MGB Residential Care Pty Ltd v Eastern Health Authority Inc

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
MGB RESIDENTIAL CARE PTY LTD v EASTERN HEALTH AUTHORITY INC & ANOR
[2024] SASC 109
Judgment of the Honourable Justice McDonald
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING
The applicant seeks judicial review of a decision made by the South Australian Civil and Administrative Tribunal on 6 December 2023, to decline to grant an application to vacate a trial date and substitute it with a hearing on the issue of jurisdiction. The applicant contends that the Tribunal erred in law by declining to rule on the question of jurisdiction regarding the evidence of post-camp activities before trial and claims that the admission of this evidence de bene esse would deprive the applicant of procedural fairness in the merits review.
The applicant, an approved National Disability Insurance Scheme service provider, operates the Prospect Community Village, which is a supported residential facility that provides accommodation and support for residents with physical and mental disabilities. The first respondent (the Authority) is the relevant licencing authority for the applicant under the Supported Residential Facilities Act 1992 (SA) (SRF Act).
The proceedings in the South Australian Administrative Tribunal arose based on the decision of the Authority on 22 February 2023 to decline to renew the applicant’s licence as a proprietor of a supported residential facility, under s 27 of the SRF Act. The decision was based on several complaints received by the Authority and the NDIS Quality and Safeguards Commission (QSC) concerning the applicant’s management of a camp in the Flinders Rangers, held in January 2022, and the behaviour of the sole director, Mr Poethke.
The QSC directed the applicant to commission a report, from an independent investigator, detailing the events at the camp (the Red Wagon Report). The report was produced on 9 June 2022 and the applicant’s licence came up for renewal on 30 June 2022. As a result, the Authority only provided the applicant with a short-term licence renewal until 4 November 2022, conditioned on the applicant submitting documents related to the QSC investigation, including the Red Wagon Report, which the applicant did not comply with. On 17 November 2022, the Authority received a redacted copy of the Red Wagon Report from NDIS, confirming six out of the nine allegations subject to the investigation by QSC. On 22 February 2023, the Board of the Authority reviewed the materials received since the initial complaints, and the Red Wagon Report and decided not to renew the applicant’s licence. The applicant was notified by way of letter on 23 February 2023.
In light of the Board’s decision, the applicant sought a review pursuant to s 34 of the South Australian Administrative Tribunal Act 2013 (SA). During the review preparation, the Authority submitted confidential materials, that were available to, but not provided to the Board at the time of declining to renew the applicant’s licence. The applicant received these materials subject to s 35 of the Local Government Act 1999 (SA) and requested that the Board reconsider its decision, with consideration to the confidential material and that the trial date be vacated. On 12 May 2023, a directions hearing was held at SACAT at which President Hughes vacated the listed trial date and invited the Authority to reconsider its decision, subject to s 38 of the SACAT Act, taking into account all of the material that was available at the time of the Board’s original decision. On 15 June 2023, after reconsidering the materials, the Board affirmed its original decision. The trial was re-listed on 11 December 2023.
The Authority filed written submissions on 3 October 2023 in which the Authority submitted that the Tribunal should consider Mr Poekthke’s post-camp activities, when deciding to affirm, vary, or set aside the decision under review. The applicant applied to the Tribunal for a determination, submitting that the Tribunal did not have jurisdiction to review Mr Poethke’s post-camp activities and that the Authority’s case should be confined to the matters the Board originally relied upon.
On 28 November 2023, the applicant filed an interlocutory application to vacate the 11 December 2023 hearing and instead allow for a hearing to address the Tribunal’s jurisdiction to consider Mr Poethke’s post-camp activities. During a directions hearing on 5 December 2023, the Senior Member refused to make a preliminary ruling on the scope of the Tribunal’s review jurisdiction and retained the trial date.
The applicant brings this appeal on the basis that the Tribunal committed jurisdictional error in refusing to determine the question of jurisdiction in advance of the trial, submitting that the applicant would be denied procedural fairness if the Tribunal, at determination, were to consider Mr Poethke’s post-camp activities.
