It is noted that the proceedings were properly commenced pursuant to section 10 of the ACT Civil and Administrative Tribunal Act 2008 by the letter sent by the applicant to the tribunal dated 1 July 2013.

The following reasons for decision explain why the Tribunal has concluded that it does not have jurisdiction in relation to the matters set out in paragraph 4 of the draft statement of particulars filed by the applicant on 6 September 2013. Essentially, the Tribunal has concluded that it is bound by the allegations set out in the notice of hearing of a performance and professional standards panel given to the respondent on 20 September 2012. Paragraph 4 of the draft statement of particulars contains an additional allegation to those set out in the notice. The Tribunal has also concluded that it does not have power to amend the application to include the additional allegation. Therefore, the tribunal lacks jurisdiction in relation to that additional allegation.

1. On 26 March 2008, the Council of Australian Governments (COAG) signed the 2008 Intergovernmental Agreement for a National Registration and Accreditation Scheme for Health Professions, agreeing to fully implement a national scheme of registration and accreditation for health professions in Australia (the National Scheme) by 1 July 2010.[1] The Health Practitioner Regulation National Law (ACT) Act 2010 was passed as part of the implementation of the National Scheme which is set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law). References to statutory provisions or to 'the Law' or to 'the legislation' in these reasons refer to the National Law unless otherwise stated.
2. The parties agreed that the respondent was at all material times registered as a psychologist, and his practice is regulated by the National Law. He is currently registered with the Australian Health Practitioner Regulation Agency (AHPRA).[2]
3. Following a complaint by KS to the ACT Human Rights Commission about the respondent's conduct, the Regional Board of the Psychology Board of Australia (the board) convened a performance and professional standards panel (the panel) pursuant to section 182 of the National Law to consider whether the respondent's professional conduct was unsatisfactory. AHPRA has a statutory responsibility to assist the board and did so in this case. It has other responsibilities under the National Law which are elaborated below.
4. On 20 September 2012, AHPRA, on behalf of the panel, gave notice of a hearing of a matter to the respondent pursuant to section 184 of the National Law (the section 184 notice). The relevant portions of the section 184 notice are extracted below, with some modification to de-identify potential witnesses:

The hearing will consider whether, between approximately 1991 and approximately 2005:

• you maintained a social relationship with PC and members of his family, including but not limited to SP, SS, and DC;
• you provided psychological services to PC and members of his family including but not limited to SP, SS and DC; and
• you engaged in unprofessional conduct by breaching clause B.7 of the Australian Psychological Society Code of Ethics (2003) (and its predecessors).

The material to be considered by the panel includes:

1. Complaint made to the Health Services Commission by KS dated 2 December 2008;
2. Statutory Declaration from KS including Annex A to G dated 16 April 2012;
3. Statutory Declaration from SS dated 5 July 2012;
4. Code of Ethics (2007), from the Australian Psychological Society (APS);
5. APS Code of Ethics Translation Table.

A copy of all of the material to be considered at the hearing by the panel is enclosed.

You may be accompanied at the hearing by an Australian legal practitioner, or a support person of your choice. Please note that a legal practitioner may only appear on your behalf if the panel considers it appropriate in these particular circumstances. Please also note that the notifier, with leave of the panel, may make a submission to the panel about this matter.

This hearing before the panel is not open to the public.

Following the hearing, the panel may decide that:

• there is no case to answer, and no further action is to be taken; or
• you have behaved in a way that constitutes unsatisfactory professional performance; and/or
• you have behaved in a way that constitutes unprofessional conduct; and/or
• you have an impairment; and/or
• the matter must be referred to a Tribunal; and/or
• the matter must be referred to another entity for investigation or other action.

Should the panel find that you have behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct, the panel may:

• caution or reprimand you
• impose conditions on your registration, including, requiring you to do one or more of the following:
  • to complete specified further education or training within a specified period;
  • to undertake a specified period of supervised practice;
  • to do, or refrain from doing, something in connection with your practice;
  • to manage your practice in a specified way;
  • to report to a specified person at specified times about your practice;
  • not to employ, engage or recommend a specified person, or class of persons.

