LYNDON KEMP v HEALTH AND COMMUNITY SERVICES COMPLAINTS COMMISSIONER [2025] SASC 56

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER D'ARCY) 2024/SA001403 Appellant: LYNDON KEMP Counsel: MR E JOLLY - Solicitor: MELLOR OLSSON Respondent: HEALTH AND COMMUNITY SERVICES COMPLAINTS COMMISSIONER Counsel: MS K TOUBANAKIS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 06/03/2025 File No/s: CIV-25-000057 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. KEMP v HEALTH AND COMMUNITY SERVICES COMPLAINTS COMMISSIONER [2025] SASC 56 Judgment of the Honourable Justice B Doyle 2 May 2025 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND PROVISIONS PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - OTHER HEALTH CARE PROFESSIONALS The applicant is a massage therapist and a ‘health service provider’ within the meaning of the Health and Community Services Complaints Act 2004 (SA) ('the HCSC Act’). Following receipt of a complaint against the applicant, the Health and Community Services Complaints Commissioner ('the Commissioner’) conducted an investigation in relation to the applicant. For reasons set out in an investigation report provided to the applicant on 22 July 2024, the Commissioner made a prohibition order under s 56C of the HCSC Act, preventing the applicant from providing certain massage services until identified training had been completed. Before the investigation was complete, and whilst the applicant was subject to an interim prohibition order, the applicant commenced a review proceeding in the South Australian Civil and Administrative Tribunal (‘the Tribunal’). However, before the matter had proceeded to substantive hearing, the applicant had undertaken the required training and the prohibition order had ceased to limit the applicant’s practice. A senior member of the Tribunal dismissed the proceeding, concluding that the investigation report was not a report published under Division 4 of Part 6 of the HCSC Act so as to engage the Tribunal’s power of review under s 56(1) of that Act, and further that the review of the prohibition order under s 56E lacked utility. By notice of appeal dated 6 January 2025, the applicant seeks leave to appeal the senior member’s decision pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA). -- 1 of 21 -- Ultimately, the only issue pressed on the appeal was whether the Tribunal erred in concluding it lacked jurisdiction to entertain a review pursuant to s 56(1) of the HCSC Act. Held, granting leave to appeal but dismissing the appeal: 1. the investigation report was not a report published by the Commissioner under Division 4 of Part 6 of the HCSC Act; 2. the provision of the investigation report did not engage the Tribunal’s power to entertain a review pursuant to s 56(1) of the HCSC Act. Evidence Act 1929 (SA) s 69A; Health and Community Services Complaints Act 2004 (SA) ss 3, 5, 6, 9, 24, 35, 29, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 56A, 56B, 56C, 56D, 56E, 73; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 35, 37, 48, 71, referred to. APLA Ltd v Legal Services Commission (NSW) (2005) 224 CLR 322, distinguished. Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36; Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133; Mallios v Commissioner of Police (No 2) [2024] SASC 135; Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 46; REM & PVR v Department for Child Protection [2020] SACAT 9; Roget v Flavel (1987) 47 SASR 402, discussed. -- 2 of 21 -- KEMP v HEALTH AND COMMUNITY SERVICES COMPLAINTS COMMISSIONER [2025] SASC 56 Single Judge Appeal: Civil 1 B DOYLE J: The applicant is a massage therapist and a ‘health service provider’ within the meaning of the Health and Community Services Complaints Act 2004 (SA) (‘the HCSC Act’).1 2 The HCSC Act facilitates the making and investigation of complaints in relation to health and community services. It establishes the office of the Health and Community Services Complaints Commissioner (‘the Commissioner’).2 The Commissioner conducted an investigation in respect of a complaint about the applicant. Ultimately, the Commissioner decided to issue a prohibition order under s 56C of the HCSC Act for reasons set out in an investigation report provided to the applicant on 22 July 2024, when the prohibition order was made. 3 The applicant made an application for review to the South Australian Civil and Administrative Tribunal (‘the Tribunal’). Before the matter had proceeded to any substantive hearing, the prohibition order expired in accordance with its terms. 4 For reasons published on 5 December 2024 (‘Reasons’), a Senior Member of the Tribunal (the ‘senior member’) dismissed the proceeding. She found that there had not been a report published under the relevant Division of the HCSC Act so as to engage the Tribunal’s power of review under s 56(1) of that Act.3 The senior member considered that in circumstances where the preclusive effect of the prohibition order had expired, there was no utility in entertaining a review of that order under s 56E(1) of the HCSC Act because there was no relief that could be granted in respect of the order. 5 By notice of appeal filed in this Court, the applicant seeks leave to appeal the senior member’s decision pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’). He seeks that the order made on 5 December 2024 be set aside and the application for review remitted to the Tribunal for determination pursuant to s 71(4)(c) of the SACAT Act. 6 The issue for determination is whether the Tribunal had jurisdiction to entertain a review of the investigation report pursuant to s 56 of the HCSC Act. For the reasons that follow, it did not. The investigation report was not a report ‘published by the Commissioner’ under Division 4 of Part 6. Accordingly, whilst the applicant should be granted leave to appeal, the appeal must be dismissed. 1 HCSC Act, s 4(1). 2 HCSC Act, s 5. 3 Reasons [18]. -- 3 of 21 -- [2025] SASC 56 B Doyle J 2 Background 7 On 10 September 2023, the Commissioner’s Office received a complaint made by a person who had received massage therapy from the applicant in August 2023.4 In general terms, the complaint included allegations that the applicant did not provide the complainant with appropriate privacy and touched her inappropriately during the course of the massage. There was also a complaint about the basis upon which the applicant had sought to charge for the massage. 