number in question would close if the Court made a decision that the applicant did not have a right to appeal based on a question of law; and
after the 16 March 2026 hearing, the applicant was waiting for directions, which the Registry had listed for 23 March 2026.
The respondent submitted that the Court should refuse to extend time. The respondent submitted that “the reason why the applicant needs to seek an extension of time is because of his dogged pursuit of an appeal without seeking leave”. The respondent referred to the dismissal judgment of Free JA, in which his Honour had noted that the respondent had on multiple occasions put the applicant on notice of the need to seek leave, and the applicant remained “steadfast in his position” that he did not require leave, including at the hearing of the motion.
The respondent opposed the grant of leave to appeal for three reasons:
the draft notice of appeal does not identify any basis to challenge the primary judgment;
the primary judge already “extended significant leniency to the applicant” and “comprehensively considered every element of the applicant’s criticisms of the Tribunal”, even where those criticisms did not amount to properly formulated appeal grounds; and
the applicant “persists in making unfounded and scandalous allegations against the respondent, its representatives and the respondent’s witnesses”.
The respondent submitted that the draft notice of appeal failed to identify any basis for the intervention of this Court, and that it was “not a proper appeal pleading, and does not identify with precision or at all, the precise errors said to afflict Griffiths AJA’s Judgment”.
The respondent noted that, in each of the appeal grounds directed at the judgment (save for Error 9) the applicant asserted that “His Honour Justice acted without jurisdiction, or otherwise erred in law by dismissing the Appeal of Tribunal Error…”. The applicant, it was submitted, did not identify how it was said that the primary judge had erred.
The respondent noted that the applicant had used the same phrase to found his appeal to the Supreme Court below, and that the primary judge noted that “[m]any of these errors of law are properly characterised as alleged errors of fact, for which leave to appeal is required”: at [55]. The respondent submitted that despite the deficiencies in the further amended summons relied on by the applicant below, the primary judge proceeded “by taking the most generous approach to the pleadings”. The respondent identified several instances in the primary judgment in which the primary judge dealt with alleged errors on the basis that, hypothetically, leave had been sought and granted.
The respondent noted that the primary judge had identified that certain allegations made by the applicant in the court below were “scandalous and vexatious”, but that the applicant had not removed such allegations from the draft notice of appeal to this Court, and had repeated the allegation that the respondent “tampered and falsified” evidence, such as the expert report of Dr Ee. The respondent stated that it embraced the primary judge’s statement that, “[t]he fact that the applicant is a self-represented litigant does not excuse him from abusing Court processes by repeatedly making these entirely unfounded allegations…”.
Leave to appeal is required under s 101(2)(r) of the Supreme Court Act: Luo v Health Care Complaints Commission [2026] NSWCA 42 per Free JA. The principles which apply in the application of s 101(2)(r) were stated by the Court of Appeal in Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[19] (per Bell P, Basten and Leeming JJA agreeing). They include the following:
the onus lies on the party asserting that it may bring its appeal as of right to demonstrate that the amount in issue meets the $100,000 threshold;
this involves showing that a successful appeal would improve the party’s financial position by at least that amount; and
this requires demonstration of a realistic prospect on appeal of lessening the prejudice that the party would otherwise suffer by reason of the order appealed against. There must be a proper evidentiary basis for the party’s contentions in this regard.
A grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6]; Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].
The applicant’s alleged errors of law asserted to be made by the primary judge are difficult to understand. Most of the applicant’s complaints are about factual determinations and evaluative decisions made by the Tribunal and not about any error allegedly made by the primary judge. It must be steadily borne in mind that the appeal before the primary judge was limited to grounds in respect of “any question of law”. No leave was granted to the applicant to raise any issue of fact.
The first alleged error, described as Error 1 “in law” (in dismissing alleged errors 1, 3, and 4 below) was in truth a complaint about a factual finding made by the Tribunal. The applicant’s repeated assertions about the relevance of the cause of Patient A’s death to the Tribunal’s stage one determination were comprehensively demonstrated to be without foundation by the primary judge. No arguable error on the decision of the primary judge has been identified.
