[2025] SASC 184

Applicant: ZHONGHUA NING In Person First Respondent: NURSING AND MIDWIFERY BOARD OF AUSTRALIA (NMBA) Counsel: MR S HURBURGH WITH MS E HOLMES - Solicitor: MINTER ELLISON Second Respondent: AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY (AHPRA) Counsel: MR S HURBURGH WITH MS E HOLMES - Solicitor: MINTER ELLISON Hearing Date/s: 31/07/2025 File No/s: CIV-25-004679 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) 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. NING v NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2025] SASC 184 Judgment of the Honourable Justice B Doyle 11 November 2025 PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS - OTHER MATTERS STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - CONSTRUCTION WITH REFERENCE TO CONSEQUENCES The applicant is a registered nurse in respect of whom a National Body imposed ‘immediate action’, initially by way of suspension, and subsequently by way of the imposition of conditions upon her registration, under Schedule 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘National Health Law’). On 12 March 2025, the first respondent (the ‘Board’) determined to bring to an end the immediate action but determined to refer the applicant’s matter to the South Australian Civil and Administrative Tribunal (‘SACAT’), the ‘responsible tribunal’ for the purposes of s 193 of the National Health Law. The applicant seeks an order in the nature of certiorari quashing or setting aside the determination to refer the matter to SACAT. The Board seeks summary dismissal of the application for judicial review on the basis that it lacks reasonable prospects of success. By her interlocutory application, the applicant seeks to restrain the Board from progressing the referral. -- 1 of 51 -- Held, granting the application for summary dismissal and refusing the application to restrain the respondent from progressing the referral of the matter: 1. section 193(1) of the National Health Law requires the referral by a National Board of a matter to a responsible tribunal when the Board has reasonably formed the belief that a practitioner has behaved in a way that constitutes professional misconduct. It will be relieved of that duty if, having considered the matters in s 193A(2), it has formed the view there is ‘no public interest’ in referral. However, a determination to refer a matter without embarking on an assessment of that question is not for that reason invalid; 2. the better view is that there is no separate and distinct obligation owed by a Board to a practitioner to afford the practitioner procedural fairness before referring a matter to a responsible tribunal under s 193(1); 3. if there is such an obligation, it will be discharged if the practitioner has been given an opportunity to make a submission against referral. The applicant was given that opportunity. No legitimate expectation was created that the applicant would have a further opportunity to be heard at a hearing or meeting at which the Board would consider what it should do in respect of the substantive investigation; 4. the Board’s decision-making did not miscarry by reason that it considered whether immediate action was necessary pursuant to s 156 and whether to refer the matter pursuant to s 193 at one meeting or hearing; 5. there is no relevant inconsistency between the decision that it was no longer necessary or appropriate to take immediate action under s 156 and the determination that the matter should be referred to SACAT, and there was no jurisdictional error affecting the decision; 6. the Board’s determination is not vitiated by reason of reliance on a witness statement of an Australian Health Practitioner Regulation Agency officer; 7. the Board’s determination to refer the matter was not legally unreasonable or otherwise affected by jurisdictional error. Criminal Law Consolidation Act 1935 (SA) s 19AA(2); Evidence Act 1929 (SA) 69A; Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) sch 2 ss 3, 3A, 4, 5, 149, 151, 152, 155, 156, 159,159E, 160, 161, 162, 166, 167, 167A, 169, 170, 172, 175, 176, 177A, 178, 179, 180, 181, 182, 184, 185, 186, 189, 190, 191, 192, 193, 193A, 195, 196, 199, 225; Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 18, 31(2); Legal Profession Act 1987 (NSW) s 155; Legal Profession Act 2004 (Vic); Legal Profession Practice Act 1958 (Vic); Legislation Interpretation Act 2021 (SA) ss 3, 11; Medical Practitioners Act 1983 (SA) ss 54, 57; Poisons and Therapeutic Goods Regulation 1994 (SA) cl 149; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 33, 34, 38, 39, 43, 46, 48, 56, 57, 58, 60; Spent Convictions Act 2009 (SA) s 13A, sch 1 cll 7, 8; Summary Offences Act 1953 (SA) s 62; Uniform Civil Rules 2020 (SA) rr 143.1, 144.2, referred to. AYHT v Medical Board of South Australia (1992) 175 CLR 564, applied. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; Bay v Australian Health Practitioner Regulation Agency [2024] QSC 315; Byrne v Marles (2008) 19 VR 612; C v Independent Commissioner Against Corruption (2020) 136 SASR 215; Craig v Medical Board of South Australia (2001) 79 SASR 545; Craig v South Australia (1995) 184 CLR 163; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Health Care Complaints Commission v Hill [2022] NSWCA 270; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Julius v Bishop of Oxford (1880) 5 App Cas 214; Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133; Marin v Chiropractic Board of Australia [2020] SASCFC 74; Medical Board of Australia v Moodley [2025] SACAT 20; Medical Board of Australia v Shaheen [2025] SACAT 13; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 353; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; WEQ (a Pseudonym) v Medical Board of Australia (2021) 69 VR 1; West Australian Field & Game Association Inc v Pearce (1992) 27 ALD 38; Yasmin v Attorney-General (Commonwealth) (2015) 236 FCR 169, discussed. -- 2 of 51 -- Byrne v Marles (2008) 19 VR 612; Cornall v AB [1995] 1 VR 372 (2008) 19 VR 612; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1927) 127 CLR 106; Murray v Legal Services Commissioner (1999) 46 NSWLR 224; Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; Samad v District Court of New South Wales (2002) 209 CLR 140, considered. -- 3 of 51 -- -- 4 of 51 -- NING v NURSING AND MIDWIFERY BOARD OF AUSTRALIA [2025] SASC 184 Civil – interlocutory applications 1 B DOYLE J: The first respondent (the ‘Board’) is a National Board for the purposes of the Health Practitioner Regulation National Law (‘National Health Law’).1 2 On 28 November 2021, the Board received a notification of a complaint in respect of the applicant, a registered nurse. The notification concerned stalking behaviour. During the course of the investigation, the Board imposed ‘immediate action’, initially by way of suspension of the applicant’s registration, and subsequently by way of the imposition of conditions upon her registration. 3 On 12 March 2025, the Board determined to bring to an end the immediate action in respect of the applicant and to refer the matter to the South Australian Civil and Administrative Tribunal (‘SACAT’), the ‘responsible tribunal’ for the purposes of s 193 of the National Health Law. 4 In this judicial review proceeding, the applicant seeks an order in the nature of certiorari quashing or setting aside that determination. 5 By an interlocutory application filed on 11 June 2025, the Board seeks summary dismissal of the application for judicial review on the basis that it lacks reasonable prospects of success. 6 By an interlocutory application filed on 1 July 2025, the applicant seeks to restrain the Board from taking any further steps in relation to its referral determination, including but not limited to the preparation, initiation, or progression of tribunal proceedings, until the judicial review proceedings are finally determined. 7 For the reasons that follow, I conclude that the proposed grounds of judicial review lack reasonable prospects of success. I would grant the Board’s application and refuse the applicant’s application. Consequently, the judicial review proceeding will be dismissed. Background 8 In late 2019, the applicant had an intimate relationship for a period of approximately six weeks with a male (‘S’). Early in the following year, S made a report to South Australia Police to the effect that after the relationship ended the applicant made repeated and unwelcome contact with him, and threatened to make a false allegation against him if he reported the matter to police. In early February 2020, the applicant was given a ‘stalking caution’ by police. 1 Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), Schedule 2. -- 5 of 51 -- [2025] SASC 184 B Doyle J 2 9 According to S, a few weeks after this, and over a number of months up to and including August 2020, the applicant started making contact with him again through various means, including through S’s brother and, on another occasion, by having a friend of the applicant call S on his phone. In the period from December 2020 through to April 2021, S was aware of further online activity by the applicant which was of concern to him. 10 On 19 May 2021, the applicant was charged with one count of stalking2 and was served with an interim intervention order.3 On 25 November 2021, the Magistrates Court of South Australia confirmed the intervention order as a final intervention order. Among other things, the order prohibited the applicant from publishing any material about S on the internet or by any electronic means. 11 On 28 November 2021, the Australian Health Practitioner Regulation Agency (‘Ahpra’) received a notification from a confidential notifier in respect of the applicant’s conduct in relation to another male (‘D’) who resided in Sydney and was a friend of S. 12 On or about 30 November 2021, D provided a witness statement to NSW Police detailing online activity he believed was undertaken by the applicant. 13 On 13 December 2021, the Board decided, pursuant to s 160(1)(a) of the National Health Law, to commence an investigation into the applicant’s conduct with respect to S and D. The applicant was informed of the Board’s decision to investigate and, by letter dated 24 January 2022, invited to provide a response to the notification. 14 On 3 January 2022, the applicant was charged with four counts of having contravened a term of an intervention order4 between 19 November and 16 December 2021. The counts alleged the making of online publications which conveyed material about S. South Australia Police also cautioned the applicant in relation to the conduct towards D which had been the subject of the notification. 15 On 24 January 2022, the applicant emailed Ahpra in response to the letter, admitting that she had received a warning for stalking and stating that the conduct did not occur in the workplace. In a further email the following day, the applicant emphasised that she had not done anything wrong in relation to any patients or colleagues. She said she was prepared to give a formal apology. 16 On 19 April 2022, the applicant posted a screenshot of a portion of the notification that had been made in respect of her as a reply to a post on ‘X’ (formerly Twitter) by D. On the same day, D emailed Ahpra to report that the applicant had sought to book an appointment with him. On 20 April 2022, D 2 Contrary to s 19AA(2) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). 3 Pursuant to s 18 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘IO Act’). 4 Contrary to s 31(2) of the IO Act. -- 6 of 51 -- [2025] SASC 184 B Doyle J 3 informed Ahpra that the applicant had continued to attempt to book an appointment and had threatened self harm if she could not talk to him. 17 On 21 April 2022, a client of S (‘Y’), affirmed an affidavit to the effect that the applicant had called her, attempting to persuade Y to contact S on her behalf. 18 The applicant was then charged with two counts of contravening a term of an intervention order by encouraging Y to do something that was forbidden by the order. 19 South Australia Police conducted an interview with the applicant on 1 March 2022. 20 On 4 May 2022, the Board proposed to take immediate action under s 156 of the National Health Law in the form of suspending the applicant’s registration. On the same day, it decided, pursuant to s 169 of the National Health Law, to require the applicant to undergo a health assessment. 21 The letter communicating that decision invited the applicant to provide written and verbal submissions in response to the Board’s proposal to take immediate action. Various materials which the Board had considered were provided to the applicant with the letter. 22 On 10 May 2022, the applicant provided submissions in response to the Board’s proposal. The applicant explained that she had commenced, and was proposing to undertake to continue, treatment with a psychologist. 23 On 11 May 2022, the Board decided to take immediate action in the form that had been proposed on 4 May 2022, by suspending the applicant’s registration. It gave detailed reasons. The letter explained that the Board had also decided to refer the matter for investigation under s 160(1) and for a health assessment under s 169 of the National Health Law. 24 On 31 May 2022, the applicant underwent a health assessment with a psychiatrist who reported to the Board that the applicant was, in his opinion, not ‘suffering from a mental disorder likely to detrimentally affect her capacity to practise as a registered nurse’. The applicant was also assessed by a forensic psychologist in June 2022 who opined that the applicant’s cognitive processes, in the form of her decision-making skills in judgement, were compromised at the time of the offending behaviours. The psychologist considered the applicant would remain at a low risk of re-offending in a similar manner. 25 On 21 September 2022, in accordance with s 176(3) of the National Health Law, the investigator and a nominee of the Board discussed the psychiatrist’s report with the applicant and her representative. The applicant was noted to have accepted the report in full and without reservation. -- 7 of 51 -- [2025] SASC 184 B Doyle J 4 26 On 2 November 2022, and by way of production in accordance with notices issued by Ahpra under the National Health Law, a nursing agency through which the applicant had been employed sent a letter to Ahpra detailing complaints it had received and action taken in respect of the applicant’s professional performance between 20 February and 29 April 2021. 27 At a hearing in the Magistrates Court on 17 November 2022, the applicant was sentenced after pleading guilty to six counts of contravening an intervention order.5 The applicant was discharged without conviction upon her agreeing to enter into a good behaviour bond for a period of ten months. 28 On 22 November 2022, a medical practitioner who had seen the applicant wrote to Ahpra expressing the view that whilst the applicant would benefit from ongoing psychotherapy, he did not hold current concerns about the applicant’s ability to practice as a registered nurse. 29 In February 2023 the applicant through her representative requested that the Board revoke the suspension of her registration and instead impose conditions by way of immediate action. Shortly thereafter, the applicant participated in an interview pursuant to a notice issued by Ahpra under the National Health Law. 30 Between 23 February and 25 February 2023, Ahpra received notifications from confidential notifiers relating to the applicant’s conduct in respect of S, D and S’s brother (‘B’). Those notifications comprised a range of factual assertions many of which levelled blame at parties other than the applicant. 31 On 7 April 2023, the applicant telephoned South Australia Police and made reports about the conduct of D’s wife and D’s sister. On 8 April 2023, D provided an affidavit to police outlining the history of the applicant’s conduct. He said, amongst other things, that in February 2023, she had travelled from South Australia to Sydney where she contacted him and requested that he visit her. The following day, the applicant telephoned South Australia Police and made a report about an assault upon D’s mother. 32 On 9 April 2023, an interim intervention order was served upon the applicant in respect of D,6 and she was charged with two counts of stalking7 and two counts of making a false report to police.8 33 On 14 August 2023, B provided a statement to Ahpra detailing the applicant’s conduct concerning him. 34 On 18 October 2023, the Board decided, pursuant to s 169 of the National Health Law, to require the applicant to undergo a further health assessment and proposed to refuse the request to revoke her suspension. The applicant was 5 Section 31(2) of the IO Act. 6 Section 18 of the IO Act. 7 Section 19AA(2) of the CLCA. 8 Section 62(1)(a)(i) of the Summary Offences Act 1953 (SA), (‘SOA’). -- 8 of 51 -- [2025] SASC 184 B Doyle J 5 informed of that proposed decision (together with the materials upon which the Board had relied) and given a chance to provide submissions in response. She did not do so. On 26 October 2023, the Board refused the request and informed the applicant accordingly. 