Xie v Return to Work Corporation of South Australia [2026] SAET 31

The respondent is not able to receive completed advice on the applicant's Application for Directions as further information is needed from the applicant regarding what he has already alleged about why he could not file an appeal in SAET within time. Accordingly, the following Orders are made:

1. Within 7 days the applicant is to file and serve an affidavit setting out the details of his attempts to file an appeal in the Federal Court, including attaching copies of the documents he has said he lodged. Also, the affidavit is to include details of when the applicant was overseas, for what period and how that affected his ability to lodge an appeal in SAET within time.
2. The affidavit and the attached documents are to be provided to Minter Ellison and SAET electronically.
3. Matter adjourned to a telephone directions hearing 3 March 2025 at 3:00 p.m.
4. One day after those orders, Mr Xie affirmed an affidavit dated 12 February 2026. That document was filed on 13 February 2026. Regarding the Federal Court issue Mr Xie said in that affidavit:

After receiving no substantive response from SAET to my objections to the Tribunal's decisions, I attempted to seek judicial relief by commencing proceedings in the Federal Court of Australia. On or about 18 December 2025, I lodged documents in the Federal Court of Australia seeking relief in respect of the Tribunal's decisions. The Federal Court allocated file number SAD285/2025 - Xie v Return to Work Corporation of South Australia. My attempt to commence proceedings in the Federal Court was made in good faith and for the purpose of seeking lawful review of the Tribunal's decisions, not for the purpose of delay. I believed at that time that the Federal Court was the appropriate forum because:

(a) I alleged serious procedural unfairness;

(b) I alleged misuse of statutory power; and

(c) I was not informed by SAET of any appeal procedure.

The Federal Court subsequently noted that there might be issues with some jurisdiction, as the arbitral tribunal was a state-level tribunal and its powers were based on state legislation.

Upon receiving this advice, I immediately filed another appeal with the South Australian Employment Tribunal (SAET) . The registrar then informed and guided me on how to file an appeal.[4]

1. I pause to make comment on the timing of events as described by Mr Xie. He said that his appeal was filed in the Federal Court on 18 December 2025 and that subsequently that court 'noted' that there might be issues with its jurisdiction. And that upon receiving that advice, he immediately filed another appeal in SAET. Mr Xie does not say when that court noted the jurisdictional issue, nor who it was within that court who did the noting. Was that information provided to him at or about the time of filing, late December 2025? Or was it provided to him perhaps during a directions hearing in that court at a subsequent date? Such information is relevant to the extension of time issue. As we know, the Application for Directions seeking an extension of time to file an appeal was filed in the SAET Registry on 27 January 2026.
2. On the issue of being overseas - and how that might have adversely affected his ability to file an appeal - in his affidavit of 12 February 2026, Mr Xie said that when Xie v Return to Work Corporation of South Australia [2025] SAET 52 was delivered on 16 June 2025, he was outside Australia. He said that he was overseas - the location(s) were not mentioned - from 16 June 2025 to 2 August 2025.[5] I take from that that he was within Australia when Xie v Return to Work Corporation of South Australia (No 2) [2025] SAET 139 was delivered on 12 December 2025.
3. Further on in his affidavit of 12 February 2026 Mr Xie set out his objections to providing the relevant Federal Court documents. There he said:

E. Objection to Production of Federal Court Material

I respectfully object to producing copies of pleadings, affidavits or submissions filed in the Federal Court. Those materials relate to separate proceedings in another court concerning jurisdictional and judicial review issues and are not relevant to the question presently before this Tribunal, namely whether I should be granted leave to appeal out of time.

My attempt to commence proceedings in the Federal Court is relied upon only as evidence that I was actively seeking a legal remedy and did not deliberately delay. That fact can be demonstrated by reference to:

(a) the Federal Court file number; and

(b) confirmation that the proceedings commenced.

Compelling me to disclose the content of my Federal Court pleadings and evidence to the respondent would be prejudicial to my position in those proceedings and may interfere with the administration of justice in another court.

