LEGAL PROFESSION COMPLAINTS COMMITTEE and CHANG - [2018] WASAT 121

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION:   LEGAL PROFESSION COMPLAINTS COMMITTEE and CHANG [2018] WASAT 121
MEMBER:   DEPUTY PRESIDENT, JUDGE SHARP
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   7 NOVEMBER 2018
FILE NO/S:   VR 183 of 2016
BETWEEN:   LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
CHRISTINA MARIE CHANG
Respondent

Catchwords:

Practice and procedure - Application to set aside orders

Legislation:

Legal Profession Act 2008 (WA), s 428, s 428(1), s 428(2), s 438, s 438(1), s438(2), s 439, s 440, s 441, s 443
State Administrative Tribunal Act 2004 (WA), s 3, s 13(1), s 13(2), s 32(1), s32(2)(b), s 56, s 56(1), s 56(2), s 56(3), s 82, s 82(1), s 83, s 84, s 105, s 105(1), s 105(3), s 105(13)
State Administrative Tribunal Rules 2004 (WA), r 15

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr P Yovich SC
Respondent	:	Mr S Walker

Solicitors:

Applicant	:	Legal Profession Complaints Commitee
Respondent	:	Chang Lawyers

Case(s) referred to in decision(s):

Chiropractic Board of Australia v Hooper [2011] VCAT 2400
Derry v Peek (1889) LR 14 App Cas 337
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

REASONS FOR DECISION OF THE TRIBUNAL:

Background and chronology

In the applicant's original application, filed with the Tribunal on 2 November 2016 under VR 183 of 2016, the applicant (Committee) referred a matter concerning the respondent (Practitioner) to the Tribunal under s 428 of the Legal Profession Act 2008 (WA) (LP Act). The matter was an allegation by the Committee that the Practitioner was guilty of professional misconduct and was based on four specified grounds.
After a number of directions hearings and mediation conferences, the matter was listed for a final hearing over three days to commence on 11 September 2017. However, on the first day of the hearing, the parties informed the Tribunal that agreement had been reached about the grounds on which the Practitioner would 'plead guilty' (ts 2, 11 September 2017) to engaging in professional misconduct. Those grounds were to include a new, fifth, ground (Ground 5) not previously included in the Committee's original application to the Tribunal. Ground 5 is the allegation that the Practitioner included in her witness statement, which was intended to be part of her evidence in VR 183 of 2016, certain statements which were false and misleading and had the potential to mislead the Tribunal.
The parties advised that they were preparing a minute of proposed orders pursuant to s 56 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Orders in the proposed form, if made by the Tribunal, would result in the matter being settled.
The Tribunal adjourned the matter to 13 September 2017, so that agreed orders, incorporating the agreed finding and agreed facts, could be finalised and provided to the Tribunal. The final hearing resumed on 13 September 2017 and was again adjourned briefly to allow the proposed orders to be further discussed and finalised between the parties. Later the same morning, the hearing resumed and the proposed orders, including agreed facts, were handed up to the Tribunal. The Practitioner indicated her consent to the orders by signing each page.
Orders were made by the Tribunal on 13 September 2017 (but bearing the date 11 September 2017) in the form agreed by the parties (Consent Orders). A copy of the Consent Orders, but excluding a copy of the schedule attached to the Consent Orders which contains the agreed facts, is attached to these reasons as Annexure A.
The parties at the same time also provided the Tribunal with a minute of proposed further orders, giving leave to the Committee to amend its application to the Tribunal and programming the making of submissions on penalty and the scheduling of a penalty hearing (Programming Orders). Those orders were also made on 13 September 2017, but again bear the date 11 September 2017. Again, a copy of the Programming Orders is attached to these reasons as Annexure B.
The day before the penalty hearing on 28 September 2017, the Practitioner filed an interim application (Interim Application), seeking what she described as 'leave to withdraw the admissions made in the signing of the [Consent Orders], leave to withdraw the consent contained in the minute of consent orders'; ts 4, 28 September 2017.
The Tribunal adjourned the penalty hearing and made various orders in respect of the filing of submissions on the Interim Application.
Following a mediation conference, the matter then came before the Tribunal at a further directions hearing on 15 June 2018. The parties generally agreed that the issue which arose from the Interim Application was 'whether the Tribunal had the power to unwind the [Consent Orders]'; ts 5, 15 June 2018. If that was answered in the affirmative, the parties agreed that there was then a second issue to be determined, namely whether the Tribunal should exercise that power.
At the same hearing, the Committee through counsel informed the Tribunal that the Practitioner intended to raise a new or further issue, namely that the Consent Orders were made by the Tribunal 'without jurisdiction' (ts 5 and 8, 15 June 2018) and were therefore 'a nullity which may be disregarded by the world'; Practitioner's Consolidated Submissions dated 27 June 2018 (Practitioner's Consolidated Submissions) at para 9.
A discussion followed. The Committee pointed out that its submissions had already been filed prior to the raising of the issue of the jurisdiction of the Tribunal to make the Consent Orders. In response, the Practitioner said that she is seeking to argue the substance of the interim application as it was then framed, but will supplement this position by arguing the jurisdictional point; ts 10, 15 June 2018.
The Tribunal then ordered the Practitioner to file an amended interim application to include the new jurisdictional issue and for the parties to file consolidated submissions on the merits of the amended interim application.
The Practitioner filed an amended interim application (Amended Interim Application) on 19 June 2018. It restated the orders sought by the Practitioner in the Interim Application as follows:
The Practitioner seeks the following:
1.leave for the Practitioner to withdraw the admissions she made in the consent orders;
2.that the orders made or purportedly made on 11 September 2017 be set aside.
The grounds then set out in the Amended Interim Application included the assertion that the Tribunal lacked jurisdiction to make the Consent Orders, but added that the Consent Orders were affected by 'apprehended bias' on the part of the then President of the Tribunal.
The Practitioner also sought in the Amended Interim Application three further orders, including the making by the Tribunal of a certain declaration and the granting of an injunction. It is unnecessary to include details or to set out in full that part of the Amended Interim Application. The Practitioner has not addressed those further proposed orders in her submissions. Also, at a directions hearing on 23 July 2018, after hearing an objection from the Committee, the Practitioner through counsel said that she 'does not press paragraphs 3, 4 and 5 of [the Amended Interim Application], the paragraphs in which she seeks a declaration and an order quashing what are described as the decisions and an injunction'; ts 20, 23 July 2018. The Practitioner has leave to withdraw those parts of the Amended Interim Application and I will regard them as withdrawn.
The parties at the same hearing ultimately accepted, and the Tribunal agrees, that the issue for the Tribunal to determine remains that of whether the Tribunal should disregard or has the power to set aside the Consent Orders, either because it had no jurisdiction to make them or because they were interim, and not final orders; ts 36 and 39, 23 July 2018.