1. The panel hearing was held on 18 October 2012. Following the commencement of the panel hearing, the respondent's legal representative requested that the matter be referred to the ACT Civil and Administrative Tribunal (the tribunal) pursuant to section 190 of the National Law.
2. The board referred the matter to the tribunal on 1 July 2013. As discussed below, this referral constituted an application to the tribunal pursuant to section 10 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act)
3. After the proceedings commenced in the tribunal, a dispute arose between the parties about the ambit of the particulars that were supplied by the applicant to the respondent. The relevant portions of the draft statement of particulars provided by the applicant on 6 September 2013 are set out below. Again, the names of potential witnesses have been de-identified. The examination of the practitioner's conduct is limited to the period between approximately 1991 and 2005.

1. Pursuant to section 190 of the Health Practitioner Regulation National Law (ACT) the applicant refers to the Tribunal a notification alleging that the practitioner, ..., acted in a way that may have constituted ... unprofessional conduct in the course of his work as a psychologist.
2. The notification alleging ... unprofessional conduct is based on the following particulars:
3. The practitioner maintained a social relationship with PC and members of his family, including, but not limited to:

whilst also providing professional services to some or all of those individuals.

1. The practitioner disclosed personal information by his emails of:

1. 8 November 2005 (see page 10 of A.1 in the Applicant's Index of Materials and A.3).
2. 10 November 2005 (see Tab D of A.3 in the Applicant's Index of Materials);

1. 10 November 2005 (see Tab G of A.3 in the Applicant's Index of Materials).

1. That the maintenance of those relationships constituted a breach of the Australian Psychological Society Code of Ethics (2003) and its previous iterations.

1. The dispute between the parties concerned paragraph 4 of the draft statement of particulars. It was contended by the respondent's legal representatives that this paragraph should be removed because an alleged breach of confidentiality was not particularised in the section 184 notice provided on 20 September 2012 and was therefore not a consideration before the panel at the hearing on

18 October 2012. 2. Following correspondence between the parties and directions made by the tribunal on 10 July 2013, an interlocutory hearing was held on 30 August 2013 to determine the scope of the 'matter' before the tribunal. 3. A reference in this decision to the 'Tribunal' refers to the member allocated for the interlocutory hearing. A reference to the 'tribunal' refers the ACT Civil and Administrative Tribunal generally. 4. At the conclusion of the hearing on 30 August 2013, the Tribunal made an order that the applicant was to 'file an application for disciplinary action regarding the present proceedings' by 6 September 2013. In a letter dated 6 September 2013, the applicant respectfully suggested that such an application is not required in order to properly bring the matter before the tribunal. On 31 October 2013, the Tribunal requested evidence of the respondent's registration as a health practitioner and a Certificate of Registration Status was provided by the applicant on 14 November 2013.

1. Section 4 of the National Law requires an entity that has functions under the Law to exercise its functions having regard to the objectives and guiding principles set out in section 3.
2. The objectives and guiding principles are set out in section 3 of the National Law and include the following:
   1. Objectives and guiding principles

_(1) The object of this Law is to establish a national registration and accreditation scheme for - _

_(2) The objectives of the national registration and accreditation scheme are - _

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; ...

_(3) The guiding principles of the national registration and accreditation scheme are as follows - _

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

1. Section 23 of the National Law establishes AHPRA. AHPRA is referred to as the 'National Agency' in the National Law and has the responsibility under section 25 of the National Law to provide administrative assistance and support to national boards[3] and to establish an efficient procedure for receiving and dealing with notifications against persons who are registered health practitioners.[4]
2. Section 31 of the National Law establishes the national health practitioner boards and the table in that provision indicates that one of the relevant national boards is the Psychology Board of Australia.
3. The functions of the national boards are set out in section 35 of the National Law and include the following:

... _(g) to oversee the receipt, assessment and investigation of notifications about persons who - _

(i) are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act; ...

_(h) to establish panels to conduct hearings about - _

(i) health and performance and professional standards matters in relation to persons who are or were registered in the health profession under this Law or a corresponding prior Act; ...

(i) to refer matters about health practitioners who are or were registered under this Law or a corresponding prior Act to responsible tribunals for participating jurisdictions;

1. A National Board may establish a performance and professional standards panel under section 182 of the National Law if -

_(a) the Board reasonably believes, because of a notification or for any other reason, that - _

(i) the way a registered health practitioner practises the health profession is or may be unsatisfactory; ...

(ii) the registered health practitioner's professional conduct is or may be unsatisfactory; ...

(b) the Board decides it is necessary or appropriate for the matter to be referred to a panel.

1. The relevant performance and professional standards panel is required to give notice of its hearing of a matter to the health practitioner under section 184. The relevant part of this provision states as follows:
   1. Notice to be given to registered health practitioner or student

(1) A panel must give notice of its hearing of a matter to the registered health practitioner ... the subject of the hearing.

