• The legislature has evinced an intention that the Tribunal's power to examine the circumstances of an earlier hearing to determine whether jurisdiction was not exercised, or was exercised in circumstances in which it should be re-exercised, is limited;
• The Tribunal does not have authority to decide whether the decision was affected by fraud on the Tribunal as alleged by the applicant; and
• The Tribunal's earlier decision is valid unless and until a superior Court grants declaratory or other prerogative relief to the effect that the earlier decision was tainted by jurisdictional error.

Administrative Tribunals - Procedure - Jurisdiction - Alleged fraud on the Tribunal

South Australian Civil and Administrative Tribunal Act 2013 s 8, s 26, s 43, s 71, s 72, s 83, s 84, s 85

Health Practitioner Regulation National Law (South Australia) Act 2010 s 6A,

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Chang v Legal Profession Complaints Committee [2020] WASCA 140

WorkCover Corporation of SA v Davey [2011] SASCFC 66

Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213

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

Favelle Mort v Murray [1976] HCA 13; (1976) 133 CLR 580

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189

The Big Apple Group Pty Ltd v Melbourne City Council [2020] VSC 393

Sloan v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429; [1992] FCA 414

Medical Board of Australia v Sing [2019] SACAT 66

Pawelzik v South Australian Housing Trust [2019] SACAT 44

Minister for Immigration and Border Protection v SZMTA & Another [2019] HCA 3

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Determination of Question of Law and Directions for Conduct of Proceedings

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 26 and s 44

1. Pursuant to s 26(1) of the South Australian Civil and Administrative Tribunal Act 2013 (the 'SACAT Act'), a Senior Member of the Tribunal has referred a question of law to the President.
2. The question of law arises within proceedings brought under the Health Practitioner Regulation National Law (South Australia) Act 2010 (the 'Health Practitioners Act'). Those proceedings concern a referral by the Nursing and Midwifery Board of Australia (the 'Board') to the Tribunal for determination of whether the respondent is liable to disciplinary action.
3. The allegations in the referral can be summarised as follows. The respondent was an enrolled nurse and conducted a business. In 2017, for a fee, she supplied and administered to a patient an injectable medicine or dermal filler substance which was not approved for use in humans in Australia. There were complications from the treatment and the respondent subsequently facilitated the patient's attendance on a medical practitioner. The respondent subsequently made various false statements regarding these events in the course of an investigation.
4. At an interlocutory stage of the complaint proceedings, the parties informed the Tribunal that the parties proposed to put to the Tribunal various agreed facts upon which the Tribunal was to discharge its functions of determining whether the respondent was liable to disciplinary action and, if so, imposing a sanction. At this stage, the respondent was represented by her former solicitors.
5. The parties filed a document entitled "Statement of Admissions and Agreed Facts" dated 30 July 2021 (the 'SOAAF') that stated that the Tribunal could be satisfied that the respondent was liable to disciplinary action, and the parties made written submissions for the purposes of assisting the Tribunal to determine sanction.
6. The Tribunal considered the SOAAF and the submissions and issued a written decision and orders dated 14 September 2021. The Tribunal found various facts reflecting the admissions in the SOAAF. The respondent was reprimanded, disqualified from applying for registration as a registered health practitioner for 20 years, and prohibited from providing nursing services for 20 years.
7. The respondent subsequently applied to the Tribunal to re-visit the matter through her current solicitors, asserting that the submissions provided on her behalf by her former solicitors were unauthorised by her, that the sanction decision had been procured by a fraud on the Tribunal, that the Tribunal should enquire into that assertion and, if established, proceed to hear the matter afresh.
8. The Board contends that the Tribunal is not authorised to conduct such an enquiry. The question of law referred for my consideration is:

Does the Tribunal have authority to decide whether its earlier decision was affected by fraud on the Tribunal as alleged by [HDR] (or should it treat the earlier decision as valid unless and until a superior Court grants declaratory or other prerogative relief to the effect that the earlier decision was tainted by jurisdictional error)?

9. The parties filed written submissions to assist the Tribunal in its consideration of the question of law, and supplemented them at an oral hearing conducted on 11 July 2022.