Statutory framework

Legal Profession Act

Section 428 of the LP Act provides as follows:
(1)If the Complaints Committee determines that a matter should be heard by the State Administrative Tribunal the Committee may refer the matter to the Tribunal.
(2)The Complaints Committee is not limited under subsection (1) by the terms of any complaint it has received or by the subject matter of any investigation it has conducted and is not required to conduct an investigation before referring a matter to the State Administrative Tribunal.
Section 438 of the LP Act provides as follows:
(1)The State Administrative Tribunal has jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
(2)If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may
(a)make and transmit a report on the finding to the Supreme Court (full bench); or
(b)make any one or more of the orders specified in section 439, 440 and 441.
(3)If the State Administrative Tribunal transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a), the Tribunal may, pending the determination of the Supreme Court (full bench), make the following orders
(a)an order that the Australian legal practitioner's local practising certificate be suspended for a specified period;
(b)an order that specified conditions be imposed on an Australian legal practitioner's local practising certificate restricting the entitlement of an Australian legal practitioner to practise for a specified period.
(4)Where appropriate, a report forwarded under subsection (2)(a) may include either or both of the following
(a)a record of the evidence taken at the hearing;
(b)a recommendation that the name of the practitioner be removed from the local roll.

State Administrative Tribunal Act

Section 3 of the SAT Act defines a 'decision' of the Tribunal to 'include an order, direction or determination of the Tribunal'.
Section 13(1) and s 13(2) of the SAT Act provides as follows:
(1)A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.
(2)In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that this Act gives in relation to that matter.
Section 56 of the SAT Act relevantly provides as follows:
(1)If the parties agree in writing to settle a proceeding that is before the Tribunal, the Tribunal may make any orders necessary to give effect to the settlement.
(2)The Tribunal cannot make an order under subsection (1) unless it is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
(3)The Tribunal may, with the consent of the parties, vary the terms of an order under subsection (1) if to do so would reflect the intention of the agreement.
(4)Subsections (2) and (3) also apply to an order under section 52(6) or 54(8).
Section 82 of the SAT Act provides as follows:
(1)A decision of the Tribunal comes into effect immediately after it is given, or at such later time as is specified in it, except as otherwise provided in section 29(5).
(2)Subsection (1) does not prevent a stay of the effect of the decision from being given under section 106.
Sections 83 and 84 of the SAT Act provide as follows:
83.Correcting mistakes
(1)The Tribunal may correct a decision it gives or a statement of the reasons it has given for its decision to the extent necessary to rectify
(a)a clerical mistake; or
(b)an error arising from an accidental slip or omission; or
(c)a material miscalculation of figures or a material mistake in the description of any person, thing, or matter referred to in the decision; or
(d)a defect of form.
(2)The correction may be made
(a)on a party's application made in accordance with the rules; or
(b)on the Tribunal's own initiative.
84.Tribunal may review its decision if person was absent
(1)In this section
relevant hearing, in relation to a decision of the Tribunal, means a hearing at which the decision was made or which preceded the making of the decision but does not include a compulsory conference or mediation.
(2)A person in respect of whom the Tribunal makes a decision may apply to the Tribunal for a review of the decision if the person did not appear and was not represented at a relevant hearing.
(3)The application has to be made within the time limits specified by, and otherwise in accordance with, the rules.
(4)The rules may limit the number of applications that can be made under this section in respect of the same matter without the leave of the Tribunal being obtained.
(5)If on hearing the application the Tribunal is satisfied that the applicant had a reasonable excuse for not attending or being represented at the relevant hearing, the Tribunal is to review the decision and may revoke or vary it if the Tribunal considers it appropriate to do so.
(6)For the hearing of the application the Tribunal is to be constituted under section 11 by the members by whom it was constituted when it made the decision, if that is practicable.
(7)A review under this section
(a)is part of the original proceeding and not a new proceeding; and
(b)is not a review of a decision for the purposes of section 17.

SAT Rules

Rule 15 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) provides as follows:
(1)A person who has made an application to the Tribunal may make a written request for the leave of the Tribunal to amend the grounds or reasons specified in the application.
(2)The Tribunal may, at any time before making a final decision, grant the request referred to in subrule (1).
(3)A person who makes a request under subrule (1) must, on the date of filing, give a copy of it to a notifiable person.

Practitioner's submissions

The Practitioner in the Amended Interim Application restates the issues before the Tribunal. The Practitioner says that the Tribunal did not have the jurisdiction to make the Consent Orders, with the result that the Consent Orders should be treated as never having been made. However, if the Tribunal concludes that the making of the Consent Orders was within its jurisdiction, then the Consent Orders should be set aside.

