Xie v Return to Work Corporation of South Australia [2025] SAET 52

1. In order to address the three matters, it is necessary first to set out some background. The factual matters referred to in these reasons are solely for the purpose of providing context for the orders and ruling made. They do not represent concluded findings for the substantive proceeding.
2. Mr Xie commenced employment as a fabricator for CB Ideal Tapware Pty Ltd on 14 September 2017. His duties involved light fabrication work with brass, copper and silver brazing. In order to perform his allotted tasks, he used oxy-acetylene brazing equipment. CB Ideal Tapware Pty Ltd accepts that Mr Xie also used some flux paste to perform the task of brazing the metal components together.
3. Mr Xie claims to have suffered a work injury of fluoride toxicity poisoning as a result of his exposure to chemicals in the course of his employment.
4. By letter dated 16 February 2023, Gallagher Bassett, as authorised claims agent for the Return to Work Corporation of South Australia (the Corporation) informed Mr Xie that his claims for compensation related to fluoride toxicity poisoning had been rejected. Gallagher Bassett was not satisfied that the evidence available to it at the time proved that Mr Xie had suffered fluoride toxicity poisoning either out of, or in the course of his employment. It concluded that the fluoride levels in the workplace were low and not likely to cause such poisoning. In addition, Gallagher Bassett was not satisfied that Mr Xie's complaints of ill health were the result of fluoride poisoning.
5. Mr Xie applied to the Tribunal for it to review the decision dated 16 February 2023. By that application he asserts an entitlement to weekly payments and of the cost of medical expenses to treat his claimed work injury. He asserts that these entitlements arise from a work injury of fluoride toxicity poisoning.
6. Although Mr Xie was initially legally represented, by the time the matter was to be listed for trial, he became self-represented and has remained self-represented to date. The employer, CB Ideal Tapware Pty Ltd, initially filed a Notice to be Heard (Return to Work) Form but has recently advised the Tribunal that it no longer seeks to be heard in relation to Mr Xie's application for review proceeding.
7. The pre-trial process was initially the subject of direction hearings before Gilchrist DPJ and, leading to trial, by Crawley DPJ. The compliance conference proceeded before Crawley DPJ on 26 February 2025. The record of the compliance conference refers to the proceeding having been listed for trial on 5 March 2025, with three days set aside and for the purpose of receiving, on those days, only the evidence of Mr Xie. In the compliance conference record, his Honour states that, despite repeated efforts by his Honour, Mr Xie's evidence-in-chief had not been reduced to a coherent and comprehensive affidavit. His Honour noted that Mr Xie had sought the assistance of a Mandarin speaking interpreter in order to give his oral evidence and to assist him in the presentation of his case as a self-represented litigant. It was in those circumstances that his Honour listed the trial over three consecutive days to receive the evidence of Mr Xie.
8. His Honour noted that Mr Xie had made application for his evidence to be received in no longer than two hour blocks at a time and on alternate days. Although Mr Xie submitted at the time that he had provided medical evidence supporting that approach, his Honour recorded:

...the medical certificate on which he relies merely asserts his wishes without expressing a medical opinion as to its necessity. The A [Mr Xie] is to make that application to the presiding member at the commencement of the hearing.

Crawley DPJ maintained the hearing dates of 5, 6 and 7 March 2025 to receive and conclude the oral evidence of Mr Xie.

1. On 27 February 2025 the parties were advised that the proceeding had been allocated to me to be the trial judge and, by email transmission that day, the commencement of the trial at 10.00am on 5 March 2025 was confirmed.
2. On the morning of 3 March 2025, Mr Xie forwarded an email transmission to my chambers. He referred to trial book deficiencies and tender book deficiencies, being books prepared by the Corporation. Mr Xie asserted that there had been non-compliance with directions made by Crawley DPJ. The matter was listed for a directions hearing before me at 10.00am on 4 March 2025 to address the concerns raised by Mr Xie. Later that morning, Mr Xie forwarded an email transmission to the Registry of the Tribunal advising that he would be unable to attend in person the directions hearing on 4 March 2025 and then attend for the commencement of the trial the following day. He stated that this was "due to health reasons". He sought confirmation that one of the scheduled attendances would be changed to a telephone hearing. An email transmission was forwarded to Mr Xie from my chambers confirming that medical evidence had not been presented which established that he was medically too unwell to be able to attend a directions hearing one day and then attend for trial for next. Mr Xie was advised that the directions hearing was expected to take no more than 30 minutes. Mr Xie then presented two medical certificates of Dr Wei Hong Liu dated 10 July 2024 and 19 February 2025. These are likely to be the medical certificates that had been referred to by Crawley DPJ in the compliance certificate. As noted by his Honour, these certificates do not provide admissible expert opinion evidence that could give rise to a finding that Mr Xie was incapable of attending Court on consecutive days. The most recent certificate of 19 February 2025 relevantly states:

I understand he will have a court hearing in relation to his work cover related issues, and he feels it would be extremely difficult for him to attend the court hearing consecutively, I will appreciate your consideration of allocating his court hearing time not in consecutive days.

1. A further email transmission was forwarded to Mr Xie, from my chambers on 3 March 2025, confirming that the documents provided by him did not satisfy the legal requirements of an expert medical opinion. He was provided with a copy of the reasons for decision in Pearce v Return to Work Corporation of South Australia[1] and his attention was drawn, in particular, to paragraphs 43 and 44, which stated:
   1. For a court to either adjourn or vacate a trial on medical grounds, ordinarily there must be medical evidence containing sufficient detail to allow the court to be satisfied that the party concerned is indeed unable to attend and participate in the proceedings.
   2. The reason was explained by Barrett J in Magjarraj v Asteron Life Limited:

All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a Court hearing. To the extent that such statements are put forward as evidence about a state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything. [footnotes omitted]

Mr Xie was advised that he could make further application with a medical report in support that satisfied the requirements for expert opinion evidence. He failed to provide relevant expert opinion evidence. He sought to rely upon a report of an occupational therapist dated 25 August 2024 in a form that was for the purposes of determining entitlements to Centrelink benefits. The report referred to a variety of impairments and restrictions reported by Mr Xie. It did not address his fitness to attend court and participate in a trial on consecutive days.