(a) the day, time and place at which the hearing is to be held; and

(b) the nature of the hearing and the matters to be considered at the hearing; and

(c) that the registered health practitioner ... is required to attend the hearing; and

(d) that the registered health practitioner may be accompanied at the hearing by an Australian legal practitioner or other person; and

(e) that if the registered health practitioner ... fails to attend the hearing the hearing may continue, and the panel may make a decision, in the practitioner's ... absence; and

(f) the types of decision the panel may make at the end of the hearing.

1. The procedure to be applied by the panel is regulated by section 185. This provision states in subsection (1) that the panel may decide its own procedures. However, the legislation specifically states in section 185(2) that the panel is bound by the rules of natural justice although is not bound by the rules of evidence. It may have regard to any information that the panel considers to be relevant to the hearing of the matter.[5]
2. The types of decision that may be made by a panel after the hearing of a matter about a health practitioner are listed in section 191. The relevant part of section 191 is set out below.
   1. Decision of panel

_(1) After hearing a matter about a registered health practitioner, a panel may decide - _

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iv) the matter must be referred to a responsible tribunal under section 193;

(v) the matter must be referred to another entity, including, for example, a health complaints entity, for investigation or other action.

1. Section 190 states, in part, that the panel must stop hearing a matter and require the National Board to refer the matter to a responsible tribunal under section 193 if, at any time -

(a) the practitioner ... the subject of the hearing asks the panel for the matter to be referred to a responsible tribunal under section 193; or

_(b) if the subject of the hearing is a registered health practitioner - _

(i) the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct; ...

(_1) ...refer a matter about a registered health practitioner ... to a responsible tribunal if - _

_(a) ... the Board reasonably believes, based on a notification or for any other reason - _

(i) the practitioner has behaved in a way that constitutes professional misconduct; or ...

(b) ... a panel established by the Board requires the Board to refer the matter to a responsible tribunal.

1. The ACT Civil and Administrative Tribunal is declared to be a responsible tribunal for the purposes of the National Law by section 8 of the Health Practitioner Regulation National Law Act 2010 (ACT).
2. The parties to the proceedings relating to a matter being heard by a responsible tribunal are the registered health practitioner who is the subject of the proceedings and the National Board that referred the matter to the tribunal.[6]
3. Section 198 of the National Law states that Part 8 Division 12 of that legislation applies despite any provision to the contrary of the Act that establishes the responsible tribunal - in this case the ACAT Act - but does not otherwise limit that Act.

1. Central to this interlocutory dispute is whether the tribunal can hear the allegation in paragraph 4 of the draft statement of particulars. The tribunal will lack jurisdiction in relation to this allegation if it is bound by the ambit of first 3 dot points of the section 184 notice that was given to the respondent on

20 September 2012. Paragraph 4 raises a significantly different allegation to those contained in the first 3 dot points of the section 184 notice. The tribunal will be bound by the allegations in the first 3 dot points of the section 184 notice if firstly, the panel and board are bound by those allegations, and secondly, if the allegations cannot be amended once the tribunal has assumed jurisdiction pursuant to section 190 of the National Law.

1. The Tribunal considered the following material during, and subsequent to, the interlocutory hearing on 31 August 2013:
   • the applicant's letter dated 1 July 2013 referring the matter to the tribunal and the Index of Material attached thereto;
   • a bundle of material provided by Dr Hausfeld on behalf of the respondent at the interlocutory hearing, which included copies of letters and emails between the legal representatives of the parties during August 2013 and a copy of the section 184 notice dated

20 September 2012; * the draft statement of particulars filed by the applicant on

6 September 2013; * a letter from the applicant's solicitor dated 6 September 2013; * emails between the parties and the tribunal between 31 October 2013 and 15 November 2013; * a Certificate of Registration Status dated 14 November 2013 issued by AHPRA