Tribunal's jurisdiction to make the Consent Orders

The Practitioner submits that the 'orders purportedly made by the Tribunal in this proceeding on or about 13 September 2017 have no legal force or effect'; Practitioner's Consolidated Submissions at para 3. The Practitioner says that the Tribunal in the circumstances lacked jurisdiction to make them, with the result that they should be treated as never having been made, or 'a nullity which may be disregarded by the world'. The Practitioner says that it is well-established that parties may not bestow jurisdiction by consent on a tribunal which is a creature of statute which is not provided for by statute; Practitioner's Consolidated Submissions at para 9.
The Practitioner says that the jurisdiction of the Tribunal to make a finding of professional misconduct against the Practitioner conferred on it by s 438(1) of the LP Act is effectively confined to a circumstance in which the Committee has under s 428(1) of the LP Act determined that a matter should be heard by the Tribunal and refers it to the Tribunal. The Practitioner says that it is thus critical that a finding by the Tribunal must be confined to a matter that has been the subject of a referral; Practitioner's Consolidated Submissions at para 4.
The Practitioner submits that the Committee failed to conduct the review required of it in respect of the matter contained in Ground 5. Accordingly, by reason of the new allegation contained in Ground 5 being included, the Tribunal therefore lacked jurisdiction to make the Consent Orders. The Practitioner says that, on becoming aware of that fact, the Tribunal is properly able to proceed as if it had never purported to make the 'orders' in question; Practitioner's Consolidated Submissions at para 12. A decision that involves jurisdictional error, the Practitioner says, is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. A tribunal which makes a decision in the purported exercise of its power which is a nullity may thereafter enter upon a proper hearing and render a valid decision. The Practitioner says that therefore the duty of the Tribunal to make a decision in VR 183 of 2016 remains unperformed. In the Practitioner's submission, not only is there no legal impediment to a decisionmaker now making such a decision, but, as a matter of strict legal principle, the decision maker is required to do so; Practitioner's Consolidated Submissions at para 12, citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj) at [51][53].
The Practitioner says that the Consent Orders were essentially expressed in terms that the Practitioner (on certain dates and in certain ways) 'engaged in professional misconduct'. The detailed expression of that 'apparent finding' is found in the two numbered paragraphs of the Consent Orders; Practitioner's Consolidated Submissions at para 14.
The Practitioner says that the first communication to the Practitioner that the Committee would seek to add a charge alleging that she had filed an intentionally misleading witness statement in the proceedings in VR 183 of 2016 was by way of an email received on Sunday 10 September 2017, the hearing having been listed to commence on the following morning. The Practitioner says that there is no evidence that the Committee had, prior to the making of the Consent Orders, received, investigated, considered, given notification thereof to the Practitioner, decided or referred to the Tribunal the matter or complaint (or any of its constituent allegations) which forms the substance of Ground 5.
The Practitioner says that in the circumstances, the jurisdiction of the Tribunal to make the particular finding expressed in Ground 5 had not been invoked and thus did not exist; Practitioner's Consolidated Submissions at para 21. The Practitioner accepts that although in some circumstances such as those described in Mijatovic v Legal Profession Complaints Committee [2008] WASCA 115 (Mijatovic), the Tribunal may entertain and act on a submission of dishonesty in a practitioner's evidence given at the hearing of a referral, categorically that was not the factual situation here. The Practitioner says that she had not given any evidence, nor was the statement prepared by her sworn. The Practitioner says that there is simply no basis for any argument that the content of the statement was a matter within the Tribunal's jurisdiction on the hearing of the matters referred by the Committee when she had not given evidence.
The Practitioner concludes that, as a result, the Consent Orders in their entirety were made without jurisdiction, with the result that the Tribunal should itself recognise that reality, and proceed afresh in relation to the matter referred to it, as if the Consent Orders had never been made; Practitioner's Consolidated Submissions at para 25.