8 On 11 November 2023, the Commissioner commenced an investigation under s 43(1)(b) of the HCSC Act. 9 Section 56B of the HCSC Act is titled ‘Interim action’ and empowers the Commissioner to make interim orders prohibiting a person who is the subject of an investigation from providing health services or specified health services, and to make orders imposing conditions on the provision of those services, in either case for a period of 12 weeks or less. On 13 November 2023, the Commissioner made an interim prohibition order pursuant to that section, prohibiting the applicant from providing, offering or advertising massage therapy to female clients for a period of 12 weeks (the ‘initial IPO’). 10 The initial IPO stated as follows: The grounds for making this order are: - On 10 November 2023, I commenced an investigation into health services you have provided; - I consider that the Code of Conduct prescribed under section 56A of the Act and regulation 7 of the Health and Community Services Complaints Regulations 2019 (SA) and set out at Schedule 2 of those Regulations (the Code) applies to you, a health care worker, in the provision of health services, namely massage therapy; - I reasonably believe you have breached the Code, which relevantly provides that: - Clause 3(1): A health care worker must provide services in a safe and ethical manner; - Clause 3(2)(a): A health care worker must maintain necessary competence in his or her field of practice; - Clause 4: A health care worker must obtain consent; - Clause 15(1): A health care worker must not engage in behaviour of a sexual or close personal nature with a client. 11 The initial IPO went on to state that, on the basis of information received regarding the treatment provided to the complainant during a massage at her home on 25 August 2023, and when the applicant attended her residence two days 4 HCSC Act, s 24. -- 4 of 21 -- [2025] SASC 56 B Doyle J 3 afterwards, the Commissioner believed it was necessary to make the order to protect the health or safety of members of the public. 12 On 31 January 2024, the Commissioner made a second IPO which was to be operative for 12 weeks from 5 February 2024. On 26 April 2024, the Commissioner made a third IPO which was to be operative for 12 weeks from 29 April 2024. 13 On 8 May 2024, the applicant commenced a review proceeding in the Tribunal pursuant to s 56E(1) of the HCSC Act, which provides that a person in relation to whom the Commissioner makes an order or publishes a statement under ss 56B or 56C may apply to the Tribunal under s 34 of the SACAT Act for review of the decision to make the order or publish the statement. Section 56E(3) provides that on a review under the section, the Tribunal may confirm, vary or revoke an order or publication the subject of the review. 14 The review application document identified as the reason why the decision was wrong: The complaint involves allegations of a criminal nature and the Commissioner ought to have referred the matter to the police. Mr Kemp does not know if the complainant has reported the matter to the police, whether the police have investigated and elected not to charge Mr Kemp or whether the complainant is yet to report to the police. Mr Kemp has maintained his right to silence. He has lost his primary and sole source of income. He has suffered financial, psychological and emotional distress. Mr Kemp commenced as a volunteer personal trainer in 1998 and as a professional provider in 2009. In that time he has had over 5,000 clients. This is the first and only complaint made against him. He is dealing with reputational damage. His professional association has advised his health provider status is on hold. 15 The applicant sought an order that the prohibition order be dismissed. 16 At a directions hearing on 28 June 2024, it was noted that the Commissioner had foreshadowed that within four weeks a final decision would be made and the interim prohibition order would no longer be in place. The matter was adjourned until 26 July 2024. 17 On 5 July 2024, the Commissioner provided a draft of his investigation report to the applicant and the complainant, inviting them each to respond to the findings and provide any submissions by 19 July 2024. The draft report foreshadowed findings that in various respects the complainant’s complaints were not substantiated, but that in some respects, the applicant had failed to comply with the Code of Conduct for Certain Health Care Workers (the ‘Code’). 18 Through his solicitor, the applicant responded to the draft report by letter dated 17 July 2024. The complainant did not respond. 19 By letter dated 22 July 2024, the Commissioner notified the applicant that he continued to believe that the applicant had breached clauses 3(1), 4 and 17(1) of -- 5 of 21 -- [2025] SASC 56 B Doyle J 4 the Code for reasons outlined in a final investigation report which was enclosed with the notice. 20 The notice stated that pursuant to s 56C(2) of the HCSC Act, the Commissioner ordered that the applicant was prohibited from providing (or offering, advertising or otherwise promoting his availability for) in-home massage to female clients and in-home massage after 7 pm at night and before 9 am in the day until he had completed training on three identified matters5 and provided the Commissioner confirmation of completion. 21 The notice continued: I have incorporated into my final investigation report fuller reasons of my findings, the evidence or other material on which my findings of fact were based, and the reasons for taking the actions I have taken. A copy of my report is enclosed. In addition, pursuant to section 56C(2)(a) of the Act, I will cause to be published a public statement detailing the aforementioned prohibition orders together with a summary of my findings. I intend to delay publication until after the hearing on Friday, 26 July 2024. 22 At a second directions hearing on 26 July 2024 before the senior member, it was noted that the applicant wished to amend his application to seek review of the (final) prohibition order as well as the interim prohibition order. It was noted he may also wish to seek an order pursuant to s 56E of the HCSC Act in relation to publication by the Commissioner of his decision. The Tribunal made an order that the applicant had permission to make such amendments as he may be advised to make to his application, and to bring an application pursuant to s 56E if so advised, on or before 6 August 2024. The matter was adjourned to 16 August 2024. 23 The applicant filed ‘Amended Grounds of Review’ on 6 August 2024. 24 On 16 August 2024, the senior member observed that the applicant had not completed the third course that may lead to the prohibition notice being ‘lifted’ but that even if it were to be lifted, the applicant was seeking that the Tribunal review the report upon which it was based. 