For those reasons, I provide details of the existence and timing of the Federal Court proceedings but do not consent to producing pleadings, affidavits or submissions filed in that Court.[6]

1. As can be seen there is some confusion in Mr Xie's thinking regarding the Federal Court information and documents. If he has proceedings in the Federal Court - he said he 'has been involved in multiple over-lapping proceedings, including proceedings commenced in the Federal Court of Australia in relation to the same subject matter' - then such proceedings may or may not be the subject matter of the orders of 11 February 2026. Those orders are only concerned with his attempts to file appeal proceedings in the Federal Court against the judgments of Rossi DPJ of 16 June 2025 and 12 December 2025. Therefore, if he has extant proceedings in the Federal Court, and those proceedings are appeals from Rossi DPJ, then those proceedings are relevant to the present issues in his Application for Directions. If he does not have extant proceedings - they were never accepted for filing or were dismissed on jurisdictional grounds - then whatever documents he lodged / attempted to file or actually successfully filed, are relevant to the present issues in his Application for Directions.
2. If he has Federal Court proceedings that are in neither of the two above categories, then those proceedings are not relevant to the present issues in his Application for Directions. And, as such, any documents from those proceedings do not need to be produced in these proceedings.
3. As would be evident from what he said in his affidavit of 12 February 2026, Mr Xie did not provide copies of the documents he said he lodged in the Federal Court within 7 days of my Order 1 of 11 February 2026.
4. These proceedings were next heard on 3 March 2026. On that occasion the respondent submitted that Mr Xie's evidence from his affidavit of 12 February 2026 was a totally unreasonable explanation for why he had not provided the documents he said he lodged in the Federal Court. To that Mr Xie countered saying that he had complied with Order 1 of 11 February 2026. When I pointed out to him that he had not complied with that order - as he had not attached copies of the documents - he answered that he would not provide copies of the documents to the respondent.
5. Given that impasse I gave Mr Xie another opportunity to comply, ordering that he must comply with Order 1 of 11 February 2026 by 5 March 2026. I also listed the stay issue for hearing on 10 March 2026, on transcript. Whilst I made those orders during the hearing of 3 March 2026, the orders document was not approved until the next day, 4 March 2026, and as such the orders bear that date under my signature. Despite that date, the orders will be referred as being made on 3 March 2026, which is the correct date on when they were made.
6. Mr Xie did not comply with Order 1 of 11 February 2026 by 5 March 2026. Similarly, he had not complied by the time of the hearing on 10 March 2026.

Mr Xie's arguments for a stay of the order for him to be examined by Assoc Prof Khalid

1. In an email of 5 March 2026, Mr Xie set out his arguments as to why the order for him to be examined by Assoc Prof Khalid should be stayed.
2. At the hearing of 10 March 2026, I asked Mr Xie whether he wished me to accept that email as his written submissions on the stay issue. Mr Xie confirmed that he did wish me to accept that email as his written submissions. Initially Mr Xie said he was content just for me to rely on his written submissions and to not make any oral submissions. However, after hearing the respondent's oral submissions, Mr Xie supplemented what he said in writing with brief oral argument. On the relevant topics he essentially repeated what he had already said in writing.[7]
3. Mr Xie's written submissions were organised under four numbered headings as set out below.

1. Compliance with the Orders of 11 February 2026.

1. Mr Xie argued that by the filing of his affidavit of 12 February 2026, he had complied with Order 1 of 11 February 2026. With regards to my orders of 3 March 2026, he contended that I had not specified what additional material or information was said to remain outstanding. Also, he asked that the Tribunal clarify precisely what additional information or documents are sought so that he could properly comply.

1. Mr Xie stated that he only received the orders of 3 March 2026, in the morning of 5 March 2026. He argued that as he did not have clarification of what further material was required to be provided by him, he did not have sufficient time to comply with the order - to comply with Order 1 of 12 February 2026 by 5 March 2026.

3. Interpreter difficulties during the 3 March 2026 hearing

1. Several times during the hearing of 3 March 2026, which was conducted via telephone, Mr Xie said that he was unable to clearly understand what I was saying. He put that down to the interpretation he was receiving. He said that such difficulties made it problematic for him to properly follow what was being said and for him to appropriately respond.

1. As is the practice of this Tribunal preparatory hearings such as I conducted in this case on 11 February 2026 and on 3 March 2026 are usually not audio recorded. Mr Xie complained that he had not been provided with an audio recording or transcript of the hearing on 3 March 2026. That hearing was not audio recorded. The hearing on 10 March 2026, where I heard the parties arguments about the stay was audio recorded.

1. Mr Xie stressed that he had complied with Order 1 of 11 February 2026. He insisted that he had already put everything about his dealings with the Federal Court in his affidavit. He claimed that there are some things that are impossible to give to the defendant (respondent). He argued that this Tribunal could not interfere with the Federal Court. Therefore, what he had already committed to writing was correct and that he had already met the requirements.
2. As for his upcoming examination by Assoc Prof Khalid, Mr Xie submitted that this Tribunal has no authority to order him to have a mental assessment. He said such an order was beyond authority. He also made many complaints about his previous medical examinations and medical reporting.