The Consent Orders should be set aside

As I have previously mentioned, the Practitioner then says that if the Tribunal nonetheless concludes that the making of the Consent Orders was within its jurisdiction, then the Tribunal has the power to, and should, set the Consent Orders aside.
The Practitioner says that she did not appreciate that she was being asked to admit an allegation of dishonesty as part of a 'pragmatic resolution to avoid a contested trial'; Practitioner's Consolidated Submissions at para 29. The Practitioner does not accept the Committee's suggestion that there was no such allegation. The Practitioner says that Ground 5 is a charge of professional misconduct at common law constituted by making statements to the Tribunal which were false and misleading when the Practitioner acted with reckless disregard or indifference as to whether the false statements were false and misleading. The Practitioner says that misconduct at common law would rarely be established by innocently misleading a court or tribunal; Kyle v Legal Practitioners' Complaints Committee (1999) 21 WAR 56 at [6]. Making statements recklessly indifferent to their truth or falsity is one of the three species of fraud 'identified by Lord Herschell's Classic Taxonomy Of Dishonesty' in Derry v Peek (1889) LR 14 App Cas 337; Practitioner's Consolidated Submissions at para 29.
The Practitioner says that the fact that she signed a document mistaken as to whether or not she was making admissions of dishonesty is a very clear reason why any discretion the Tribunal might have to allow her to unwind the consequences of her signatures ought to be exercised in her favour. The Practitioner says that unless the Committee has a proper factual foundation for believing that the Practitioner knowingly admitted dishonesty because she knew that she had in fact acted dishonestly, it is 'hard to see why a model litigant would stand in the way of a contest in relation to the pleaded allegations'; Practitioner's Consolidated Submissions at para 30.
The Practitioner accepts that, following a hearing of a matter under the LP Act by the Tribunal, it may make certain orders, but points out that those orders do not include an order declaring that the Practitioner engaged in professional misconduct. The Tribunal may make the orders specified in s 438 of the LP Act but, the Practitioner says, no such orders have yet been made. They are to be made at the 'second half of the hearing, at which argument in relation to the orders appropriate for the protection of the public would be advanced'; Practitioner's Consolidated Submissions at para 31. The Practitioner says that the findings made following the filing of the signed minute of proposed consent orders were of no legal effect until the final orders contemplated by the LP Act were made; Practitioner's Consolidated Submissions at para 33.
The Practitioner says that the Tribunal had an obligation to satisfy itself that it is appropriate to make findings of professional misconduct. The Practitioner goes on to say that if the Tribunal has made orders for present purposes, then they are 'certainly not final orders such as would … render it functus officio because they are not final orders'; Practitioner's Consolidated Submissions at para 35. The Practitioner says that tribunals such as the Tribunal 'make interim orders such as directions, and then vary them all the time, just like some courts which are also creatures of statute do'; Practitioner's Consolidated Submissions at para 36. 'That a Tribunal may vary an interlocutory order at any time before a judgment is trite'; Practitioner's Consolidated Submissions at para 36.
The Practitioner reminds the Tribunal that the Tribunal may make any orders to put the Practitioner into the position to do whatever is necessary for the fair conduct of the proceeding according to the actual merits of the case, or pursuant to s 443 of the LP Act. The Practitioner says that the Tribunal's powers are broad and the Tribunal, having 'got all the relevant material before it, which it could not do if it treated the Practitioner as bound by her signatures, now that the Practitioner has made it clear that she does not in fact admit all of the things contained in the [Consent Orders]', is to deal with matters according to their substantial merits; s 32(2)(b) of the SAT Act and Practitioner's Consolidated Submissions at para 40.