35 In January 2024, the interim intervention order in respect of D was revoked and the pending charges were withdrawn. 36 In late May 2024, the applicant underwent a health assessment with a forensic and clinical psychologist who then produced a report on 7 June 2024 expressing an opinion that the applicant did not currently present with a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect her capacity to practise. 37 That report was discussed with the applicant on 6 August 2024 by an investigator and nominee of the Board pursuant to the National Health Law and the applicant was invited to comment. On 16 August 2024, the applicant advised Ahpra that as discussed in the meeting she had completed 20 hours of continuing professional development. 38 On 23 August 2024, the applicant emailed Ahpra requesting clarification of whether S’s allegations of stalking should be taken into account in view of the findings that had been made about S’s professional conduct.9 39 On 6 September 2024, Ms Sophie Laird, a regulatory advisor of Ahrpa, signed a statement outlining the steps taken during the Board’s investigation to obtain a statement from D. Annexed to the statement was a draft statement prepared by Ms Laird on behalf of D following her correspondence with him on 4 August 2023. The applicant was informed of the Board’s proposal to end the current period of immediate action and take an alternative form of immediate action, namely, to impose conditions upon her registration. She was provided with materials considered by the Board and was invited to make written and verbal submissions in response. 40 On 22 October 2024, the applicant provided written submissions in response to the Board’s proposal. She proposed alternative conditions to those in contemplation by the Board and contended that her previous behaviour was to be seen in light of health issues which she had addressed and was continuing to treat. 41 On 23 October 2023, the Board notified the applicant of its decision to revoke her suspension but impose conditions upon her registration by way of immediate action. Those conditions required, among other things, that the applicant obtain approval before working at particular locations. 9 The findings were unrelated to any matter involving the applicant. -- 9 of 51 -- [2025] SASC 184 B Doyle J 6 42 On 24 November 2024, the applicant informed Ahpra of difficulties she was having obtaining employment due to the conditions imposed on her registration. 43 On 26 November 2024, Ahpra wrote to the applicant, setting out the issues being investigated. These were: • whether the applicant has or may have an impairment that detrimentally affects or is likely to detrimentally affect her capacity to practise; • whether the applicant provided the Board with notice of relevant events as required under s 130 of the National Health Law within 7 days of becoming aware of the events occurring, namely, being charged with unlawful stalking on 19 May 2021, being charged with contraventions of an intervention order on 3 January 2022 and also on 28 April 2022; • whether the applicant pleaded guilty on 17 November 2022 to six offences of contravening an intervention order in relation to S; • whether the applicant engaged in unsatisfactory conduct between 2020 and 2023 by persistently pursuing contact with D directly and indirectly; • whether the applicant engaged in unsatisfactory conduct between 2020 and 2023 by persistently pursuing contact with B directly and indirectly. 44 The letter invited a written response to the notification and any information she considered relevant by 10 December 2024 for the Board’s consideration in making decisions about the notification. The letter stated that once her ‘final response’ had been received a report would be prepared for the Board to consider. The letter separately advised that the recent request to review the immediate action would be actioned and that she would be contacted and advised when it was to be considered by the Board. 45 The applicant provided submissions by way of response on 4 December 2024. The submissions were expressed to be in relation to the ‘proposed immediate action review, in conjunction with [her] final response to the conclusion of AHPRA’s investigation into [her] conduct as a registered nurse’. 46 Those submissions commenced by observing that: [W]hile these are two separate matters, I understand that the final outcomes of the board’s decisions at the conclusion of the investigation will still primarily focus on public safety and confidence in the nursing profession, as repeatedly emphasized during the immediate action reviews. Therefore, to assure the board that I will continue to uphold public safety and maintain public confidence as a registered nurse, I will first address the concerns raised during the last immediate action review and then propose alternative conditions accordingly. 47 The submission went on to address the various allegations and to address the questions of insight and risk to public safety. Amongst other things, the -- 10 of 51 -- [2025] SASC 184 B Doyle J 7 submission pointed out that the magistrate dealing with the applicant’s contraventions of intervention orders chose not to record a conviction and that the later intervention order had been revoked and charges withdrawn. The gist of the submissions made was that the applicant’s practice of the profession of nursing would not present a risk to public safety. 48 On 4 December 2024, the intervention order in respect of S was revoked by a magistrate. The applicant forwarded this information to the Board. 49 On 11 December 2024, the Board proposed to refuse the applicant’s request to remove conditions or end the current period of immediate action. The letter communicating this requested that any further submissions be made by 17 December 2024. 50 The applicant provided detailed written submissions on 16 December 2024. Again, she emphasised the decisions of the Magistrates Court and the fact that she had been approved by screening authorities to work with the elderly and children. Her submission concluded by observing: However, if I am unable to persuade the board to reconsider the overly protective measures during this single opportunity concerning the board’s current proposal to refuse my immediate action review, I would respectfully suggest that, during the decision-making process following the completion of the final investigation, the board take into account all of my previous submissions. This will assist in determining whether the board can reasonably conclude that I continue to pose a serious risk to the persons and whether these conditions are appropriate for ensuring their safety, rather than being punitive to my professional development, assessed on a case-by-case basis. 51 The applicant made a further submission by email on 17 December 2024. 52 The following day, on 18 December 2024, the Board decided to refuse the applicant’s request to revoke the conditions that had been imposed upon her registration. In the course of a phone call made by an Ahpra regulatory advisor on that day, the applicant was informed that the substantive investigation would be considered by the Board early in the following year and that the Board may then decide to refer the practitioner to the Tribunal. 53 Formal notice of the decision was provided under cover of a letter dated 19 December 2024. That letter noted that in due course the Board would be given a report upon completion of the investigation and would determine the appropriate regulatory action, if any, in response to the concerns. 54 By application lodged with SACAT on 19 December 2024, the applicant sought a review of the Board’s immediate action decision. In correspondence that followed the filing of that application, the applicant raised concerns with the Board about its reliance upon the statement of Ms Laird and the draft statement of D which was annexed to it. -- 11 of 51 -- [2025] SASC 184 B Doyle J 8 55 On 2 January 2025, a regulatory advisor emailed the applicant reiterating that the Board had not yet made a decision about the notification and whether or not it would be referred to the Tribunal. The applicant responded in terms which confirmed her understanding that the Board had not yet made a decision whether to refer the matter to the Tribunal. She again queried that D’s statement was prepared by Ms Laird whereas S’s had not been. In a response to that email, the advisor wrote: I have forwarded your questions to Karen La and Elise Holmes as they are handling the immediate action review. … There is nothing you need to do at the moment regarding the substantive investigation, I am currently working to try and have the Board consider it before March 2025 and I will be in-touch once I can give you a more specific date. 56 The applicant contends that this email gave rise to a legitimate expectation that she would have a further opportunity to be heard in respect of any decision to refer the matter to SACAT. 57 Between 14 January 2025 and 13 February 2025, the applicant provided six submissions to SACAT in relation to her review application. The applicant also provided character references. 58 At a compulsory conference at SACAT on 27 February 2025, the Board was invited pursuant to s 38 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’) to reconsider the decision under review. 59 The applicant subsequently requested that the Board have regard, in that context, to material that she had relied upon in connection with the tribunal proceedings. 60 At its meeting on 12 March 2025, the Board decided: • to reconsider its decision in relation to immediate action and, in doing so, to set aside its earlier decision and substitute for it a new decision under s 38(2)(c) of the SACAT Act to end the period of immediate action and remove the conditions from the applicant’s registration under s 159(2)(b) of the National Health Law; and • to refer the applicant to SACAT under s 193(1)(a) of the National Health Law. 61 The Board advised the applicant of the decision to refer her matter to SACAT by letter dated 12 March 2025, and it advised her of the immediate action decision by email dated 13 March 2025. -- 12 of 51 -- [2025] SASC 184 B Doyle J 9 62 In the 12 March 2025 letter, the Board advised that it had referred the matter because it reasonably believed that the applicant had behaved in a way that constitutes professional misconduct. This prompted an email from the applicant stating that she had not had a chance to respond to the decision prior to the Board meeting on 12 March 2025. In a further email she indicated she had believed it was only the reconsideration of immediate action that was to be before the Board on that date. She expressed concern about the process including any reliance by the Board upon the statement of Ms Laird. 63 On 26 March 2025, the applicant sent a further email contending that the referral had been made without giving her a chance to be heard. The applicant stated that the Board is precluded from referring the matter to a responsible tribunal ‘if there is no public interest involved’. She said she possessed further supporting evidence and arguments related to that criterion that she would like to present. The application for judicial review 64 The applicant’s Originating Application was accompanied by a Statement of Facts, Issues and Contentions. The document raised a number of issues and foreshadowed numerous contentions. 65 However, the legal grounds upon which the Board’s determination to refer the matter to SACAT was challenged were refined in the applicant’s written submissions in response to the Boards’s application for summary dismissal of the action.10 66 In those submissions, the applicant emphasised that the power to summarily dismiss a proceeding is exceptional and should be exercised sparingly.11 She submitted that the referral of a matter to a responsible tribunal pursuant to s 193(1)(a) of the National Health Law was not merely procedural. It was not merely a step in a process, but a final administrative act by the Board with immediate legal and reputational consequences. The decision was based not on the formation of a preliminary opinion but upon a formal statement of belief of professional misconduct. Accordingly, so she submitted, the exercise of the relevant power was amenable to judicial review on the basis of jurisdictional error.12 67 The applicant submitted that there were reasonably arguable grounds upon which jurisdictional error was identified. They may be summarised as follows: (1) the Board conflated two distinct decision-making processes by undertaking at one meeting or hearing a reconsideration of its immediate action decision and a consideration of whether to refer a matter to a responsible tribunal; 10 FDN 22. 11 Referring to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 12 Referring to Bay v Australian Health Practitioner Regulation Agency [2024] QSC 315. -- 13 of 51 -- [2025] SASC 184 B Doyle J 10 (2) the determination to refer the matter was legally unreasonable including because it was inconsistent with the Board’s decision that no immediate action was justified; (3) the Board failed to afford the applicant procedural fairness in relation to its determination to refer the matter including because its communications gave rise to a ‘legitimate expectation’ that she would be given notice prior to any hearing at which the outcome of the substantive investigation were to be decided. This deprived her of an opportunity to raise additional matters; (4) the Board failed to have regard to the considerations relevant to whether it is in the public interest to refer a matter as identified in s 193A; and (5) the Board’s determination was vitiated by apprehended bias in circumstances where it relied upon an ‘internal witness statement’, namely, the statement of Ms Laird. 68 These proceedings were commenced before the Board had initiated disciplinary proceedings in SACAT. 69 In seeking interlocutory relief restraining the Board from initiating a tribunal proceeding until the judicial review proceeding is finally determined, the applicant contends that: (1) there is a serious question to be tried as to whether the referral made by the Board was unlawful and liable to be set aside on the basis of jurisdictional error; (2) allowing the matter to proceed in SACAT would risk undermining this Court’s supervisory jurisdiction and would cause the applicant irreparable harm; and (3) restraining the Board from initiating a proceeding would cause no prejudice to the public interest and is favoured by the balance of convenience. 70 In resisting the applicant’s interlocutory application, the Board contends that the applicant does not have a sufficiently arguable claim permanently to restrain it from instituting a tribunal proceeding and that, because the referral has no discernible effect upon the applicant’s substantive rights, the balance of convenience does not favour the grant of relief. 71 On its application for summary dismissal pursuant to rules 143.1 and 144.2 of the Uniform Civil Rules 2020 (SA) (‘UCRs’), the Board contends that there is an absence of an identifiable claim with real prospects of success and that there is no reasonable prospect that if the matter went to trial the applicant would be granted the relief she seeks. -- 14 of 51 -- [2025] SASC 184 B Doyle J 11 72 In determining whether the applicant’s proposed grounds of jurisdictional error have reasonably arguable prospects of success, it is necessary to consider ss 193 and 193A in the broader context of the scheme of regulation of health practitioners created by the National Health Law. Regulation of health practitioners under Nation Health Law 73 The National Health Law, which comprises Schedule 2 to the Health Practitioner Regulation National (South Australia) Act 2010 (SA) (‘HPRNSA Act’), is made applicable as a law of South Australia by that Act. The HPRNSA Act designates SACAT as the responsible tribunal of the jurisdiction for the purposes of the National Health Law. 74 The National Health Law contains a number of preliminary provisions in Part 1. These include ss 3 and 3A, which identify the objectives of the National Health Law and the guiding principles of the national registration and accreditation scheme which it establishes. The main guiding principle is that the protection of the public and public confidence in the safety of services provided by registered health practitioners and students is paramount.13 The other guiding principles include that the scheme should operate in a transparent, accountable, efficient, effective and fair way14 and that restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.15 An entity with functions under the National Health Law is to exercise them having regard to the objectives and guiding principles set out in ss 3 and 3A.16 75 Parts 4 and 5 make provision with respect to Ahpra and National Boards respectively. Parts 6 and 7 deal with accreditation and registration of health practitioners. 