The applicant sought a declaration that the South Australian Civil and Administrative Tribunal must consider the same questions that the Authority considered in its decision dated 23 February 2023, in particular:
1.1.Do any of the reasons (namely the substantiated allegations set out in the report by Red Wagon Workplace Solutions dated 9 June 2022 and the failure to provide to the Authority a copy of a letter from the NDIS Commission dated 12 April 2022 and a copy of the report by Red Wagon Workplace Solutions dated 9 June 2022) independently or cumulatively enliven the power of the Authority to refuse to renew the applicant’s supported residential facility licence.
1.2.If yes to 1.1. above, how should the discretion to renew the supported residential facility license be granted having regard to the reasons and grounds of the Authority.

Held; the application is dismissed.
1.The question that the Tribunal is required to consider is not that suggested by the applicant, but rather “should the applicant’s licence be renewed?”.
2.The applicant suffers no procedural unfairness as a consequence of a merits-based review, requiring the Tribunal to consider all of the evidence and material before the decision-maker and further evidence that the Tribunal decides to admit.

South Australian Civil and Administrative Tribunal Act 2013 (SA) s 8, s 8(1)(a), s 8(1)(f), s 34, s 34(3), s 34(4), s 34(5)(a), s 34(5)(b), s 35, s 35(2), s 35(2)(a), s 35(2)(b), s 37(1), s 37(3), s 38, s 39(1)(c); Supported Residential Facilities Act 1992 (SA) s 27, s 28, s 31, s 31(1), s 32(1); Local Government Act 1999 (SA); Crown Proceedings Act 1992 (SA) s 9(2); National Consumer Credit Protection Act 2009 (Cth), referred to.
Archer (a pseudonym) Chief Executive of the Department for Child Protection [2022] SASC 94; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, applied.
Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union 9998) (1998) 73 ALJR 129, distinguished.
WWZ v Department for Child Protection [2020] SACAT 111; Minister for Immigration and Citizenship v Hassani (2007) 219 FCR 144; Lesi v Administrative Appeals Tribunals (2015) 238 FCR 145, considered.

MGB RESIDENTIAL CARE PTY LTD v EASTERN HEALTH AUTHORITY INC & ANOR
[2024] SASC 109
Civil: Judicial Review
McDONALD J.

This is an application for judicial review of a decision of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) to decline to grant an application to vacate a trial date and instead to list the matter for a hearing on the issue of jurisdiction. Central to this application is the consideration of the scope of the Tribunal’s review jurisdiction, as conferred by Division 3 of Part 3 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘the SACAT Act’).
Background
MGB Residential Care Pty Ltd (‘the applicant’) operates the Prospect Community Village (‘the Village’) as a supported residential facility, providing accommodation and support for residents with physical and mental disabilities. The applicant is an approved National Disability Insurance Scheme (‘NDIS’) service provider.
The Eastern Health Authority Inc (‘the Authority’) is the relevant licensing authority for the applicant under the Supported Residential Facilities Act 1992 (SA) (‘the SRF Act’).
Flinders Ranges Camp – Red Wagon Report
Between 14 and 19 January 2022, the applicant held a camp for some of the Village’s residents in the Flinders Ranges. The camp occurred as part of the applicant’s business as a registered NDIS service provider. Subsequently, the Authority received numerous complaints about the manner in which the camp was conducted and, in particular, about the behaviour of the sole director of the applicant, Mr Bernard Poethke. The NDIS Quality and Safeguards Commission (‘the QSC’)[1] similarly received complaints about the camp. As a result of the concerns raised, the QSC conducted an inquiry into the complaints. At the direction of the QSC, the applicant was required to commission, at its own expense, a report about the camp from an independent investigator, Red Wagon Workplace Solutions. That report (‘the Red Wagon Report’) was produced on 9 June 2022.
[1] The NDIS Quality and Safeguard Commission is an independent commission that was established to improve the quality and safety of services funded by the National Disability Insurance Scheme.
The applicant’s licence came up for renewal on 30 June 2022. At that time, the Authority determined only to provide the applicant with a short-term licence renewal until 4 November 2022. However, it imposed a number of conditions on the licence. Some of these conditions required the applicant to provide copies of documents relevant to the QSC investigation, including the Red Wagon Report, to the Authority.[2] Those conditions were not complied with.