The Practitioner notes that members of other professions are allowed to change their pleas in similarly regulated statutory disciplinary tribunals; for example Chiropractic Board of Australia v Hooper [2011] VCAT 2400 (Hooper). The Practitioner says that Hooper explains 'powerfully why the Practitioner's position should be allowed to prevail in this case'; Practitioner's Consolidated Submissions at para 44.
The Practitioner submits that until the end of a case, when a decision-making body is functus officio, it can, as a matter of power and jurisdiction, change its mind and vary its nonfinal orders 'as much as it likes'. The Practitioner says that if the Tribunal does not have the power to vary nonfinal orders except in the limited circumstances specifically provided for in the SAT Act, its regulation of procedure would be 'thrown into chaos, as it could never vary procedural orders'; Practitioner's Consolidated Submissions at para 49. The Practitioner says that the submission that the Tribunal can only amend its decisions under s 56(3), s 83 and s 84 of the SAT Act cannot be accepted.
The Practitioner submits that the point being made by the Court of Appeal in Khosav Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) at [150] is that, unless paired with some decision under s 439, s 440 and s 441 of the LP Act, a finding under s 438(1) has, of itself, no legal effect such as to allow it to be subjected to an appeal in the nature of a rehearing.
The Practitioner says that the statement made in Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 (O'Halloran) that the findings of misconduct in that case were 'in the nature of' 'final declarations of professional misconduct' and so not interim orders, even where it appears that a penalty hearing was contemplated at the time of the making of the misconduct finding, is not binding on the Tribunal. The Practitioner says that this decision 'does not even represent persuasive dicta'; Practitioner's Consolidated Submissions at para 61. The Practitioner says that the Court in O'Halloran 'could not possibly have intended to mean that once the Tribunal made the finding of misconduct, the Tribunal was functus officio'; Practitioner's Consolidated Submissions at para 63. If that were so, the Practitioner says, it could not have proceeded to make the orders contemplated by s 439 to s 441 of the LP Act.
The Practitioner says that the 'Tribunal's resort to s 56 of the SAT Act was inappropriate, as the Committee seems itself to imply'; Practitioner's Consolidated Submissions at para 64. The Practitioner says that the parties did not agree to settle the proceeding. At most, the Practitioner says, the parties signed a minute which dealt with some facts and included a possible contention as to misconduct in the terms of the minute. The Practitioner says that the Tribunal had an 'essential duty to consider for itself, and decide, whether it was appropriate (in the sense of that being the correct and preferable decision) to make a finding against the practitioner, and, if so, what that finding should be on the evidence available to it at the time'; Practitioner's Consolidated Submissions at para 64. The Practitioner says that to 'complete that process [the Tribunal] had to make further findings of fact (including the [Practitioner's] state of mind)'; Practitioner's Consolidated Submissions at para 64.
The Practitioner concludes by saying that if the Tribunal accepts these submissions regarding its power to vary the Consent Orders, then it should make directions and convene a hearing to determine, on the merits, whether the Practitioner's Amended Interim Application should succeed, at which time the Practitioner intends to raise issues of procedural unfairness and apprehended bias; Practitioner's Consolidated Submissions at para 66.
The Practitioner then on 25 July 2018 filed 'Submissions In Reply' which repeats some of her earlier submission, but seeks to raise one further issue, namely that the Consent Orders are 'also tainted with procedural irregularity due to apprehended bias on the part of [Curthoys J] given that His Honour also made findings on a matter involving another practitioner in SAT proceedings VR 184 of 2016 which involved grounds identical to that alleged against the practitioner in these proceedings'; Practitioners Submissions In Reply at page 7. The Practitioner submits that she has therefore not been afforded procedural fairness in VR 183 of 2016.