76 Part 8, which is of present importance, is headed ‘Health, performance and conduct’. In terms of performance and conduct, the National Health Law distinguishes between ‘unsatisfactory professional performance’ (where the knowledge, skill or judgment possessed, or care exercised by, the practitioner is below the standard reasonably expected of a practitioner of an equivalent level of training or experience), ‘unprofessional conduct’ (being professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers), and ‘professional misconduct’.17 Professional misconduct includes: 13 National Health Law, s 3A(1). 14 National Health Law, s 3A(2)(a). 15 National Health Law, s 3A(2)(d). 16 National Health Law, s 4. 17 National Health Law, s 5. -- 15 of 51 -- [2025] SASC 184 B Doyle J 12 (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. 77 As will be explained in more detail, putting to one side cases where it appears the practitioner has an impairment: • a National Board may itself make a finding of unsatisfactory professional conduct and may caution, accept an undertaking from, or impose certain conditions on, a practitioner; • a panel established by a National Board may make a finding of unsatisfactory professional performance or unprofessional conduct and, in addition to the powers that the Board itself can exercise, may, if it is a ‘health panel’, suspend the practitioner’s registration and, if it is a ‘performance professional standards panel’, caution or reprimand the practitioner; and • a responsible tribunal may make a finding that extends to a finding that the practitioner has behaved in a way that constitutes professional misconduct and may exercise a wide range of powers including fining the practitioner, suspending their registration for a specified period or cancelling their registration. Indeed, the tribunal may, where it cancels a person’s registration, also decide to disqualify them and prohibit them from providing any health service or using a particular title. 78 It does not necessarily follow from a finding of professional misconduct that the practitioner will be subject to a professional sanction of a more serious kind than may be open to be imposed by the Board or a panel established by a Board. The appropriate sanction will require consideration of all of the evidence before the Tribunal and the protective rather than punitive nature of disciplinary proceedings. Indeed, even where there is a finding of professional misconduct within limb (c) of the definition provision, the finding does not in terms dictate that at the time of the Tribunal’s decision the person is not a fit and proper person to hold registration.18 79 Part 8 of the National Health Law contains provisions dealing with mandatory notifications (Division 2) and voluntary notifications (Division 3). Division 4 provides for the process of making notifications. Division 5 is entitled ‘Preliminary assessment’. A National Board must, within 60 days after receipt of 18 See, eg, Medical Board of Australia v Moodley [2025] SACAT 20 at [23]. -- 16 of 51 -- [2025] SASC 184 B Doyle J 13 a notification, conduct a preliminary assessment in order to determine whether the notification relates to a matter that is ground for a notification and relates to a relevant practitioner or student.19 The Board may decide to take no further action in relation to a notification if:20 (a) the Board reasonably believes the notification is frivolous, vexatious, misconceived or lacking in substance; or (b) given the amount of time that has elapsed since the matter the subject of the notification occurred, it is not practicable for the Board to investigate or otherwise deal with the notification; or (c) the person to whom the notification relates has not been, or is no longer, registered in a health profession for which the Board is established and it is not in the public interest for the Board to investigate or otherwise deal with the notification; or (d) the subject matter of the notification has already been dealt with adequately by the Board; or (e) the subject matter of the notification— (i) is being dealt with, or has already been dealt with, by another entity; or (ii) has been referred by the Board under section 150 or 150A to another entity to be dealt with by that entity; or (f) the health practitioner to whom the notification relates has taken appropriate steps to remedy the matter the subject of the notification and the Board reasonably believes no further action is required in relation to the notification 80 As soon as practicable after receiving a notification about a registered health practitioner or student, the Board must give written notice of the notification to the practitioner or student and advise them of the nature of the notification unless the Board reasonably believes it would prejudice an investigation or place at risk a person’s health or safety or place a person at risk of intimidation or harassment.21 81 Division 7 deals with ‘immediate action’. That may include: the suspension, or imposition of a condition upon, registration; accepting an undertaking in relation to or surrender of registration; and the revocation of a suspension or conditions.22 Relevantly, s 156(1) empowers a Board to take immediate action with respect to a practitioner if: (a) the National Board reasonably believes that— (i) because of the registered health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and 19 National Health Law, s 149(1). 20 National Health Law, s 151(1). 21 National Health Law, s 152. 22 National Health Law, s 155. -- 17 of 51 -- [2025] SASC 184 B Doyle J 14 (ii) it is necessary to take immediate action to protect public health or safety; or … (e) the National Board reasonably believes the action is otherwise in the public interest. Example of when action may be taken in the public interest— A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners. 82 However, the Board can only take immediate action that consists of suspending, or imposing a condition on, the practitioner’s registration if it has complied with the show cause process provided for in s 157.23 That entails giving the practitioner notice of the proposed immediate action and inviting a submission within a time stated in the notice. The Board must then have regard to any submission made. 83 Division 7A deals with ‘interim prohibition orders’ in a way that is similar to immediate action save that, where it is reasonably believed by a regulatory body to be necessary to take urgent action to protect public health or safety, the show cause process may be passed over.24 84 Division 7B empowers a regulatory body to make a public statement about a person in certain circumstances, again, subject to a show cause procedure. 85 Division 8 is titled ‘Investigations’. An investigation may be undertaken by a National Board where it decides it is necessary or appropriate in relation to a notification or because the Board for any other reason believes a practitioner has or may have an impairment, the way the practitioner practises is or may be unsatisfactory, or the practitioner’s conduct is or may be unsatisfactory.25 Written notice must then be given to the practitioner as soon as practicable, and they must be told the nature of the matter being investigated, unless the Board reasonably believes giving notice may seriously prejudice the investigation, place at risk a person’s health or safety or place a person at risk of harassment or intimidation.26 86 The investigation is to be conducted in a timely way.27 The investigator appointed in relation to the matter must give a written report to the Board setting out their findings and recommendations as to any action to be taken.28 The Board must then decide either to take no further action or do either or both of the following—(i) take the action the Board considers necessary or appropriate under 23 National Health Law, s 156(2). 24 However, the regulatory body must promptly consider any submission made after issuing the interim order: National Health Law, s 159E(5). 25 National Health Law, s 160(1). 26 National Health Law, s 161. 27 National Health Law, s 162. 28 National Health Law, s 166. -- 18 of 51 -- [2025] SASC 184 B Doyle J 15 another Division; (ii) refer the matter to another entity, such a health complaints entity, for investigation or other action.29 The notifier may be notified of the decision.30 87 The other Divisions under which action might be taken are Division 9 (‘Health and performance assessments’), Division 10 (‘Action by National Board’), Division 11 (‘Panels’) and Division 12 (‘Referring matter to responsible tribunals’). 88 Under Division 9, a Board may require a practitioner to undergo a health assessment if it reasonably believes that the practitioner has or may have an impairment,31 or a performance assessment if the Board reasonably believes that the way the practitioner practises is or may be unsatisfactory.32 The practitioner must be given a written notice that states the nature of the assessment and the identity of the assessor.33 A report is prepared by the assessor for the Board,34 a copy of which is to be given to the practitioner, following which a nominee of the Board must discuss the report with the practitioner and, if it makes an adverse finding or a finding that the practitioner has an impairment, discuss ways of dealing with the finding.35 89 Under Division 10, the Board may take action (‘relevant action’) which includes the cautioning of the practitioner, the acceptance of an undertaking, or the imposition of conditions on the practitioner’s registration if:36 (a) [the Board] reasonably believes, because of a notification or of any other reason— (i) the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory; or (ii) a registered health practitioner or student registered in a health profession for which the Board is established has or may have an impairment; or (iii) a student has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or (iv) a student has or may have contravened a condition of the student’s registration or any undertaking given by the student to a National Board; or 29 National Health Law, s 167. 30 National Health Law, s 167A(2). 31 National Health Law, s 169. 32 National Health Law, s 170. 33 National Health Law, s 172. 34 National Health Law, s 175. 35 National Health Law, s 176. 36 National Health Law, s 178(1). -- 19 of 51 -- [2025] SASC 184 B Doyle J 16 (v) a registered health practitioner’s registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular; and (b) the matter is not required to be referred to a responsible tribunal under section 193, including because of a decision made under section 193A that it is not in the public interest; and (c) the Board decides it is not necessary or appropriate to refer the matter to a panel. 90 However, before relevant action can be taken, a show cause process must be followed.37 As soon as practicable after making a decision to take relevant action, the Board must give written notice of the decision to the health practitioner or student and any notifier.38 91 Relevant action will only be taken by a Board if the matter is not required to be referred to a Tribunal and the Board has also decided it is not necessary or appropriate to refer the matter to a panel under Division 11. 92 Division 11 provides for a Board to establish a health panel or a performance and professional standards panel where: it reasonably believes that the practitioner has or may have an impairment or that the way a practitioner practises is or may be unsatisfactory or the practitioner’s professional conduct is or may be unsatisfactory (as the case may be); and that the Board considers it is necessary or appropriate for the matter to be referred to a panel.39 93 The panel must give notice of its hearing of a matter to the practitioner, and advise as to the nature of the matters to be considered and the types of decision that it may make at the end of the hearing.40 The panel is required to observe the principles of natural justice but is not bound by the rules of evidence. It may decide its own procedures.41 A practitioner may be accompanied by a legal practitioner but only represented by them with the panel’s leave.42 The hearing is not open to the public.43 94 Just as a Board’s capacity to take relevant action is subject to any duty it may have to refer a matter to the Tribunal, the National Health Law also contemplates that a panel will not deal with a matter that ought to be so referred. 95 Section 190 (‘Referral to responsible tribunal or National Board’) provides that: 37 National Health Law, s 179. 38 National Health Law, s 180. 39 National Health Law, ss 181, 182. 40 National Health Law, s 184. 41 National Health Law, s 185. 42 National Health Law, s 186. 43 National Health Law, s 189. -- 20 of 51 -- [2025] SASC 184 B Doyle J 17 (1) A panel must stop hearing a matter and require the National Board that established the panel to refer the matter to a responsible tribunal under section 193 if, at any time— (a) the practitioner or student the subject of the hearing asks the panel for the matter to be referred to a responsible tribunal under subsection 193; or (b) if the subject of the hearing is a registered health practitioner—the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct. 96 After hearing a matter about a practitioner, the panel may decide that there is no case to answer and that no further action is to be taken. Alternatively, it may decide that the practitioner has behaved in a way that constitutes unsatisfactory professional performance, that the practitioner has behaved in a way that constitutes unprofessional conduct, that the practitioner has an impairment, that the matter must be referred to a responsible tribunal under s 193, or that the matter must be referred to another entity.44 97 If the finding is of unsatisfactory professional performance or unprofessional conduct, the panel may then decide to impose conditions, suspend the practitioner’s registration (if the panel is a health panel), or caution or reprimand the practitioner (if the panel is a performance and professional standards panel). The panel’s decision must be notified to the National Board and the Board must give written notice of the decision to the practitioner and any notifier.45 98 Division 12 deals with referrals to responsible tribunals. Focusing on the provisions of relevance, it provides as follows. 193—Matters to be referred to responsible tribunal (1) Subject to section 193A, a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if— (a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or (b) for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal. (2) The National Board must— (a) refer the matter to— (i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or 44 National Health Law, s 191(1). 45 National Health Law, s 192. -- 21 of 51 -- [2025] SASC 184 B Doyle J 18 (ii) if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; and (b) give written notice of the referral to the registered health practitioner or student to whom the matter relates. (3) Subsection (1)(a) does not require a National Board to refer a matter to a responsible tribunal if the behaviour constituting the professional misconduct consists of a registered health practitioner improperly obtaining registration because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular. Note— See section 85C(b) which provides for the action a National Board may take if the Board decides a registered health practitioner's registration was improperly obtained. 193A—National Boards may decide not to refer certain matters (1) A National Board may decide not to refer a matter about a registered health practitioner mentioned in section 193(1)(a) to a responsible tribunal if the Board decides there is no public interest in the matter being heard by a responsible tribunal. (2) In deciding whether or not there is public interest in the matter being heard by a responsible tribunal, the National Board must have regard to the following— (a) the need to protect the health and safety of the public; (b) the seriousness of the alleged conduct, including whether the registered health practitioner may have engaged in wilful misconduct; (c) whether the practitioner is the subject of more than one notification or has previously been the subject of a notification; (d) whether the practitioner is still registered and, if not still registered, may again seek registration in the future; (e) any other benefit the public may receive by having the matter referred to a responsible tribunal, including the benefit of a public decision in relation to the matter; (f) any other matter the Board considers relevant to the decision. (3) If a decision is made under this section to not refer a matter to a responsible tribunal, the National Agency must publish information about the decision in its annual report. … 196—Decision by responsible tribunal about registered health practitioner (1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide— (a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or -- 22 of 51 -- [2025] SASC 184 B Doyle J 19 (b) one or more of the following— (i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance; (ii) the practitioner has behaved in a way that constitutes unprofessional conduct; (iii) the practitioner has behaved in a way that constitutes professional misconduct; (iv) the practitioner has an impairment; (v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular. (2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following— (a) caution or reprimand the practitioner; (b) impose a condition on the practitioner's registration, including, for example— (i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or (ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or (iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or (iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or (v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or (vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons; (c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner; (d) suspend the practitioner's registration for a specified period; (e) cancel the practitioner's registration. (3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition. -- 23 of 51 -- [2025] SASC 184 B Doyle J 20 (4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to do one or more of the following— (a) disqualify the person from applying for registration as a registered health practitioner for a specified period; (b) prohibit the person, either permanently or for a stated period, from doing either or both of the following— (i) providing any health service or a specified health service; (ii) using any title or a specified title; (c) impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the person. 