[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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Judgment
MEAGHER JA: The question for decision is whether Ms Wu's appeal, and application for leave to appeal, from a decision of the Occupational Division of the Civil and Administrative Tribunal (the Tribunal) made on 15 November 2021 should be dismissed for want of due despatch: Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183.
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 12.7(1) provides, reading it in accordance with rr 51.1(3) and 51.1(4), that if an appellant does not prosecute proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.
On 1 and 6 June 2022 the Registrar made orders that Ms Wu file by 29 June 2022 submissions in relation to her notice of appeal and summons seeking leave to appeal, respectively, and, if they were not filed by 6 July 2022, that the appellant file an affidavit outlining why the appeal and summons seeking leave to appeal should not be dismissed for want of due despatch.
I should first say something about the subject matter of Ms Wu's appeal to the Tribunal, and from the Tribunal's decision to this Court.
On 6 April 2020 Ms Wu applied to the South Australian Board of the Nursing and Midwifery Board of Australia (the National Board) (as to which see Health Practitioner Regulation National Law (NSW), s 36) for provisional registration as a nurse. That application was refused on 1 December 2020. That decision was an "appellable decision" under the Health Practitioner Regulation National Law, s 175(1)(a), and the Tribunal was the "appropriate responsible tribunal" because it is the responsible tribunal for the participating jurisdiction in which Ms Wu lives, namely New South Wales (s 175(2)(c)). The appeal to the Tribunal was to be dealt with by way of a new hearing and fresh evidence or evidence in addition to or in substitution for that before the National Board (s 175(3)). As the note to s 175 records, the appeal from the decision of the National Board to the Tribunal was an "external appeal" and the National Board's decision an "appealable external decision" for the purposes of Civil and Administrative Tribunal Act 2013 (NSW), s 31.
In the de novo appeal hearing before the Tribunal, Ms Wu's application for registration was opposed by the Australian Health Practitioner Regulation Agency (AHPRA) (appearing for the National Board) on the three bases summarised in the Tribunal's reasons at [5] and [82]. First, it was contended that she had not engaged in the practice of nursing for over 10 years, thus rendering her ineligible for provisional registration. Secondly, it was maintained that her application demonstrated a lack of fairness because she had failed to disclose criminal convictions and provided misleading information in relation to her curriculum vitae. Thirdly, it was contended that by reason of her conduct she was not a suitable person to hold registration.
The Tribunal dismissed Ms Wu's appeal and confirmed the decision of the National Board given on 1 December 2020. It was not satisfied that Ms Wu had engaged in the practice of nursing during the last 5 to 10 years and concluded (at [159]) that her "cavalier attitude in failing to provide proper disclosure to the Board" meant that she was currently not a fit and proper person to hold provisional registration.
It is convenient now to turn to the proceedings in this Court.
Ms Wu has commenced two proceedings in the Court of Appeal. The first is by notice of appeal filed on 9 December 2021 (2021/00349873), and an amended notice of appeal filed on 9 March 2022. The second proceeding is brought by a summons seeking leave to appeal filed on 8 April 2022 (2022/00103882). In that summons the respondent is named as "The nurses and midwifery board". Although no formal order has been made correcting the name of that respondent to that of the National Board, the parties have proceeded on the basis that the National Board is the named respondent.
There is a question as to the provisions of the Civil and Administrative Tribunal Act which govern Ms Wu's right of appeal to the Supreme Court from the Tribunal's decision. Although I have taken a different view as to the extent of the right of appeal from that expressed by White JA in Yan Wu v Nursing and Midwifery Board of New South Wales [2022] NSWCA 70 at [4], the difference has no relevance to whether the proceedings commenced by Ms Wu should be dismissed for want of due despatch.
The decision of the National Board (by its delegate) was one made by an external decision-maker for the purposes of Civil and Administrative Tribunal Act, s 31 and accordingly was not an "internally appealable decision" for the purposes of s 32 or one to which the provisions of Pt 6 of Schedule 5 to that Act apply. That decision was not a decision of the Tribunal in the exercise of any function allocated to its Occupational Division by Schedule 5, and accordingly not a "profession decision" within cl 29(1) of Schedule 5 (see also cl 1 definitions of "Division decision" and "the Division").