1. The respondent's case is contained in written submissions dated 9 May 2022 and 1 July 2022 and was supplemented by oral submissions.
2. The respondent contends that the question of law should be answered in the affirmative and that the Tribunal should proceed to enquire, by receiving evidence and making factual findings, whether, by fraud, its purported disposition of the proceedings was nullified. She contends that if the fraud is established, the Tribunal's original decision is void and the Tribunal should proceed to discharge its function with respect to the referral.
3. The respondent maintains that the SOAAF was not in accordance with her instructions. She does not assert the document was wholly unknown to her but rather that she was provided with a draft document and she conveyed various proposed amendments to her former lawyers which were put to the Board's lawyers. The proposed amendments were rejected by the Board and the applicant submits that no further instructions were taken from her and the SOAAF remained in its unamended form and was submitted to the Tribunal with the knowledge of her solicitors. It is not suggested that the Board was aware that the document did not represent her instructions. Further, the respondent contends that the Tribunal relied upon the SOAAF to reach its conclusions as to the factual basis of a finding that she was liable to disciplinary action and for the sanctions imposed. With the parties' consent, the Tribunal determined the matter on the papers and so there was no opportunity for the issue to come to light at a hearing.
4. The respondent submits, through her current lawyers, that "the failure to act in conformity with [HDR's] instructions and the vitiated consent offered in relation to the Statement of Admissions and Agreed Facts by her then legal advisers constitutes conduct that can properly be categorised as fraudulent (in the sense discussed below) and/or reckless in the extreme."
5. In order to understand the SOAAF, it is necessary to refer to the Amended Initiating Application by which the Board referred the alleged professional misconduct. That document sets out eleven grounds, and proceeds to particularise each. The SOAAF follows the structure of the Amended Initiating Application and sets out, in paragraphs 1- 8 inclusive, the respondent's admissions. In the SOAAF the respondent admits, in separate paragraphs, to conduct described which corresponds to each of grounds 1, 2, 3, 4, 5, 8, 9, 10 and 11 in the Amended Initiating Application. The respondent admits that the conduct in respect of each of those paragraphs constitutes professional misconduct. The SOAAF states that the Board does not proceed with grounds 6 and 7.
6. The respondent now describes four aspects of the SOAFF that were not in accordance with her instructions. I observe that the following may not represent a comprehensive set of complaints as to how her instructions were not followed. It is taken from the respondent's submissions to the Tribunal dated 9 May 2022. The respondent says that the basis for the SOAAF includes the following. Nevertheless, it sheds light on the alleged fraud.
7. The first relates to ground 8 which asserts that "On or about 15 November 2017 the Respondent failed to adhere to the professional boundary required between nurse and her patient KR". Relevant particulars of ground 8 including that the respondent advised her patient KR, who had experienced facial complications following the injectable treatment, to attend on a general practitioner but not to advise the general practitioner that she had had the injectable treatment. Further, that the respondent attended with KR at a "walk in" appointment with a general practitioner, was present with a receptionist as KR provided information for the general practitioner's use in the consultation, did not inform the receptionist that about the injectable treatment, told the receptionist that she was a friend of KR, and waited in the receptionist area during the consultation.
8. In the SOAFF, the factual basis upon which the Tribunal was invited to proceed was,

On or about 15 November 2017 she failed to adhere to the professional boundary required between nurse and her patient KR by facilitated attending (sic) ....

9. The respondent's complaint in relation to the SOAFF is that she now maintains that, in respect of the admission corresponding with ground 8, she attended with her client at her client's appointment with the medical practitioner but that she did not attend the consultation and waited in the reception area while her client undertook the consultation with the medical practitioner.
10. The second issue is that the respondent maintains that the following admissions ought to have been accompanied by a qualification. The admissions were:

8. [Ground 11] > > By letter to AHPRA dated 18 April 2019 written on her behalf and with her authority by her then lawyers Gilchrist Connell, the Respondent knowingly gave to a duly appointed AHPRA investigator false and misleading explanations about the matters in Grounds 1-8 above.

11. And the Respondent admits that each of the conduct in paragraphs 1-8 above is professional misconduct within the meaning of the National Law.
12. On the basis of these admissions, the Complainant does not proceed against the Respondent for Grounds 6 and 7.
13. The respondent contends that, in accordance with her instructions, these paragraphs should have been qualified by the words that the conduct "took place under circumstances of significant stress and mental health concerns".
14. The third issue is that an agreed fact with respect to the admission corresponding with ground 1 that at all material times the applicant carried on her business alone, was incorrect and should not have been retained in the SOAAF.
15. The fourth is that, contrary to an agreed fact with respect to the admitted conduct that corresponds with ground 1, the respondent did not at all times know that a valid Australian prescription for the substance she supplied and administered, issued by a person legally qualified to do so, did not exist.
16. In addition to the SOAAF, the parties each made written submissions on sanction in the original proceedings.[1] In the separate submissions, the parties agreed that they had reached a joint position as to sanction, as proposed in paragraph 61 of the Board's submissions on sanction. That paragraph provided:

61. Recognising that it is a matter for the Tribunal, the parties are respectfully putting to this Tribunal a joint position on the global discipline to be imposed on the Respondent for the nine admitted Grounds as follows: > > 1. a reprimand;