The second alleged error, described as Error 2 “in law” (in dismissing alleged error 2 below) is a complaint about his Honour allegedly accepting the “inadmissible evidences” contained in a report of Dr Ee. The admissibility of Dr Ee’s report was addressed by the second Tribunal decision. As the primary judge pointed out, leave to appeal in relation to that decision was never sought by the applicant. The applicant’s complaint is without foundation. No error was shown in the decision of the primary judge.
The third alleged error, described as Error 3 “in law” (in dismissing alleged errors 5 and 7 below) is difficult to understand. The error alleged is said to lie in “accepting and concluding such illegal, non-existent evidences of Standards expected of specialists of Members of Tribunal without stating and showing and reference and cross-examination as to why it thought it was appropriate to do so”. Doing the best we can, this appears to raise a mixed question of fact and law about the decision-making processes of the Tribunal and its acceptance of evidence of Dr Ee and other evidence contrary to the applicant’s case. The primary judge carefully and patiently explained why this course was open to the Tribunal. No error was shown in the decision of the primary judge.
The fourth alleged error, described as Error 4 “in law” (in dismissing alleged error 6 below) is a complaint about the weight given by the Tribunal to different evidence led before it. This is a complaint about facts. No leave was granted by the primary judge to consider a complaint about factual findings. No arguable error was shown in the way this issue was approached by the primary judge.
The fifth alleged error, described as Error 5 “in law” (in dismissing alleged error 8 below) is a complaint about evidence accepted or not accepted by the Tribunal and about dealings with objections to questions. This is a complaint about facts. No leave was granted by the primary judge to consider a complaint about factual findings. No arguable error was shown in the way this issue was approached by the primary judge.
This is a clear case where leave to appeal should be refused. The applicant does not identify any issue of principle, question of public importance or error going beyond the merely arguable.
The primary judge in his lengthy and careful decision dealt with all of the applicant’s complaints fairly and correctly. In this Court, the applicant has not shown any arguable error in the decision of the primary judge. As leave to appeal is to be refused it is futile to grant an extension of time.
The applicant’s submission about costs must be rejected. He has unsuccessfully brought this application for leave to appeal. No reason has been shown to depart from the usual order that costs follow the event.
For the foregoing reasons, we make the following orders:
Application for an extension of time refused.
Summons seeking leave to appeal dismissed.
Applicant to pay the respondent’s costs.
**********
Luo
Health Care Complaints Commission
Application for an extension of time refused; summons seeking leave to appeal dismissed; applicant to pay the respondent’s costs.
His Honour concluded:
The respondent submitted that no error had been demonstrated in the decision of the primary judge. A table was presented in support of that submission. It is unnecessary to reproduce it.
The sixth alleged error, described as Error 6 “in law” (in dismissing alleged error 9 below) complains about an alleged error of fact made by the Tribunal (about what Patient A said to her family, what the applicant said to Patient A, and what various terms meant). This is a complaint about facts. No leave was granted by the primary judge to consider a complaint about factual findings. No arguable error was shown in the way this issue was approached by the primary judge.
The seventh alleged error, described as Error 7 “in law” (in dismissing alleged error 10 below) is a complaint that the Tribunal concluded that causation of Patient A’s death did not form any part of the respondent’s case in the stage one hearing. The primary judge explained, at length, that the Tribunal was correct to conclude that causation of Patient A’s death did not form any part of the respondent’s case in the stage one hearing. No arguable error was shown in the way the primary judge dealt with his issue.
The eighth alleged error, described as Error 8 “in law” (in dismissing alleged errors 11 and 12 below) is difficult to understand. It appears to be a repetition about the complaint that the wrong body was considered by the Tribunal in addressing this ground. The primary judge found that the relevant National Board was the Chinese Medicine Board alone. However, that error was not material. His Honour’s finding was plainly correct. No basis to grant leave to appeal has been shown.
The ninth alleged error, described as Error 9 “in law” (in dismissing alleged error 13 below) is an assertion that there was “a breach of procedural fairness and or [judgment] fairness” by making an “illegal decision… established in many different illegal ways with Errors in laws”. This is a submission completely without foundation.
The applicant’s written submissions in reply do not make any additional points of substance affecting our decision. As we have said, all litigants, even self-represented litigants, have an obligation not to abuse the Court’s processes by making unfounded allegations of unlawful or criminal conduct. No error in the decision of the primary judge was shown.