1. The applicant board argued that the matter before the tribunal is a consideration of whether the practitioner engaged in unprofessional conduct. The draft statement of particulars is simply an articulation of the board's position in respect of the alleged conduct. Paragraph 4 is merely particularising the alleged unprofessional conduct. The reference to the emails dated 8 November 2005 and 10 November 2005 in paragraph 4 is simply put as evidence of the alleged breach of the National Law and if there is an objection to the relevance of that evidence or the weight that should be given to it, then that objection can be dealt with in the tribunal's consideration of the broader proposition. The applicant contended that paragraph 4 of the draft statement of particulars evidences the allegations that are set out in the first 3 dot points of the section 184 notice.
2. The applicant stated that although section 184 of the National Law sets out the specific requirements about what the notice of hearing of the panel should include, the procedure of the panel provided for in section 185(3)(b) allows it to have regard to 'any other information that the panel considers relevant to the hearing of the matter'. Therefore, the panel is not confined as to the material that may be considered at the hearing.
3. Further, the applicant submitted that the hearing before the tribunal is intended to be conducted de novo. If the matter comes before the tribunal by way of a referral under section 190, as has occurred in this matter, there has not been any substantive hearing of the allegations by the panel so there is nothing that the tribunal can review. A party's previous articulation of the alleged conduct cannot bind the tribunal.
4. The respondent argued that the Tribunal must carefully consider the provisions of the National Law and it is a peculiar, idiosyncratic piece of legislation. As creatures of statute, the panel, the board and the tribunal are all bound by the specific provisions of that statute.
5. In relation to the proposed paragraph 4, the respondent argued that new allegations cannot be 'thrown at' the respondent at this stage in the process.
6. The respondent contended that the proposed paragraph 4 does not work. It makes no charge against the respondent. It merely sets out some facts which might turn out to be material facts to a charge. Although the emails of

8 November 2005 and 10 November 2005 between the respondent and one of the persons with whom he is alleged to have had a dual relationship could clearly be evidence of something about that relationship, the proposed paragraph 4 does not functionally operate as a particular. It is just evidence. As it is currently drafted, the proposed particular is not referable to a charge. 7. The respondent claimed that the uncertainty generated by proposed particular 4 countermands the obvious requirement that someone who is subjected to professional disciplinary consideration is entitled to know the charges and the alleged material facts that relate to each of the charges. 8. The second primary argument raised by the respondent concerned the jurisdiction of the Tribunal to deal with proposed paragraph 4. 9. The respondent argued that the applicant is bound by the ambit of the section 184 notice. The respondent emphasised the wording of section 184, particularly the use of the word 'matter', and argued that the allegations set out in the section 184 notice frame the 'matter' which is the subject of the panel hearing. This framing of the matter flows through the subsequent operative provisions of the National Law, namely, section 190 which requires the panel to stop hearing a matter and refer the matter to a responsible tribunal if asked to do so by the practitioner and section 193 which requires the board to refer the matter from the panel to a responsible tribunal. Therefore, after the panel stops the hearing at the request of the practitioner under section 190, the matter which is referred by the board to the responsible tribunal under section 193 is still defined by the notice that was given by the panel to the practitioner under section 184(1). This point is emphasised by the obligation of the panel in section 185 to observe the rules of natural justice. 10. The respondent says that the letter of 20 September 2012 (that is, the section 184 notice) did not identify matters by term, in the sense of using the word 'matters'. It does, however, clearly say, 'the hearing will consider whether' and the 3 dot points follow from that. The notice goes on to identify the proposed evidence by noting the 'material to be considered'. In the respondent's submissions the 'material to be considered' cannot possibly be regarded as a matter which is in dispute or is to be decided. 11. The respondent argues that the meaning of the word 'matter' should be derived from the Oxford English Dictionary, which states the relevant meaning as follows: 1. A subject of contention, dispute, etc.; Law a thing which is to be tried or proved; statements or allegations which come under the consideration of a court. 12. In the respondent's submission, although there are many different definitions of 'matter' that have been applied in diverse constitutional and legislative contexts, all of them are compatible with the Oxford English Dictionary definition. 13. The respondent argued that in order to observe the principles of natural justice, the panel must frame the specific charges before 'dipping into' the evidence. To do otherwise would allow the specific charges to be determined at the hearing after the evidence has been led. This would be impermissible in a criminal trial and the case law in professional regulation is broadly pointing in this direction, even though the relevant entities, such as the tribunal and the panel, are not bound by the rules of evidence. 14. The respondent also relied upon the common law approach which is reflected in the comments made by the full Victorian Supreme Court in R v Solicitors Disciplinary Tribunal[7] which were followed by Weinberg J in Gribbles Pathology (Vic) Pty Ltd v Cassidy (Gribbles).[8] On this approach, when persons are presented before a disciplinary tribunal they should be made clearly aware, before the hearing commences, of precisely what they are charged with, and what material facts are alleged to constitute the charge or charges against them. 15. The respondent made the general point that the disciplinary bodies in this area, that is, the panel, the board and the tribunal, are all bound by the same common law approach. The respondent contended that the section 184 notice was consistent with the statute in specifying the matter or matters that were going to be dealt with at the panel hearing and the panel itself would have erred if it had deviated from the notified charges. The section 184 notice precisely, or precisely enough, stated what it was that the respondent was supposed to have done wrong and the relevant facts. The section 184 notice stated the 'matter' or 'matters' for the purposes of the relevant provisions of Part 8 Divisions 11 and 12 of the National Law, and there can be no departure from this now. 16. In this respect, the respondent pointed to the ambit of the 3 dot points set out in the section 184 notice and the wording of the relevant statutory provisions, particularly the obligation under section 190 that the panel must stop hearing a matter and require the National Board to refer the matter to the responsible tribunal. The respondent argues that one cannot reasonably interpret the words 'the matter' in section 190 in any way other than referring back to whatever 'matter' was before the panel just before it stopped the hearing. 17. The respondent acknowledged that from time to time disciplinary bodies in the position of the board or the responsible tribunal are given express power in legislation to add or remove charges. However, there is no such express power given in the National Law. The broad powers conferred upon the board under section 35(1)(i) of the National Law do not include a power to add charges. Further, the respondent commented that sections 190 and 193 are very controlling, and create mandatory obligations that must be followed by the board. Although certain powers to amend documents that are before the tribunal are expressed under the ACAT Act, these powers would not extend to the laying of extra charges against the respondent because such an amendment goes beyond the procedural powers contemplated by the ACAT Act.