25 On 13 September 2024 the applicant was directed to file and serve a written submission on or before 4 October 2024 addressing: (a) the Tribunal’s power pursuant to section 56 of the [HCSC Act] to review the respondent’s investigative report, including but not limited to how and when the applicant says the respondent ‘published’ the report, which aspect/s of the respondent’s procedures relating to the preparation of that report were not procedurally fair, and identifying specifically in what respect/s procedural fairness is said to have been lacking; 5 They were: consent procedures, maintaining professional boundaries and record keeping by the Massage and Myotherapy Australia or The Association of Massage Therapists (Australia) or another appropriate professional body. -- 6 of 21 -- [2025] SASC 56 B Doyle J 5 (b) whether, and if so how, the applicant proposes to rely on section 56E of the [HCSC Act]; (c) any other submissions that the applicant may wish to make, including but not limited to the Tribunal’s powers pursuant to sections 34 and 37 of the [SACAT Act]. 26 Directions were made for responding submissions and a telephone hearing on 1 November 2024. 27 On 3 October 2024, following receipt of the certificate of completion of the third course, the Commissioner’s legal representative sent an email to the applicant which stated that: The Commissioner confirms that Mr Kemp is no longer prohibited and has fulfilled the conditions of the Prohibition Order dated 22 July 2024. 28 The applicant’s submissions contended that the Tribunal had jurisdiction under s 56 because the final report that had been sent to him on 22 July 2024 was a report published by the Commissioner under Division 4 of Part 6 of the HCSC Act within the meaning of s 56(1) thereof. 29 The Commissioner submitted that: (1) insofar as the application was now based upon s 56(1) of the HCSC Act, that required an amendment, which required leave and, indeed, an extension of time within which to make such an application; and (2) reliance upon s 56(1) was futile because there had been no report ‘published’ by the Commissioner within the meaning of s 56(1). 30 A directions hearing was evidently held on 1 November 2024, but there is no separate record of the hearing. From the subsequent reasons of the senior member the subject of this application for leave to appeal, it appears that the applicant informed the Tribunal that he wished to pursue the review proceeding despite the prohibition order having been ‘lifted’ on 3 October 2024 and that he relied on the amended grounds. It seems that by consent, the parties agreed to the Tribunal deciding ‘on the papers’ whether it had power to continue to hear the matter.6 31 At some stage prior to the senior member’s decision, the applicant advised that he withdrew paragraph 11 of the amended grounds.7 Decision of the senior member 32 The senior member rejected the applicant’s contention that when the Commissioner sent the final investigation report to the applicant on 22 July 2024 there had been a report published within the meaning of s 56(1) of the HCSC Act.8 6 Reasons [10]. 7 Reasons [11]. 8 Reasons [18]. -- 7 of 21 -- [2025] SASC 56 B Doyle J 6 33 The senior member further considered that even if it was enlivened, the Tribunal’s jurisdiction pursuant to s 56 was only to review the procedural fairness or otherwise of the Commissioner’s procedures relating to the fairness of the report. In the senior member’s view various of the amended grounds went to matters that were not procedural, such as the contention that the Commissioner took irrelevant considerations into account or made unreasonable findings in connection with the decision to make the prohibition order. 34 The senior member observed that whilst complaints of that kind might be able to be made in judicial review proceedings, they were not within the ambit of a review under s 56(1) of the HCSC Act.9 35 The senior member accepted that the applicant was also seeking to review the prohibition order that ‘was subsequently lifted on 3 October 2024’, and that, whilst not specified, it was to be inferred that this was in reliance upon s 56E(1) of the HCSC Act.10 36 The senior member then made the following observations:11 In his written submissions dated 3 October 2024, the applicant did not address what utility he says there is in the Tribunal reviewing the prohibition order which has ceased to be in effect. The Tribunal’s powers when reviewing a reviewable decision are set out in section 37 of the SACAT Act and are in essence to affirm, vary or set aside a reviewable decision. None of those powers can be exercised in respect of a decision which is not in force. … In REM & PVR v Department for Child Protection [2020] SACAT 9 the Tribunal found that ‘if the decision has effectively come to an end, or has been superseded by a later decision which reverses that decision, then … there is no practical relief that the Tribunal can afford to the [applicant] on the merits review. Consequently, pursuing the review proceedings would be futile’: at [66]. The Tribunal dismissed the proceedings. A similar view was expressed by the Court of Appeal in Fletcher v AHPRA [2023] SASCA 36 when it found that ‘there is no utility in the proposed appeal concerning previous immediate action conditions which are no longer operating’: at [20]. Leave to lodge the proposed appeal was refused. The applicant has not satisfied me that any of the Tribunal’s powers is exercisable in respect of a prohibition order which is no longer in force, nor that there would be any utility in their exercise. I have found that the Tribunal’s jurisdiction pursuant to section 56 of the [HCSC Act] is not enlivened in this matter, and that there is no utility in the Tribunal exercising its jurisdiction in respect of a prohibition order which is no longer in force. It follows that this proceeding is misconceived and/or lacking in substance. That may not have been the position when the proceeding was first lodged while the interim prohibition order was in force, but it is the position now since the interim prohibition order lapsed and the prohibition order was lifted. 9 Reasons [20]. 10 Reasons [21]. 