Wu v Nursing and Midwifery Board of Australia

[2022] NSWCA 102

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wu v Nursing and Midwifery Board of Australia [2022] NSWCA 102

Hearing dates:

20 June 2022

Date of orders:

22 June 2022

Decision date:

22 June 2022

Before:

Gleeson JA

Decision:

Dismiss the appellant’s application for referral for legal assistance under UCPR, r 7.36.

Catchwords:

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not identify a question of law – where applicant unlikely to accept advice as to defects in her case – where applicant not completely lacking financial means

Legislation Cited:

Aged Care Act 1997 (Cth), s 10-3(1)

Health Practitioner Regulation National Law (NSW), s 175B

Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Cases Cited:

M v Director General, Department of Family and Community Services [2013] NSWCA 118

Renshaw v NSW Lotteries Pty Ltd [2021] NSWCA 41

Transcon Holding Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 90

Transcon Holding Pty Ltd and Aged Care Quality Safety Commissioner [2022] AATA 94

Category:

Procedural rulings

Parties:

Yan Wu (Appellant)
Nursing and Midwifery Board of Australia (Respondent)

Representation:

Counsel:
Ms Y Wu (Self-represented – Appellant)

Solicitors:

File Number(s):

2021/349873

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2021] NSWCATOD 183

Date of Decision:

15 November 2021

Before:

The Hon J Boland AM, Deputy President
I McQualter, Senior Member
D Robertson, Senior Member
A Gray, General Member

Judgment

1. GLEESON JA: Application is made by Yan Wu by notice of motion filed 14 June 2022 for an order for pro bono legal assistance under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.36.

2. Ms Wu’s application is made in relation to her appeal filed 9 December 2021 by which she purportedly appealed on a question of law from orders of the Civil and Administrative Tribunal (the Tribunal) of 15 November 2021. 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 Mr Wu’s appeal from that decision with costs: Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183.

The appeal

3. The notice of appeal fails to identify any questions of law under the heading “Appeal grounds”. In the section headed “Details of appeal”, Ms Wu refers to four matters.

4. First, Ms Wu complains that when considering her suitability to hold provisional registration as a nurse, the Tribunal had regard to an irrelevant matter, being her role as sole director of Transcon Holding Pty Ltd (Transcon), whose approval as the provider of aged care pursuant to s 10-3(1) of the Aged Care Act 1997 (Cth), was revoked by the Aged Care Quality and Safety Commission, effective from 20 December 2019.

5. The Tribunal noted that an application by Transcon for a stay of the revocation decision was refused by Senior Member C Puplick AM on 30 January 2020: Transcon Holding Pty Ltd and Aged Care Quality and Safety Commissioner [2020] AATA 90. The Tribunal further noted that the Commissioner had found a number of deficiencies in the business conducted by Transcon, including findings of non-compliance with the home care standards from 2018, that Ms Wu, Transcon’s “key personnel”, is an undischarged bankrupt, inappropriate management of clients’ homecare packages, a failure to address consumer complaints, and correspondence and reports disclosing an unwillingness or inability to engage with the quality and improvement process: at [147].

6. After observing that neither party sought a delay of Ms Wu’s appeal pending the review application by Transcon before the AAT, the Tribunal concluded, like the Board, that some weight should be given to the matters raised by the delegate of the Secretary, Department of Health, but this was not pivotal to the Tribunal’s decision: at [150]. It should be observed that Transcon’s appeal before the AAT was ultimately unsuccessful; on 28 January 2022 the Tribunal affirmed the decision under review: Transcon Holding Pty Ltd and Aged Care Quality Safety Commissioner [2022] AATA 94.

7. Given that Ms Wu did not seek an adjournment of her appeal pending the AAT review application, which was subsequently adverse to Transcon, it is difficult to conceive what question of law is raised by her complaint that the Tribunal should not have had any regard to the Transcon matter whilst the AAT decision was pending.

8. Second, Ms Wu complains that the Tribunal found that she was not frank on her resume because she did not disclose matters that were not included on a national police check. The Tribunal noted that Ms Wu’s criminal history included several traffic offences (2002, 2017, 2018 and 2019): at [33]-[37]. The Tribunal accepted that Ms Wu did obtain an Australian Federal Police check and provided that document to the Board, however, she failed to provide full and proper disclosure of her conviction history and charges with respect to traffic offences: at [133]. Addressing Ms Wu’s oral evidence and submissions suggesting that her traffic offences were minor and seeking to “downplay” the serious nature of her offences, the Tribunal found that Ms Wu’s attitude to her offences, demonstrated by her failure to attend court on the basis that she was too busy, did not demonstrate the type of behaviour expected of a registered health practitioner: at [134]. No question of law is identified with respect to the Tribunal’s evaluative decision as the significance of Ms Wu’s lack of candour.