Disposition

Are the Consent Orders to be regarded as 'no decision at all'?

I will deal first with the Practitioners submission that the Consent Orders should be disregarded or regarded 'as no decision at all', to use the words in Bhardwaj at [51]. The Practitioner says that the Tribunal should in this case, proceed to consider the matter afresh and, taking the same approach as the relevant tribunal did in Bhardwaj, regard the Consent Orders as having not been made and 'remake' its decision.
In Bhardwaj, the respondent, whose student visa was cancelled by the Minister, applied to the Immigration Review Tribunal (IRT) for a review of that decision. The IRT invited the respondent to attend a hearing but the respondent through his agent informed the IRT that he was ill and would be unable to attend on the appointed day. Due to oversight, the letter did not come to the attention of the member of the IRT to whom the matter had been assigned and the matter was dealt with in the absence of the respondent, adversely to the respondent. The reason given by the IRT for its decision was that the respondent had not provided any information to suggest that the cancellation of his visa was unfair or inappropriate. When the attention of the IRT member was drawn to the respondent's earlier letter, a new hearing date was arranged, the respondent at that hearing provided an explanation of his conduct which resulted in the cancellation of his visa, the IRT accepted that explanation and revoked the cancellation.
The issue in Bhardwaj was whether or not the IRT should have proceeded as it did by treating the first decision as 'no decision at all' and then make a further decision on the same matter.
The High Court found that it was open to the IRT to so proceed.
The High Court considered that, because the IRT had failed to give the respondent an opportunity to respond, it was not inconsistent with the relevant statutory scheme, when it learned of its own administrative error, to give him that opportunity, which he wanted. The High Court considered that, until that point, the IRT had not performed its function.
The question is, to what extent can the decision in Bhardwaj be applied to the circumstances of the making of the Consent Orders. In particular, is it open to the Tribunal to now regard the Consent Orders as 'no decision at all' and to allow a full hearing into the Practitioner's conduct, which she is seeking?
I have concluded that the Consent Orders should not be regarded as 'no decision at all'. Bhardwaj was decided on its facts, particularly that through the IRT's own administrative error or slip, the IRT made a decision without considering the submissions made by the respondent. Accordingly, the High Court took the view that the IRT had failed to discharge its functions.
In the present case, there was no 'administrative error' on the part of the Tribunal. The Tribunal proceeded to make the Consent Orders on the basis of the consent of the parties, being satisfied pursuant to s 56(2) of the SAT Act that it had the power to make them. I consider that the Tribunal made the Consent Orders entirely in accordance with the LP Act and the SAT Act. The error alleged by the Practitioner is based upon, not an administrative error, but a question of whether there has been an error of law.