17. an order under section 196(4)(a) of the National Law that the Respondent be disqualified from applying for registration for 20 years;
18. an order pursuant to section 196(4)(b) of the National Law prohibiting the Respondent from, whether directly or indirectly, providing nursing related health services and from using the titles nurse, enrolled nurse or cosmetic nurse for 20 years.
19. No submission has been made as to whether the content of the respondent's submissions on sanction, and particularly the adoption of the Board's submission as to sanction as a joint position, represented the respondent's instructions.
20. The respondent maintains, through her counsel Mr Anders, that the question of whether the Tribunal has the power to re-make a purported decision that is tainted by jurisdictional error is a matter of discerning whether the statute confers the relevant power on the Tribunal. The respondent argues that the Tribunal's error had the effect that it failed to make a decision and therefore the Tribunal has jurisdiction to now make the decision.
21. The error, according to the respondent, was that the Tribunal failed to conduct a hearing in accordance with the scheme established by the Health Practitioners Act and the SACAT Act read together.
22. It is the respondent's case that a hearing did not occur because the respondent was not heard in the relevant sense because the proceedings were determined on a basis that did not represent the applicant's position, though it was advanced as such. The respondent maintains that she was not heard in the sense that she was denied an opportunity to put her position through the fraud, and she was not represented in that her solicitors did not advance her instructions.
23. Because she was not heard, the respondent contends, the purported disposition of the proceedings was tainted by jurisdictional error and the outcome vitiated so as to leave the function undischarged.
24. The respondent maintains that the objects of the SACAT Act and the powers and procedures of the Tribunal lead to a conclusion that upon satisfying itself that it has not discharged its function, the Tribunal can and should now do so.
25. The respondent says that the avenue of judicial review is arguably not available where there is no error on the face of the record.
26. The route by which the respondent submits that the Tribunal should satisfy itself that its earlier decision was in error is s 85(5) of the SACAT Act. The respondent seeks an opportunity to adduce evidence in the Tribunal to establish that there was dishonesty on the part of her former solicitors and that any question of the materiality of the fraud is secondary.
27. Section 85 provides:

85 - Tribunal may review its decision if person was absent

• (1) In this section - relevant hearing, in relation to a decision of the Tribunal, means a hearing at which the decision was made or which preceded the making of the decision (including a compulsory conference) but does not include mediation.
• (2) A person in respect of whom the Tribunal makes a decision may apply to the Tribunal for a review of the decision if the person did not appear and was not represented at a relevant hearing.
• (3) The application has to be made within the time limits specified by, and otherwise in accordance with, the rules.
• (4) The rules may limit the number of applications that can be made under this section in respect of the same matter without leave of the Tribunal.
• (5) If on hearing the application the Tribunal is satisfied that the applicant had a reasonable excuse for not attending or being represented at the relevant hearing, the Tribunal is to review the decision and may revoke or vary it if the Tribunal considers it appropriate to do so.
• (6) For the hearing of the application, the Tribunal is to be constituted by the members by whom it was constituted when it made the decision, if that is practicable.
• (7) A review under this section -

(a) is part of the original proceedings; and > > (b) is not a review of a decision for the purposes of section 34 or 70.

1. The respondent submits that s 85 expressly contemplates the Tribunal considering a matter where a first attempt to do so has failed by virtue of a party not being heard or represented at the hearing. The respondent submits that she was not heard in the sense that her position was not put to the Tribunal due to the fraud upon the Tribunal by her former solicitors. Alternatively, it should be concluded that she was not represented in that her former solicitors did not advance her instructions to the Tribunal. On either approach, she submits that s 85 provides the mechanism for the issue to be determined.
2. Although the respondent has not made such an application and is now beyond the seven day time frame within which the South Australian Civil and Administrative Tribunal Rules 2014 (the 'SACAT Rules') provide that an application under s 85 should be made, the respondent submits that the time could be extended by the Tribunal under its power to extend time.

1. Mr Doyle QC on behalf of the Board contends that the question of whether the Tribunal has authority to conduct an enquiry into its own alleged defective decision may be determined by a consideration of the powers of the Tribunal and the nature of the defect alleged. The Board contends that such an exercise leads to the conclusion that the Tribunal does not have such authority in this case.
2. The Board maintains that Minister for Immigration and Multicultural Affairs v Bhardwaj,[2] and particularly the reasoning of Gleeson CJ, McHugh and Callinan JJ, should be understood to support the proposition that the statutory scheme and the nature of the error or failure, when considered together, yield the answer as to whether a decision-maker has the authority to enquire into an allegation of its own earlier jurisdictional error.
3. The Board observed the adoption of this approach in Chang v Legal Profession Complaints Committee,[3] in which the West Australian Court of Appeal (Buss P and Murphy JA) considered a similar scheme under Western Australian law. The Court concluded that the Legal Conduct Tribunal was not empowered to engage in an enquiry about a fraud on itself and that the right of appeal against the Tribunal's decision provided for such an issue to be ventilated. The task of determining whether such an enquiry is authorized under implied powers entails considering the statutory provisions that confer flexible processes to achieve decisions that are consistent with equity, good conscience and the substantial merits, and those provisions which confer avenues of correction and appeal, to reach a conclusion. In the West Australian example, that task yielded the conclusion that challenges to decisions once made are constrained by the provision of the avenues contained in the legislation and no power to revisit the decision outside of those provisions should be implied.
4. The Board maintains that whilst there is no South Australian jurisprudence on the particular scheme, various decisions by the Tribunal on the limits of its powers were consistent with the adoption of a similarly conservative approach with respect to implied powers particularly where to exercise them would have the effect of indulging in collateral inquiries.
5. The Board contends that even if the Tribunal has the ability to acknowledge or determine that an earlier purported decision has been vitiated by error, such an acknowledgement or determination is only able to be reached where there is no need for a factual enquiry of any magnitude. In this case, factual enquiries into the fraud and the materiality of it would be required before the Tribunal could conclude that it was not functus officio.
6. The Board contends that if an interrogation of the scheme led to a conclusion that the Tribunal is authorised to enquire into the status of its earlier decision, then were it to do so the outcome would not be conclusive. Any conclusion reached regarding whether there had been a fraud on the Tribunal would not be determinative of the parties' rights though it would enable the Tribunal to reconsider the primary issue afresh. Therefore, it would be undesirable for the Tribunal to embark on such a course.
7. The Board submits that even if the Tribunal considered it had the power to enquire as to the occurrence of a fraud upon it, materiality would need to be considered before the Tribunal should conclude that it would be appropriate to embark on the enquiry.
8. In relation to the operation of s 85, the Board submits that the respondent was at all times represented and the provision is directed at non-participation, either personal or through representation, in a hearing. The provision is therefore not available to her in the circumstances she alleges occurred.