1. Mr Xie attended the directions hearing on 4 March 2025. He expressed concern about his ability to attend the following day to commence the trial but there was no obvious impairment and in the absence of admissible medical evidence, he was directed to do so.
2. The trial commenced at 10.15am on 5 March 2025. After approximately two hours, Mr Xie stated that he needed a break. The trial was adjourned to resume at 2.00pm. At 1.27pm, Mr Xie forwarded an email transmission to my chambers advising that he was feeling very badly and would be consulting his doctor. He provided a medical certificate from Dr Wei Hong Liu which stated that Mr Xie had a medical condition which rendered him unfit for the court hearing from 5 March 2025 to 7 March 2025 inclusive. No specific diagnosis was raised nor was reasoning provided for the conclusion. A subsequent medical certificate of Dr Liu referred to findings upon examination including Mr Xie looking tired, walking with a stick and gait hesitation, a suggested high blood pressure reading of 146/92mmHG and a heart rate of 105/min which was considered to be tachycardia. The trial dates of 6 and 7 March 2025 were vacated and the matter was adjourned to a directions hearing at 10.10am on 13 March 2025 for the purpose of setting further trial dates. Mr Xie attended the directions hearing. Mr Xie's position, as expressed that day, was that he would not be well enough to attend and participate in trial for two consecutive days. He did not present any further evidence in support of his claimed incapacity on 5, 6 and 7 March 2025. He was reminded of what was required in order to constitute expert medical opinion in support of his position. The trial was listed to resume at 10.30am on 26 March 2025, for it to continue to 4.30pm that day, to resume at 11.00am on 27 March 2025 and to continue until 4.30pm that day. The usual luncheon adjournment between 1.00pm and 2.15pm would have applied. The orders made noted that the Corporation advised at the directions hearing that if Mr Xie did not attend as scheduled, then an application would be made to strike out his application for review either pursuant to s 40 or s 42 of the South Australian Employment Tribunal Act 2014 (the SAET Act).
3. On 19 March 2025, a week before the scheduled resumption of the trial, Mr Xie forwarded an email transmission to my chambers advising that he would be unable to attend the scheduled resumption which he noted "will be held consecutively for two days". Mr Xie attached a general medical certificate of medical officer Grace Ang dated 18 March 2025. An email transmission was forwarded by my chambers to the parties on 19 March 2025 noting the deficiencies associated with the purported use of the general medical certificate:
   1. Grace Ang is referred to as a "medical officer". Her qualifications are not identified.
   2. The certification relates to whether you would be fit to work or perform your usual duties (understood to be a reference to your usual work duties).
   3. The medical certificate does not refer to the activity of attending court and assisting the Court.
   4. The medical certificate does not identify the history obtained from you, the relevant findings upon examination or any diagnosis as a result of that examination on 18 March 2025.
   5. The medical certificate does not provide any reasoning to explain why, as a result of the examination, there is any unfitness to do anything.
4. Mr Xie was advised that, in those circumstances, the trial remained listed to resume on 26 March 2025 and to continue on 27 March.
5. On 20 March 2025, Mr Xie forwarded an email transmission to my chambers advising that he had been admitted to the Flinders Medical Centre and was under the care of "hospital physicians and nursing staff". He referred to his medical condition rendering him both physically and mentally unfit to participate in court proceedings. He requested an adjournment to a date after 11 April 2025.
6. The Tribunal received email transmissions on 25 March 2025 from persons understood to be staff of the Margaret Tobin Centre of the Flinders Medical Centre advising that Mr Xie was an inpatient due to a deterioration in his mental health. In the circumstances, the hearing dates of 26 and 27 March 2025 were vacated and the matter was listed for a directions hearing at 10.10am on 16 April 2025. Information received at the time was suggestive of Mr Xie having been detained but the clinical record of the admission, received later, indicates that it was a voluntary admission.
7. The directions hearing of 16 April 2025 was vacated, upon the initiative of the Tribunal, on 14 April 2025. The email transmission from my chambers referred to the admission to the Margaret Tobin Centre, being a psychiatric unit of the Flinders Medical Centre, and concerns that I had following the receipt of the email transmission from Mr Xie on 10 April 2025 as to his mental capacity and his ability to make decisions, in relation to his application for review, in his best interest.