Accordingly the Tribunal's decision in its Occupational Division was a decision "in an external appeal", and as a party to that appeal Ms Wu has a right with leave of the Supreme Court to appeal to that Court from the Tribunal's decision on a question of law (Civil and Administrative Tribunal Act, ss 82(1)(b), 82(3)(a), 83(1)).
On 9 February 2022 the Registrar directed that Ms Wu file written submissions in her appeal. At that time she foreshadowed that she would file an amended notice of appeal and a summons seeking leave to appeal. Those documents were filed, the former on 9 March 2022 and the latter on 8 April 2022.
Ms Wu also filed a motion seeking to have her appeal transferred to the Common Law Division because she maintained it was properly assigned to that Division (as to which see Supreme Court Act 1970 (NSW), s 48). That application was heard and dismissed by White JA on 2 May 2022 ([2022] NSWCA 70). In doing so his Honour noted that whilst under Pt 6 of Schedule 5 to the Civil and Administrative Tribunal Act Ms Wu might seek leave to appeal on a matter other than a question of law, no such application had been made before his Honour. For the reasons given above, it is my view that Ms Wu's right of appeal is more limited and restricted to questions of law (with leave).
On 2 May 2022 the appeal proceeding was stood over for directions on 1 June. On that day there was no appearance by either party and the Registrar made the following directions:
1. Appellant's submissions to be filed and served by 29 June 2022.
2. Stood over for further directions on 11 July 2022 and to Show Cause why the appeal should not be dismissed for want of due dispatch.
3. If the submissions are not filed by 6 July 2022, the appellant is to file and serve an affidavit outlining why the matter ought not to be dismissed.
4. Registry is to issue a notice under UCPR 13.6 directed to the appellant to show cause why the appeal should not be dismissed for non-attendance today.
5. Liberty to restore earlier if the appellant files her submissions.
In argument in this Court, Ms Wu accepted that she had been notified of the orders made on 1 June 2022 requiring her to show cause if the written submissions were not filed and served by 29 June 2022.
On 6 June 2022 Ms Wu's summons seeking leave to appeal was before the Registrar for directions. Again there was no appearance by either party and directions in the same terms as orders 1, 2 and 3 above were made in this proceeding. Again Ms Wu accepted in the hearing before this Court that she had become aware of these directions shortly after they were made.
On 14 June 2022 Ms Wu filed a notice of motion seeking an order that she be referred for pro bono legal assistance under UCPR r 7.36. That application was dismissed by Gleeson JA on 22 June 2022: Wu v Nursing and Midwifery Board of Australia [2022] NSWCA 102.
I turn now to the position as it currently stands.
In the appeal proceeding, as at 11 July 2022 Ms Wu has failed to comply with directions made on 9 February that she file and serve her written submissions by 6 April 2022, and on 1 June that she file and serve those written submissions by 29 June 2022. Those written submissions not having been filed by 6 July, Ms Wu also failed to comply with the Registrar's directions that she file and serve an affidavit explaining why her appeal should not be dismissed.
In the summons for leave proceeding, Ms Wu failed to comply with the directions made on 6 June in relation to written submissions to be filed and served by 29 June 2022. She also failed to comply with the Registrar's direction as to the filing and service of an affidavit.
In response to the Court's suggestion that she might be given a further period in which to prepare her written submissions and its inquiry as to what might be a sufficient period to enable that to occur, Ms Wu said that having regard to her personal position with a young child and her work commitments, she would not be in a position to file written submissions in either proceeding until early next year. She maintained that at that stage she would prepare a draft of those submissions and then engage a lawyer to settle them and to identify and address any legal questions. She added that she had filed, or proposed to file, an application to stay the conduct of the proceedings to enable that to occur. The Court's records do not include any such application and the respondent had no notice of such an application, as foreshadowed or as made.
The Court then pressed Ms Wu as to whether she might be able to complete and file the written submissions within 14 days. She responded that she could not and that there was "no way" she could prepare draft submissions before October at the earliest. She repeated that she did not have time at the moment for family reasons and that "perhaps by October I will have time, and my other Family Law situation settled". In that event she agreed that having done a draft she would then "engage a lawyer to elevate to the error of the law".