1. There are some infelicities in the drafting of the draft statement of particulars, some of which were mentioned by the respondent. However, the critical and contested point is the inclusion of proposed paragraph 4, therefore the Tribunal will focus upon that issue.

What is the meaning of 'matter' in the National Law?

1. As stated above, the word 'matter' is used extensively in Part 8 Divisions 11 and 12 of the National Law, including sections 184, 190, 191, 193, 194 and 196.
2. The word 'matter' is not defined in the National Law or in any other related legislation. It is a word that has a wide range of meanings in law. For example, the word may refer to the traditional distinction between a cause and a matter, as well as the modern vernacular meaning that is synonymous with 'court proceeding'.[9] The Encyclopaedic Australian Legal Dictionary defines 'matter' as:
   1. The subject of litigation; a matter on which action and testimony is taken: Board v Thomas Hedley and Co Ltd.[10]

1. In the federal jurisdiction, section 2 of the Judiciary Act 1903 (Cth) (the Judiciary Act) defines 'matter' as including 'any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter.' The meaning of the word 'matter' in section 39B of the Judiciary Act, which defines the original jurisdiction of the Federal Court of Australia, has often been judicially considered. In Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority,[11] Flick J held that the term 'matter' in section 39B requires some immediate right, duty or liability to be established by the court.
2. Having explored the terrain, the Tribunal agrees with the respondent's submission that although the definitions of the word 'matter' are diverse, the definition in the Oxford English dictionary effectively captures the meaning of the word as it is commonly used. The Tribunal adopts this meaning for the purpose of interpreting 'matter' in Part 8 Divisions 11 and 12 of the National Law. The Tribunal repeats the definition of the purposes of clarity:

A subject of contention, dispute, etc.; Law a thing which is to be tried or proved; statements or allegations which come under the consideration of a court

1. Applied here, the 'matter' referred to in Part 8 Divisions 11 and 12 of the National Law contemplates 'a thing to be tried or proved' by the panel and/or the tribunal and, importantly, contemplates 'allegations which come under the consideration' of those entities.
2. This definition of the word 'matter' is to be contrasted with the word 'charge' that is sometimes used to refer to allegations. Referring to a 'charge' in this context unnecessarily stretches the analysis of the allegations towards criminal conduct and away from the protective jurisdiction contemplated by the guiding principles and objectives in sections 3 and 4 of the National Law. These sections will be discussed in more detail below. Moreover, 'charge' is used in other provisions of the National Law to expressly refer to criminal charges[12] and consequently is not synonymous with 'matter' as it is used in Part 8 Divisions 11 and 12. Therefore the Tribunal concludes that the word 'charge' should not be used to describe the allegations in the section 184 notice.

Is the panel bound by the scope of the matters delimited in the section 184 notice?