99 Once the relevant belief has been formed, the referral of a matter to a responsible tribunal by a Board is mandatory, subject only to s 193A. Section 193A in its terms permits the Board not to refer a matter concerning a practitioner it believes has engaged in professional misconduct so long as it has decided there is ‘no public interest’ in the matter being heard by a responsible tribunal. In deciding that question (that is, whether there is no public interest in the matter being heard by a responsible tribunal), the Board must consider the five matters enumerated in s 193A(2)(a)-(e), as well as any other matter the Board considers relevant to that decision. 100 As earlier noted, SACAT is the responsible tribunal for the purposes of these provisions. The SACAT Act regulates the procedure of proceedings referred to SACAT pursuant to s 193 of the National Health Law. 101 Relevantly for present purposes: • the Tribunal conducts its proceedings with the minimum of formality and must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms;46 • the Tribunal must take measures that are reasonably practicable to ensure that the parties have the opportunity to be heard or otherwise have their submissions received;47 • the Tribunal’s hearings are generally in public, although it has power to proceed otherwise where it is desirable to do so in the interests of justice or by reason of the confidential nature of the evidence to be given or for other sufficient reasons;48 46 SACAT Act, s 39(1). 47 SACAT Act, s 43(1)(d) 48 SACAT Act, s 60. -- 24 of 51 -- [2025] SASC 184 B Doyle J 21 • the Tribunal may dismiss or strike out a proceeding if it believes it is frivolous, vexatious, misconceived or lacking in substance and involves a trivial matter or amount, it is being used for an improper purpose, or is otherwise an abuse of process;49 • the Tribunal may, at any time, make an order striking out all, or any part, of any proceedings if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court, or any other person.50 102 In its review jurisdiction, the Tribunal is required to have regard to, and give appropriate weight to, the decision of the original decision maker.51 But when a matter is referred to the Tribunal under s 193 of the National Health Law, it engages the Tribunal’s original jurisdiction.52 The fact that the Board formed a reasonable belief about the matters in issue therefore has no status or significance so far as the Tribunal is concerned. 103 The National Health Law confers a right of appeal upon the person the subject of a number of decisions that may be made under Part 8. These include a decision by a Board or panel to impose or change a condition on a person’s registration, suspend their registration or reprimand the person.53 The determination to refer a matter to a responsible tribunal is not an ‘appellable decision’. 104 Part 10 of the National Health Law contains provisions relating to privacy and to the maintenance of confidentiality of some information by persons who are or have been exercising functions under the Law, and exceptions to the obligation of confidentiality. As has been observed, however, in some instances, there is an obligation under the National Health Law to disclose the outcome of a process to a notifier. There are also circumstances, mentioned above, in which a Board may make a public statement. 105 As well, Division 3 of Part 10 provides for the maintenance of public national registers for particular health practitioners. Importantly, s 225 requires a register to include, amongst other things, the fact that a practitioner has been reprimanded, any condition imposed on their registration, the fact of any suspension of their registration or any other information the National Board considers appropriate.54 106 Before turning to the proposed grounds of review, it is convenient to address two issues of statutory interpretation which are relevant to them: first, the nature 49 SACAT Act, s 48(1). 50 SACAT Act, s 46. 51 SACAT Act, s 34(4). 52 SACAT Act, s 33. 53 National Health Law, s 199(1). 54 National Health Law, s 225. A limited discretion is conferred on a Board not to include certain information where it is necessary to protect privacy and where there is no overriding public interest for the condition or the details of the undertaking to be recorded. -- 25 of 51 -- [2025] SASC 184 B Doyle J 22 of the power in s 193A and the extent to which it involves a discretion (either to embark upon an assessment of public interest in referral, or as to whether to refer the matter even if it has concluded there is no public interest in doing so); and secondly, the extent to which obligations of natural justice, including procedural fairness, condition the making of a determination to refer a matter pursuant to s 193 (and any associated decision as to the operation of s 193A). A qualified duty to refer 107 Section 193(1) imposes a duty upon a Board if the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct. The duty also arises where a panel established by the Board requires the Board to refer the matter to a responsible tribunal.55 The duty is expressed to be subject to s 193A. 108 Section 193A(1) permits or empowers a Board not to refer a matter to SACAT, but only if the Board decides there is ‘no public interest in the matter being heard by a responsible tribunal’. 109 Two potentially related questions arise: (1) must a Board assess, before complying with its duty to refer, whether or not there is no public interest in referring the matter; and (2) if a Board decides there is no public interest in referring the matter, must it refrain from doing so, or is there a residual discretion? 110 These questions are relevant to the contention that the Board’s decision to refer the matter was flawed, and may also have a bearing on the existence or content of any duty to accord procedural fairness before determining to refer a matter. 111 The second question invites attention to the observation in Julius v Bishop of Oxford56 that: there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the condition under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen’s Bench to decide, on an application for mandamus. 112 In deciding whether a Board which has concluded there is no public interest in the matter being heard by a responsible tribunal must not refer the matter, or 55 As earlier explained, that will occur pursuant to s 190(1) where the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct or where the practitioner asks for a referral to a responsible tribunal. 56 (1880) 5 App Cas 214 at 222-223 (Earl Cairns LC). -- 26 of 51 -- [2025] SASC 184 B Doyle J 23 retains a discretion, it is necessary to bear in mind s 11(1) of the Legislation Interpretation Act 2021 (SA). That section provides that if the word ‘may’ or a similar expression is used in conferring a function, the entity on which the function is conferred has a discretion as to whether or not to perform it. That rule of interpretation is subject to contrary intention.57 113 An example of a statutory provision in which a contrary intention appeared is Finance Facilities Pty Ltd v Federal Commissioner of Taxation.58 Income tax legislation provided that if the Commissioner was satisfied that certain conditions as to non-payment of dividends were fulfilled, the Commissioner ‘may allow’ a private company a rebate in its assessment. The Court held that, if the Commissioner was so satisfied, he was obliged to allow the rebate. 114 As Gleeson CJ and McHugh J explained in the later decision in Samad v District Court of New South Wales59 (‘Samad’), the taxpayer had a right or entitlement. The relevant context indicated that it was not intended that the Commissioner should have a discretionary power to defeat that right or entitlement. The word ‘may’ conferred a power; and the statutory intention was that the power be exercised if the condition was fulfilled. Gleeson CJ and McHugh J went on to say:60 Whether a statute, which confers a power, on its true construction also imposes a duty to exercise the power in certain circumstances, may also affect the form of relief that is appropriate where there has been a failure to exercise the power; it may affect the question whether the appropriate order is an order to make a certain decision, or to do a certain act, or merely to consider the matter according to law. And, even if a statute does not impose a duty to exercise the power, it may circumscribe the considerations that are relevant to the exercise of a discretion. In every case the task is to construe and apply the statute. 115 In Samad, the Court concluded that a provision of a regulation61 which stated that the Director-General of the Department for Health ‘may suspend or cancel a licence or authority’ on certain grounds which included, in the case of a licence or authority to supply methadone, that the supply of methadone was causing disruption to the amenity of the area in which the premises from which it was being supplied were situated, did not oblige the exercise of one or other of those powers if the relevant conclusion were reached. That conclusion enlivened but did not require the exercise of the power. The Court’s reasons for concluding that the presumed meaning of the word ‘may’ was not rebutted included that there might well be alternative and satisfactory measures open to the Director-General to address the problem in question short of suspension or cancellation. 116 In the present case, it is difficult to see that there would be relevant considerations that might lead a Board, which had determined that there was ‘no 57 Legislation Interpretation Act 2021 (SA), s 3(3). 58 (1927) 127 CLR 106. 59 (2002) 209 CLR 140 at [34]. 60 (2002) 209 CLR 140 at [35]. 61 Poisons and Therapeutic Goods Regulation 1994 (NSW), cl 149. -- 27 of 51 -- [2025] SASC 184 B Doyle J 24 public interest’ in a matter being referred to the Tribunal, nevertheless to decide to refer the matter in its discretion. 117 The objects and guidelines set out in ss 3 and 3A of the National Health Law are mainly focused upon the protection of the health and safety of the public. It is to be expected that those matters will have been considered before concluding that there was ‘no public interest’ in referral, by reason of s 193A(2). 118 In some cases, a practitioner may prefer that their matter be resolved in the Tribunal (despite the potentially more serious sanctions available to be imposed in that forum), perhaps because the Tribunal’s procedural facilities are seen as more appropriate for an investigation of the issues arising. Might a consideration of fairness to the practitioner militate in favour of referral even though there is no public interest in the referral? 119 In my view the answer is ‘no’ or, perhaps, ‘very rarely’. First, it may be that the practitioner’s preference for resolution in such a case, if rationally founded, would itself form part of a consideration of the public interest. The public would generally share the practitioner’s interest in a matter being resolved in a more procedurally appropriate forum. Secondly, at least where the matter has previously been before a panel, the practitioner will have been permitted to request a referral to the Tribunal. In such a case, s 190(1)(a) demands that the panel must require the Board to refer and the Board’s duty to refer would then arise under s 193(1)(b). Because s 193A(1) refers to practitioners who are ‘mentioned in section 193(1)(a)’ (and not also s 193(1)(b)) there is no discretion not to refer in such a case.62 120 There is another textual indicator which points against a residual discretion, albeit only faintly. As was earlier noted, s 178(1)(b) has the effect that ‘relevant action’ can only be imposed by a Board if ‘the matter is not required to be referred to a responsible tribunal under section 193, including because of a decision under section 193A that it is not in the public interest’. That expression appears to treat the public interest assessment as the determinant, and not simply a discretion- enlivening step, in a decision not to refer. The same textual point may be made in respect of s 178(1)(b). 121 Suffice to say, if there is a residual discretion, it is likely an exceedingly narrow one. Rarely would it be exercised against refraining from referring the matter once the ‘no public interest’ conclusion had been reached. 122 The first question posed in paragraph [109] above asks whether, before referring a matter, the Board must make an assessment or determination as to whether there is no public interest in a referral. If it ought do so, a subtly different question arises as to whether a failure to entertain making a determination that there is no public interest in a referral would vitiate a determination that the matter 62 That is unless the Board has also formed the reasonable belief under s 193(1)(a) about the practitioner. -- 28 of 51 -- [2025] SASC 184 B Doyle J 25 must be referred (or invalidate a Tribunal proceeding which is initiated to give effect to the referral). 123 Where a statute confers a power the exercise of which is enlivened but not mandated upon the decision-maker being satisfied about a matter, a difficult question can arise as to whether the decision-maker has or may come under a duty to inquire into the matter and then to consider the exercise of the discretionary power. 124 The context and purpose of the power in question will be critical to answering that question, as illustrated by decisions involving that question.63 There is no presumption or starting point that must be displaced in resolving whether, when Parliament reposes a discretionary power in a person, it intends to repose with it a duty to consider and determine whether to exercise the power (favourably or unfavourably).64 125 Here, if the answer to the second question is that there is no residual discretion, the first question may present slightly different considerations. The issue is whether there is a duty to assess or determine a matter which, if it results in a determination that there is no public interest in referral, will not lead to the exercise of a further (residual) discretion but will require (or preclude) a particular consequence. That potential consequence may tend in favour of the view that there is a duty to inquire, or to form a view.65 But it is not, in my view, a definitive consideration. 126 At first blush, the mandatory language of s 193A might also be thought to tend in favour of a construction that a determination must be made about whether there is any public interest in referral. On closer analysis, however, the statutory mandate to consider the matters in s 193A(2)(a)-(f) is not indicative of a statutory mandate to consider whether there is no public interest in referring a matter to the Tribunal. Rather, in my view, it is to be seen as serving a different purpose. It is designed to ensure that a conclusion is not reached that there is no public interest in a referral without the decision-maker having turned their mind to the considerations in those paragraphs which invite attention to the ways in which there may be a public interest in referral. By and large the considerations in those paragraphs will supply reasons why there may be ‘a’ public interest in referral. In this context it is important to remember that the question is not whether, on balance, referral is in the public interest, or whether referral is ‘not in the public interest’, but rather whether it can be concluded that there is ‘no public interest’ in 63 See, eg, West Australian Field & Game Association Inc v Pearce (1992) 27 ALD 38 and Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35 (in which no duty to embark on the exercise of the relevant discretion was found) and Yasmin v Attorney-General (Commonwealth) (2015) 236 FCR 169 (in which a duty was found). 