1. The parties cannot vest the Tribunal with jurisdiction or power that it otherwise does not have.[4] If the Tribunal can enquire into a fraud upon itself it is because there is an express or implied power to do so.

1. Section 196 of the Health Practitioners Act requires a referral to be determined at a "hearing".
2. The procedure of this Tribunal in exercising jurisdiction under the Health Practitioners Act derives from the operation of s 6A of that Act which makes the Tribunal the forum for the hearing of referred complaints. The hearing occurs in accordance with the powers and procedures of the Tribunal.
3. Relevant to the current proceedings, s 67 of the SACAT Act provides that the Tribunal may conduct hearings in a variety of ways but that in so doing, the principles of open justice must be adhered to.

67 - Electronic hearings and proceedings without hearings > > (1) If the Tribunal thinks it appropriate, it may allow the parties and their representatives and any witnesses (or 1 or more of them) to participate in a hearing in any proceedings by means of telephone, video link, or any other system or method of communication. > > (2) If the Tribunal thinks it appropriate, it may conduct all or part of any proceedings entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing. > > (3) If the Tribunal acts under this section, the Tribunal is to take steps to ensure that the public has access to, or is precluded from access to, matters disclosed in the proceedings to the same extent as if the proceedings had been heard before the Tribunal with the attendance in person of all persons involved in the proceedings.

4. Together with the definition of "appear", and sections 39, 43, 67 and 85 of the SACAT Act, a "hearing" in s 193 of the Health Practitioners Act when used for proceedings in South Australia is the occasion on which the parties advance their positions either wholly in writing, wholly by way of oral submissions by phone, video or in person, or a combination of these methods.
5. I find that there was a hearing in this sense notwithstanding that it was undertaken on the papers.

What express powers does the Tribunal have to alter a decision already made and authenticated?

1. The hearing led to a decision and orders. SACAT's orders are authenticated by the affixing of the Tribunal's seal.
2. Several provisions in the SACAT Act expressly provide for the alteration of an authenticated order. The Tribunal can cure irregularities in accordance with s 83 as follows:

83 - Power to cure irregularities > > (1) Where in proceedings before the Tribunal or on appeal from the Tribunal to the Supreme Court it appears to the Tribunal or the Court -

(a) that some irregularity has occurred affecting the proceedings or any matter to which the proceedings relate; and

(b) that it would be conducive to the expeditious resolution of the questions of substance at issue between the parties if the powers conferred by this section were exercised,

the Tribunal or the Court may cure the irregularity by ordering that, subject to the fulfilment of such conditions as may be stipulated by the Tribunal or the Court, a requirement of this Act, or of any other Act or law, be dispensed with to the extent necessary for the purpose.

(2) An order under this section does not affect the rights or liabilities of persons who are not parties to the proceedings.

1. An irregularity refers to a defect in a procedural step, usually by the decision-maker. The provision envisages that the irregularity may be cured by the dispensation of a requirement in the Act or another Act. In other words, it operates to authorise the filling of an unintentional gap in the process. Neither party asserted that the circumstances alleged by the applicant constitute an 'irregularity' and it is plain that the provision does not address the sort of defect that the applicant asserts affected the original decision in these proceedings.
2. The Tribunal can also correct mistakes in its orders and reasons, as follows:

84 - Correcting mistakes > > (1) The Tribunal may correct a decision it gives or a statement of the reasons it has given for its decision to the extent necessary to rectify -

(a) a clerical mistake; or

(b) an error arising from an accidental slip or omission; or

(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the decision; or

(d) a defect of form.

(2) The correction may be made -

(a) on a party's application made in accordance with the rules; or

(b) on the Tribunal's own initiative.

1. The limits of s 84 are evident. It is relied upon to correct mistakes in dates and amounts in orders or reasons, and is appropriately invoked where the error is one that the parties agree has occurred such as where the authenticated order does not represent the oral communication of the order at the hearing. Neither party suggested that the power to correct supplies a resolution to the issue under consideration in these proceedings.
2. These express provisions reflect the fact that the Tribunal has no inherent power to undertake these activities and must be conferred, expressly or impliedly, the power by the legislature.