1. The applicant argued that the word 'matter' in Part 8 Divisions 11 and 12 should be construed to be a 'broad proposition'. In particular, the applicant contended that section 185(3)(b), which allows the panel to have regard to 'any other information that the panel considers to be relevant to the matter' establishes that the panel is not confined as to what it may consider at the panel hearing.
2. The Tribunal rejects this argument and concludes that the panel is confined by the allegations that form the 'matter' that has been previously articulated in the section 184 notice. In section 185, the information that may considered by the panel is restricted to that which is relevant to the matter. Therefore, the Tribunal agrees with the respondent's submission that the reference to 'material to be considered' in the section 184 notice issued in the present proceedings on 20 September 2012 could not be regarded as raising further allegations not encompassed by the 3 dot points.
3. The allegations that are the subject of the panel hearing, and the subsequent tribunal hearing, must be clearly stated. Significant consequences flow from the panel hearing. For example, the practitioner has an opportunity to convince the panel that there is no case to answer under section 191(1)(a) and, therefore, that no further action should be taken in relation to the matter. The panel also has power to decide that the practitioner has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct under subsections 191(1)(b)(i) and 191(1)(b)(i) (ii). These powers are open to the panel and the consequence of a finding of unsatisfactory professional performance or unprofessional conduct is that conditions may be imposed on the practitioner's registration, or a caution or reprimand may ensue.[13]
4. As stated above, the panel is required to observe the principles of natural justice even though it is not bound by the rules of evidence.[14] A critical element of natural justice is proper notice. Clearly the respondent is entitled to know with some specificity the allegations that are made against him that will be considered at the panel hearing. The statutory scheme contemplates a hearing of the allegations which form the corpus of the board's belief under section 182 of the National Law (because of a notification or for any other reason) that the practitioner's practice or professional conduct may be unsatisfactory. It would be a breach of procedural fairness if the panel considered the allegations expressly set out in the section 184 notice and then regarded itself as having a roving power to deal with unrelated issues that may arise in the documents that were attached to the notice of hearing.
5. The Tribunal also accepts the proposition advanced by the respondent that the statute would follow the common law approach which is articulated in R v Solicitors' Disciplinary Tribunal.[15] In that case, the full Victorian Supreme Court emphasised that a solicitor who presents at a hearing of the Solicitors' Disciplinary Tribunal should be made clearly aware, before the hearing commences, of the charges against him and the material facts alleged to constitute the charges against him. The Full Court commented that since Ridge v Baldwin[16] in 1964, when a person's livelihood is at stake the precise nature of the charge must be clearly spelt out.[17] This clearly applies to the panel in the present case.
6. As previously noted, R v Solicitors Disciplinary Tribunal was followed by Weinberg J of Federal Court in Gribbles.[18] His Honour opined that a tribunal would have no jurisdiction to hear a matter where the referral was 'so wide and vague as not to define the 'matter' referred'.[19] Further, the tribunal must be placed in the position of knowing the parameters of each matter that had been referred to it for adjudication. The remarks made in the cases about 'the tribunal' apply with equal force to the panel in the present case. The general point is emphasised by Lord Denning's pithy statements that are quoted by Weinberg J in Gribbles:

if a right to be heard is worth anything, it must carry with it the right to know the case that has to be met.[20]

Is the tribunal bound by the scope of the matters delimited in the section 184 notice?

1. The Tribunal agrees with the respondent's argument about the interpretation of the word 'matter' in Part 8 Divisions 11 and 12 of the National Law. Once it is found that the 'matter' is constituted by the allegations in the section 184 notice, this not only binds the panel but it frames the 'matter' for the remaining operative provisions in Part 8 Divisions 11 and 12. This framing of the 'matter' flows through all of the subsequent operative provisions of the National Law, namely,
   • section 190 which requires the panel to stop hearing a matter and refer the matter to a responsible tribunal if asked to do so by the practitioner;
   • section 191 which states what a panel may decide after hearing a matter;
   • section 193 which requires the board to refer the matter from the panel to responsible tribunal;
   • section 194 which stipulates the parties to a matter being heard by the responsible tribunal, and
   • section 196 which states the decisions that may be made by the responsible tribunal after hearing a matter.
2. Therefore, after the panel stops the hearing at the request of the practitioner under section 190, the matter which is referred by the board to the responsible tribunal under section 193 is still defined by the notice that was given by the panel to the practitioner under section 184(1) of the National Law.
3. The Tribunal notes the applicant's submission that the responsible tribunal may conduct a hearing de novo, therefore, a party's articulation of the alleged conduct cannot bind the Tribunal. De novo is a Latin word meaning 'anew'. The Encyclopaedic Australian Legal Dictionary explains that a matter heard de novo

is heard over again from the beginning. The body conducting the hearing de novo is not confined to the evidence or materials that were presented in the original hearing.[21]

