• There has been a fundamental failure by the Tribunal to exercise the jurisdiction required of it by the legislation.
• The appeal has not been heard or determined. It has not been lawfully disposed of in any way.
• The appeal is extant and should now be heard and determined.

Administrative tribunals - Procedure - Jurisdiction - Administrative decision - Right of Appeal - Administrative Error - Correcting mistakes - Whether Tribunal authorised to make fresh decision - Circumstances of the case made it appropriate for Tribunal to order re-listing of the appeal.

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 6, 6A, 6B; sch 2 ss 156, 178, 193, 199, 202

South Australian Civil and Administrative Tribunal Act 2013 ss 21, 34, 45, 70, 71

South Australia Civil and Administrative Tribunal Rules 2014 rr 16, 100

Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208

Chiropractic Board of Australia v Marin [2017] SAHPT 7

Christiansen v Social Security Appeals Tribunal [2010] FCA 1146

Fletcher v Psychology Board of Australia [2022] SACAT 81

Michael v Secretary, Department of Employment, Science and Training [2006] AATA 227

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

Mora (Migration) [2016] AATA 4198

Nursing and Midwifery Board of Australia v HDR [2022] SACAT 116

Re Kretchmer and Repatriation Commission [1988] AATA 323; 10 ALR 98

Re OMQ [2017] SACAT 8

Mr A Schatz with Mr T Ward appeared for the Psychology Board of Australia

1. There are two matters before the Tribunal.
2. Matter 2022/SHP000030 (the appeal) concerns an application by which Mr Fletcher sought to appeal under s 199 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (the National Law),[1] from a decision made by the Psychology Board of Australia (the Board) on 4 November 2022, imposing conditions on his registration.
3. Matter 2024/SHP000013 (the disciplinary proceedings) concerns a referral made by the Board under s 193 of the National Law, alleging that Mr Fletcher has been guilty of professional misconduct, in that he has failed to comply with the said conditions.
4. The Tribunal is presently asked to determine the status of the purported appeal proceedings.

1. Mr Fletcher is a registered psychologist. In 2021 he was the subject of a notification to the Board under the National Law.
2. In September 2021, after following the prescribed processes, the Board took immediate action against Mr Fletcher pursuant to s 156 of the National Law. The Board imposed conditions on his registration. Mr Fletcher appealed to this Tribunal under s 199 of the National Law.
3. The appeal was heard in June 2022, and a decision was subsequently delivered on 26 July 2022. The Tribunal affirmed the decision of the Board.[2]
4. Mr Fletcher had a statutory right of appeal against the decision of the Tribunal to the Supreme Court.[3] Mr Fletcher endeavoured to lodge an appeal in the Supreme Court, but his notice of appeal was rejected by the Registry. Mr Fletcher was advised that he could not appeal to the Supreme Court without first seeking an internal review within the Tribunal. This advice was incorrect as there is no internal review available under s 70 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) from a decision made in the Tribunal's review jurisdiction.[4]
5. Subsequent discussions between the respective registries of the Court and Tribunal resolved that there was no right of internal review and that the right of appeal was indeed to the Supreme Court. An appeal to the Supreme Court was subsequently lodged and accepted. The appeal was later heard by the Court of Appeal and determined against Mr Fletcher.
6. In the meantime, however, the Board had rescinded the conditions placed on Mr Fletcher's registration by way of immediate action but had imposed conditions on his registration by way of action under s 178 of the National Law. This decision was made by the Board on 4 November 2022 and communicated to Mr Fletcher by letter dated 18 November 2022.
7. On 8 December 2022 Mr Fletcher filed an online application in the Tribunal seeking to have this new decision reviewed pursuant to s 199 of the National Law. The application made it clear that he was seeking review of the decision communicated on 18 November 2022. He attached a copy of that letter.
8. Mr Fletcher provided proof of his concession status and paid the concession fee. His entitlement to the concession status was approved. A Tribunal matter file was created and was assigned matter number 2022/SHP000030.
9. On 9 December 2022, a Deputy Registrar made a note on the file to the effect that "The applicant is required to lodge their appeal with the Supreme Court. There is no further review in this matter with SACAT."
10. The Deputy Registrar authorised a refund of the application fee and appears to have sent Mr Fletcher the form required to seek a refund. Mr Fletcher did not ever complete or return that form. According to a note on file, he advised a staff member of the Tribunal that he "doesn't want a refund if it means we will deny his appeal."
11. On 24 January 2023, a Tribunal case officer sent a letter to Mr Fletcher as follows: "The Deputy Registrar has advised that the applicant is required to lodge their appeal with the Supreme Court. There is no further review within SACAT."
12. On 1 February 2023, the Deputy Registrar made notes on the file as follows: "Matter closed - registered in error" and "The right of appeal now lies with the Supreme Court. This matter is stayed, and the applicant will be refunded his application fee, once he advises SACAT of his bank account details for refunding his application fee." On 1 March 2023, after receiving no response from Mr Fletcher, the case officer cancelled further activities on the file.
13. There is no further relevant entry on the file. The Board was not advised of the lodgement of the application. The matter was not listed for hearing. The Tribunal was not constituted to hear the matter. No submissions were invited from the parties. No formal order was drawn up, signed or sealed.
14. Subsequently, the Board has taken disciplinary action against Mr Fletcher based upon an allegation that he failed to comply with the conditions the Board placed on his registration in November 2022. This matter was about to proceed to hearing when the circumstances described above became known.
15. Mr Fletcher does not appear to have challenged in any way the assertion that he had no right of appeal to the Tribunal. No doubt he was somewhat pre-occupied by his contemporaneous proceedings in the Supreme Court in relation to the Tribunal's earlier decision. When it was subsequently suggested in the disciplinary proceedings that he had failed to challenge the Board's decision in November 2022, he objected and claimed that he had endeavoured to do so. This is correct.
16. Mr Fletcher now asks that his appeal against the November 2022 decision of the Board be heard and determined. He asks that it be heard "co-jointly" with the disciplinary action. Hence the Tribunal must determine the status of that appeal.