11 Reasons [21]-[26]. -- 8 of 21 -- [2025] SASC 56 B Doyle J 7 Pursuant to section 48 of the SACAT Act, I will dismiss this proceeding on the ground it is misconceived and/or lacking in substance. Appeal to this Court 37 The applicant’s grounds of appeal may be summarised as follows: (1) the Tribunal erred in concluding that it did not have jurisdiction to hear a review under s 56(1) of the HCSC Act;12 (2) the Tribunal erred in law in deciding that the application for review to the Tribunal was misconceived and/or lacking in substance;13 (3) the Tribunal made errors of fact with respect to the contents of the investigation report and the prohibition order that was part of the investigation report;14 and (4) the Tribunal made errors of fact in treating the investigation report and the prohibition order as separate, stand alone, documents.15 38 As ultimately argued, the grounds relating to the relationship between the investigation report and the prohibition order were an aspect of the applicant’s contentions as to the scope of the Tribunal’s review power under s 56(1). 39 The applicant did not submit that, even if the Tribunal was correct to find it lacked jurisdiction under s 56(1), it was wrong to decline to entertain the review under s 56E(1). In his written submissions, the applicant contended that the Tribunal had erred by ‘utilising section 56E of the HCSC Act, when it should have assessed the question of whether the prohibition order was reviewable pursuant to s 56 of the Act’.16 In the course of oral submissions, the applicant made clear that if his submissions regarding s 56(1) were rejected, he did not wish to contend that the Tribunal erred by concluding that, because the prohibition order had run its course, there was no utility in entertaining the review application under s 56E(1).17 40 It follows that unless the applicant is correct in relation to the question whether there was power to entertain a review pursuant to s 56(1) of the HCSC Act, the appeal fails and the other additional or alternative contentions are irrelevant. Before dealing with that question, it is convenient to reproduce the 12 This is the essential point made in paragraphs 1, 2 and 6 of the appeal grounds. 13 Appeal grounds, paragraph 3. 14 Appeal grounds, paragraph 4. 15 Appeal grounds, paragraph 5. 16 Written submissions of the appellant filed 27 February 2025 (FDN 5), paragraph 36. 17 Transcript of Proceedings, Kemp v Health and Community Services Complaints Commissioner (Supreme Court of South Australia, B Doyle J, 6 March 2025) (‘Transcript’) at p 2 line 21 ff, p 3 line 17 ff, p 7 line 38 ff and p 10 line 16. That position may reflect that the applicant wished to complain about the process by which the investigation report was prepared, as distinct from running a ‘straight merits review’ in relation to the prohibition order: see Transcript p 18 line 7 ff. See also Transcript p 26 line 16. -- 9 of 21 -- [2025] SASC 56 B Doyle J 8 relevant sections of Divisions 4 and 5 of Part 6 and to describe their place in the scheme of the HCSC Act. The scheme of the HCSC Act and the relevant provisions 41 The objects of the HCSC Act include to improve the quality and safety of health and community services in South Australia through the provision of a fair and independent means for the assessment, conciliation, investigation and resolution of complaints.18 The objects also include identifying, investigating and reporting on systemic issues concerning the delivery of health or community services.19 42 The HCSC Act provides for the office of the Commissioner.20 The Commissioner has powers including to receive, assess and resolve complaints, to inquire into and report on any matter relating to health or community services, to advise and report to the Minister on any matter relating to health or community services or the administration or operation of the Act, and to provide information, advice and reports to registration authorities and to work with registration authorities to develop or improve procedures relating to the assessment and investigation of complaints and grievances.21 43 Part 4 of the HCSC Act provides that a wide range of persons may make a complaint about a health or community service used, received or sought by a person.22 The grounds for complaint are wide.23 Some complaints may be referred to the Ombudsman.24 Otherwise, they must be assessed by the Commissioner and, unless it is determined that no further action should be taken on the complaint, they must be referred to conciliation under Part 5, investigated under Part 6, dealt with under Part 7 (if they relate to a registered service provider), or referred to another body (where appropriate for referral).25 44 Turning to Part 6, it is provided that the Commissioner may investigate complaints that have been determined to be investigated, and may in some cases investigate other matters.26 Various powers and procedures relating to the investigation are provided for in Division 2,27 but the privilege against self-incrimination and legal professional privilege are preserved by Division 3.28 45 Division 4 is titled ‘Action on investigation’. It provides as follows. 18 HCSC Act, s 3(a). 19 HCSC Act, s 3(e). 20 HCSC Act, ss 5 and 6. 21 HCSC Act, s 9(1)(e), (h), (i) and (j). 22 HCSC Act, s 24. 23 HCSC Act, s 25. 24 HCSC Act, Part 4, Division 1A. 25 HCSC Act, s 29. 26 HCSC Act, s 43(1). 27 HCSC Act, ss 45-52. 28 HCSC Act, sub ss 53(1) and 53(2). -- 10 of 21 -- [2025] SASC 56 B Doyle J 9 54—Reports (1) The Commissioner— (a) may prepare a report of his or her findings and conclusions at any time during an investigation; and (b) must prepare such a report at the conclusion of an investigation. (2) The Commissioner may provide copies of a report to such persons as the Commissioner thinks fit. (3) A report may contain information, comments, opinions and recommendations for action. (4) No action lies against the Commissioner in respect of the contents of a report under this section. 55—Notice of action to providers (1) If, after investigating a complaint, the Commissioner decides that the complaint is justified but appears to be incapable of being resolved, the Commissioner may— (a) provide to the health or community service provider a notice of recommended action; and (b) advise the complainant of the provision of the notice. (2) A notice must set out— (a) the particulars of the complaint; and (b) the reasons for making the decision referred to in subsection (1); and (c) any action that the Commissioner considers the health or community service provider should take in order to remedy each unresolved grievance disclosed by the complaint. (3) If the service provider is a registered service provider, the Commissioner must provide a copy of the notice to the relevant registration authority. (4) The Commissioner may require the health or community service provider to, in connection with the provision of a notice under subsection (1), outline to the Commissioner what action (if any) the service provider has taken, or intends to take, in response to the matters raised in the