1. It is convenient now to address the matters raised by Mr Xie in his email transmission of 10 April 2025. He erroneously referred to it as an urgent pre-trial application. He asserted that the application was for the enforcement of court orders and evidence decisions. The orders and decisions referred to were not identified.
2. Mr Xie stated that his application was for a pre-trial compliance review and purportedly pursuant to r 89 of the South Australian Employment Tribunal Rules 2022 (the 2022 Rules). Mr Xie was in error as to the rules which are currently operative in the Tribunal. The relevant rules are the South Australian Employment Tribunal Rules 2024 (the 2024 Rules). More importantly, r 89 of the 2022 Rules concerned general costs adjudication principles. Mr Xie has not explained how such principles could be relevant to the directions that he seeks in the course of a trial.
3. Mr Xie asserted that neither he nor the Court have received the complete trial book in this matter. The trial book (not including the report of Mr Fong at pp 26-27 and the report of Dr D'Onise at pp 34-43) has been received in evidence and has been marked Exhibit R1. The Corporation has separately tendered a book of documents with some omissions and a bundle of photographs. They are respectively Exhibits R2 and R3. Mr Xie himself has tendered a timeline (Exhibit A1) and a bundle of email transmissions relating to updated fluoride testing (Exhibit A2). He has provided a bundle of other documents which have been variously marked for identification. Mr Xie has not identified in what way the current documents are incomplete. In any event, if Mr Xie considers that there should be further documents tendered, then he may make application to do so. To the extent that he may have been seeking an order that all of the documents to be tendered to be provided in the form of one complete trial book, such application is rejected. It would be an unnecessary expense.
4. Mr Xie has sought a "contempt declaration". He has not identified either the person to whom the application is directed nor the basis of the application. He has referred to s 56 of the SAET Act as authorising the relevant declaration, but s 56 concerns the preservation of the subject matter of the proceedings.
5. Mr Xie has sought a "litigation costs penalty" and has referred generally to r 72(3). Rule 72 of the 2022 Rules concerned supplementary panels and members. Rule 72 of the 2024 Rules addresses the same subject matter.
6. The trial book contains an affidavit of Andrew Thomas affirmed on 29 August 2024. Mr Xie now seeks an order that the affidavit be excluded under r 67(4). There is no r 67(4) of either the 2022 Rules or the 2024 Rules. The affidavit of Mr Thomas has already been received in evidence. It was provided several months prior to the commencement of the trial. There is no procedural unfairness to Mr Xie in allowing the Corporation to rely upon the affidavit of Mr Thomas and there would be a procedural unfairness to the Corporation if an order were now to be made removing that affidavit from the trial book.
7. Mr Xie has referred to a "violation" of r 67(1)(a) in relation to the deadline for submitting of expert evidence. Rule 67(1) of the 2022 Rules and r 67 of the 2024 Rules provide that expert reports to be relied upon at trial should be provided no less than 14 prior to the hearing and determination of the proceeding. Mr Xie has not identified any specific medical report that is the subject of his application.
8. I reject Mr Xie's application to restrict the expert evidence sought to be relied upon by the Corporation as contained in the exhibits currently before the Court. Mr Xie has not advanced a proper reason to do so.
9. Mr Xie has sought orders that would preclude the Corporation from continuing with its case as set out in its relevant determination letters and in its Statement of Facts, Issues and Contentions and affidavit evidence. Mr Xie contends that the documents relied upon by the Corporation were provided late and the effect should be that the Corporation be deemed to have admitted all of the facts asserted in Mr Xie's affidavit and that there should be an order which would prohibit the Corporation from cross-examination of him. Mr Xie has submitted that this is in accordance with r 72(5). There is no r 72(5) in either the 2022 Rules or the 2024 Rules. In each case, r 72 concerns supplementary panels and members. Mr Xie has not persuaded me that the Corporation has been in breach of any order or direction of the Tribunal for the provision of relevant documents and, as already noted, these documents have already been received in evidence.
10. An order that evidence only be received from Mr Xie and that the trial is conducted strictly based upon the evidence submitted by him and that the Court exclude any materials submitted by the Corporation, is plainly without merit, would amount to a denial of procedural fairness to the Corporation, and is refused.
11. Mr Xie has sought orders that would compel the Corporation to provide contact details of a Mr Damian W Patterson and Mr Xie has contended the failure to provide this information has been in contravention of the disclosure obligation under r 45(1)(c). There is no r 45(1)(c) of either the 2022 Rules or the 2024 Rules. Section 37(4) of the SAET Act provides that the Tribunal may give a direction requiring a party to produce a document or other material, or to provide information, to the Tribunal or another party. However, even proceeding on the basis that Tribunal is empowered to make the order sought, Mr Xie has not persuaded me that such an order should be made at this time. He refers to Mr Patterson as being a key eyewitness to the injury incident. There has been no explanation as to why, in those circumstances, an application was not made either to the Commissioner who presided over the compulsory conciliation conference or to the Deputy Presidents that made pre-trial directions. Further, it is not clear from Mr Xie's email transmission as to what "incident" he is referring to. The claim before the Court is for weekly payments and payment of medical expenses in relation to what has been referred to as fluoride toxicity poisoning. Mr Xie's affidavit of evidence refers to an exposure to fluoride every day, that his teeth started to change colour in 2018, that he started having back pain in May 2019 and that his sick leave days increased year by year. There is no reference to Mr Patterson as being a relevant witness in Mr Xie's affidavit of evidence. Mr Xie, apart from asserting Mr Patterson to be "a key witness to the injury incident" has failed to identify what Mr Patterson would say to the Court to assist it in the determination of the issues raised by the parties. Relevance has not been established. There is no evidence that would indicate that the Corporation has the information sought. The application for the Corporation to provide information relating to Mr Patterson and Mr Xie's application for leave to issue a "witness summons" is refused.
12. Finally, Mr Xie has sought directions that any single day of trial not exceed two hours, that the recess time shall be no later than 3.00pm and that no two consecutive days of trial shall be scheduled. Although Mr Xie submits that this in accordance with "the medical report submitted to the Court", in fact no medical report has been submitted to the Court on this topic, the certificates which have been provided do not comply with the requirements for expert opinion evidence, and currently there is no evidence that would warrant the extreme measures proposed. His application as to the way in which the trial should be conducted is not accepted at this time but, subject to submissions to be received, the questions to be put to the IMA may include questions where the answers may assist in determining if conditions should be included in relation to future hearing dates. This is to be addressed in more detail below.
13. In the circumstances, the whole of the application by email transmission on 10 April 2025 should be dismissed.