64 Yasmin v Attorney-General (Commonwealth) (2015) 236 FCR 169 at [113] (Kenny, Robertson and Mortimer JJ). 65 Put another way, if there is a residual discretion to refer a matter even though there is no public interest in doing so, it is more likely that there is an antecedent discretion not to form a view about the existence of any public interest. -- 29 of 51 -- [2025] SASC 184 B Doyle J 26 referral. The framing of the inquiry posits that there may be several dimensions to or aspects of the public’s interest in seeing a matter dealt with in the Tribunal where the Board has formed the reasonable belief that prima facie calls for referral. It is only where it can be said there is ‘no’ public interest that a Board is relieved of its duty to refer. 127 In my view, it is significant that s 193A operates by way of negative exception to a statutory duty to refer. The circumstances in which there would be ‘no public interest’ in referring a matter which has otherwise attracted the prima facie duty may be expected to be rare. To treat a basis upon which the Board may be relieved from the obligation to refer as in fact imposing a duty to inquire into the public interest which pre-conditions a valid referral sits uncomfortably with the structure of the provisions. In my view that construction is like the tail wagging the dog. 128 There will be cases where it occurs to the Board that a referral may not be in the public interest. In such a case, before complying with its prima facie duty, the Board may inquire into that question. It can only validly reach the conclusion that there is ‘no public interest’ in referral if it has considered all of the matters in s 193A(2), but in my view it is not obliged to embark on that inquiry. 129 Because the power is one that is only available where there is ‘no public interest’ in referral, the power is one that exists, at least primarily, for the public, and not (directly) for the practitioner’s benefit. In those circumstances it is not an unlikely proposition that the Parliament left it to a Board to decide whether to embark upon the process of considering each of the matters in s 193A(2) with a view to determining whether it could be concluded that there is ‘no public interest’ in referring a particular matter. 130 It should also be borne in mind that if referral is required under s 193(1)(b) because a panel reasonably believes that the evidence demonstrates that the practitioner may have behaved in a way that constitutes professional misconduct, s 193A has no application; the matter must be referred to the Tribunal. That tends to reinforce the primacy of the proposition that the Tribunal is the venue for determination of seriously arguable questions of professional misconduct,66 and to highlight the exceptionality of s 193A. Putting the matter another way, if a matter must be referred to the Tribunal by the Board when a panel concludes that a practitioner may have engaged in professional conduct, it would be surprising if the Board must not refer a practitioner who it reasonably believes has committed professional misconduct unless it has first undertaken a distinct assessment of whether there is no public interest in the referral. 131 It is more consistent with the scheme of the National Health Law to view s 193A as conferring on the Board a limited authority to refrain from referring a 66 cf. Marin v Chiropractic Board of Australia [2020] SASCFC 74 at [72] (Kourakis CJ, Peek and Nicholson JJ agreeing). -- 30 of 51 -- [2025] SASC 184 B Doyle J 27 matter to the Tribunal, rather than as imposing a necessary gateway through which a referral must be assessed before the Tribunal may properly have a matter of professional misconduct referred to it. Extrinsic material would seem to support that view.67 132 For those reasons I would conclude that the scheme works as follows. Section 193(1) requires referral by a National Board of a matter to a responsible tribunal when the Board has reasonably formed the belief that a practitioner has behaved in a way that constitutes professional misconduct. The Board will be relieved of that duty to refer if it has formed the view that there is no public interest in referring the matter; but it is not obliged in every case to investigate that question.68 If it does form the view there is no public interest in referral, it will necessarily have had regard to the matters in s 193A(2). 133 If, contrary to the view I have expressed, the Board should make an assessment of the public interest before referring a matter to a relevant tribunal, it would remain to consider whether a failure to do so invalidates a referral (or a determination to refer). Not every failure to comply with a step in a statutory process render the later steps invalid. It depends upon whether it was a purpose of the legislation that a step taken following the non-compliance should be invalid.69 134 In my view, no such purpose can be discerned from the language, scope and object of the National Health Law. Natural justice in relation to a referral to a responsible tribunal 135 The concept of natural justice has two primary dimensions. It involves a fair process or hearing before a decision-maker free from bias. Procedural fairness 136 Focusing on procedural fairness, the general principle is that it is an implied condition of the valid exercise of a power, the exercise of which adversely affects the rights, interests or expectations of a person in an identifiable way, that the 67 Section 193A was introduced following the insertion of the same provision by the Queensland Parliament in the equivalent legislation. The explanatory notes to the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld) described the amendment as providing a ‘limited discretion’ to decide not to refer matters and stated that whilst the amendment ensured that the most serious professional misconduct matters continue to be heard by a tribunal, resources will not be used pursuing matters where there is no risk to the public and no public interest in having the matter heard by a tribunal. 68 That is not to deny the proposition that a decision-maker falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist, or that such jurisdictional error can infect either a positive act or a refusal or failure to act: Craig v South Australia (1995) 184 CLR 163 at 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), referred to in Samad v District Court of New South Wales (2002) 209 CLR 140 at [26] (Gleeson CJ and McHugh J). If it could be shown that a referring Board failed to appreciate the power in s 193A not to refer where it is not in the public interest, that might infect the validity of a determination to refer a matter. 69 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 353 at [91]-[93] (McHugh, Gummow, Kirby and Hayne JJ). -- 31 of 51 -- [2025] SASC 184 B Doyle J 28 person will be given an opportunity to be heard (although not necessarily at a hearing). The presumption to that effect can be displaced by express words or by plain words of necessary intendment. 137 In the case of exclusion by implication, the fact that the statute in question expressly confers a right to be heard in respect of other decisions or powers may assist in determining whether any obligation is excluded in respect of the decision or power in question. Some caution is required, however70 silence may simply be ambiguous and therefore consistent with the application of common law principles to questions of procedural fairness.71 138 A contention that a statute relevantly operates as a ‘code’ with respect to obligations of procedural fairness is more likely to be accepted in the context of ‘multi-stage’ processes, at least where the interests at stake do not involve liberty or similarly weighty consequences.72 139 The Board advances two related contentions that require consideration. The first is that certiorari is not available in respect of a determination by a Board to refer a matter to a responsible tribunal, because there are no discernible legal consequences attaching to that determination. The Board emphasises that it will be for the Tribunal to decide whether any adverse decision or action should be made or taken against the applicant. The second is that, in any event, the statutory scheme tends against a conclusion that procedural fairness must be afforded to a practitioner before a Board decides that it must refer a matter concerning them to a responsible tribunal. This is on the basis, adverted to in Ainsworth v Criminal Justice Commission,73 that where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied ‘if the decision making process, viewed in its entirety, entails procedural fairness’.74 140 Contentions of that kind were accepted by the Full Court in AYHT v Medical Board of South Australia (‘AYHT’)75 in respect of a statutory regime under which the Medical Board was empowered to lay a complaint before a tribunal. 141 Under the Medical Practitioners Act 1983 (SA), provision was made for the making of an inquiry by the Medical Board into a complaint alleging unprofessional conduct. Section 57(1) provided that the Board would give no less than fourteen days’ notice of the time and place at which it intended to conduct 70 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 575 (Mason CJ, Dawson, Toohey and Gaudron JJ). 71 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 93, 96 (McHugh J) and 115 (Kirby J). 72 Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (2022, 7th ed) at [8.220]. 73 (1992) 175 CLR 564. 74 (1992) 175 CLR 564 at 578 (Mason CJ, Dawson, Toohey and Gaudron JJ). 75 (2000) 77 SASR 148. -- 32 of 51 -- [2025] SASC 184 B Doyle J 29 proceedings, and would afford a reasonable opportunity to the practitioner to call evidence and cross-examine witnesses and make submissions. 142 Section 54 relevantly provided: (2) Where a complaint has been laid before the Board under this section, the Board must inquire into the subject matter of the complaint unless the Board— (a) considers that the complaint is frivolous or vexatious; or (b) lays a complaint before the Tribunal relating to matters the subject of, or arising out of, the complaint laid before the Board. … (4) Where, in the course of conducting an inquiry under this section, the Board considers that the allegations or evidence against the medical practitioner are sufficiently serious, it may terminate the proceedings under this section and itself lay a complaint against the medical practitioner before the Tribunal in relation to those allegations or that evidence. (5) If, after conducting an inquiry under this section, the Board is satisfied that the matters alleged in the complaint have been established, it may reprimand the medical practitioner. 143 The practitioner in that case complained that during a hearing before the Board, the Registrar of the Board advised the practitioner’s legal representatives that he would be asking the Board to lay a complaint without hearing evidence or permitting cross-examination. The Board ruled that given the seriousness of the allegations it should ‘refer’ the matter to the Medical Tribunal (by which it meant lay a complaint). 144 Doyle CJ, Debelle and Bleby JJ considered that the Board’s decision was not vitiated by a failure to afford procedural fairness. Their reasoning was as follows: As this review shows, the Board’s functions in relation to the disciplinary provisions of Part 4 are confined to determining whether it should lay a complaint before the Tribunal or to reprimanding a practitioner. The Board may lay a complaint before the Tribunal either with or without an inquiry. Although s 54 imposes on the Board a statutory duty to inquire into complaints, the Board is not required to do so when it considers a complaint to be frivolous or vexatious or when it decides itself to lay a complaint. When deciding to lay a complaint under s 54(2), the Board is not required to hear the medical practitioner. There are two reasons for that conclusion. First, the Board is doing no more than deciding to prosecute. As the judge noted, the Board is not determining any question which affects the rights or interests of the practitioner and its decision to lay a complaint does not affect the practitioner’s rights or interests. The Board’s only duty is to form an opinion whether a complaint should be laid before the Tribunal. In discharging that task, the Board is not undertaking a process that attracts the duty to accord procedural fairness: Medical Board of Queensland v Byrne (1958) 100 CLR 582 per Fullagar and Taylor JJ at 594. The decision of the Board, if adverse to the medical practitioner, does not bind the Tribunal. It is no more than a decision that the practitioner must be tried by the Tribunal. It is the Tribunal’s decision, not the -- 33 of 51 -- [2025] SASC 184 B Doyle J 30 Board’s decision, which affects the rights of the practitioner. See also Cornall v AB [1995] 1 VR 372 at 398 - 401. It was open to the Board in this case to have laid a complaint against the appellant without conducting an inquiry. We turn to examine how s 54(4) fits into this scheme. Although s 54(2) requires the Board to conduct an inquiry except where it has decided that the complaint is frivolous or vexatious or it has already decided to lay a complaint before the Tribunal, s 54(4) enables the Board to proceed to lay a complaint without conducting a full inquiry. The Board is invested with the power to “terminate the proceedings under this section” where “it considers that the allegations or evidence against the medical practitioner are sufficiently serious”. The expression “the proceedings under this section” can only refer to the inquiry. Thus, the Board has express power to cut short an inquiry and lay a complaint before the Tribunal in those circumstances where it considers the allegations or evidence against the practitioner are sufficiently serious. The question is whether s 57(1) requires the Board to hear the practitioner before it decides to exercise this power. The power to terminate the inquiry may be exercised “in the course of conducting an inquiry”. Thus, the power may only be exercised after the inquiry has begun. This does not necessarily mean that, after deciding to hold an inquiry, but before the inquiry has begun, the Board could not reconsider the allegations made in a complaint and decide pursuant to s 54(2) to lay a complaint before the Tribunal. Furthermore, the power to terminate the inquiry may be exercised at any stage in the inquiry. Thus, it may be exercised immediately after or soon after the Board has opened the inquiry. If that were not so, each inquiry would have to proceed to completion and s 54(4) would be devoid of meaning. In other words, it is open to the Board at the outset of the inquiry to consider that the allegations are sufficiently serious and decide to terminate the inquiry before proceeding any further. The fact that the Board has decided to hold an inquiry instead of laying the complaint before the Tribunal pursuant to s 54(2) without an inquiry, does not preclude the Board from terminating the inquiry soon after it has begun. Although s 57(1) is expressed in terms which clearly apply to all of the kinds of inquiries which the Board is required by the Act to conduct, the terms in which s 54(4) is expressed make it clear that it is intended to be an exception to the requirements of s 57(1). The power in s 54(4) is expressed in unambiguous terms. Furthermore, that power is not expressed to be subject to s 57(1). There is only one pre-requisite for the operation of s 54(4), namely, that the Board considers the allegations or the evidence against the practitioner to be sufficiently serious to terminate the inquiry and lay a complaint before the Tribunal. As already noted, the decision to lay a complaint does not affect the rights or interests of the practitioner and does not call for the application of the rules of procedural fairness. In that respect, it is unlike all of the other decisions the Board would be required to make after conducting an inquiry, which, because of their effect, require the application of the rules of procedural fairness. The conclusion that s 54(4) represents an exception to the requirements of s 57(1) is further reinforced by contrasting the operation of s 54(2) with the consequences of the position for which the appellant contends. If the appellant is correct, the Board may decide to lay a complaint pursuant to its powers under s 54(2) without hearing the practitioner but it must hear the practitioner, even if it considers the allegations on the evidence are sufficiently serious to lay a complaint once an inquiry has been commenced. That produces the curious result that the Board would not have to accord procedural fairness when making a decision under s 54(2) but would have to do so when making the same decision under s 54(4). If it were the intention that the Board should accord procedural