[2] FDN 15, Affidavit of Michael Stephen Woon dated 6 February 2024 at 10, Exhibit MSW 2.
Subsequent to this, the Authority provided a number of further short-term licence renewals to the applicant, all of which were expressed to be pending the outcome of the QSC investigation.
During that same time, the Authority was receiving further information from third parties about the conduct of Mr Poethke and the running of the Village. Ultimately, from the time of the first notice of concern, in January 2022, until February 2023, the Authority had obtained a large amount of materials, most of which surrounded issues that arose at the camp, including statements from employees of the applicant; documents from residents living in the Village; and information from third parties.
Given the failure of the applicant to provide a copy of the Red Wagon Report, the Authority attempted to compel the NDIS to supply a copy. Initially, that was unsuccessful. However, on 17 November 2022, the NDIS provided the Authority with a redacted version of the report.
The Red Wagon Report substantiated six out of nine allegations that the QSC were investigating. The allegations that were found to have been substantiated included the provision of alcohol to residents who were in receipt of psychotropic medication or recovering from alcohol dependence; the encouragement of residents to verbally abuse a staff member; and that Mr Poethke had driven a vehicle recklessly and at speed whilst residents were on board.
On 22 February 2023, the Board of the Authority (‘the Board’) met and considered a report prepared by the Chief Executive Officer, based on the materials collated since the initial complaints in January 2022, including the Red Wagon Report.[3] At that meeting, the Board determined to decline to renew the applicant’s licence as a proprietor of a supported residential facility pursuant to s 27 of the SRF Act (‘the original decision’).
[3] FDN 15, Affidavit of Michael Stephen Woon dated 6 February 2024, Exhibit MSW 2.
A letter was sent to the applicant on or about 23 February 2023, advising of the decision not to renew the licence.[4] This letter identified five grounds for the decision.
[4] FDN 2, Affidavit of Ellen June McGettigan dated 8 December 2023 at 38, Exhibit EJM 6.
Grounds 1 and 2 related to the failure of the applicant to provide certain information to the Authority, including the Red Wagon Report. These are of no particular importance to the proceedings before this Court.
Ground 3 was that “serious irregularities have occurred in the management of the facility, or in relation to the care of any resident”. The basis of this ground was the substantiated allegations set out in the Red Wagon Report demonstrating serious irregularities in relation to the care of the residents at the camp.
Ground 4 was that “the holder of the licence, or a person involved in the management of the facility or the provision of services within the facility, has been guilty of negligent or improper conduct that has adversely affected the interests of a resident of the facility”. The basis of this ground was the substantiated allegations set out in the Red Wagon Report that related to the negligent or improper conduct of Mr Poethke at the camp.
Ground 5 was that “the holder of the licence is no longer a fit and proper person to hold a licence under this Act or, in the case of a body corporate, that a person who has gained or is in a position to control or influence substantially the affairs of the body corporate is not or has ceased to be a fit and proper person to exercise such control or influence in respect of a body corporate that is the holder of the licence”. The basis of this ground was the substantiated allegations set out in the Red Wagon Report demonstrating that Mr Poethke was no longer a fit and proper person to exercise control or influence in respect of MGB as the result of his conduct on the camp.
SACAT Review
On 27 February 2023, the applicant sought a review in the Tribunal of the decision of the Authority under s 34 of the SACAT Act.
Between March and April 2023, the Authority filed a statement of reasons and three volumes of documents in accordance with s 35(2) of the SACAT Act.[5] Section 35(2) requires the decision-maker to provide written reasons for the decision,[6] and “any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision”.[7] These materials included a volume of documents that were confidential under the Local Government Act 1999 (SA). The confidential file included complaints made by individuals, and information obtained as part of the Authority’s investigation. Although the confidential material had not been provided to the Board for the purpose of making the determination about the licence renewal, the Authority was of the view that those documents fell within the scope of s 35 and, on that basis, they were provided to the applicant.[8]
[5] FDN 16, First Respondent’s Outline of Submissions at [16].
[6] SACAT Act s 35(2)(a).