1. The Tribunal concludes that this characterisation of the hearing is ancillary to the question of whether it is bound by the allegations in the section 184 notice. It is unnecessary for the Tribunal to decide this point because the answer to the question of whether it is bound by allegations in the section 184 notice is found in the interpretation of the relevant provisions of the National Law rather than in the characterisation of the nature of the hearing.
2. There is no doubt, and this was properly conceded by the respondent, that the additional material that was included with the section 184 notice may constitute evidence of the allegations in the draft statement of particulars. The material may be led by the applicant as evidence of the alleged breach of the allegations set out in the draft particulars other than paragraph 4, subject to any objections to the relevance of that evidence or the weight that should be given to it. Critically, however, that material cannot form a further allegation if that allegation was not contained in the section 184 notice.
3. The Tribunal considers that it is bound by the 3 dot points set out in the section 184 notice which do not include paragraph 4 of the draft statement of particulars. The tribunal does not have jurisdiction in relation to the allegation contained in paragraph 4 of the draft statement of particulars.

Can the allegations in the matters be amended by the tribunal?

1. If the panel is bound by the content of the express allegations that were set out in section 184 notice, can those allegations be amended when the matter is referred to the tribunal under section 190? If not, the panel, the board and the tribunal are bound by the express allegations in the section 184 notice.
2. It is worth noting that the disciplinary scheme in Part 8 Divisions 11 and 12 of the National Law contemplates that the panel and the tribunal operate functionally at 'first instance', even though there is some divergence of power between the panel and the tribunal as regards professional misconduct and the tribunal has an additional appellate jurisdiction under Part 8 Division 13.[22] Where, as here, a matter that allegedly involves unsatisfactory professional performance or unprofessional conduct is referred to the tribunal under section 193, the tribunal assumes the jurisdiction of the panel. Once the proceedings have commenced in the tribunal, they are primarily regulated by Part 8 Division 12 of the National Law.
3. The power to amend applications in the tribunal is well recognised and the tribunal is given express power under section 47 of the ACAT Act to amend a document on the tribunal's own initiative or on an application by the party. However, this provision operates in conjunction with section 198 of the National Law which states that Part 8 Division 12 of that Act applies despite any provision to the contrary of the Act that establishes the responsible tribunal.
4. The applicant argued that the content of the section 184 notice is equivalent to material facts in a civil pleading, therefore, the power in section 47 of the ACAT Act could be exercised to amend the allegations. The respondent stated that the power in section 47 of the ACAT Act would not extend to the laying of extra allegations against the respondent because this goes beyond the procedural powers contemplated by the ACAT Act.
5. The Tribunal agrees with the respondent's interpretation of section 47 of the ACAT Act.
6. There is an express provision in section 421 of the Legal Profession Act 2006 (ACT) (the Legal Profession Act) which allows for an application in a legal profession disciplinary matter to be amended to add a further allegation after proceedings have been commenced in the tribunal. There is no equivalent provision in the National Law and the tribunal must adopt an interpretation that best achieves the purpose of the National Law.[23] In this circumstance, there are several provisions of the National Law and the ACAT Act that assist the Tribunal in concluding that section 47 could not be interpreted to allow an additional allegation to be made where the matter has been referred to the tribunal by the board from a panel hearing. Section 198 of the National Law emphasises that it operates as an authorising law and in this respect it is complementary to section 11 of the ACAT Act which states that a right to make an application to the tribunal is subject to any condition stated in the authorising law.
7. The Tribunal considers that the operation of section 198 of the National Law does not permit the tribunal to read in a power to amend the allegations which would be equivalent to section 421 of the Legal Profession Act. Further, the Tribunal is obliged under section 4 of the National Law to exercise its functions having regard to the objectives and guiding principles of the scheme set out in section 3 of that Law. The guiding principle in section 3(3) that the scheme should operate in a transparent, accountable, efficient, effective and fair way has particular significance in this case. The Tribunal follows R v Solicitors' Disciplinary Tribunal to conclude that the national scheme would operate in a transparent, accountable and fair way if the practitioner is given proper notice of the allegations to be considered by the panel under section 184 of the National Law and the tribunal, having assumed the jurisdiction of the panel after a matter has been referred by the board under section 190, is bound by that notice.
8. Similarly, and by comparison with the provisions which govern the legal profession, the allegations cannot be amended at the tribunal stage where the tribunal has assumed the jurisdiction of the panel. The operation of

section 198, the obligation of the panel to observe the principles of natural justice under section 185 of the National Law, in combination with the objectives and guiding principles of the Law in section 3 and the obligation of the panel, the board, and the tribunal in section 4 as entities that must exercise their powers having regard to the objectives and guiding principles set out in section 3, militates against the interpretation advocated by the applicant.