1. In the circumstances of the admission to the Margaret Tobin Centre and the difficulties associated with the application of 10 April 2025, I became concerned as to whether Mr Xie has the mental capacity to adequately represent himself in the proceedings. I caused a letter to be forwarded from my chambers to the parties on 14 April 2025 which included the following:

His Honour has noted a number of difficulties associated with the application and which give rise to an ongoing concern as to Mr Xie's mental capacity. Mr Xie's application refers to it being a pre-trial application in circumstances where the trial has clearly commenced. A number of rules of the South Australian Employment Tribunal Rules 2022 are referred to. In some instances, the sub-rules referred to do not exist and in other instances where the rules exist, they do not relate to the orders sought. Section 56 of the South Australian Employment Tribunal Act 2014 has been referred to in a way that could not support the order sought by reference to that section. The orders sought by Mr Xie, by reference to the reasons given in the application are not only without merit, they give rise to a concern as to whether Mr Xie has the mental capacity to adequately represent himself in the proceedings.

Whilst no conclusion has yet been reached, his Honour is concerned as to whether there could be a fair trial for Mr Xie if he were to continue to represent himself. His Honour considers that consideration needs to be given as to whether it is necessary to appoint a litigation guardian.

In the circumstances, his Honour has determined to exercise the powers conferred to the Tribunal under Part 8 of the Return to Work Act 2014 and to require Mr Xie to submit to an examination by a psychiatrist in order for the psychiatrist to be able to answer some medical questions in relation to Mr Xie's mental capacity and his ability to adequately represent himself.

It is noted that s 121(1) of the RTW Act provides that the Tribunal may, of its own initiative, refer any medical question or questions arising in proceedings before the Tribunal to an independent medical adviser for enquiry and report. Further, a worker is to comply with such a requirement as noted in s 122(3) of the RTW Act. Section 123 requires the independent medical adviser to provide a report to the Tribunal in response to the referral and when the report is received, the Tribunal will arrange for a copy to be provided to the parties.

The questions to be raised have not been finalised but are likely to include the following:

1. Does Mr Xie have the mental capacity to understand the nature of the litigation in the South Australian Employment Tribunal, its purposes, its possible outcomes and its risks?

2. Is Mr Xie mentally capable of making rational decisions about the pursuit of the litigation?

3. Is Mr Xie mentally capable of conducting the litigation without external assistance?

...

The parties will be afforded an opportunity to advance submissions as to the questions to be asked of the independent medical adviser and documents that should be provided for consideration.

Given the concern in relation to Mr Xie's current mental capacity, his Honour is also concerned as to whether Mr Xie has the capacity to agree who should be the independent medical adviser. In the circumstances, the Registrar of the Tribunal will be asked to contact the Ministerial Advisory Committee, for it to appoint the relevant independent medical adviser.

The parties are also informed that, in the circumstances, the Registrar will be requested to issue a summons to produce documents that would require the Margaret Tobin Centre to produce to the Tribunal the whole of the file relating to Mr Xie's recent attendance and admission. His Honour considers that information to be relevant to the assessment to be undertaken by the independent medical adviser and preparation of the report to be provided to the Tribunal.

The parties were advised that a draft letter of referral would be provided to them for submissions.