1. There can be no doubt that the Board made a fresh decision in November 2022 to impose conditions on Mr Fletcher's registration. Mr Fletcher had a right to appeal to the Tribunal against that decision under s 199(1)(e) of the National Law.[5] He purported to do so. The appeal was required to be heard as a review of the decision pursuant to s 34 of the SACAT Act.[6] Section 202 of the National Law requires that this Tribunal "hear" and determine the application.
2. In this context, a "hearing" is an occasion on which the parties advance their positions by way of evidence and/or oral or written submissions.[7]
3. It is apparent that the Deputy Registrar wrongly assumed that the appeal was an attempt to challenge the decision earlier made by this Tribunal. That decision could only be challenged in the Supreme Court. The Deputy Registrar failed to appreciate that the Board had made a fresh decision which could be the subject of an appeal to the Tribunal. It is clear that he considered (erroneously) that the Tribunal had no jurisdiction to hear the appeal. This was a purely administrative error. It was not an error made by the Tribunal properly constituted after conducting a hearing into the matter of jurisdiction.
4. It is not entirely clear how the Deputy Registrar purported to deal with the matter. His notes, "Matter closed - Registered in error" and "This matter is stayed" are capable of various interpretations. What is clear is that the Tribunal was not properly constituted to hear the matter, the Board was not advised of the application, no submissions were invited from either party, no hearing was conducted, and no order was drawn up, signed or sealed in accordance with rule 100 of the South Australian Civil and Administrative Tribunal Rules 2014 (the SACAT Rules).[8]
5. Pursuant to rule 16 of the SACAT Rules, the Deputy Registrar had no authority to unilaterally refuse to accept the appeal based on an assumed lack of jurisdiction. The Tribunal may be constituted of a Deputy Registrar for some purposes,[9] but not for the purpose of unilaterally refusing to accept an application based on lack of jurisdiction. Nor can the Tribunal be constituted of a Deputy Registrar for the purpose of granting a stay or dismissing an application for want of jurisdiction. The Deputy Registrar did not purport to constitute the Tribunal of himself, and he could not lawfully have done so, other than perhaps to adjourn the matter.
6. In these circumstances, I consider that there has been a fundamental failure by the Tribunal to exercise the jurisdiction required of it by the legislation. The appeal has not been heard or determined. It has not been lawfully disposed of in any way. I consider that the appeal is extant and should now be heard and determined as Mr Fletcher requests.