Tribunal's jurisdiction to make the Consent Orders to include Ground 5

Broadly, the Practitioner's argument is that, because Ground 5 was not part of the original referral to the Tribunal under s 428 of the LP Act in VR 183 of 2016, then the Tribunal had no jurisdiction to hear it.
The parties accept, and the Tribunal agrees, that the Tribunal's jurisdiction to make a finding of professional misconduct against a practitioner is created by s 438(1) of the LP Act.
The Tribunal also accepts the Practitioner's submission that the Tribunal's jurisdiction under s 438(1) of the LP Act is enlivened by the Committee referring a matter to it under s 428 of the LP Act. In this case, the matter of the Practitioner's conduct was in fact referred to the Tribunal in the Committee's application in VR 183 of 2016, which contained four grounds.
I disagree, however, with the Practitioner's assertion that, because the matters raised in Ground 5 were not referred to the Tribunal under s 428 of the LP Act after a determination by the Committee or subject to a complaint or investigation under the relevant provisions of the LP Act, then the Tribunal had no jurisdiction to hear it and make findings and orders in respect of it; Practitioner's Consolidated Submissions at para 18.
Section 428 of the LP Act, set out in full earlier in these reasons, provides the Tribunal with the jurisdiction to deal with a referral by the Committee.
Section 428(2) of the LP Act then provides that the matter referred to the Tribunal is not limited by the terms of any complaint it has received or by the subject matter of the investigation it has conducted and is not required to conduct an investigation before referring a matter to the Tribunal. Rule 15 of the SAT Rules then allows a person who has made an application to the Tribunal to request leave of the Tribunal to amend the grounds specified in the application. The Tribunal can grant such a request at any time prior to the making of a final decision.
It therefore follows that even if the Committee did not consider or conduct an investigation into the matters raised in Ground 5, this does not prevent the Committee from applying to amend its application to include such a matter.
The Committee applied to the Tribunal for leave to amend the application in VR 183 of 2016 and leave was given to the Committee in Order 1 of the Programming Orders. In my respectful opinion, for the reasons set out later in these reasons, it was appropriate for the Tribunal to do so.
However, while I accordingly consider that the Consent Orders were within the Tribunal's jurisdiction to make, notwithstanding the inclusion of Ground 5, this is not, in my opinion, a matter upon which the Tribunal can now make a finding. The Consent Orders were made by the Tribunal in the full knowledge of the facts and circumstances of the matter and there is no right or authority of the Tribunal to review that decision. The only right of appeal from the Tribunal's decision is under s 105 of the SAT Act and that is to, in this case, the Court of Appeal.

Does the Tribunal now have the power to vary or set aside the Consent Orders?

I now turn to the Practitioner's submission that if the Tribunal concludes that the making of Consent Orders was within its jurisdiction, then the Consent Orders can and should be set aside by the Tribunal.
This submission is made on the basis that the Practitioner 'did not appreciate that she was being asked to admit an allegation of dishonesty as part of a pragmatic resolution to avoid a contested trial'; Practitioner's Consolidated Submissions at para 29. I note that the Committee does not accept that assertion; Committee's Submissions dated 6 July 2018 at para 71.
From this, it is my understanding that the Practitioner considers that the Tribunal should not have given leave to the Committee to amend its application and that the Tribunal should now so find and set aside the Consent Orders.
However, leave was given as I have already said, and I consider that it was appropriate for the Tribunal to give the Committee leave to amend the application in VR 183 of 2016 to include Ground 5.
The decision of the Court of Appeal in Mijatovic provides a useful outline of some of the principles which must be applied when considering whether or not to give leave to alter the allegations against a respondent to the effect that the respondent acted fraudulently or dishonestly.
By s 32(1) of the SAT Act, the Tribunal is bound by the rules of procedural fairness except to the extent that the SAT Act or, in this case, the LP Act, authorises a departure from those rules; Mijatovic at [53].
The requirements of procedural fairness are flexible. Proceedings before the Tribunal may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the parties and whether the particular proceeding is in the Tribunal's original or review jurisdiction; Mijatovic at [56].
Procedural fairness, in the context of a disciplinary hearing against a professional person who has been charged with misconduct in a professional respect, requires that, before the hearing of the charge, the respondent is given sufficient particulars to enable him or her to consider his or her response, make enquiries and gather evidence, and prepare for the hearing; Mijatovic at [57] (citations omitted).
If it is proposed to submit, or the Tribunal proposes to find, that the respondent has acted fraudulently or dishonestly, then the allegation of fraud or dishonesty, and proper particulars of it, must be given to the respondent with sufficient notice to enable him or her to have a fair opportunity of meeting it; Mijatovic at [58].
A respondent may be denied procedural fairness if the charge against him or her is altered without any or sufficient notice and a fair opportunity to meet it. If an alteration is sought to be made late in the proceedings, it may not be fair to permit the alteration even if the respondent is given notice of and a fair opportunity to meet it. The Tribunal must make a judgment about the fairness of the alteration after having regard to the particular facts and circumstances of the case; Mijatovic at [59].
The Practitioner's submission that she had not given any evidence, nor was the statement prepared by her sworn (Practitioner's Consolidated Submissions at para 21) is rejected. The Practitioner's witness statement was filed in compliance with order 5 of programming orders on 1 May 2017 by the Tribunal which provided:
If the [Committee] and/or the [Practitioner] propose to give evidence or call any witness to give evidence at the [11 September 2017] hearing it/they must by 22 August 2017 file with the Tribunal a signed statement of the witnesses evidence and give a copy of the statement to the other party.
I agree with the Committee that it is clear that the Practitioner intended that her witness statement was to stand as her evidence-in-chief at that hearing
It is also clear to me that the Practitioner, who was represented by Senior Counsel, expressly agreed to and was involved in the creation of the proposed orders to be made by the Tribunal (ts 4, 13 September 2017). She was asked by the then President of the Tribunal whether she was 'happy with the orders in terms of that Minute' (ts 5, 13 September 2017). There were no objections and both the Consent Orders and the Programming Orders were made. If the Practitioner had any concerns about the manner in which the matter was proceeding, it was at that point that she should have raised this issue. Instead, she signed the Minute of Proposed Orders which ultimately led to the Tribunal making the Consent Orders.