9. Third, Ms Wu complains that the Tribunal did not accept that she had engaged in the practice of nursing during the past five to ten years as defined in the relevant practice standard: at [159]. The Tribunal was not satisfied in the period from 2014, when Ms Wu was in a managerial role at Transcon, or earlier when the business operated as a sole trader, that the services in which she engaged met the definition of “practice” in the practice standard, nor did the material in the mapping template support that Ms Wu was engaged in practice as defined in the practice standard and the policy: at [125]. Ms Wu says that she had not left the industry but had changed her nursing from hospital to “community” nursing. Whether Ms Wu’s role at Transcon or the earlier business when it operated as a sole trader met the definition of “practice” in the practice standard, was an evaluative judgment for the Tribunal to make. Ms Wu did not identify any question of law raised by this complaint.

10. Fourth, Ms Wu complains that the costs order made against her by the Tribunal is “unfair and unjust” essentially because she had not been paid wages since 2019. As the Tribunal noted at [161], the power to award costs is governed by s 175B of the Health Practitioner Regulation National Law (NSW). The Tribunal found that Ms Wu was unsuccessful in her appeal and did not raise any relevant special or exceptional circumstance which would warrant a departure from the usual practice that “costs follow the event”. No question of law has been identified by Ms Wu in her challenge to the Tribunal’s exercise of its discretionary power to award costs.

11. No application has been made by Ms Wu to seek leave to appeal on a matter other than a question of law.

The present application

12. In support of her application for legal assistance, Ms Wu deposed in her affidavit that she is a single mother with a child who has a disability, that she is financially drained and has been in financial hardship for a very long time and is living on a mortgage at the moment; by this, I take Ms Wu to mean that she is drawing money secured by a mortgage for living expenses.

13. In oral submissions, Ms Wu informed the Court that she had been refused legal aid on the ground that the value of her home was in excess of the threshold, apparently $518,000. Ms Wu stated that her home was worth $2.2 million and currently had a mortgage of $800,000. She said that she needed her home for the care of her 7-year old son.

14. Ms Wu acknowledged in answer to an inquiry by the Court, that if referred to a barrister on the pro bono panel who gave advice that her appeal did not have arguable prospects of success, she would disagree with the barrister and pursue her appeal in any event.

15. The Court may make a referral for pro bono assistance under UCPR, r 7.36 where it is in the “interests of the administration of justice” to do so. In making that decision, the Court may, but generally will, to the extent that information is available, take into account the means of the litigant, his or her capacity to obtain legal assistance outside the scheme and the nature and complexity of the proceedings: UCPR, r 7.36(2); M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [19].

16. In Renshaw v NSW Lotteries Pty Ltd [2021] NSWCA 41 at [10]-[12], Brereton JA made the following observations in relation to r 7.36(1):

… Mere satisfaction that a litigant cannot otherwise obtain legal assistance is an insufficient reason. As subrule (2) contemplates, it is relevant to consider the person’s means, needs and capacity, the nature of the proceedings, and the likely availability and utility of legal assistance.

Moreover, pro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated. The Court has a responsibility to husband this resource carefully. The obligations undertaken by a lawyer who accepts a referral import a concomitant obligation on the Court to exercise discretion in the making of referrals. As I said in Dafaalla v Concord Repatriation General Hospital:

The success of the scheme is dependent upon the support of the profession, and the obligations which are undertaken by a lawyer on the pro-bono panel import a concomitant obligation on the Court to exercise discretion in the grant of referral certificates. While, by r 66A.1(4), a referral does not indicate that the Court has formed an opinion on the merits of a litigant’s case, the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit. That is not to say that a referral should never be made in a case apparently lacking merit: for example, it may well be appropriate to grant a certificate, for the limited purpose of obtaining advice, in a case without legal merit, where there is some prospect that the advice will assist the litigant to understand the defects in the case, so that unnecessary litigation may be avoided.

While referral for legal assistance does not reflect any opinion on the merits of a litigant’s case, normally the Court will want to see some signs of merit in a case before making a referral; absent merit, referral will rarely be “in the interests of the administration of justice”. In some cases, the possibility that examination of the case by a competent practitioner will reveal merit may suffice. In still others, apparently devoid of merit, the Court may grant a referral for the purposes of advice, if there is a prospect that such advice may assist the litigant to appreciate the defects in the case, with the result that unnecessary and futile litigation may be avoided…” [footnotes omitted]

17. I am not satisfied that it is in the interests of the administration of justice that the Court refer Ms Wu for pro bono legal assistance in relation to her appeal generally, or for the limited purpose of obtaining advice in relation to the preparation of her submissions in support of the appeal.

18. First, Ms Wu’s appeal appears to be without merit insofar as it relies on a purported question of law.

19. Second, it is not likely that any advice given to Ms Wu will avoid unnecessary and futile litigation; that is apparent from Ms Wu’s statement to the Court on this application that if such advice confirmed the defects in her case, she would nonetheless pursue the appeal.

20. Third, I am not satisfied that Ms Wu lacks the financial means to obtain legal advice in relation to her appeal. Accepting that she is apparently reluctant to increase the amount borrowed against the security of her property to fund her appeal, this is not a case where the self-represented litigant is completely lacking in financial means.

Order

21. Accordingly, I decline to make any referral under UCPR r 7.36 in respect of any aspect of Ms Wu’s appeal. Her motion seeking such an order is dismissed.

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Decision last updated: 22 June 2022