1. The Tribunal was assisted by detailed submissions on the law made by counsel for the Board. He referred the Tribunal to a number of cases in which tribunals have been prepared to reconsider decisions already made.
2. In Re Kretchmer and Repatriation Commission,[10] a member of the Administrative Appeals Tribunal, who had been assigned to constitute the Tribunal for the purpose of a conference, purported to dismiss the application due to the non-attendance of the applicant. Under the legislation the power to dismiss could only be exercised[11] by a presidential or senior member of the Tribunal. The member who made the order of dismissal had no power at all to do so. Subsequently, the applicant sought that the matter be restored to the Tribunal's hearing list and that application was granted by Hartigan J (President), Bannon QC and McMahon SM. They concluded:[12]

It is clear that the member who purported to make the order of dismissal under s.42A(2) was not a member who could constitute the Tribunal in this case so as to exercise power under s.42A. It appears to the Tribunal that the purported order was not made by a Tribunal constituted in accordance with the provisions of s.21(1A). > > It is not for this Tribunal to quash such purported exercises of usurped power nor to make any curial determination in respect of such exercises. We do consider, however, that if the Tribunal is of the view that no order of a properly constituted Tribunal made under s.42A(2) in fact exists then there is no reason why in the circumstances of this particular case the Tribunal should not proceed to carry out its statutory duty to determine the application for review which has been instituted by the applicant and we intend to give directions to bring this about. Of particular relevance in this particular case is the attitude of the parties and some other matters which we shall refer to later. It is our view that as a Tribunal properly constituted under the Act has not dismissed the proceeding the Tribunal is not functus officio. The Tribunal has not yet carried out its duty to decide the applicant's application for review. > > In the opinion of the Tribunal the purported dismissal by a member who was not entitled to constitute a Tribunal exercising power of dismissal under s.42A(2) amounts to a nullity - an order which is void ab initio and not merely voidable. > > (citations omitted)

After referring to various authorities, the Tribunal concluded:[13]

These various authorities lead us to the following conclusions. First, the decision of the member was, as noted, made with an error of law as to jurisdiction and is therefore void. Second, a person aggrieved by such a decision would, as a matter of prudence, normally be advised to seek judicial review of such a decision and have it declared a nullity. Here, however, we are confronted with a fairly novel situation. The Tribunal, as reconstituted, itself recognizes the voidness of its original decision and is prepared to treat it as a nullity. The parties to the proceeding are both agreeable to that course being taken. The respondent, by its counsel Mr. Vivekananda, agrees if the Tribunal comes to the opinion that the order for dismissal was made by a Tribunal not properly constituted under s.21A of the Act, that the matter should be relisted despite the void order made by the member. That being the case there seems nothing standing in the Tribunal's way to relist the matter. This is not a case where the rights of third parties are involved. It also appears to be an unnecessary expense and inconvenience to the parties to suggest that in this case the question of voidness be the subject of curial proceedings at this stage. In the circumstances of this case, we consider that we are able to take an exceptional course. We are mindful that consent cannot give rise to jurisdiction. But in this case, which is a clear case of the order being made by a Tribunal not lawfully constituted according to the specific requirements of the Act, and where the parties offer no objection to the relisting of the case, should the Tribunal consider that the order was made by a wrongly constituted Tribunal, we are prepared to give directions to relist this matter for hearing and to direct that a conference under the Act should take place on a date to be advised to the parties by the Registry. We give a direction that the application for review be listed to enable a conference under s.34 of the Act to take place and that the proceeding be restored to the Tribunal's hearing list.

1. In Minister of Immigration and Multicultural Affairs v Bhardwaj (Bhardwaj),[14] an applicant for review had sent a letter to the Immigration Review Tribunal, seeking an adjournment of his hearing. Due to an administrative lapse this letter was not brought to the attention of the member conducting the hearing. The member proceeded to hear the matter in the absence of the applicant and affirmed the decision under review. Following representations on behalf of the applicant, the Tribunal held a second hearing and made a second decision, determining the application in favour of the applicant. The High Court held that the Tribunal had power to make the second decision. The majority view (Gaudron and Gummow JJ, McHugh and Hayne JJ agreeing) was that the first decision was made in jurisdictional error, there had not been a review as required by the legislation, and the first decision was therefore a nullity. Callinan J held that there had been a failure to exercise the jurisdiction that the Tribunal was bound to exercise and thus it was open to the Tribunal to make the second decision. Gleeson CJ held that it was not inconsistent with the relevant statute for the Tribunal, upon becoming aware that it had not conducted a review in accordance with the Act, to give the applicant the opportunity to be heard that the Act required. He described the issue before the Court as follows:

The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?[15]

2. Gleeson CJ resolved that issue as follows:[16]

I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it has made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it. > > ... > > In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as "error in fact" in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal "to stay its hand if it had knowledge, or to re-open its judgment had it the power." The Act, in Pt 5 Div 5, prescribed the procedures according to which the Tribunal was required to conduct its review of the delegate's decision. If the Tribunal was not prepared to decide in the respondent's favour on the written material before it, then s 360 required that it give the respondent an opportunity to appear and give evidence and present arguments. The Tribunal set out to give the respondent such an opportunity. It intended to follow the statutory procedure. As a result of an administrative slip, it denied the respondent the opportunity that he wanted to have, and that the Tribunal intended to give him. And, in consequence, it dealt with the matter in the belief that the respondent had nothing to say by way of explanation of the conduct that had resulted in the cancellation of his visa. The Tribunal, through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. In its reasons for its "decision", the Tribunal merely noted the delegate's decision, and observed that nothing had been put before it as to why the decision was unfair or inappropriate. That did not amount to the conduct of a review. The Act provided, in s 353, that the Tribunal, in reviewing the delegate's decision, was not bound by technicalities or legal forms and should act according to substantial justice. When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so. > > In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act. > > (Citations removed and emphasis added)

3. Subsequent decisions have emphasised that the judgements in _Bhardwa_j do not displace the general principle that decisions of a tribunal are final and not subject to reconsideration. In Michael v Secretary, Department of Employment, Science and Training,[17] Downes J (President) expressed the view that:

The Tribunal can, in the exercise of its discretion, decline to reconsider matters in which it is asserted that there is jurisdictional error. There are very good reasons of practice and policy why it should adopt this course except in the very clearest of cases.

... it will very rarely be "wise" for a tribunal to reconsider its own decisions.

Gleeson CJ characterised the error in Bhardwaj on four occasions as "administrative oversight", "administrative slip" or "administrative error" (at pp 602, 605(2) and 606). Kirby J, in dissent, used the phrase "administrative error" three times (at pp 627 and 630(2)). The justices were referring to the fact that the underlying cause of the error was a matter of administration internal to the Registry of the Immigration Review Tribunal and not something associated with the actual conduct of the hearing or the process of decision-making following it. Accordingly, one appropriate basis for a limitation on reconsideration in accordance with Bhardwaj is confining such cases to cases of administrative or similar error.

For all these reasons, I conclude that it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.

(Emphasis added)

1. The views of the President have been endorsed in subsequent cases such as Christiansen v Social Security Appeals Tribunal[18] and Mora (Migration).[19] In this latter case, the Tribunal nonetheless set aside an earlier decision denying jurisdiction and allowed reconsideration of the matter on the basis that the jurisdictional finding was plainly wrong.
2. In Nursing and Midwifery Board of Australia v HDR (HDR), [20] a question of law had been referred to the President of this Tribunal. Disciplinary action in respect of a nurse had been heard and determined by the Tribunal. The nurse sought to have this decision reconsidered. She asserted that she had not been properly represented by her solicitor and that the decision was affected by fraud. This was said to give rise to jurisdictional error. The President concluded that the Tribunal had no authority to decide whether its earlier decision was affected by fraud.
3. The President followed a decision of the Western Australian Court of Appeal in Chang v Legal Profession Complaints Committee.[21] In that matter there had been a finding by consent that the practitioner was guilty of professional misconduct. The practitioner then asked the State Administrative Tribunal (the SAT) to set aside those orders on the basis that they had been agreed to under duress and due to poor legal representation. The Tribunal refused to do so. On appeal, the Court of Appeal considered the decision in Bhardwaj but held that the issue of alleged duress must be addressed by appeal and not by a reconsideration of the SAT's decision.
4. The President in HDR commented on this decision as follows:

This highlights the significance of the error being one that relates to the tribunal's internal processes and which has the effect that the tribunal in question did not perform in accordance with its statutory remit. > > (Citation omitted. Emphasis added)