The Practitioner also gave other reasons for seeking an order that the Consent Orders be set aside, including an allegation of bias on the part of the then President when the Consent Orders were made. However, I do not consider that it is necessary to consider any other reasons for or the basis of the Practitioner's other submissions.
Instead, the issue that the Tribunal must address, irrespective of the Practitioner's concerns now about the making of the Consent Orders, is whether or not the Tribunal has the power to set them aside.
The Practitioner says that the Tribunal has this power because the Tribunal has not yet made any of the orders referred to in s 438(2) of the LP Act. The Consent Orders are therefore not, in the Practitioner's submission, final orders and it follows that because the Consent Orders are interim or interlocutory orders, they can be varied at any time before final orders are made.
The Practitioner refers me to the decision in Hooper which the Practitioner says supports her argument that the Consent Orders should be set aside. The Practitioner says that Hooper is an example of professionals being allowed to change their pleas in similarly regulated disciplinary Tribunals; Practitioner's Consolidated Submissions at para 44.
I agree that in Hooper a 'change of plea' was entered after agreed findings and determinations had been filed and the decision had been reserved by the Victorian Civil and Administrative Tribunal. However, the tribunal in that case had not at that point made any findings or orders. In the present case, of course, the Practitioner is seeking to withdraw her consent to the making of the Consent Orders after the Consent Orders were made.
The Consent Orders were made under s 56(1) of the SAT Act. The Consent Orders constitute a 'decision' within the meaning of the SAT Act. Accordingly, s 82(1) of the SAT Act provides that the Consent Orders took effect immediately after they were made, on 13 September 2017.
As stated in Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [41], the Tribunal is a creature of statute, and has jurisdiction and procedures which differ markedly from the jurisdiction and procedures of a court. The common law principles of open justice as applied by the courts do not apply to the Tribunal unless that conclusion can be arrived at after a process of statutory construction.
I do not consider that it is open to the Tribunal to set aside the Consent Orders or to vary the Consent Orders except in the limited circumstances specified in the SAT Act, namely under s 56(3), 83 and 84 of the SAT Act. None of those sections are applicable in this case.
I do not accept the Practitioner's submission that her position is supported by what was said at [150] in Khosa. All that Murphy and Beech JJA said in Khosa at [150] was that a 'contravention decision', to use their Honour's expression, is a 'decision' within the meaning of s 105(1), (3) and (13) of the SAT Act.
I also disagree that I am not bound by the statement of the Court in O'Halloran at [18][20], but if I am wrong then in any event I respectfully consider that what their Honours said there was entirely correct. The contravention decision, namely what is contained in the Consent Orders, constitutes in my opinion a final decision, even though the penalty decision has not yet been made.
It follows that, if the Practitioner is seeking to set aside the Consent Orders, the Tribunal does not have the power to entertain such an application and again her only recourse is to the Court of Appeal under s 105 of the SAT Act.

Conclusion

For the reasons given, the Interim Application and the Amended Interim Application are dismissed.

Costs

The Committee in the Committee's Reply Submissions dated 30 August 2018, seeks orders for the filing of submissions on the issue of the payment of its costs of the Interim Application and the Amended Interim Application. The Tribunal will hear from the parties as to these and other costs when it hears from them on the issue of penalty.

Order

The Tribunal orders:
1.The Interim Application made by the respondent dated 27 September 2017, as amended by the Interim Application made by the respondent dated 19 June 2018, is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
7 NOVEMBER 2018

Annexure A

Annexure B