notice. (5) The Commissioner must allow the service provider and, if relevant, a registration authority, at least 28 days to make representations in relation to the matter and, in the case of the service provider, to comply with a requirement under subsection (4). (6) After receipt of representations under subsection (4), or after the expiration of the period allowed under subsection (5), the Commissioner may publish a report or reports in relation to the matter in such manner as the Commissioner thinks fit. (7) The Commissioner must, before publishing a report under subsection (6), provide a copy of the report to the relevant health or community service provider and then allow the service provider at least 14 days to make representations in relation to the content of the report. (8) A report under this section may include such material, comments, commentary, opinions or recommendations as the Commissioner considers appropriate. -- 11 of 21 -- [2025] SASC 56 B Doyle J 10 (9) The Commissioner may provide copies of a report to such persons as the Commissioner thinks fit. (10) The Commissioner must provide a copy of a report to any complainant and service provider that has been a party to the relevant proceedings. (11) No action lies against the Commissioner in respect of the contents of any document published by the Commissioner under this section. 56—Right of review (1) A health or community service provider who is named in a report published by the Commissioner under this Division may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for review of any aspect of the procedures of the Commissioner relating to the preparation of that report that is not procedurally fair. (2) An application for review must be made within 14 days after the service provider receives a copy of the relevant report from the Commissioner. (3) The Tribunal may, on a review— (a) determine that the report should stand; or (b) remit the matter to the Commissioner for further consideration in accordance with any directions of the Tribunal; or (c) direct the Commissioner to take steps specified by the Tribunal (which may include the publication of a new or revised report or other statements or materials). 46 Division 5 is titled ‘Action against certain health service providers’. It provides in part as follows. 56A—Codes of conduct (1) The Governor may, by regulation, prescribe 1 or more codes of conduct relating to the following: (a) the provision of health services by persons who are not registered service providers; (b) the provision of health services by persons who are registered service providers and who provide health services that are unrelated to their registration. (2) The Governor may— (a) prescribe different codes of conduct for different classes of health service; and (b) make different provisions for different classes of health service within a prescribed code of conduct. (2a) A regulation under this section prescribing a code of conduct may refer to or incorporate, wholly or partially and with or without modification, a code, standard -- 12 of 21 -- [2025] SASC 56 B Doyle J 11 or other document prepared or published by a prescribed body, either as in force at the time the regulations are made or as in force from time to time. (3) A person who breaches a prescribed code of conduct is not, on account of the breach alone, liable to any civil or criminal action. (4) However, if a person breaches a prescribed code of conduct, the Commissioner may enforce compliance with the code in the circumstances contemplated by sections 56B and 56C. (5) Subsections (3) and (4) do not limit or derogate from any other provision of this Act or any other law. 56B—Interim action (1) The Commissioner may act under this section if— (a) an investigation has been commenced under this Part in relation to a person who has provided a health service; and (b) the Commissioner has a reasonable belief that the person has— (i) breached a prescribed code of conduct under section 56A that applies to the person; or (ii) committed a prescribed offence; and (c) in the opinion of the Commissioner action under this section is necessary to protect the health or safety of members of the public. (2) The Commissioner may, in acting under this section in relation to a person— (a) make an order prohibiting the person from doing 1 or more of the following for a period of 12 weeks or such shorter period as may be specified in the order: (i) providing health services or specified health services; (ii) offering, advertising or otherwise promoting health services or specified health services (including where those services may be provided by another person); (iii) holding themselves out or otherwise promoting themselves as a provider of health services or specified health services; (iv) providing advice in relation to the provision of health services or specified health services (including where those services may be provided by another person); and (b) make an order imposing such conditions as the Commissioner considers appropriate on the provision of health services, or specified health services, by the person for a period of 12 weeks or shorter period as may be specified in the order; and -- 13 of 21 -- [2025] SASC 56 B Doyle J 12 (c) publish a public statement, in a manner determined by the Commissioner, identifying the person and giving warnings or such other information as the Commissioner considers appropriate in relation to the health services, or specified health services, provided by the person. (3) The Commissioner may at any time vary or revoke an order or public statement made under this section. (4) The Commissioner must, as soon as practicable after making an order under this section, notify the person to whom the order relates in writing of the order and specify the grounds on which the order is made. (5) A person who contravenes an order made under this section is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years or both. 56C—Commissioner may take action (1) The Commissioner may act under this section if— (a) an investigation has been carried out under this Part in relation to a person who has provided a health service; and (b) the Commissioner is satisfied that the person has— (i) breached a prescribed code of conduct under section 56A that applies to the person; or (ii) been found guilty of a prescribed offence; and (c) in the opinion of the Commissioner the person poses an unacceptable risk to the health or safety of members of the public in providing health services. (2) The Commissioner may, in acting under this section in relation to a person— (a) make an order prohibiting the person from doing 