1. Unlike s 83 and s 84 which are commonly found in legislation establishing tribunals in recognition of the fact that substantive outcomes ought not be nullified by minor procedural errors, s 85 provides a mechanism for substantively altering the Tribunal's outcomes. Section 85 carves out circumstances in which the Tribunal may, on application, undertake a hearing into a matter that has already been the subject of a decision other than by an appeal. Those circumstances arise where a party "did not appear and was not represented at a relevant hearing". A relevant hearing is a hearing at which a decision was made or which preceded the making of the decision (including a compulsory conference) but does not include a mediation.
2. Section 85 confers a power on the Tribunal to revisit an authenticated decision and with the possibility of a different substantive result. However, the non-attendance of a party does not automatically nullify the extant substantive outcome. Indeed, what s 85 shows is that the outcome of a hearing in which a party does not participate through non-attendance (personal or via a representative) leads to an outcome that is nevertheless valid and binding on the parties until set aside, either by internal review, appeal or via the mechanism in s 85. Importantly, therefore, s 85 operates on the basis that the original decision is operative notwithstanding the non-attendance of a party.
3. Section 85 does not operate to give rise to the dispute being re-visited unless and until the Tribunal is satisfied that the non-attending party has a reasonable excuse for their non-attendance. Upon reaching such a state of satisfaction, the Tribunal conducts a review of the earlier decision and may revoke or vary the decision if it considers it appropriate to do so.
4. The provision of a seven day period within which a party may seek a review hearing under s 85 discloses its purpose. In high-volume, short-hearing case lists where the vast majority of parties are not legally represented, s 85 provides a mechanism for parties who miss their hearings to apply to have a further opportunity to be heard. The short timeframe reflects the expectation that a party will know that they have missed their hearing or it will be promptly be drawn to their attention (for example, by receiving the order by email after the missed hearing).
5. Section 85 does not operate in a manner that assists the respondent in light of her claim that the fraud has vitiated the original decision. Section 85 operates where a lawful decision has been made but the Tribunal may, if satisfied that it should, review the original decision and, if appropriate, revoke or vary the decision.
6. The process under s 85 could only be invoked in the alternative to a finding of fraud vitiating the decision. Further, s 85 only operates where a party does not attend or is not represented. The respondent was represented at the relevant hearing. Section 85 should not be construed to give "represented" the wider meaning of "effectively represented" or "represented to the satisfaction of the party". It does not cover the circumstances as advanced by the respondent in these proceedings, insofar as she concedes that her engaged solicitors provided written submissions on her behalf, albeit that she contends that the contents of those submissions did not fully represent her instructions.

The Tribunal's authority to assess its own jurisdictional error

1. Although there are no express provisions authorising the Tribunal's review of its own decisions where such decisions are allegedly tainted by fraud, such a power may be capable of implication from the SACAT Act as a whole or the scheme under which these proceedings were commenced, being the SACAT Act and the Health Practitioners Act read together.
2. Evidently the Tribunal has the authority, indeed the duty, to determine whether a dispute is within jurisdiction.[5]

The approach taken in Chang v Legal Profession Complaints Committee (No 2)

1. The Tribunal considers that the reasoning of the Western Australian Court of Appeal (Buss P, Murphy and Mitchell JJA) in Chang v Legal Profession Complaints Committee (No 2)[6] provides relevant principles on which the issues are to be determined.
2. The circumstances in Chang arose under the scheme created by the State Administrative Tribunal Act 2004 (WA) ('SAT Act') and the Legal Profession Act 2008 (WA) ('LP Act'). The appellant was a solicitor who was subject to disciplinary action brought in the SAT.
3. The SAT (constituted by Deputy President Judge Sharp) issued consent orders to the effect that the appellant had engaged in professional misconduct. The appellant applied to the Tribunal for it to set aside its orders because the appellant wished to resile from the consent orders on the basis that they had been agreed to under circumstances of duress, and subsequently for the Tribunal to proceed to hear the matter. The appellant maintained that she was not advised and did not understand that a concession of recklessness in her conduct would, on the facts of the case, be used by the Legal Profession Complaints Committee as an admission of dishonesty, relevant to penalty.
4. The Tribunal refused to grant the application to revisit the perfected consent orders on the basis that the Tribunal had no power to do so.
5. Deputy President Judge Sharp distinguished Bhardwaj on the basis that what had occurred in respect of the consent orders was not an administrative error by the Tribunal that led to there being no hearing and no decision at all. His Honour further found that the consent orders were a final, perfected decision of the Tribunal and the Tribunal did not have any power to set them aside or vary them except in accordance with the limited statutory provisions of the SAT Act which did not apply in that case, but that the appellant had a right of appeal to the Court of Appeal.
6. The appellant then appealed to the Court of Appeal, which considered the decision to refuse.
7. There are many similarities between the facts of Chang, and the legal issues to be determined, as the current case. Both matters involve the consideration of the powers of a tribunal, established under statutes that are very similarly worded, to revisit its authenticated decisions. Both involve the consideration of those powers in the context of other legislation that confers on the tribunal the function of determining a professional's liability to disciplinary action. Both cases involve the making of a finding of liability and the issuing of orders that are perfected, following which the practitioner seeks to have the orders re-visited.
8. Some differences in the cases are as follows.
9. In Chang, the scheme under consideration was constituted by the SAT Act and the LP Act, the latter of which is in different terms to the Health Practitioners Act. However, I have not discerned differences that are material to the broad issues for which the case is relevant, namely consideration of express or implied powers to revisit perfected orders on an allegation of fraud vitiating those orders.
10. In Chang, the impugned orders reflected a settlement process under the powers in the SAT Act that provide for the making of orders following a "settlement". An equivalent provision appears in the SACAT Act (s 52) but it was not the provision under which the orders in the present matter were made. However, the fact that the orders were made under the settlement provisions and not in the manner that occurred in the present case does not appear to have been critical to the reasoning of the Court.
11. Thirdly, Chang was an appeal against a decision to refuse to re-open the matter whereas, in the present matter before this Tribunal, the application to re-open has been paused to enable the authority of the Tribunal to determine the application to be determined as a question of law.
12. I do not find those distinctions to be relevant to the applicability of the reasoning in Chang to the current case.
13. The Court of Appeal made the following preliminary observations that are applicable also to the current case:
    • The SAT is an administrative tribunal and not a court.