1. By email dated 28 April 2025, Mr Xie effectively sought an order setting aside the summons for the Flinders Medical Centre to produce to the Tribunal the clinical record of the Margaret Tobin Centre relating to Mr Xie's recent admission. In that email transmission, Mr Xie advanced a number of submissions. Firstly, he submitted that the reference to s 121 of the RTW Act was "invalid" as it was contended by Mr Xie that the section only applies to workplace assessments and not litigation capacity. Secondly, he contended that s 16B of the Privacy Act 1988 (Cth) prohibits disclosure of his mental health records without his written consent. Thirdly, Mr Xie submitted that there was a lack of clarity as to the records sought and he requested what was referred to as a "sensitive information redaction process under s 98 of the Mental Health Act 2009 (SA)". Fourthly, Mr Xie submitted that "Supreme Court Rule R46.02" mandates that a litigation guardian only be appointed by the party absent proven incapacity. He then referred to his neurologist's report as confirming his capacity to choose representation. Fifthly, he referred to, without apparent relevance, the allowance of "split video hearings" and made a request for "simplified Chinese translations". Finally, notwithstanding the provision of the email on 28 April 2025 and it being dated 28 April 2025, Mr Xie made a request for an urgent directions hearing to be listed by 10 April 2025.
2. The respondent advanced brief written submissions in response. It is convenient to set them out in full:

As to primary submission 1 :

1. Section 121 of the Return to Work Act 2014 allows the referral of a "medical question". That is defined as including "any other matter that the Tribunal...thinks should be subject to assessment or advice under this Part for the purposes of particular proceedings". The power is discretionary. The proposed referral is within power.

2. Section 16B of the Privacy Act 1988 prohibits nothing.

3. Assuming the Flinders Medical Centre is an "APP entity" as defined by section 6 of the Privacy Act 1988, cl. 6.2(b) of the Australian Privacy Principles authorises the disclosure of the information by the Hospital to the Tribunal.

4. Disclosure of the medical record to the Independent Medical Advisor (IMA) by the Tribunal is required for the purposes of the IMA carrying out his or her function.

5. The respondent does not yet seek disclosure of the medical record to it. The respondent will decide whether or not to seek its disclosure to it after the provision of the report of the IMA.

As to primary submission 2 -

1. No neurology report has been provided. In any event, the question of capacity is likely to be answered by the IMA report.

As to primary submission 3: [reference to split video hearings and simplified Chinese translations of all documents]

1. There exists no evidence to support the request.

1. There is no merit in any of the submissions raised by Mr Xie. The submissions of the respondent are plainly correct. The text of s 121 of the RTW Act supports a construction that it is broad in scope. Questions relating to Mr Xie's mental capacity are medical questions and they arise in the proceeding before the Tribunal. Section 16B of the Privacy Act 1988 (Cth) addresses situations where health information may be disclosed to particular organisations for purposes such as research relevant to public health or public safety, the compilation or analysis of statistics relevant to public health or public safety or the management, funding and monitoring of a health service. In its current form, the Mental Health Act 2009 does not contain a s 98. Section 98 was deleted by the Mental Health (Review) Amendment Act 2016 on 5 June 2017. Since 2020 the Rules of the Supreme Court have been the Uniform Civil Rules 2020. There is no r 46 and accordingly no r 46.02 of those Rules. The Supreme Court Rules 2006 were previously operative but r 46 of those Rules concerned registered users of the Supreme Court's electronic case management system. Throughout the trial Mr Xie has had the assistance of a Mandarin speaking professional interpreter. I am not aware of any application having been made by him either to Gilchrist DPJ or Crawley DPJ for the content of the trial book or any other document to be the subject of translation from English in order for him to be afforded a fair trial. To date, I have not discerned a disadvantage for Mr Xie that would warrant the translation from English of every document tendered, or to be tendered, at trial. I note that Mr Xie has communicated extensively by email transmission in English with the Tribunal and has advanced submissions in English. A recent report of Dr Kestell dated 28 May 2025, referred to in more detail below, refers to the benefit associated with communication through a qualified Mandarin speaking interpreter. As noted by the Corporation, there is no evidence that more is required for Mr Xie to effectively present his case to the Tribunal. The reference by Mr Xie to provisions in legislation and to rules which do not exist, or where they do exist could not possibly have the application contended by him and the request for a directions hearing by a date some two weeks prior to the request are further matters in support of a referral to an IMA.
2. Mr Xie's application to set aside the summons for the Margaret Tobin Centre to produce to the Tribunal the clinical record relating to Mr Xie's recent attendance there has been refused. The clinical record is relevant to IMA's consideration of the questions to be put and the future conduct of the trial. It has been produced to the Tribunal and leave has been granted to both parties to inspect the clinical record. That leave to inspect has been also in the context of Mr Xie more recently seeking a review of the referral to an IMA because of the content of a report of Dr Gareth Kestell. This is addressed below.