fairness when laying a complaint in the course of an inquiry, there would have been little point in enacting s 54(4). Furthermore, when the Board’s powers under s 54(2) are read with those in s 54(4), it is apparent that the intention of Parliament is to allow the Board two opportunities to lay a -- 34 of 51 -- [2025] SASC 184 B Doyle J 31 complaint before the Tribunal — one is without an inquiry and the other without a complete inquiry and, on either occasion, the practitioner does not have an entitlement to be heard. In other words, as the power to terminate the inquiry may be exercised at any stage in the course of the inquiry, the Board may terminate it immediately after, or very shortly after, it has been begun if the Board has the required opinion. The Board has, as it were, an opportunity to reconsider the seriousness of the complaint. Further, the Board’s power to terminate the proceedings is expressed in subjective terms. The power may be exercised if the Board considers the allegations to be sufficiently serious to lay a complaint before the Tribunal. Section 54(4) does not require that the Board have cause to believe or reasonable cause to believe or reasonable cause to be satisfied as to the seriousness of the allegations or evidence. That is consistent with the Board’s powers under s 54(2) which would enable it to lay a complaint without an inquiry if it considered the allegations to be sufficiently serious. In reaching his conclusion, the judge below did not rely on the terms of s 57(1) but on the common law rules of procedural fairness. The learned judge appears to have held that the fact that the appellant received notice of an inquiry gave rise to a legitimate expectation that he would be heard on all issues. The concept of “legitimate expectations” is not helpful and has the capacity to be misleading. The concept has been criticised by Brennan CJ on several occasions: see, for example, Kioa v West (1985) 159 CLR 550 at 611 and 617 - 618; Annetts v McCann (1990) 170 CLR 596 at 604 - 607; and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 591 - 592. Deane and McHugh JJ have expressed doubts: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 651 - 652 and Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 311. Undertakings or representations may give rise to a legitimate expectation: see, for example, Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Cole v Cunningham (1983) 49 ALR 123; Century Metals and Mining NL v Yeomans (1989) 100 ALR 383; Annetts v McCann (supra). But, as those cases demonstrate, the undertaking or representation is made by or on behalf of the decision-maker whose decision will affect the rights or interest of the person seeking to be heard. The position of the appellant differs in at least two respects. First, for the reasons already noted, although the Board is required to make a decision whether or not to lay a complaint before the Tribunal, its decision does not affect the rights or interests of the medical practitioner. Secondly, the notice of the inquiry sent to the appellant did not hold out to him that the inquiry would necessarily proceed and evidence would be called. … 145 There is a number of differences between the scheme considered in AYHT and the present scheme. Most obviously, the criterion for referral under the present scheme is not an opinion as to the seriousness of the allegations, but a reasonable belief that professional misconduct has occurred. 146 In Cornall v AB,76 where it was held that there was no obligation to afford procedural fairness before an allegation of misconduct or a standards breach by a legal practitioner was referred to a registrar of the Solicitors’ Board, the criterion for referral was that the Secretary of the Law Institute was, after completing an investigation and considering any explanation made by the solicitor, ‘of opinion that there appears to have been misconduct or a standards breach’.77 Ormiston, Coldrey and O’Bryan JJ held that all that was required was the establishment of a 76 [1995] 1 VR 372. 77 Legal Profession Practice Act 1958 (Vic). -- 35 of 51 -- [2025] SASC 184 B Doyle J 32 prima facie case.78 That conclusion was relevant to the question whether procedural fairness obligations applied in respect of the referral decision both because it meant that the fact of referral did not carry with it an implied or inferred conclusion of guilt and because the nature of the question to be considered by the Secretary was not one which would obviously benefit from submissions. 147 Having considered a number of authorities, and recognising that reputational and other consequences might in some instances be such that even where the decision was an incident of an investigative process rather than the final step in an adjudicative process, procedural fairness might nevertheless be owed, their Honours said:79 It is therefore important to look at the principles which lie behind these authorities. In our opinion they do not stand for any principle that every investigator or investigative body must afford a person under investigation an opportunity to be heard in the sense understood in the law before they recommend a further step of a kind which will result in a judicial or quasi-judicial determination of the correctness or otherwise of the allegation made by the investigator. To do so would be to stifle the necessary functions performed by the police and the other many and varied authorities who for the protection of the public have to investigate alleged breaches of the law. That is not to imply that police and investigative bodies ought not to act fairly, nor, where appropriate, to seek answer (to the extent permitted by law) from those who are under investigation, but ordinarily the investigative process cannot be hedged around with requirements to seek further explanations at each stage of an inquiry. In this kind of investigation it is not the investigator’s function to reach conclusions as to guilt or innocence but to determine whether there is an arguable case of sufficient strength to sustain a conviction or which would justify the imposition of monetary penalties or other sanctions by a disciplinary or other judicial or quasi-judicial tribunal. Regrettably the reputation of those charged with offences or brought before disciplinary or other tribunals will suffer to an extent in the eyes of those who fail to appreciate the different functions of investigator and decision-make, whether judicial or quasi-judicial. Where the function of going forward with the prosecution or charge does not involve more than satisfaction as to facts sufficient to form a prima facie case, there is little practical merit in providing to a person so charged a further opportunity to make submissions or adduce facts to an investigator who is not essentially the fact-finding tribunal. Moreover in the present case there is no suggestion that the version of the respondent was not sought, nor it is suggested that the version of the respondent was not sought, nor is it suggested that he was not given an opportunity to make a number of submissions as to the appropriate course of action which the secretary should take. 148 Their Honours went on to consider a number of relevant authorities before observing that:80 It is sufficient to say that, having regard to those authorities, without examining the many others which have dealt with similar issues, we would take the High Court's recent observations in O'Shea's case and Ainsworth's case requiring the decision-making process to be viewed in its entirety as leading to the conclusion that the investigations of prosecutors or bodies charged with disciplinary functions may likewise be seen as forming part of an entire process. Viewing those processes in their entirety must involve a recognition that the role of the prosecutor or the Secretary of the Law Institute is very different from that of the 78 [1995] 1 VR 372 at 392. 79 [1995] 1 VR 372 at 396. 80 [1995] 1 VR 372 at 400. -- 36 of 51 -- [2025] SASC 184 B Doyle J 33 person or body required to reach a decision so that, if procedural fairness is inherent in the ultimate decision-making process, then the rules of natural justice will ordinarily not be broken by some failure to afford a further opportunity to be heard at the stage of recommending the preferment of a charge. Of course, every statute must be looked at individually and there may be circumstances in which the language of a statute will require, for certain special reasons, some further opportunity to be heard before a prosecution or disciplinary proceeding is launched. Such a case was Crane's case, but the nature and effect of the decision reached was so different from that presently under consideration that it can clearly be distinguished. Moreover, to adopt Mason J's description in Twist's case, the "efficiency of the administrative process" in considering the many complaints brought before the Secretary of the Institute must have a "countervailing" effect in permitting the conclusion to be reached that the proper stage for affording procedural fairness in the present case is at the stage where the matter has been referred for hearing before registrar or board. For those reasons we would conclude that no intention is evinced by the provisions of s38Q and Pt3A that solicitors should be given the right to be heard before a matter is referred by the secretary. It is only necessary to refer to certain elements of the section which were relied upon by the respondent as showing that in this case there was some special legislative scheme giving solicitors explicit rights to be heard at this preliminary stage. We have already dealt with the argument that more than a prima facie case must be shown but we would add that, even if a higher test were required, the opinion of the secretary has no effect, binding or presumptive, so far as the deliberations of either registrar or the Solicitors' Board are concerned. Secondly, reliance was particularly placed upon the expression in subs(5) "after completing the investigation and considering any explanation made by a solicitor". It was contended that the explicit reference to consideration of "any explanation" required that a solicitor be given an opportunity to be heard not only at the outset of the investigation but throughout it and in respect of all matters coming before the secretary (or his delegate) in the course of his investigation. We cannot accept that that is the correct construction of subs(5). Subs(5) refers back to the procedure described in subs(2) of s38Q which gives power to the secretary to take certain steps in the course of his investigation. That subsection in clearly permissive terms enables the secretary to cause a solicitor to be served with a written statement of the nature of the misconduct and to require the solicitor to give an explanation. It likewise permits the secretary to require production of certain documents and even, but with approval of a member of the Law Institute Council, to require the solicitor to attend before him to give an explanation, as well as to obtain other reports and make other investigations as are necessary to determine whether further action should be taken. It is because the secretary has the power to require a solicitor to give an explanation that subs(5) refers explicitly to that explanation, but it is not intended, as was argued, that it requires further explanations to be sought at every relevant stage up to the point when the secretary forms his opinion to refer a matter for hearing. It is not necessary for the purposes of this judgment to decide whether that which is apparently permissive in para(a) of subs(2), namely a power to require a solicitor to give an explanation, ought ordinarily to be treated as part of the proper and necessary process for reaching an opinion pursuant to subs(5). Nor is it necessary to reach any conclusion as to whether a solicitor may complain as to the failure to seek any explanation as to a complainant's allegation. As would appear from what we have already said, our inclination would be to consider the disciplinary process as a whole and to see that as providing more than sufficient procedural fairness at the hearing stage. But this is not a case of failing to seek explanation because an explanation was immediately sought, in the customary way, by the secretary or his delegate and indeed several further opportunities were given to the -- 37 of 51 -- [2025] SASC 184 B Doyle J 34 respondent by the secretary or his delegate to make comments as to specific matters. The complaint appears to be that after getting further information, particularly expert opinion, yet another opportunity to put submissions was not given and that the respondent was not informed in detail of those opinions. That seems to us to be a complete misapprehension of the nature of the investigation required to be undertaken by the secretary or his delegate. The secretary was not a fact-finding tribunal and the respondent had and still has full opportunity to put his case to a quasi-judicial tribunal which is unaffected and cannot be affected by the formation of opinion by the secretary. It may be thought that the considerations relevant to the provision of procedural fairness may be affected by the recent High Court decisions to which we have referred which have established that reputation may be protected by the requirements of procedural fairness. We would say only that the propositions referring to the necessity to look at the decision- making process in its entirety have been repeated in those very cases and that, although the obligation to act fairly is not an irrelevant matter, it would be a bold step for the courts to require every prosecutor or every person given the responsibility of referring disciplinary matters to tribunals to be bound by the requirement to afford procedural fairness as a matter of course. In the ordinary course of events most persons likely to be charged are given an opportunity to say something before they are charged but that is not to require that in considering matters to be referred for hearing by the registrar or Solicitors' Board some form of preliminary hearing must in each case be conducted. That would be, in our opinion, to frustrate the exercise of powers which, particularly in recent years, have been seen to be very important for the protection of the public interest. 149 The decisions in AHYT and Cornall v AB may be contrasted with the decisions in Murray v Legal Services Commissioner (‘Murray’)81 and Byrne v Marles.82 150 Under consideration in Murray was s 155 of the Legal Profession Act 1987 (NSW), which provided as follows: 155—Decision after investigation of complaint (1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner or interstate legal practitioner, the complaint is to be dealt with in accordance with this section. (2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner or interstate legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. (3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead: 81 (1999) 46 NSWLR 224. 82 (2008) 19 VR 612. -- 38 of 51 -- [2025] SASC 184 B Doyle J 35 (a) reprimand the legal practitioner or interstate legal practitioner if the legal practitioner or interstate legal practitioner consents to the reprimand, or (b) dismiss the complaint if satisfied that the legal practitioner or interstate legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner or interstate legal practitioner. (4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner or interstate legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner or interstate legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. (5) If a Council or the Commissioner decides to dismiss a complaint or to reprimand a legal practitioner or interstate legal practitioner under subsection (3) and the complainant requested a compensation order in connection with the complaint, the Council or the Commissioner may require the payment of compensation by the legal practitioner or interstate legal practitioner or the successful mediation of the consumer dispute before the decision takes effect.” 151 Sheller JA, with whom Priestley and Stein JJA expressed agreement, observed that:83 If the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), then, despite s155 (2), the Council or the Commissioner may reprimand the legal practitioner, if the legal practitioner consents to the reprimand, or dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner. Thus, even if the Council or the Commissioner are satisfied that there is a reasonable likelihood that the facts complained of would be made out before the Tribunal, the possible consequences are such that the legal practitioner could reasonably expect the opportunity to advance a case to the Council or the Commissioner that it should be satisfied only that there was a reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct and that the legal practitioner was generally competent and diligent and that no other material complaints had been made against the legal practitioner. In my opinion, proper performance of the duty and proper exercise of the powers conferred on the Commissioner by s155 require that, before the Commissioner completes an investigation into the complaint against the legal practitioner and decides how in accordance with s155 the complaint is to be dealt with, the legal practitioner be given the opportunity to see a copy of the complaint and answer it and to advance argument against it and in favour of the lesser charge than that of professional misconduct or in mitigation. This would enable the legal practitioner to submit that the Commissioner should be satisfied that there was no reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct and that the complaint should be dismissed under subs (4). 