• It only has the jurisdiction conferred by SAT Act and the conferring Act (in that case the LP Act).
  • The parties cannot vest the Tribunal with greater jurisdiction or power than it otherwise has.[7]
  • The conferring Act activates a matter in the Tribunal via a 'referral'.
  • The jurisdiction being exercised in the case was original.

1. Strictly speaking the Tribunal is not bound to follow Chang in that the Western Australian Court of Appeal is not in the same juristic hierarchy.[8] However, a decision of an appellate court of another jurisdiction that is not inconsistent with the jurisprudence of a South Australian higher court is highly persuasive, particularly on an issue of interpretation of a statutory provision scheme that is identical or similar to that which the Tribunal is required to consider.
2. The Court of Appeal considered the High Court's reasoning in Minister for Immigration and Multicultural Affairs v Bhardwaj[9] but found that it did not support the appellant's case because the correction of an order allegedly vitiated by fraud or duress was to be achieved by the appeal mechanism, and not by the implication of a power to embark on "proceedings to determine whether an apparently valid agreement was vitiated by fraud or duress". To do so would be to "invite controversy, expense and delay, including the prospect of an appeal on what would effectively be a collateral issue".
3. 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.[10] Gleeson CJ referred to the power to revisit arising upon the tribunal becoming aware that it had, "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".[11]
4. Not only was the error in Chang, as in the present case, an error that is performed on the tribunal rather than by its own internal actions, the error in Bhardwaj was one in relation to which there was no avenue of appeal by virtue of the express exclusion in the Migration Act 1958 of a denial of procedural fairness as a ground of appeal.
5. The court in Chang considered the objects of the State Administrative Tribunal, which are very similar to those of SACAT, and in particular require the resolution of matters fairly and in accordance with their substantial merits, speedily and with as little formality and technicality as is practicable.[12]
6. The Western Australian Court of Appeal considered whether a binding estoppel had been created by the Tribunal's first decision and observed that the decision must have been made within jurisdiction for an estoppel to arise.[13] The Court noted that a fraud by or on the decision-maker can be a source of jurisdictional error, referring to SZFDE v Minister for Immigration and Citizenship.[14]
7. In SZFDE, the protection visa applicants did not attend the hearing due to the fraud of their advisor. The High Court found that the conduct caused the Tribunal to be "disabled from the due discharge of its imperative statutory function with respect to the conduct of the review."[15] The High Court made the point that the outcome turned on the particular provisions of the statutory scheme and that "a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made."[16] Those observations tell against the circumstances as alleged in these proceedings, if proven, being properly understood to vitiate the Tribunal's decision.
8. The Western Australian Court of Appeal found that there were no equitable doctrines capable of coherent operation in the context of the statutory provisions in the SAT Act by which the decision was made in that case.[17]
9. The Western Australian Court of Appeal further held in respect of the scheme created by the operation of the SAT Act (which is relevantly in very similar terms to the SACAT Act) and the LP Act should not be construed to impliedly authorise the Tribunal to embark on proceedings to determine whether its earlier decision was vitiated with fraud or duress.[18] The implication was found to be inconsistent with the intention evinced by the Western Australian Parliament that the State Administrative Tribunal is not to concern itself with the determination of issues collateral to those before the Tribunal.[19]
10. The Court in Chang further observed that the question of whether the State Administrative Tribunal committed jurisdictional error on the basis of fraud of the type alleged in Chang is a question of law for the purposes of the SAT Act's appeal provisions and thereby appellable.[20] Sections 71 and 72 of the SACAT Act provide for appeals from the Tribunal to the Supreme Court to be heard by way of rehearing, and for questions of law to be reserved by the Tribunal to the Supreme Court. In either case, there is an avenue by which a jurisdictional error can be ascertained.
11. The reasoning of the Western Australian Court of Appeal should be followed in the present case. Apart from the distinction of the orders being made pursuant to the provisions for orders reached by way of settlement in Chang, the circumstances are relevantly the same and the reasoning of the Court of Appeal should be adopted.
12. To that reasoning, and directed at the circumstances of the present case, some further points may be made.
13. The first is the implication of powers of the Tribunal to revisit its own decisions, which is informed by the broader scheme in respect of the exercise of all of the Tribunal's types of jurisdiction.
14. The Tribunal has original, review and internal review jurisdiction. The machinery is established by the SACAT Act and the jurisdiction is conferred by enabling Acts. Under the Health Practitioners Act, the Tribunal exercises original and review jurisdiction. In respect of these proceedings, the jurisdiction was original.
15. The Tribunal does not exercise internal review jurisdiction under the scheme.[21] Challenges to the decisions of the Tribunal go directly by way of appeal to the Supreme Court pursuant to s 71(1) of the SACAT Act.[22] However, when exercising its internal review jurisdiction conferred by other enabling Acts, the Tribunal may determine that the Tribunal has, in the exercise of original jurisdiction, committed jurisdictional error.
16. By the conferral of powers under the Health Practitioners Act, the Tribunal may exercise review jurisdiction when it reviews the decisions of health boards. It may determine in the exercise of its review jurisdiction that another decision-maker whose decisions the Tribunal must review, has committed jurisdictional error.
17. However, the exercise of jurisdiction by the Tribunal was original and as such, a right of appeal lies which can address an allegation of jurisdictional error.
18. From this broader view, it may be concluded that the Tribunal is empowered to decide whether another body in respect of which it has a review role has committed jurisdictional error, and even whether it has committed jurisdictional error itself when fulfilling its internal review role. The absence of a power of internal review but the existence of an avenue of an appeal in respect of the original jurisdiction exercised in the current proceedings, supports the conclusion that the Tribunal should not be understood to be able to revisit, as an exercise of original jurisdiction, its own decision for the purpose of determining whether that decision was affected by a third-party fraud.
19. Notwithstanding the similarities between the SACAT Act and the SAT Act, it is necessary to consider the SACAT Act provisions to determine whether those provisions support an implication of a power to revisit a decision allegedly vitiated by a third-party fraud. The provisions that might be relied upon in determining whether such a power might be implied include the Tribunal's objectives and its practices and procedures.
20. The Tribunal's objectives, as set out in s 8 and reproduced below, relevantly require the Tribunal act with as little formality and technicality as possible, to be flexible and adjust its procedures to best fit the circumstances of a particular case or particular jurisdiction.