1 or more of the following for a specified period or indefinitely: (i) providing health services or specified health services; (ii) offering, advertising or otherwise promoting health services or specified health services (including where those services may be provided by another person); (iii) holding themselves out or otherwise promoting themselves as a provider of health services or specified health services; (iv) providing advice in relation to the provision of health services or specified health services (including where those services may be provided by another person); and (b) make an order imposing such conditions as the Commissioner considers appropriate on the provision of health services, or specified health services, by the person for a specified period, or indefinitely; and (c) publish a public statement, in a manner determined by the Commissioner, identifying the person and giving warnings or such other information as the Commissioner considers appropriate in relation to the health services, or specified health services, provided by the person. -- 14 of 21 -- [2025] SASC 56 B Doyle J 13 (3) The Commissioner may at any time vary or revoke an order or public statement made under this section. (4) A person who contravenes an order made under this section is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years or both 56D—Commissioner to provide details (1) If the Commissioner takes any action against a person under section 56C the Commissioner must, as soon as practicable, provide the person with a written statement (the statement) in relation to the action that includes the following: (a) the Commissioner's findings on significant questions of fact; (b) any evidence or other material on which the findings of fact were based; (c) the reason, or reasons, for the action. (2) The Commissioner— (a) if action taken under this Division relates to a complaint—must provide a copy of the statement to the complainant; and (b) must provide a copy of the statement to any professional body or association that the Commissioner considers relevant to the prescribed health service provider or to the area of practice to which the action under this Division relates; and (c) may publish the statement, or parts of the statement, in a manner that the Commissioner considers appropriate. 56E—Review (1) A person in relation to whom the Commissioner makes an order or publishes a statement under section 56B or 56C may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for review of the decision to make the order or publish the statement. (2) An application for review under this section must be made within 1 month after notification under section 56B(4) or service of a statement under section 56D, or such extended period as may be allowed by the Tribunal. (3) On a review under this section, the Tribunal may confirm, vary or revoke an order or publication the subject of the review. 47 Section 73, which is located in Part 9, should also be noted. 73—Adverse comments in reports (1) The Commissioner must not include in a report under this Act a comment adverse to a person or body identifiable from the report except where the person or body has been given a reasonable opportunity— (a) to make a submission to the Commissioner in relation to the proposed comment; and (b) to provide to the Commissioner a written statement in relation to it. -- 15 of 21 -- [2025] SASC 56 B Doyle J 14 (2) If a person or body referred to in subsection (1) so requests, the Commissioner must include in the report the statement given under subsection (1)(b) or a fair summary of it. (3) The Commissioner is not required to provide to a person or body the opportunity referred to in subsection (1) if the Commissioner believes, on reasonable grounds, that awareness of the proposed comment by any person would directly or indirectly— (a) put at risk the health or safety of a person; or (b) result in a person receiving a health or community service of a lower standard than would otherwise have been provided; or (c) prejudice the fair assessment of a complaint or an investigation under this Act. The scope and subject of the review contemplated by s 56(1) of the HCSC Act 48 Section 56(1) provides that a health or community service provider who is named in a report published by the Commissioner under Division 4 of Part 6 may apply to the Tribunal under s 34 of the SACAT Act for review of any aspect of the procedures of the Commissioner relating to the preparation of that report that is not procedurally fair. 49 The investigation report was provided to the applicant on 22 July 2024,29 but has not been more widely published. The applicant contends that nevertheless this involved the publication of a report within the meaning of s 56(1). 50 The applicant submits that when s 56(1) uses the word ‘published’ this does not connote publication to the public, or a section of the public, at large. Rather, giving the word the broadest meaning it can naturally bear, it encompasses the communication or provision of the report to any person or persons. The applicant pointed to the observation by Kirby J in APLA Ltd v Legal Services Commission (NSW),30 that ‘the definition of ‘publish’ is so broad that it includes virtually every means of communication, including by displaying or publicly disseminating materials over the Internet’. Kirby J was, however, referring to the extensive and detailed definition of ‘publish’ contained in regulations. He was not speaking of the natural meaning of the expression. 51 Undoubtedly, in some contexts, the verb ‘to publish’, and the noun ‘publication’, can extend to a communication of a statement or information other than to the world at large. However, the word derives from the Latin publicare, which means to ‘make public’, and not merely to communicate. ‘Publish’ is often, indeed usually, used in statutes in the former sense. An example is the definition in s 68 of ‘publish’ for the purposes of a suppression order under s 69A of the Evidence Act 1929 (SA). In that context, publish means ‘communication to the 29 It may be inferred, having regard to s 56D(2)(a), that a statement has been provided to the complainant. 30 (2005) 224 CLR 322 at [291]. -- 16 of 21 -- [2025] SASC 56 B Doyle J 15 public’ and excludes private communications.31 Even before the definition appeared in the Act, it had been held that, understood in context, it was not intended to refer to substantially private communications.32 52 The required task in this appeal is to construe the expression ‘report published by the Commissioner under this Division’ in the context of the surrounding provisions of the HCSC Act and with reference to the purpose of the legislation. 