83 (1999) 46 NSWLR 224 at [89], [90], [92]. -- 39 of 51 -- [2025] SASC 184 B Doyle J 36 … … In this case a matter of significant difference is that Commissioner’s duty is not merely to determine whether or not there is a prima facie case but to reach a degree of satisfaction and make decisions as to the course then to be followed. In that context the legal practitioner has an interest to press not only against the initial finding but also against the following of one particular course rather than another. Not surprisingly in that context the Councils and, until recently, the Commissioner, as a matter of practice, gave the legal practitioner the opportunity to be heard. But, in my opinion, the Act itself gives rise to such an expectation as a matter of statutory construction. Necessarily this carries with it the right to see a copy of the complaint made. The failure to provide a copy of the complaint to Mr Murray and give him the opportunity to respond vitiates the institution of the proceedings under s155. 152 More recently, in Byrne v Marles,84 Nettle JA, with whom Dodds-Streeton JA and Coghlan AJA agreed, distinguished the regime applicable under Chapter 4 of the Legal Profession Act 2004 (Vic), from the scheme considered in Cornall. 153 Under Chapter 4, a commissioner, who was required to investigate each disciplinary complaint was at the end of an investigation required, if satisfied that there was a reasonable likelihood that the Victorian Civil and Administrative Tribunal would find the practitioner guilty of professional misconduct, to apply for such an order in that tribunal. The commissioner was also empowered to apply for such an order if the commissioner was satisfied there was a reasonable likelihood that the tribunal would find the practitioner guilty of unsatisfactory professional conduct. 154 Nettle JA referred to Cornall and indicated that in his view some of the reasoning may be open to question inasmuch as it suggested that some of the authorities in which obligations of procedural fairness had been found were to be treated as ‘special cases’.85 He went on to say:86 On the other hand, there is no reason to doubt the conclusion in Cornall v AB that the requirements of natural justice may be satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’. Plainly, there was a distinction between the facts in Cornall v AB and those in Ainsworth. As Aronson puts it, ‘the very purpose of the investigation [in Cornall v AB] was to determine whether there should be a further hearing or some other action and a decision adverse to the respondent would necessarily be followed by a hearing’.87 Further, as the court in Cornall v AB were careful to observe, the only decision of the secretary there in question was a decision to refer the matter for quasi- judicial determination. Furthermore, as was said, it was easy to see that in considering the whole process whereby matters were referred to the Registrar of The Solicitors’ Board, there was intended to be an ample opportunity for the solicitor to present his case at the hearings prescribed by the legislature.88 Other things being equal, therefore, I would respectfully follow Cornall v AB in the determination of this case. 84 (2008) 19 VR 612. 85 (2008) 19 VR 612 at [81]. 86 (2008) 19 VR 612 at [82]-[89]. 87 Aronson, 444 n 654. 88 [1995] 1 VR, 399.25. -- 40 of 51 -- [2025] SASC 184 B Doyle J 37 There are, however, two differences between the scheme of the 1958 legislation and that of the 2004 Act which, in my view, point to a different result. First, as has been noted, s 4.2.8 of the 2004 Act expressly provides that the Commissioner must give the solicitor written notice of the complaint and details of the nature of the complaint ‘as soon as practicable after the complaint is made.’ Secondly, s 4.2.10 expressly provides that the Commissioner may dismiss a complaint if the complaint is vexatious, misconceived, frivolous or lacking in substance or, in the case of a disciplinary complaint, if the Commissioner having considered the complaint forms the view that the complaint requires no further investigation. Under the 1958 Act, s 38Q(2) provided only that the Secretary upon receiving a complaint may give notice of the complaint to the solicitor and s 38Q(5) provided that where, after completing the investigation and considering any explanation made by a solicitor, the Secretary was of opinion that there appeared to be a breach of standards, the Secretary may refer the matter to a Registrar’s hearing or to the Board or exercise powers of suspension and cancellation provided for in s 84. In Cornall v AB it was argued on behalf of the solicitor that the provision in s 38Q(5) for formation of the Secretary’s opinion after considering any explanation made by a solicitor implied a right to be heard at the outset of the investigation and throughout it in respect of all matters coming before the Secretary in the course of the investigation. The court rejected that submission … Now, however, because the Commissioner is compelled by s 4.2.8 of the 2004 Act to give notice of the complaint to the solicitor as soon as practicable after receipt, and to make a preliminary decision whether to dismiss the complaint summarily before going further with the investigation, it appears to me that the statute evinces an intention that the Commissioner should give notice of a complaint to the solicitor more or less immediately after receipt, and then take into account anything about the complaint which the solicitor may wish to submit, before determining whether to dismiss the complaint summarily or to go on to investigate it further or to refer it to the Institute for investigation. Otherwise, why provide, as s 4.2.8 so clearly does provide, that the Commissioner must notify the solicitor of the complaint as soon as practicable after receipt? As has been seen, the essence of the reasoning of the court Cornall v AB was that, because the function of the Secretary under the 1958 legislation did not involve any more than satisfaction as to facts sufficient to form a prima facie case, there was little practical merit in providing the solicitor with an opportunity to make submissions or adduce facts. The solicitor’s right to natural justice was said to be adequately protected by his right to be heard before the tribunal which would decide the charge.89 Now, however, the position under the 2004 Act appears to be such that the Commissioner has an independent obligation under s 4.2.10 to determine whether a complaint is to be dismissed summarily or not proceeded with further. If so, there is practical merit in providing the solicitor with an opportunity to make a submission or adduce facts to the Commissioner before the Commissioner determines that the complaint is a disciplinary complaint which needs be investigated. The right to be heard at that stage affords the solicitor an opportunity to head off the complaint in limine, by persuading the Commissioner not to treat it as a disciplinary complaint or to dismiss it or not proceed with it under s 4.2.10. And such a right to be heard is essentially different to any which the solicitor may later be accorded by the Institute or the Board. In the result, it appears to me as a matter of statutory construction that the structure and operation of Part 4.2 imply an expectation that the Commissioner will give the solicitor a 89 [1995] 1 VR, 372, 396. -- 41 of 51 -- [2025] SASC 184 B Doyle J 38 right to be heard at the outset before making the preliminary decision for which s 4.2.10 provides.90 The position is analogous to Ainsworth and Johns. Counsel for the respondents argued that the court should hesitate before reaching that conclusion because of what they said would be the detrimental effects on the efficiency of the administrative process set up by Chapter 4 of the Act. They argued that it would lead to delays, and the possible frustration of investigations, by court proceedings alleging failure by the Commissioner to hear or heed the submissions of solicitors against whom complaints have been made. In counsel’s submission, it surely is not to be supposed that Parliament intended to make hostage to the vicissitudes of such judicial review proceedings a system of complaints investigation which was set up in order to make it ‘accessible’ and ‘efficient’. There is some force in those submissions. As the court observed in Cornall v AB,91 the volume of complaints likely to be made against solicitors makes it necessary to keep in mind the efficiency of ‘the administrative process’. Correspondingly, the likelihood of detrimental effects on efficiency of the administrative process militates against a conclusion that the proper stage for affording procedural fairness is at the stage when the Commissioner first receives a complaint and so before making a decision to investigate it as a disciplinary complaint. But as the court in Cornall v AB also observed, ‘every statute must be looked at individually and there may be circumstances in which the language of a statute will require, for certain special reasons, some further opportunity to be heard.’92 One may also doubt that recognition of the solicitor’s right to be heard at that stage would result in the sorts of inefficiencies which the Commissioner fears. The content of natural justice is variable according to the circumstances of the case93 and, in the ordinary case, it should not require much more than the Commissioner inviting the solicitor to respond to the complaint and specifying a relatively short period of time (perhaps no more than a week after giving notice) in which any such response should be provided. In other kinds of cases, for example in cases of real urgency, or where the giving of notice would likely lead to the destruction of evidence or something of that nature, the content of natural justice might be reduced; in some cases perhaps even to the point of effectively abrogating it altogether. All in all, there should be few cases in which there is much of a problem. 155 These authorities demonstrate that a multi-factorial analysis is required before a conclusion can be reached about whether procedural fairness must be accorded to a person about whom an investigating authority may form a conclusion or take action consequent upon the formation of that conclusion. The ultimate answer will not always be obvious, as demonstrated by the divergent views reached by the majority and Kourakis CJ in a recent decision dealing with the problem in another context.94 Consideration needs to be given to the legal and practical consequences that flow from the formation of the conclusion. 156 Against that background, I make the following observations: 90 See and compare Murray v Legal Services Commissioner (1999) 46 NSWLR 224, 247 (Sheller JA). 91 [1995] 1 VR 372. 92 Ibid 400. 93 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, 514 (Aickin J); Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1,16 [48] McHugh and Gummow JJ). 94 C v Independent Commissioner Against Corruption (2020) 136 SASR 215. -- 42 of 51 -- [2025] SASC 184 B Doyle J 39 • first, referring a matter to SACAT, at least where that has been required by s 193(1)(a) of the National Health Law, will connote that a reasonable belief has been formed by the National Board that the practitioner engaged in professional misconduct; • secondly, generally speaking, proceedings in SACAT will be open to the public;95 • thirdly, at the conclusion of the proceedings, if a finding is made of professional misconduct (or indeed of unsatisfactory professional performance or unprofessional conduct), disciplinary consequences may be imposed of a kind that exceed those available to a Board or panel. As well, the practitioner may be exposed to adverse costs consequences in respect of the proceedings.96 157 Those considerations may be thought to militate in favour of a practitioner having an opportunity to be heard before a referral to the Tribunal is made. However, it may also be observed that: • the mere fact of a referral will not always connote that a Board has formed the belief described. The matter might have required to be referred by reason of a panel forming a view that the evidence demonstrates that the practitioner may have behaved in a way that constitutes professional misconduct;97 • in any event, once the matter is before SACAT, the Board’s belief has no particular status.98 The Board’s determination to refer does not itself affect legal rights;99 • if considerations of confidentiality or public interest warrant doing so, the Tribunal may modify its procedures to limit access or restrict publicity of information about the matters being considered;100 • moreover, even where a conduct issue is dealt with by the Board or a panel, the result in some cases must, and in other cases may, be disclosed and therefore may become public by virtue of the national register requirements. In some cases the notifier will also have been informed of the outcome.101 Indeed, if a decision is made not to refer a matter to the responsible tribunal pursuant to s 193A, Ahpra must publish information about the decision in its annual report;102 95 SACAT Act, s 60; cf. National Health Law, s 189. 96 National Health Law, s 195, SACAT Act, ss 57 and 58. 97 National Health Law, s 190(1). 98 SACAT Act, s 33(2)(a). 99 Health Care Complaints Commission v Hill [2022] NSWCA 270 at [47] (Basten AJA, Ward P agreeing). 100 SACAT Act, s 60. See, eg, Medical Board of Australia v Shaheen [2025] SACAT 13 at [24]. 101 National Health Law, ss 177A, 180 and 192. 102 National Health Law, s 193A(3). -- 43 of 51 -- [2025] SASC 184 B Doyle J 40 • in any event, the public’s interest in being informed about whether a practitioner is subject to serious disciplinary proceedings103 may diminish the weight that that consideration can carry in a determination of whether the consequences of referral are such as to point in favour of an obligation of procedural fairness; • the consequences that may be imposed at the conclusion of any proceeding will have been reached by a Tribunal that is obliged to afford procedural fairness to the practitioner.104 Having regard to the protective rather than punitive purpose of disciplinary sanctions,105 it is unlikely that the Tribunal would impose a sanction more severe than is able to be imposed by a Board or panel if there were truly no public interest in the proceeding having been heard by the Tribunal; • if the Tribunal could be persuaded that the underlying issues do not warrant consideration by it or should be dealt with in another forum, the Tribunal may exercise powers to dismiss or strike out the proceeding.106 158 The question is whether, in light of the foregoing summary of the impact upon a practitioner of a referral to SACAT, the Board was required to afford the practitioner a right to be heard against the referral by it of her matter to the tribunal and, if so, whether anything more was required than actually occurred in the present case. 159 In considering that question, it needs to be borne in mind that: • save in exceptional cases, a practitioner about whom a notification has been made will have been given written notice and informed of the nature of the notification as soon as practicable after the Board has received it;107 • save in exceptional cases, if the National Board has decided to investigate the practitioner it must, as soon as practicable after making that decision, give the practitioner written notice and inform them of the nature of the matter being investigated;108 and 103 Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133 at [72]-[81] (Kourakis CJ), WEQ (a Pseudonym) v Medical Board of Australia (2021) 69 VR 1 at [59]-[72] (Kyrou and McLeish JJA). 104 SACAT Act ss 39, 43 and 56. 105 See, eg, Craig v Medical Board of South Australia) (2001) 79 SASR 545 at [41] (Doyle CJ, Williams and Martin JJ agreeing), Maroulis v Psychology Board of Australia [2021] SASC 16 at [38]-[40] (Bleby J). 106 SACAT Act, ss 46 and 48. 107 National Health Law, s 152. 108 National Health Law, s 161. -- 44 of 51 -- [2025] SASC 184 B Doyle J 41 • the Board can only impose ‘relevant action’ if it is not required to refer the matter to a responsible tribunal,109 and, prior to taking relevant action, the Board must comply with a show cause process.110 160 In my view, whilst there are practical and potential legal consequences that attach to a referral to a responsible tribunal, there is much to be said for the proposition that the absence of an express obligation to invite a submission before referring a matter to the tribunal manifests a legislative intention that there is no separate or distinct obligation to afford procedural fairness before referring a matter to a responsible tribunal. 