State of New South Wales (Sydney Local Health District) v BNV [2026] NSWCA 77
Grounds of appeal and the requirement to identify “points of law”
[26] An appeal under s 353(1) of the WIMWC Act must be conducted by reference to points of law arising in the decision under appeal. The concept of an appeal by a party “aggrieved by a decision of the presidential member in point of law” was addressed in detail by Kirk JA (with whom Meagher JA and Simpson AJA agreed) in Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 at [32]- [51]. It is sufficient for present purposes to quote the following summary which his Honour provided at [51]:
… [A]n appeal to this Court under s 353(1) of the WIM Act the appellant must identify some issue on a point of law in the decision of the presidential member. The focus should be on that decision, not the decision of the member. The appeal need not involve a decision made by the presidential member on a point of law so long as the grounds raised in this Court are on points of law. Relevant points of law include jurisdictional errors or other errors of law. Any error must be material in order to obtain relief. The point of law need not necessarily have been raised below, for example if a pure issue of law is raised such as an argument that the presidential member has misconstrued the statute. That being said, especially for issues which are not pure matters of law, it will often be the case that a presidential member will not have erred in law if an issue which could have been raised below was not. If the presidential member has wrongly rejected an argument that the non-presidential member made jurisdictional or other legal error, then that will generally manifest legal error by the presidential member.
[27] … A complaint which asserts nothing more than erroneous application of a legal principle would not on its own be a proper basis for an appeal under s 353(1): see Da Ros v Qantas Airways Limited [2010] NSWCA 89 at [26]- [27].