8 - Main objectives of Tribunal > > (1) The main objectives of the Tribunal in dealing with matters within its jurisdiction are -

(a) in the exercise of its jurisdiction, to promote the best principles of public administration, including -

(i) independence in decision-making; and

(ii) natural justice and procedural fairness; and

(iii) high-quality, consistent decision-making; and

(iv) transparency and accountability in the exercise of statutory functions, powers and duties; and

(b) to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with special needs; and

(c) to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures wherever appropriate; and

(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and

(e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and

(f) to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and

(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

(2) In connection with the conferral and exercise of its jurisdiction the Tribunal should, in relation to these objectives, consult from time to time with such agencies, organisations or bodies as it thinks appropriate.

1. In light of the professional consequences to which practitioners are liable and the reputational consequences, disciplinary proceedings are often determined with some formality or technicality.
2. The objects of the Act are facilitated by the adoption of particular procedures.

Division 3 - Procedures > > 43 - Practice and procedure generally > > (1) The Tribunal is to take measures that are reasonably practicable -

(a) to ensure that the parties to any proceedings have a reasonable opportunity to understand the nature of the matter under consideration; and

(b) to ensure that the parties to any proceedings understand the nature of any assertions made in the proceedings and the legal implications of those assertions; and

(c) to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal; and

(d) to ensure that the parties have the opportunity in any proceedings to be heard or otherwise have their submissions received.

(2) The Tribunal -

(a) is to take all practicable steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings; and

(b) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument; and

(c) may limit the time available for presenting the respective cases of parties before it at a hearing to an extent that it considers would not impede the fair and adequate presentation of the cases; and

(d) may require a document to be served outside the State; and

(e) may adjourn any proceedings at any time and to any place (including for the purpose of enabling the parties to negotiate a settlement or for the purpose of reconsideration of a decision by the

(f) decision-maker); and

(g) may proceed to hear and determine proceedings in the absence of a party.

(3) To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or a relevant Act, it is to be as the Tribunal determines.

1. In Sloan v Minister for Immigration, Local Government and Ethnic Affairs,[23] French J (as he then was) said,

The implication into an express grant of statutory power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances... > > Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be reopened without the necessity of invoking the full panoply of judicial or express statutory review procedures.