1. Mr Xie advanced further submissions, in writing, by email dated 4 June 2025. Leave was granted to the parties to advance submissions in writing after a medical report of Dr Gareth Kestell dated 28 May 2025 was provided to my chambers, under cover of an email transmission from a social worker named Andy Chan, on 30 May 2025. The report of Dr Kestell includes matters of opinion. Of particular relevance, he opined that Mr Xie's mood had significantly stabilised and that he had the capacity to understand his situation and make reasoned decisions provided there is clear communication with a qualified Mandarin interpreter. The parties were afforded an opportunity to advance written submissions in relation to the report noting that the substantive proceeding is part-heard and there had not been an application for the report to be received in evidence. An email transmission from my chambers was forwarded to the parties on 2 June 2025 which also drew the attention of the parties to the following:
   1. The period of two days to advance submissions is in the context of the opinion expressed by Dr Kestell that the protracted nature of enquiries is contributing to Mr Xie's distress.
   2. It is noted that Dr Kestell is a Registrar without a clear statement of his qualifications and experience in medicine generally and in psychiatry in particular. In terms of his qualifications, it is not clear as to whether Dr Kestell is still in the training program to become a consultant psychiatrist or whether he has successfully completed that program.
   3. Dr Kestell refers to only one consultation with Mr Xie being on 28 May 2025.
   4. The covering email from Mr Chan describes the letter from Dr Kestell as being a "support letter". It is not clear from the report whether it was prepared at Dr Kestell's initiative or whether he was requested to provide a letter of support by Mr Xie or Mr Chan.
   5. The letter expresses a number of conclusions. The parties are requested to provide submissions as to the extent to which Dr Kestell has provided reasoning for the conclusions reached.
   6. Dr Kestell refers to the admission to the Flinders Medical Centre. He refers to matters relating to that admission but it is unclear as to the extent to which he has had access to, and read, the clinical record relating to the admission period.
   7. Dr Kestell refers to the significance of reliance upon interpreters but does not state in his report whether the consultation with him on 28 May 2025 was with the assistance of a Mandarin speaking interpreter.
   8. Dr Kestell does not refer to any restriction in Mr Xie's ability to attend the Tribunal and participate fully over a full sitting day, and on consecutive days. Dr Kestell does not refer to any such concern having been expressed to him by Mr Xie. In the circumstances, Mr Xie is requested to confirm with these chambers, as soon as possible, whether his current position is that he has improved to the point of being able to attend hearing dates for the full day and on consecutive days so that if the matter were now to be relisted for two days to conclude his oral evidence, then he considers himself well enough to attend on those days.
2. Mr Xie provided written submissions on 4 June 2025. He submitted that any speculation regarding Dr Kestell's qualifications is unwarranted, that there should be no doubt about the report's origin and intent but that Mr Xie was open to the involvement of an IMA provided the IMA is truly independent and not affiliated with the Corporation. Mr Xie has maintained his previously stated position that he is not fit to attend two full consecutive days of hearing. He submitted that the subsequent events after attending the Tribunal on two consecutive days confirmed the accuracy of his prior assessment. He referred to the last two consecutive days at the Tribunal as having to caused him to suffer pericarditis and psychological breakdown. Finally, Mr Xie submitted that if there was any clarification required in relation to the report provided by Dr Kestell, then the Tribunal could arrange for him to give oral evidence.
3. The Corporation submitted that the Court's consideration of the report of Dr Kestell is appropriately in the context of the eight points set out in the email transmission from my chambers to the parties on 2 June 2025 and reproduced in paragraph 38 of these reasons. The Corporation advised that it had undertaken a detailed reading of the clinical record of the Margaret Tobin Centre and had administered two computer searches using different search programs and that exercise did not reveal the name "Kestell" in the record. The Corporation submitted that the Tribunal should proceed with a referral to an IMA, noted that Mr Xie most recently has not opposed that referral and that he can be assured as a result of the IMA being nominated by a Ministerial Advisory Committee, that such referral will be truly independent.
4. This matter is part-heard before the South Australian Employment Court. Section 32(1a) of the South Australian Employment Tribunal Act 2014 sets out the relevant principle relating to the application of the rules of evidence. It provides:

32 - Principles governing hearings

...