[7] SACAT Act s 35(2)(b).
[8] FDN 16, First Respondent’s Outline of Submissions at [16].
The Authority acknowledged that, whilst the confidential volume had been available to the Board, it was not considered in arriving at the decision to decline to renew the licence. The applicant contended that the Board should have had recourse to the confidential information in order to arrive at its decision. On that basis, on 12 May 2023, at the request of the applicant, President Hughes called the matter on for a directions hearing. At that hearing, amongst other matters, the applicant raised: concerns about the scope of the dispute on the review given the witness list provided by the respondent;[9] a request that the Authority reconsider the decision, taking into account the confidential volume of documents; and an application to vacate a trial date that had been set for 26 May 2023.
[9] It is not clear whether this is the same concern that is now the subject of this judicial review or some other issue.
President Hughes ordered that the trial date be vacated and invited the Authority to reconsider the decision under review pursuant to s 38 of the SACAT Act, on the basis of all of the material that was then available, including the confidential documents that had not previously been taken into account. The applicant was to be afforded an opportunity to make further written submissions to the Authority in light of the consideration of the additional documents.
President Hughes determined that it was not necessary to consider the issues raised regarding the witness list as the Authority was amenable to reconsidering its decision.
The Board reconsidered the original decision, taking into account all of the material filed in the Tribunal, including the confidential volume. On 15 June 2023, the Board affirmed the original decision. In doing so, no further reasons were provided. Instead, the Board relied on the reasons that were provided for the original decision.
The impugned paragraphs of the Authority’s written submission
The full hearing of the SACAT application was originally listed on 4 October 2023. That hearing was adjourned as the parties were not prepared to proceed on that day. The hearing was relisted on 11 December 2023, with three days set aside. On 3 October 2023, the Authority filed its written submissions. The Authority submitted that, in addition to the reasons provided for non-renewal at first instance, the Tribunal should have regard to other aspects of Mr Poethke’s conduct in determining whether to affirm, vary, or set aside the decision under review.[10] The following are the relevant paragraphs from the submissions filed on behalf of the Authority.[11]
[10] FDN 2, Affidavit of Ellen June McGettigan dated 8 December 2023 at 58-59, Exhibit EJM 10 and FDN 10, Affidavit of Ellen June McGettigan dated 24 January 2024, Exhibit EJM 11.
[11] FDN 2, Affidavit of Ellen June McGettigan dated 8 December 2023 at 58-59, Exhibit EJM 10.
32.Along with the concerning allegations from the camp, and the findings which (although contested) were made by an independent expert, the conduct of Mr Poethke from the time at which the Diary Email was sent through to the hearing itself also raises significant concerns about the fitness and properness of MGB, with Mr Poethke as it’s sole director, to hold a licence. The conduct includes:
32.1 The management of the Diary Email;
32.2 The continual denial of any concerns and attempts to avoid scrutiny;
32.3 The failure to take any responsibility or accountability regarding the issues arising from the camp;
32.4 The treatment of external support providers;
32.5 The non-compliance with the NDIS Act and concerns regarding the implementation of recommendations;
32.6 The non-replacement of a manager for the PCV since the cessation of Ms Hornsell’s employment.
33.The respondent submits that the totality of the evidence before the Tribunal, as was before the respondent, makes clear that it was reasonable for it to be satisfied that:
33.1 serious irregularities have occurred in the management of the facility, in particular the camp planning and organisation, but also in relation to complaint management;
33.2 Mr Poethke, and to a lesser extent Mr J Poethke, were guilty of negligent or improper conduct that adversely affected the interests of a resident;
33.3 MGB, with Mr Poethke as its sole director, is no longer fit and proper to hold a licence.

Counsel for the applicant contended that this was the first time that they had been made aware that the Authority was relying on any conduct that fell outside of the Flinders Ranges Camp and the five grounds identified by the Board as forming the basis of the original decision.
This prompted the applicant to apply to the Tribunal for a determination that the Tribunal’s jurisdiction did not extend to reviewing Mr Poethke’s conduct following the Flinders Ranges camp (the ‘post camp activities’) and that the Authority’s case should be confined to those matters that were relied upon by the Board in arriving at its decision.[12] This has come to be referred to as the ‘jurisdictional question’.