Notwithstanding that her application for referral for pro bono assistance has been dismissed, Ms Wu did not contend that she was not able to at least prepare draft submissions for consideration by a lawyer. That was consistent with her having adequately represented herself before the Tribunal, there being nothing in its reasons suggesting otherwise. In addition, at [140] the Tribunal recorded in the course of considering discrepancies in Ms Wu's three curriculum vitae provided to AHPRA: "Ms Wu is not lacking in intelligence or skills as demonstrated by her post-graduate qualifications including her MBA".
In dismissing that application, Gleeson JA was not satisfied that "Ms Wu lacks the financial means to obtain legal advice in relation to her appeal" (at [20]). Her statements that she might retain a lawyer either in October this year or early in the new year are consistent with a belief that her financial position would permit her to do so.
In the result, it is my view that Ms Wu, by her failures to comply with the Registrar's directions, has not prosecuted the appeal and summons proceedings with due despatch.
More significantly to the outcome of the direction that Ms Wu show cause as to why the proceedings should not be dismissed, it is accepted that she is in default of those orders; and she proposes the written submissions not be filed and served until some time in the new year. In the meantime, the proceedings are to be stayed, there being no prospect that any submissions could be filed before October at the earliest.
Two reasons are offered as excusing Ms Wu's existing and continuing failure to conduct the proceedings with due despatch. The first is that she has been and is too busy with a young child, her "family business" and her unexplained "Family Law situation". The second is that she does not at the present time have the money to engage a legal representative. She does, however, say, again without any elaboration, that next year she will have more time and "can have the money".
In response to the suggestion that she has sufficient financial means to secure legal advice, Ms Wu accepted that she had a residential property against which she could borrow funds, and that over time she could also "save a little bit more money". However, she was not prepared to raise funds to prosecute the litigation using the home as security because she wished "to have a home for my son".
In this state of the evidence, I am not satisfied that Ms Wu does not have the financial means to fund the prosecution of her appeal with the benefit of legal advice. Nor am I satisfied that if she gave some priority to the prosecution of her appeal, her personal position would otherwise prevent her from doing so.
In these circumstances there is no point in giving Ms Wu a further opportunity to file written submissions before an order is made dismissing the appeal under UCPR r 12.7. Any such period would expire well before October 2022.
Whilst the respondent does not point to any specific prejudice which it has suffered or will suffer by reason of the delays which have occurred and are foreshadowed, the dictates of justice identified in Civil Procedure Act 2005 (NSW), s 57 to which the Court must by s 58 give effect in managing proceedings include their efficient and timely disposal. That is particularly so in relation to the present proceedings, which concern Ms Wu's eligibility for provisional registration as a nurse in circumstances where the reason for the refusal of her application is essentially that she has not engaged in the practice of nursing for a lengthy period of time. Any delay in the proceedings can only exacerbate that being the position and make it less likely that any outcome in favour of Ms Wu would produce the provisional registration consequence that she contends for.
Because Ms Wu does not propose to prosecute her appeal in a timely manner, it must be dismissed.
For these reasons, I make the following orders:
1. Dismiss appeal proceedings 2021/00349873 for want of due despatch.
2. Dismiss summons proceedings 2022/00103882 for want of due despatch.
3. Order the appellant/applicant pay the respondent's costs of each of those proceedings.
There is one matter which remains to be addressed. In dismissing Ms Wu's pro bono assistance application, Gleeson JA disposed of the relief sought in paras. 1 to 4 of Ms Wu's notice of motion filed on 14 June 2022. However, the relief sought by para. 5 of that motion was stood over by the Senior Deputy Registrar on 20 June for further directions on 11 July, and then referred to me on that day. By that paragraph, Ms Wu seeks to set aside the costs order made against her by White JA on 2 May 2022.
Neither party addressed nor made submissions in respect of this application at the hearing on 11 July 2022. However I propose to dismiss it because, in the context of the dismissal of the proceedings and the order that Ms Wu pay the respondent's costs of the proceedings, it is irrelevant whether the order made by White JA is set aside or remains. In either event the costs incurred by the respondent in addressing that application were incurred in the proceedings, and accordingly are covered by the costs order which I have made. The only order that I need to make and make is:
(4) Dismiss the application in paragraph 5 of the appellant's notice of motion filed on 14 June 2022.
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Decision last updated: 14 July 2022