2. Consistent with the conclusion reached by the Court of Appeal in Chang with respect to the SAT, the procedures described in s 43 of the SACAT Act do not lend themselves to an implication of a power to revisit a decision to determine whether it has been affected by a third-party fraud.
3. Further, such an implication would lead to enquiry into collateral issues. As this Tribunal has already found in Medical Board of Australia v Singh[24] and Pawelzik v South Australian Housing Trust[25] the circumstances in which a collateral issue should be understood as contemplated to be within the power of the Tribunal to consider are narrow. This emerges from the objects of the Tribunal to determine matters with expedition and because often the collateral issue will not be able to be determined conclusively.
4. In Medical Board of Australia v Singh, I determined that the same statutory scheme as considered in the present case did not evince an intention to imply a power that the Tribunal could determine the validity of a purported decision of a court allegedly vitiated by jurisdictional error. The nature of the error in that case was reliance on searches conducted pursuant to allegedly invalid search warrants. It was not necessary in that case to consider whether such a power might be implied if the decision was invalid on the face of the record. Nor is that the case here.
5. Further, the circumstances of the current proceedings can be distinguished from those canvassed by Parker P in Re OMQ.[26] In that case, concerning an internal review of an order appointing the Public Trustee as his administrator, the applicant was unrepresented and mentally ill. His application for internal review of an earlier adverse Tribunal decision was dismissed after he failed to effectively participate in the internal review proceedings. He subsequently sought to initiate an identical application. Section 85 was not available to him because he did not fail to attend the earlier review. He was telephoned at the commencement of the hearing and he communicated, in a manner that suggested that he may not have been competent to participate, that he had abandoned his review. As a result it was dismissed without any consideration of its merits. President Parker permitted him to revive the application on a later occasion. President Parker described the circumstances as "particular and very unusual" and not establishing a general principle of a right of a second internal review.[27] I respectfully agree. The circumstances are quite different from those under consideration in this matter, where the proceedings giving rise to the challenged decision have proceeded to their conclusion with the applicant's position (albeit one she now says was not her own) advanced by her representatives in several comprehensive and detailed documents.

1. Jurisdictional error can be addressed by appeal, the avenue for which is contained in s 71 of the SACAT Act. To the extent that a party asserts that a decision can only be shown to be wrong following an inquiry into the circumstances on which the decision was based, judicial review may be available to provide declaratory relief. The applicant in this case has not pursued either course. A right of appeal might be said to operate as a component of a scheme in relation to which it is not necessary to imply powers to revisit the original decision; the appeal is the mechanism that the legislature has provided. Such an argument is attractive but must be approached with caution. The absence of an appeal avenue may not be intended to suggest a broader right to revisit a decision. It will always be necessary to examine the particular statutory scheme.
2. Here the legislature has evinced an intention through the express provisions in ss 83-85 of the SACAT Act, the lack of any language in the objects or procedural powers that points to the existence of an implied power, and the avenues of appeal and judicial review by which such allegations can be determined, that the power to examine the circumstances of an earlier hearing to determine whether jurisdiction was not exercised, or was exercised in circumstances in which it should be re-exercised, is limited.
3. An analysis of the scheme of the SACAT Act and Health Practitioners Act read together does not yield the conclusion that there is a power to revisit this decision to enquire as to whether a fraud has been perpetrated on the Tribunal by a third party.

Does the Tribunal have authority to decide whether its earlier decision was affected by fraud on the Tribunal as alleged by [HDR] (or should it treat the earlier decision as valid unless and until a superior Court grants declaratory or other prerogative relief to the effect that the earlier decision was tainted by jurisdictional error)?

The Tribunal does not have authority to decide whether the decision dated 14 September 2021 was affected by fraud on the Tribunal as alleged by the applicant.

1. Accordingly, it is not necessary to proceed to consider whether, on the basis of the existence of such a power, a discretion should be exercised to decline the application based on the materiality of the alleged gap between what was put and what the applicant says should have been put. The parties did not ventilate this issue in any detail. The Board referred the Tribunal to Minister for Immigration and Border Protection v SZMTA & Another[28] in which the plurality stated at [45]:

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

2. I note that the Board maintains that the respondent has not resiled from statements agreeing to a 20-year disqualification and I observe that in addition to the SOAFF, the parties made written submissions on penalty statements on behalf of the applicant which are consistent with the orders made and have not been withdrawn. As this issue was not argued in any detail, I do not rely upon it but I observe that it presents a further potential barrier to the respondent's application.

1. The parties have liberty to apply for directions issued by the Tribunal as constituted by Senior Member D'Arcy for any outstanding matters.

[1] The Board's submissions were dated 31 August 2021 and the Applicant's submissions were dated 7 September 2021.

[2] [2002] HCA 11; (2002) 209 CLR 597.

[3] [2020] WASCA 140.

[4] WorkCover Corporation of SA v Davey [2011] SASCFC 66 [41]; Chang v Legal Profession Complaints Committee (No 2) [2020] WASCA 208 ('Chang') [188].

[5] Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213 [14]-[16].

[6] [2020] WASCA 208.

[8] Favelle Mort v Murray [1976] HCA 13; (1976) 133 CLR 580, 591 (Barwick CJ).

[9] [2002] HCA 11; (2002) 209 CLR 597.

[14] Chang [220]; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189.

[15] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 [51].

[16] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 [53].

[19] Chang [192]; The Big Apple Group Pty Ltd v Melbourne City Council [2020] VSC 393 [44].

[22] To a single Judge where the Tribunal was constituted by persons not including a presidential member and to the Court of Appeal where the Tribunal was constituted by persons including a presidential member.

[23] [1992] FCA 414; (1992) 37 FCR 429, 423, [1992] FCA 414 [30].

[24] [2019] SACAT 66.

[25] [2019] SACAT 44.

[26] [2017] SACAT 8.

[27] [2017] SACAT 8 [31]-[32].

[28] [2019] HCA 3 per Bell, Gageler, Keane, Nettle and Gordon JJ.