161 Part 8 could easily have been drafted to treat a referral in the same way as it treats ‘relevant action’, that is, by providing for a show cause process. Instead, the scheme of the Part is that a decision to refer a matter (or not) is anterior to the show cause process. A right to be heard applies to the imposition of an adverse disciplinary sanction, in whichever forum is appropriate, but not in relation to the question of the appropriate forum. 162 That said, the summary dismissal of a proceeding should be approached with caution and it is appropriate to acknowledge the reasonable possibility that a different view might be taken in circumstances where: • the criterion for referral is the formation of a reasonable belief as to misconduct, as distinct from a characterisation of the seriousness of the allegations, or an identification of a prima facie case; and • the matters that may impinge on the decision to refer (viz, whether there was professional misconduct and whether there is no public interest in referring the matter to the Tribunal) are matters about which the practitioner could be expected to advance evidence or submissions of relevance. 163 Accordingly, in considering whether to summarily dismiss the judicial review proceedings, I will also consider whether, if the practitioner was entitled to be heard on the issue, she was in fact given that opportunity. Bias 164 It can be accepted that the bias rule applies in respect of the exercise of the functions and powers of a National Board under the National Health Law. The decision in Bay v Australian Health Practitioner Regulation Agency111 (‘Bay’) is illustrative. 165 Bay does not, however, stand for the proposition that the involvement of an Ahpra officer in gathering evidence (or providing evidence) relevant to a determination to refer a matter to a responsible tribunal is inconsistent with any 109 National Health Law, s 178(1)(b). 110 National Health Law, s 179. 111 [2024] QSC 315. -- 45 of 51 -- [2025] SASC 184 B Doyle J 42 requirement that a decision-maker under the National Health Law be free from bias. Indeed, in my view it is a necessary incident of the scheme that, on occasion, an Ahpra officer will be the source of information relevant to decisions having to be made by a National Board. Proposed grounds 166 Against that background, I turn to consider the proposed grounds’ prospects of succeeding. Conflation of immediate action and referral decisions 167 The applicant contends that the process miscarried by reason that the Board considered whether immediate action was necessary pursuant to s 156 and whether to refer the matter pursuant to s 193 at one meeting or hearing, and in doing so had regard to the same material. 168 The Board does not dispute that it considered these two matters at the same meeting on 12 March 2025. Nor does it dispute that the decisions were based, at least in part, on a consideration of the same material. 169 But there is no reasonable prospect of those circumstances leading to a finding that the determination to refer the matter to SACAT was affected by jurisdictional error, nor a finding that any referral would be affected by jurisdictional error. 170 The applicant complains that at the meeting in question, the Board went beyond s 38(2)(c) of the SACAT Act. That is so, but it is of no legal consequence. There was no reason why, at or around the same time as it engaged in a reconsideration of the immediate action issue, the Board could not undertake other roles or functions conferred upon it under the National Health Law. 171 Section 193(1)(a) of the National Health Law does not contemplate any particular limit on the material upon which the Board may form its reasonable belief. Nor does s 156, with the qualification that the Board must have regard to any submission made by the practitioner in the course of the show cause process. The applicant did not identify a compelling reason why, as a matter of policy or good decision-making, the two processes are required to be quarantined from one another, much less identify an anchor in the text or structure of the National Health Law from which such a relevant policy or legislative purpose could legitimately be inferred. 172 Indeed, the fact that s 193 imposes a duty that, subject only to s 193A, operates upon a Board at any time, upon the formation of a reasonable belief, seems to me to be inconsistent with an implicit requirement that it defer considering whether to refer a matter in order to avoid any procedural overlap with a decision pursuant to s 156. So long as the Board applied the distinct statutory criteria to the two distinct tasks, it is not problematic that it did so in the course of one hearing or meeting. -- 46 of 51 -- [2025] SASC 184 B Doyle J 43 173 Insofar as the applicant contends that dealing with two distinct matters may have led to a failure to distinctly consider the relevant criteria relevant to the two matters, the contention is speculative. Referral determination unreasonable or inconsistent with no immediate action 174 There is no relevant inconsistency between the Board deciding, on the one hand, that it was not, or was no longer, necessary to take immediate action under s 156 and determining, on the other, that it was necessary to refer the matter to SACAT. 175 The duty to refer the matter to a responsible tribunal arose, subject only to s 193A, upon the Board forming the reasonable belief that the applicant had behaved in a way that amounted to professional misconduct. As has earlier been observed, professional misconduct within the meaning of limb (c) of the inclusive definition is conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. What is involved is a characterisation of conduct, not a finding about whether the person is presently fit and proper to hold registration. Accordingly, a reasonable belief that professional misconduct occurred does not suggest or require a present belief that the practitioner is unfit to practice, much less that a restriction on their right to practice should be imposed by way of immediate action. 176 Further, although immediate action may be imposed where the Board reasonably believes that it is ‘otherwise in the public interest’, there is no necessary inconsistency between finding no basis to impose immediate action and being unpersuaded that there is ‘no public interest’ in a referral to a responsible tribunal, within the meaning of s 193A. The two inquiries are directed at different consequences or ends. 177 I would also reject, as having no reasonable prospect of success, the contention that the Board’s decision to refer the matter to SACAT lacked an evident and intelligent justification, and was therefore legally unreasonable in the sense described by the High Court in Minister for Immigration and Citizenship v Li.112 178 The applicant also advanced submissions to the effect that any past alleged conduct on her part was linked to mental health difficulties that were then beyond her control and have been or are being satisfactorily treated. These submissions do not reach the point of suggesting that the Board’s belief was legally unreasonable. They, together with a number of other matters, may be raised by the applicant in the Tribunal proceedings. 112 (2013) 249 CLR 332. -- 47 of 51 -- [2025] SASC 184 B Doyle J 44 Board failed to afford procedural fairness before determining to refer 179 For the reasons given earlier, I am inclined to conclude that there is no distinct requirement upon a Board to afford a practitioner a right to be heard on the question whether there should be a referral of their matter to a responsible tribunal. 180 However, if I am wrong about that, and there is no sufficiently clear manifestation of a legislative intention to remove an otherwise-presumed obligation to afford procedural fairness, I would conclude that the content of the obligation is such that it will have been discharged if the practitioner has been given an opportunity to make a submission against referral.113 I do not consider that it is necessary that the Board advise the practitioner that they have reached a preliminary decision to refer, and to invite a submission as to why that should not occur. 181 In the present case: • the letter from Ahpra to the applicant on 26 November 2024 identified the subject matter of the investigation and invited a written response. That letter made apparent that what was being considered was not just the question of immediate action but the appropriate course that the Board should take more generally; • the applicant provided a response which went beyond the question of immediate action on 4 December 2024, and the same can be said of her submission of 16 December 2024; • on 18 December 2024, the applicant was informed that one possible outcome of the Board’s consideration was that she may be referred to the responsible tribunal; • on 2 January 2025, the applicant was told by way of email that the Board had not yet decided whether to refer her matter to a tribunal. 182 In my view, these communications provided the applicant with sufficient notice of the possibility that there might be a referral to SACAT and she was given an opportunity to make submissions about how the Board should deal with her matter. It cannot have been necessary to invite her to make submissions on specific aspects of any determination to refer the matter. 183 It remains to be considered whether the second email to the applicant on 2 January 2025 created a ‘legitimate expectation’ that she would be heard on the question of referral. The text of the email was set out earlier. 184 It is not necessary in this case to consider more generally the role of ‘legitimate expectation’ in relation to procedural fairness. That topic was 113 See, eg, the approach of Nettle JA to this issue in Byrne v Marles (2008) 19 VR 612 at [89]. -- 48 of 51 -- [2025] SASC 184 B Doyle J 45 addressed in AYHT. It suffices to note the observations of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam,114 that: … what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation … In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed. 185 In my view, if there was any obligation of procedural fairness that conditioned the referral of the applicant’s matter, its content had already been discharged by giving the applicant a chance to make submissions in circumstances where it was on the cards that referral was a possible course that the Board might take. 186 The second email sent by the Board on 2 January 2025 did not, in my view, hold out a promise that the applicant would have a further opportunity to be heard at a hearing or meeting at which the Board would consider what it should do in respect of the substantive investigation. Whilst the email may have created the expectation that the applicant would be told in advance when the Board would be meeting, that did not, in my view, detract from the sufficient opportunity that had already been afforded to the applicant to make submissions about the outcome of the Board’s consideration of her matter. I would not read the statement that ‘[t]here is nothing you need to do at the moment’ as comprising a promise that the applicant would have a further opportunity to advance submissions, and should therefore await further correspondence before doing so. 187 Even if it were arguable that the applicant was denied procedural fairness, it would remain to be considered whether the denial was material. That would entail considering whether the applicant has identified a matter that she had not yet advanced, but could have advanced, which could realistically have resulted in a different decision.115 It is not obvious that the applicant can discharge that onus. It also needs to be remembered that even where relevant error is shown, the Court has a discretion whether to grant certiorari. 188 It is not necessary to express a concluded view on these questions. That is because, for the reasons I have given in the anterior questions, the applicant lacks reasonable prospects of success in challenging the validity of a determination to refer her matter to SACAT by reason of a failure to afford procedural fairness. 114 (2003) 214 CLR 1 at [34]. 115 See, eg, Nathanson v Minister for Home Affairs (2022) 276 CLR 80. -- 49 of 51 -- [2025] SASC 184 B Doyle J 46 Failure to have regard to relevant considerations 189 Insofar as the applicant submits that the Board erred by failing to consider whether suspension or cancellation of registration was warranted in her case, that contention is bound to fail, as there is no such requirement. 190 In relation to whether the Board erred by failing to assess or decide whether there was no public interest in the referral of the matter to SACAT, the Board’s counsel acknowledged that a possible view of the evidence was that the Board did not make an assessment of that issue. The Board submitted that referral pursuant to s 193 is subject to, but not conditional upon, such an assessment having first been made. That is to say, a referral, or a determination to refer, is not invalid if the Board did not make an assessment as to whether that referral was not in the public interest. For the reasons I have given earlier, I would accept that submission. 191 The Board acknowledged that the position may be different if the finding were to be made that the Board misapprehended that the duty in s 193 was subject to a conclusion that it might reach pursuant to s 193A. However, it submitted, and I accept, that there is no reasonable prospect of a finding that the Board was ignorant of that aspect of the statutory scheme. 192 In her submissions, the applicant pointed to matters that she contended made a referral contrary to the public interest. These included exposing sensitive personal information and the risk that cultural tensions between D and his family (who are apparently of Uyghur background) and the applicant (who is Han Chinese) would undermine community harmony. In my view a consideration of that kind could not amount to a mandatory consideration relevant to whether there is no public interest in a referral. 193 The applicant also made reference to orders that were apparently made in the Magistrates Court in February or March 2025 pursuant to s 13A of the Spent Convictions Act 2009 (SA). The effect of the orders seems to be to exempt the applicant from the exception otherwise applicable to spent convictions in respect of inquiries relating to undertaking work that involves the care of vulnerable people or assessments that turn upon whether someone is a fit and proper person or a person of good character.116 It is, however, unclear, how the fact of the orders gives rise to a reasonably arguable contention of jurisdictional error. The applicant appears to contend that she wished to rely on the content of the orders as relevant to a consideration of the public interest in referral in the context of s 193A. I have earlier concluded that the Board was not required to make an assessment of the public interest. Further, the applicant provided the materials to the Board’s solicitors on 7 March 2025. She was not deprived of the opportunity to have the Board consider the orders. 116 Spent Convictions Act 2009 (SA), Schedule 1, cll 7 and 8. -- 50 of 51 -- [2025] SASC 184 B Doyle J 47 Reliance on ‘internal witness statement’ 194 As I have earlier explained, I reject the submission that there was some legal difficulty in the Board having had regard to Ms Laird’s statement. The decision in Bay does not suggest otherwise. In forming a reasonable belief about the applicant’s conduct, the Board was not bound by any particular rules of evidence. Disposition 195 The Court should be cautious in summarily dismissing a proceeding. Here, however, the legal impediments to the applicant obtaining relief of the kind she seeks are able to be considered on the basis of the material before the Court on these applications, and are not likely to present differently at a trial if summary dismissal is refused. 196 I would summarily dismiss the proceeding. I would refuse the applicant’s request for an interlocutory injunction or stay against any progression of her matter before SACAT. Suppression 197 The applicant sought a suppression order pursuant to s 69A of the Evidence Act 1929 (SA) in respect of the applicant’s name and those of S and D. I am not satisfied that there are grounds to make a suppression order in respect of the applicant’s identity. I am, however, satisfied that it is appropriate to suppress the names of S and D, pursuant to s 69A(1)(b)(i). 198 To some extent, the feared harm to the applicant will incidentally be mitigated by suppressing the identities of S and D. As for the broader reputational harm that may be caused to the applicant, that is not a matter that properly bears on the making of an order pursuant to s 69A.117 117 Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133. -- 51 of 51 --