5. Finally, I refer to the decision of Justice Parker (President) in Re OMQ.[22] The President was conducting an internal review in the guardianship jurisdiction. The applicant indicated that he did not wish to proceed with the application, and it was dismissed. The President subsequently allowed a further application by way of review to proceed, effectively re-considering the previous order of dismissal. He referred to the statutory scheme and concluded that the Tribunal should not be regarded as having exhausted its powers when it dismisses an application without having considered its merits. The President referred to the circumstances (which included the mental incapacity of the applicant) as "particular and unusual".
6. In all of the cases cited, there was a purported hearing before the Tribunal, followed by the issue of a "perfected" order.[23] The case before the Tribunal is different in that there has been no "hearing" and no perfected order. This is a matter where a purely administrative error was made within the registry of the Tribunal. The error did not result in a decision of the Tribunal. There was no hearing. There is no reason why the administrative error cannot be corrected by now listing the matter for hearing and determination. The Tribunal should proceed to carry out its statutory remit.
7. If I am wrong about that and it is thought that the Deputy Registrar did make an "order" disposing of the matter, such order was clearly made unlawfully and on the basis of a fundamental jurisdictional error. The Tribunal has not exercised the jurisdiction it is required to exercise. The cited cases establish that this is one of those rare circumstances where the Tribunal would be entitled to reconsider that "order". It would be appropriate to do so. However, that is not necessary as no formal decision has been made by the Tribunal.
8. The Board did not submit that the Tribunal was functus officio or unable to proceed as suggested. It did not oppose the listing of the appeal for hearing if the Tribunal was satisfied that such was appropriate. The Tribunal is so satisfied.

1. The parties both requested that the appeal and the disciplinary proceedings be heard together. Counsel for the Board referred to the case of Chiropractic Board of Australia v Marin[24] where an appeal and disciplinary proceedings were heard together by the former Health Practitioners Tribunal of SA.
2. Section 45(1) of the SACAT Act provides:

The Tribunal may direct that 2 or more proceedings that concern the same or related facts or circumstances- > > (a) ... > > (b) remain as separate proceedings but be heard together.

3. It is appropriate to make a direction in those terms. Such an order will facilitate the fair and expeditious disposition of the matters, will avoid duplication, and will save time and expense.
4. There is a significant overlap of documentary (and possibly oral) evidence. The parties agree that the entirety of the evidence should be called once only, and that such evidence be used as appropriate to determine each matter. Upon the completion of evidence and submissions, the Tribunal will determine the appeal and make findings concerning the disciplinary proceedings.
5. If there is a finding in the disciplinary proceedings that Mr Fletcher has contravened a condition to which his registration was subject, the parties will be given an opportunity to consider the Tribunal's decision, and a subsequent hearing will be set to address the questions of characterisation of the conduct and sanctions.
6. At the joint hearing, it may be appropriate for the Board to be dux litis. That is, the Board would present its case first and Mr Fletcher's case would follow. Issues of evidence-in-rebuttal could be considered if necessary.
7. It is proposed that the joint hearing be conducted on 29 and 30 April 2025 at 10am.
8. A directions hearing will be conducted by telephone on Tuesday, 4 March 2025 at 2pm to consider directions required to ensure that the matter is prepared for hearing.

[1] The National Law can be found in sch 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Health Practitioner Act).

[2] Book of Documents p 551; Fletcher v Psychology Board of Australia [2022] SACAT 81.

1. [3] Section 71 of the SACAT Act. The appeal was to the Court of Appeal as the Tribunal had been presided over by the President of the Tribunal, Justice Hughes.

[4] See also s 6B of the Health Practitioner Act.

[5] This Tribunal is declared to be the responsible tribunal for this jurisdiction: s 6 of the Health Practitioner Act.

[7] Nursing and Midwifery Board of Australia v HDR [2022] SACAT 116 per President Hughes at [47].

[8] Cf Nursing and Midwifery Board of Australia v HDR [2022] SACAT 116 per President Hughes at [49].

[10] [1988] AATA 323; 10 ALR 98.

[12] [1988] AATA 323 at [16] - [18].

[13] [1988] AATA 323 at [26].

[14] [2002] HCA 11; (2002) 209 CLR 597.

[15] [2002] HCA 11 at [8].

[16] [2002] HCA 11 at [13] - [15].

[17] [2006] AATA 227.

[18] [2010] FCA 1146.

[19] [2016] AATA 4198.

[20] [2022] SACAT 116.

[21] [2020] WASCA 208.

[22] [2017] SACAT 8.

[24] [2017] SAHPT 7.