53 In advancing submissions relating to context, and in considering whether a particular meaning accords with the purpose of legislation, it is legitimate to explore the consequences of adopting a particular construction, so long as it is borne in mind that the purpose of the legislation is itself to be derived from the text and scheme of the Act, informed where appropriate by extrinsic materials. The Court must not make assumptions about the purpose of the legislation, much less decide for itself what would have been the desirable reach or extent of the legislation, and then construe the provisions so that they are consistent with that assessment.33 54 The applicant submitted that a narrow reading of ‘published’ in s 56(1) would result in a health service provider who is the subject of adverse comment in a report frequently being left without a right of review which Parliament must be taken to have intended they would have. 55 The applicant made the submission that even if a report is provided only to the health service provider in question, they may have to disclose that report to others including, for example, in the context of insurance applications. 56 The applicant submitted that although s 56E(1) confers a right of review of the decision to make an order or publish a statement under s 56B or s 56C, that should not be seen as providing a person who is the subject of an adverse comment in an investigation report with an appropriate remedy. 57 The applicant submits that there will not always be an order made under ss 56B or 56C, and that, where there is, there will not necessarily be a public statement made under those sections, so as to permit the person the subject of adverse comment in a report which is less widely disseminated to avail themselves of a right of review. 58 However, in many cases where a report prepared by the Commissioner contains an adverse finding against a health service provider, it will also result in the Commissioner taking action under s 56C. Whilst it may not result in a ‘public 31 That distinction is important in ensuring suppression orders do not burden the freedom of members of the community, as amongst themselves, to engage in private discussion of, or debate over, judicial proceedings, of which they have learnt from their presence in a court room or from having accessed transcripts or court records or from someone else. See, eg, Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133 at [105] (Kourakis CJ). 32 Roget v Flavel (1987) 47 SASR 402 at 406 (Cox J). 33 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [23]-[32] (French CJ and Hayne J). -- 17 of 21 -- [2025] SASC 56 B Doyle J 16 statement’ that itself may be the subject of review under s 56E(1), it is to be expected that in challenging the order made under s 56C, there would be a forum in which to dispute any relevant or material adverse findings made in a report that was prepared at the conclusion of the investigation. 59 Even when that is not so, it does not mean the person affected by an adverse investigation report will be without remedy in all cases. If it is affected by jurisdictional error, they may have a right of judicial review if the report, whilst not producing an immediate legal consequence, has a sufficient reputational consequence to engage the Supreme Court’s supervisory jurisdiction.34 60 In any event, there are countless actions that may be taken under legislative provisions that may be adverse to an individual but which are not able to be the subject of a merits review in an administrative tribunal. It is not clear why the provision of a report to the person about whom it contains an adverse comment, is an action which Parliament must have intended to be reviewable in the Tribunal. In the ordinary course, s 73(1)(a) of the HCSC Act will have operated to give them a reasonable opportunity to be heard, and s 73(2) will have required the Commissioner to include a ‘fair summary’ of any written statement by way of response. 61 Ultimately, the applicant’s argument that the subject matter of a review under s 56(1) extends to reports provided to a person, irrespective of whether they are more widely disseminated, because that is so obviously desirable that it must have been intended, is based on a contestable premise. The surer guide to the meaning of the provision is to be found in the text and the context provided by the surrounding provisions in Divisions 4 and 5. 62 As can be seen from a review of the provisions of Division 4 set out earlier, the HCSC Act distinguishes publication from other modes of provision of a report. 63 Section 54(2) empowers the Commissioner to ‘provide’ copies of a report (being a report reflecting findings and conclusions during, and prepared at the conclusion of, an investigation) to ‘such persons as the Commissioner thinks fit’. There are no express procedural pre-conditions to doing so. 64 Section 55 contemplates, in sub-s 55(6), that the Commissioner may ‘publish’ a report. This difference in language is unlikely to have been accidental. In context, it obviously means more than provide a report to a person mentioned in it. That is because it can be only be done after the person has been given a copy of it and been provided with an opportunity to make a representation in relation to its content. That is the effect of sub-s 55(7). The distinction is made even clearer by the presence of sub-s 55(9). The conferral of that power, conditioned only by the circumstances causing the Commissioner to think it fit to do so, would be 34 Moriarty v Independent Commissioner Against Corruption (NT) [2022] NTSC 46 at [6] (Kelly J). -- 18 of 21 -- [2025] SASC 56 B Doyle J 17 inexplicable (and incongruous) if publication in sub-s 55(6) extended to provision to a person or an identified number of persons. 65 It may also be noted that under sub-s 55(10) the Commissioner must provide a copy of the report to any complainant and service provider that is party to the relevant proceedings. If a report is ‘published’ within the meaning of s 56(1) whenever a report is provided to a person under the Division, then the power of review extends to the mandatory provision of a report under sub-s 55(10). That cannot be right. 66 Once it is appreciated that ‘publish’ in s 55 means something different from and additional to ‘provide’ in s 55, it becomes untenable to contend that when s 56(1) speaks of a ‘report published … under this Division’ it extends to reports that are merely provided under s 54(2). 67 The conclusion that the word ‘published’ means something different from ‘provide[d]’ is also reinforced by the differential use of those verbs in Division 5. 