Have the proceedings been properly commenced in the tribunal?

1. As stated above, the Tribunal made orders on 30 August 2013 that the applicant 'file an application for disciplinary action regarding the present proceedings' by 6 September 2013.
2. In a letter dated 6 September 2013, the applicant respectfully suggested that such an application is not required in order to properly bring the matter before the tribunal. The applicant noted that it had referred this matter to the tribunal at the request of the respondent pursuant to sections 190 and 193 of the National Law. The applicant observed that neither the National Law nor the ACAT Act prescribe a procedure for the referral process. The applicant submitted that the referral letter filed with the tribunal on 1 July 2013 complies in substance with requirements for making an application to the tribunal in section 10 of the ACAT Act as well as the requirements of a referral to a responsible tribunal in sections 190 and 193 of the National Law. In the absence of such a provision, contended the applicant, there appears to be no proper basis upon which the applicant could comply with a direction made on 30 August 2013.
3. Because this is the first referral to the tribunal under sections 190 and 193 of the National Law, the applicant asked the Tribunal to address the question of the appropriate procedure for referral under these provisions.
4. The Tribunal agrees with the submissions made by the applicant in its letter dated 6 September 2013 that the referral letter filed with the tribunal on

1 July 2013 complied with the requirements under section 10 of the ACAT Act in substance because the application was in writing, stated the reasons for making the application and was lodged in the tribunal registry. For the purposes of interpreting section 10 of the ACAT Act, it is important to note that 'application' is defined in the Dictionary of the ACAT Act as follows:

(i) a matter referred or appealed to the tribunal under any authorising law;

1. Given that this proceeding would generally be commenced under the occupational discipline provisions in Division 6.2 of the ACAT Act, the application clearly falls within subsection (b) of the definition of 'application' in the Dictionary of the ACAT Act because it was referred to the tribunal under an authorising law, that is, section 193 of the National Law. Therefore the present proceedings have been properly commenced and the Tribunal has noted this in its orders.

1. The present proceedings were properly commenced by the applicant by its letter to the tribunal dated 1 July 2013. However, the tribunal is bound by the matters that were set out in the notice given by the applicant to the respondent on

20 September 2012 pursuant to section 184 of the National Law. Therefore, the Tribunal does not have jurisdiction in relation to the proposed paragraph 4 of the draft statement of particulars dated 6 September 2013.

[1] Explanatory Statement, Health Practitioner Regulation National Law (Act) Bill 2009 10 December 2009, page 2

[2] Australian Health Practitioner Regulation Agency, Certificate of Registration Status dated 14 November 2013

[7] [1988] VicRp 72; [1988] VR 757 at 770

[8] (2002) 122 FCR 78; (2002) 78 ALD 289; [2002] FCA 859 at [120]

[9] S Colbran, P Spender, S Jackson and R Douglas, Civil Procedure: Commentary and Materials (5th ed, 2012), LexisNexis, page 305

[10] [1951] 2 All ER 431

[11] [2008] FCA 828; (2008) 248 ALR 775

[12] See, for example, sections 5 (the definition of 'criminal history'), 130(3), 144(2), 156(1) and 178(1) National Law

[15] [1988] VicRp 72; [1988] VR 757

[16] [1963] UKHL 2; [1964] AC 40, at pp. 121 and 124-5

[17] Gee v General Medical Council [1987] 1 WLR 564, at p. 566 (HL); Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Dixon J, at p. 489; Evatt J, at pp. 495 and 497.

[18] (2002) 122 FCR 78; (2002) 78 ALD 289; [2002] FCA 859 at [120]

[19] (2002) 122 FCR 78; (2002) 78 ALD 289; [2002] FCA 859 at [120]

[20] Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337

[21] Encyclopaedic Australian Legal Dictionary, LexisNexis, 2013

[22] Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295

[23] Section 139 Legislation Act 2001 (ACT)