(1a) However, the rules of evidence and other formal procedures of a court of record apply to the South Australian Employment Court to the extent that the Court considers it necessary or appropriate and the Tribunal (in the exercise of any jurisdiction) may give directions about any question of evidence.

1. Ordinarily, the rules of evidence are applied to the admissibility of expert medical opinion evidence. I have been prepared to consider the content of the report of Dr Kestell for the purpose of determining whether there should still be a referral to an IMA but I have taken into account the matters set out in the email transmission from my chambers to the parties on 2 June 2025 in determining the weight to be given to the opinions expressed. The clinical record of the Margaret Tobin Centre has been provided by the Tribunal and the parties have been granted access to the clinical record for the purpose of advancing submissions in relation to the report of Dr Kestell. I too have inspected the clinical record for that purpose. The primary consultant is recorded as Dr Varuni Desilva. Other medical officers are named within the clinical record. I have not seen Dr Kestell identified as a doctor involved in Mr Xie's medical management whilst he was an inpatient at the Margaret Tobin Centre. The clinical record refers to an admission date of 17 March 2025 and a discharge date of 4 April 2025. The discharge summary records an increase in medication and ongoing concerns in relation to Mr Xie's ideation in circumstances of what was noted as being "his fixation on the outcome of pending court case/preliminary hearing". The subsequent consultation with Dr Kestell was more than a month later and whilst there may have been continuing improvement to that date, the opinions expressed by him appear to be based upon a single consultation. Whilst Dr Kestell identifies himself as a Senior Psychiatry Registrar, his listed qualification is limited to "MD". He does not identify qualifications consistent with having attained medical specialist qualifications in psychiatry. The letterhead upon which he provided his report refers to the clinic as the "Outer South Community Mental Health Noarlunga GP Plus Super Clinic". In addition, there is no indication in his report that Dr Kestell is aware of, and has taken into account, the concerns expressed in these reasons arising from the applications made by Mr Xie and the submissions advanced by him.
2. The clinical record of the Margaret Tobin Centre refers to Mr Xie's initial distressed state being in the context of a convoluted history of grievances against his former employer. Ongoing legal issues with the Corporation, Fair Work SA and Centrelink are also referred to.
3. In all the circumstances, I remain of the view that there should be a referral to an IMA to answer questions related to Mr Xie's mental capacity, his ability to adequately represent himself at trial and whether any conditions should be imposed in the conduct of the trial. The answers to questions related to Mr Xie's mental capacity will assist the Court in determining whether a litigation guardian should be appointed. The report of Dr Kestell does not result in a change in position that there should be a referral to an IMA. It is in the interests of justice and, in my view Mr Xie's best interest, that the Tribunal proceed with that referral. In reaching and maintaining the conclusion that there should be a referral to an IMA addressing Mr Xie's mental capacity I have been mindful that where a person is a self-represented party to a proceeding, the level of mental capacity required to be a capable litigant will be greater than that required to instruct a lawyer, because a litigant in person has to manage a court proceeding in an unfamiliar and stressful situation.[2] In this case, there is the added factor of Mr Xie proceeding on the basis that he requires the assistance of a qualified Mandarin speaking interpreter. As noted by Dr Kestell in his letter, communication difficulties can exacerbate distress.

1. The application of the applicant dated 10 April 2025 is dismissed.
2. The application of the applicant dated 28 April 2025 is dismissed.

1. The applicant is to be referred to an independent medical adviser pursuant to s 121of the Return to Work Act 2014.
2. The Tribunal will prepare a draft referral letter and the parties will be afforded the opportunity to advance submissions as to any changes that may be made and the documents that should be provided for the consideration of the independent medical adviser.
3. The Registrar will be asked to contact the Ministerial Advisory Committee for it to nominate who should be the independent medical adviser.

[1] [2023] SAET 89.

[2] Slaveski v State of Victoria and Ors. [2009] VSC 596; Price v Department for Education [2020] SAET 43 at [19] (Rossi DPJ).