1. The respondent reiterated that Mr Xie had not complied with Order 1 of 11 February 2026. He had not provided the necessary Federal Court documents. The respondent stressed that the order made was perfectly plain.
2. In making good that claim of ease of understanding, the respondent pointed towards Mr Xie's affidavit of 12 February 2026, and the evidence he provided under the heading E. Objection to Production of Federal Court Material. The respondent contended that what he said there - which is set out in full above at [26] - demonstrates that he knew, and has always known, what he is required to provide to comply with Order 1 of 11 February 2026.
3. Essentially what the respondent was contending for was that Mr Xie must completely comply with Order 1 of 11 February 2026, before his stay should be entertained. That is, Mr Xie must come to the Tribunal with clean hands so-to-speak, before he can seek the indulgence of a stay order. His on-going non-compliance was a significant factor in why there should be no stay order made.
4. The respondent was not opposed to the notion of giving Mr Xie another opportunity to comply with Order 1 of 11 February 2026. But, reinforced that in the absence of a stay order, Mr Xie was required to attend his examination with Assoc Prof Khalid, as arranged for 16 March 2026. In that regard, the respondent submitted that Rossi DPJ had raised real issues of concern about Mr Xie's mental capacity to participate in these proceedings.
5. On Mr Xie's request that the Tribunal clarify precisely what additional information or documents are sought so that he could properly comply, the respondent submitted there was no confusion at all about what he has to do to comply with Order 1 of 11 February 2026.
6. At the conclusion of the hearing of 10 March 2026, I advised the parties that I would consider what they had submitted to me and deliver my judgment on the stay issue the next day, not before 11.00am on 11 March 2026.

1. In Peter v Department for Education and Child Development [2019] SAET 132 a Full Bench considered the requirements of a stay order. There, Rossi DPJ, with whom Kelly DPJ and Clayton AuJ agreed, said the following:

The principles relevant to the exercise of discretion concerning a stay application in circumstances such as the present are well settled. They may be summarised as follows:

1. The filing of a Notice of Appeal does not, in itself, operate as a stay of orders made related to the subject of the appeal. That is the position generally and is also the effect of s 69(1) of the Act.
2. The applicant for a stay bears the onus of demonstrating that a stay is justified.
3. Whilst the test has been formulated in various ways it is clear that the applicant bears the onus of persuading the court that the circumstances take the case out of the general rule that an appeal does not operate as a stay. It is not necessary in this matter to address the various formulations of the test in other judgments.
4. The discretion is wide and is not circumscribed by rigid rules. The court should take account of all of the circumstances of the case.
5. Particularly relevant to the exercise of the discretion in this case by the learned Deputy President, circumstances might exist for the granting of a stay where a successful appellant would be deprived of the fruits of the appeal if a stay of execution of the orders was not granted. The reason is that, in such circumstances, the appeal might be rendered nugatory.

In relation to point 5, in Cellante & Ors v G Kallis Industries Pty Ltd[8] Young CJ stated relevant circumstances would "exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed".[9]

