Clarke v Nursing and Midwifery Council New South Wales

The applicant, Clarke, sought leave to appeal from a decision of the Nursing and Midwifery Council of New South Wales. The underlying dispute concerned defamation proceedings that had been dismissed by the primary decision-maker. The amount in issue in the defamation proceedings was less than the statutory threshold of $100,000 for an automatic right of appeal.

The primary legal issue before the Court of Appeal was whether leave to appeal should be granted. This required the court to consider whether the applicant had demonstrated an injustice that was more than merely arguable, particularly given that the defamation proceedings involved two distinct matters complained of. Furthermore, the court had to assess whether there was an issue of principle or a question of general importance that warranted appellate intervention, and whether the likely costs of any appeal would be disproportionate to the small amount in issue.

Gleeson JA and Emmett AJA considered the threshold requirements for granting leave to appeal in circumstances where the amount in issue is below the statutory minimum. They applied the principles that an applicant must show a real prospect of success and that there are other compelling reasons for an appeal to be heard, such as a question of general importance or a significant injustice. In this instance, the court found that the applicant had not demonstrated sufficient grounds to justify granting leave to appeal, particularly in light of the limited amount in dispute and the absence of a question of general importance.

The Court of Appeal ordered that the time for filing the summons seeking leave to appeal be extended to 14 December 2020. However, the amended summons seeking leave to appeal, filed on 1 March 2021, was dismissed. The applicant was ordered to pay the respondent's costs.