68 What the Commissioner may ‘publish’ under s 56B(2)(c) or under s 56C(2)(c) is a ‘public statement’. That suggests that ‘publish’ is being used in the sense of communicating to the public at large, and not providing information to identified persons. When s 56D contemplates the Commissioner informing a person against whom action is to be taken under s 56C of the findings and reasons, it uses the verb ‘provide’. 69 It is unlikely that the words ‘publish’ and ‘provide’ were used in this differential way in Division 5, but that ‘published’ in Division 4 means ‘provided’ or ‘communicated’. 70 For those reasons I conclude that when the investigation report was provided to the applicant it was not ‘published’ within the meaning of s 56(1). 71 Whilst that is sufficient to dispose of the contention that the applicant had a right to initiate a review under s 56(1), I would further conclude that the only report that, for s 56(1) purposes, may be ‘published … under the Division’ is a report of a kind contemplated by s 55. 72 Section 55 applies when the Commissioner decides that the complaint was justified, but is incapable of being resolved. The report contemplated by that section is one which may include such material, comments, commentary, opinions or recommendations as the Commissioner considers appropriate. Reports of this kind are evidently contemplated as serving a wider purpose. The investigation report is not a report of the kind contemplated by s 55. The grounds upon which the Tribunal may initiate a review under s 56(1) relate to the procedures of the Commissioner concerning the preparation of the report that were not procedurally fair. This is not a merits review as to the content of the report. -- 19 of 21 -- [2025] SASC 56 B Doyle J 18 Disposition 73 For these reasons, the applicant’s reliance upon s 56(1) of the HCSC Act was misplaced. The Tribunal was right to so find. 74 When the final investigation report was provided to the applicant on 22 July 2024 there was no report published under Division 4 of Part 6 of the HCSC Act. The provision of the report was required to discharge the Commissioner’s obligation under s 56D(1) to provide a written statement setting out the findings on significant questions of fact, the evidence or material upon which they were based and the reason or reasons for the action taken under s 56C. The statement was not, however, published within the meaning of s 56D(2)(c), and nor was any public statement published within the meaning of s 56C(2)(c). 75 Because an order was made pursuant to s 56C, the applicant was entitled to initiate a review of the decision to make the order, pursuant to s 56E(1). A review of that kind would involve a merits review. Having regard to the nature of such a review, it would not be necessary to demonstrate legal or process error associated with the statement provided under s 56D(1) in connection with the making of the order, although demonstrating error is sometimes a convenient way of showing that a different result is the ‘correct or preferable decision’ notwithstanding the ‘appropriate weight’ to be given to the decision of the original decision-maker.35 76 Because the investigation report contained an explanation of why the prohibition order had been made, its content may, to that extent, have been challenged, incidentally, in the course of a review pursuant to s 56E(1), subject only to a question whether such a review was futile because the prohibition order had ceased to limit the provision of health services by the applicant. 77 As has been observed, the senior member characterised the prohibition order as having been ‘lifted’ on 3 October 2024. She concluded that the powers available to the Tribunal were not able to be exercised in those circumstances. In effect, there was nothing that could be set aside or varied, at least not in a way that would be utile. 78 As I have observed, the applicant disavowed a challenge to this conclusion on the appeal. He made clear that what was proposed to be challenged was the process and reasoning that resulted in the preparation and provision of the investigation report, and not the prohibition order – a challenge to which he conceded lacked sufficient utility. 79 In those circumstances, it is not necessary or appropriate for me to express a concluded view on the question whether a review of the prohibition order was futile. I would observe, however, that s 37(3) of the SACAT Act contemplates that when a reviewable decision is affirmed or varied it will ordinarily be regarded as taking effect from the time of the original decision. It is not obvious to me why 35 SACAT Act, s 34(4). -- 20 of 21 -- [2025] SASC 56 B Doyle J 19 an order setting aside a decision would not, or at least could not, operate retrospectively. 80 Here, the prohibition order was not in fact ‘lifted’. All that occurred was that the Commissioner confirmed his position that the applicant had satisfactorily complied with the condition that attended the resumption of his practice. The fact that the prohibition order had ceased, on its terms, to preclude him providing services does not necessarily mean that there was no legal utility or practical significance in retrospectively setting aside the order. Nothing, of course, could restore those months of practice. But that may not be conclusive of the question of utility. 81 Where a party has availed themselves of a statutory review regime, and then requires leave to appeal to this Court, questions of practical utility may feature as part of a more general consideration of the interests of justice, together with countervailing considerations of cost and finality.36 The position is not necessarily the same when a Tribunal is seized of a review jurisdiction, but is asked to dismiss the proceeding as misconceived because the relief is said to lack utility. 82 Where an order has been reversed or superseded by the original decision-maker there may be limited or no utility in reviewing the order,37 but where it has simply run its course that is, to my mind, a different question, and one I need not resolve. 83 Because the question of construction raised by the proposed appeal is of importance beyond the circumstances of this case, I would grant leave to appeal, but the appeal must be dismissed. I will hear the parties as to costs. 36 Cf. Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36 at [16] (Livesey P and Lovell JA), Mallios v Commissioner of Police (No 2) [2024] SASC 135 at [83]-[84]. 37 Cf. REM & PVR v Department for Child Protection [2020] SACAT 9 at [66]. -- 21 of 21 --