1. I consider what was said there as being relevant to the stay issue in this case.

1. There is much force in the respondent's arguments about the requirement for Mr Xie to fully comply with Order 1 of 11 February 2026. Compliance with orders made by this Tribunal is not optional. Subsection 91(2) of the SAET Act establishes that punitive action may be taken for non-compliance in the absence of a reasonable and adequate excuse.
2. As I set out in the orders of 11 February 2026, details about Mr Xie's attempts to file an appeal in the Federal Court, including attaching copies of the documents he has said he lodged, is needed so that the respondent can receive completed advice on his Application for Directions - to extend time for him to file an appeal. With the complete information and documents provided to it, the respondent will then be in a position to properly instruct as to what its attitude will be on the extension of time issue. It may be that once such advice is received, that consideration would be given to not opposing Mr Xie's extension of time request. It may be that the extension of time is opposed. All of that is yet to be determined by the respondent.
3. With regards to Mr Xie's request that, it be clarified precisely what additional information or documents are sought so that he could properly comply with Order 1 of 11 February 2026, Mr Xie is hoist by his own petard. His evidence contained in his affidavit of 12 February 2026, demonstrates that he understands he needs to provide copies of relevant Federal Court documents. To the extent that he could continue to claim ongoing confusion, this judgment and particularly paragraphs [27]-[28] above, makes that clear.
4. I hear what Mr Xie has said regarding insufficient time regarding the orders of 3 March 2026. I also hear him on his complaints about the standard of the interpreting service and about audio recording and transcript. However, those grievances are after the fact so-to-speak - he had by then already not complied with Order 1 of 11 February 2026, and he has made no complaints about the interpreting on that first hearing occasion.
5. A further relevant factor is that the proceedings before Rossi DPJ have not concluded. Apropos of that, looming large are Rossi DPJ's real concerns about Mr Xie's mental capacity and his ability to adequately represent himself at any upcoming trial and whether any conditions should be imposed in the conduct of that trial. Hence the s 121 of the RTW Act referral to the IMA, Assoc Prof Khalid to opine of such issues. If for example the medical opinion is that Mr Xie's capacity is compromised in any way, what then of the status of the submissions he has made to me on his present Application for Directions? Would it not be a fetter on the proper administration of justice to allow a potentially incapacitated litigant to proceed with complex litigation such as an appeal on a question of law only?
6. The concerns that if no stay is ordered, and Mr Xie is examined by Assoc Prof Khalid, and then as such, he is denied the 'fruits of the appeal' is answered in two ways. Firstly, Mr Xie presently does not have an appeal as received by the Registry. It is axiomatic that s 69 of the SAET Act and Practice Direction 37 concern an appeal lodged and received - filed - in accordance with the requirement of PD 36.
7. In that regard, on the topic of an appeal on a question of law only, nothing Mr Xie has said in any of the documents I have considered in this case would get remotely close to satisfying the requirements of s 26I of the SAET Act and of PD 36.
8. Secondly, if Mr Xie does achieve a filed appeal, and is ultimately successful on that appeal, then arguments can be raised by him then as to whether any evidence coming out of his examination by Assoc Prof Khalid is inadmissible in the proceedings before Rossi DPJ yet to conclude.
9. Finally, it is Mr Xie's case to make, he is charged with the onus of establishing that a good reason exists for a stay of the order for him to be examined by Assoc Prof Khalid. As described above, there is confusion in what he has submitted. Also, he has repeatedly failed to comply with orders to advance the issues in dispute. He has not done all that he can do to expediate the timely resolution of these proceedings.
10. Accordingly, I am not persuaded by Mr Xie's arguments. In all of the circumstances of this case I am resolved that no order for a stay should be made. However, Mr Xie should be given one last chance to comply with Order 1 of 11 February 2026. I am hopeful that his consideration of this judgment will assist him in that regard.
11. Consequently, with no stay order to be made, Mr Xie is required to attend on and cooperate with Assoc Prof Khalid at his scheduled examination of 16 March 2026.

1. By close of business 18 March 2026, Mr Xie is to have fully complied with Order 1 of 11 February 2026, specifically he is to have provided to the respondent all relevant documents lodged in the Federal Court of Australia with regards to his attempts to appeal the judgments of Rossi DPJ in Xie v Return to Work Corporation of South Australia [2025] SAET 52 and Xie v Return to Work Corporation of South Australia (No 2) [2025] SAET 139.
2. Mr Xie's Application for Directions of 27 January 2026 is adjourned to a further hearing, on transcript, on 2 April 2026 at 11.00am.
3. The Registrar is to forward a copy of this judgment to Assoc Prof Khalid in advance of his examination of Mr Xie on 16 March 2026.

1. 23 January 2026 Xie Supporting Affidavit
2. 28 January 2026 Xie Affidavit
   1. 27 January 2026 at 8.28am Xie email to SAET Registrar "Notice

of Appeal" 3. 27 January 2026 Xie Application for Directions 4. 11 February 2026 at 8.01am Xie email to Chambers 5. 12 February 2026 Xie Affidavit 1. 5 March 2026 at 4.48pm Xie email to Chambers "Written Submissions"

[2] Application for Directions 27 January 2026 p 1.

[4] Affidavit of Yunzhong Xie, 12 February 2026 p 2.

[7] Given the proximity of Mr Xie's examination with Assoc Prof Khalid on 16 March 2026, and the desire for him to understand the outcome of the stay issue before that date, whilst the hearing of 10 March 2026 was recorded, this judgment has been prepared without the assistance of transcript. My notes, and the notes helpfully taken by a Legal Support Officer, have been relied upon in writing this judgment. Transcript has been ordered and will be provided to the parties upon receipt.

[9] Peter v Department for Education and Child Development [2019] SAET 132 [32]-[33].