[12] FDN 2, Affidavit of Ellen June McGettigan dated 8 December 2023 at 23-26, Exhibit EJM 2.
The interlocutory application
On 28 November 2023, the applicant wrote to the Registrar of the Tribunal, filing an interlocutory application to vacate the hearing that was listed to commence on Monday, 11 December 2023, and also that the “matter be (instead) listed for an argument hearing on Monday 11 December 2023 regarding the respondent’s assertion that the Tribunal has jurisdiction to review the “post-camp” activities”. It was also requested that the matter be listed for a directions hearing to fix a timetable.[13]
[13] FDN 2, Affidavit of Ellen June McGettigan dated 8 December 2023 at 23, Exhibit EJM 2.
In this letter, the applicant explained, in some detail, the basis upon which the interlocutory application was made. I set that out in full:[14]
[14] FDN 2, Affidavit of Ellen June McGettigan dated 8 December 2023 at 23-25, Exhibit EJM 2.
The applicant seeks the following orders in relation to the preliminary points to be heard at an argument hearing:
5.     The tribunal does not possess jurisdiction to entertain the “post-camp” activities.
6.To avoid doubt, the respondent’s case be confined to the circumstances relied upon in its statement of reasons dated 21 March 2023. Those circumstances are:
6.1    The alleged failure by the applicant to produce a copy of the letter dated 14 April 2022 to the respondent.
6.2    The alleged failure by the applicant to produce a copy of the Red Wagon investigation report to the respondent.
6.3    The allegations within the Red Wagon report that the author found were substantiated.
7.In the event of an order in terms of paragraph 5 above, that the matter be listed for a (full hearing) on a date to be advised (estimated length of hearing: 2 days).
8.In the event that the tribunal declines to make an order in terms of paragraph 5 above, that:
8.1    The respondent provide written particulars of circumstances that it relies upon (beyond those set out in paragraphs 6.1 to 6.3 above) by a date to be advised.
8.2    The matter be listed for a further directions hearing on a date to be advised, at which any further orders necessary for progression to a full hearing be made (including the listing of the full hearing), having regard to the scope of the matters in dispute as identified by the respondent’s particulars.
The applicant provides the following explanation for seeking these orders.
Expansion of the circumstances relied upon by the respondent.
The respondent’s reasons for decision dated 21 March 2023 explain that the respondent had relied upon the circumstances set out at paragraphs 6.1 to 6.3 above in reaching its decision to refuse to renew the license. There is no reference in those reasons to the respondent relying upon any further circumstances in reaching its decision. The respondent was invited by the Honourable President Hughes on 12 May 2023 to reconsider its decision. The respondent advised at the hearing on 23 June 2023 (through its solicitor) that the respondent had not provided fresh reason for decision and the reasons for decision mirror those of the original decision.
On that basis, the applicant prepared its case for full hearing and, in its evidence, sought to address the circumstances that the respondent had relied upon.
In the submissions from the respondent’s counsel dated 3 October 2023, the respondent’s case was broadened to include the conduct of the applicant’s Mr Bernard Poethke from after the camp until the full hearing in this matter, which “includes” (and is thus, by definition, is not limited to):
32.1. The management of the Diary Email;
32.2. The continual denial of any concerns and attempts to avoid scrutiny;
32.3. The failure to take any responsibility or accountability regarding the issue arising from the camp;
32.4. The treatment of external support providers;
32.5. The non-compliance with the NDIS Act and concerns regarding the
implementation of recommendations;
32.6. The non-replacement of a manager for the PCV since the cessation of Ms
Hornsell’s employment.
Although this will be expanded upon in further submissions by the applicant’s counsel, it is the applicant’s case that the tribunal does not possess jurisdiction to consider such additional circumstances that were not relied upon by the authority either its original decision or reconsidered decision. There is a difference between the tribunal receiving further evidence in relation to the circumstances previously relied upon by the respondent, and the tribunal considering new circumstances. Those new circumstances have not been the subject of a decision by the respondent prior to the tribunal proceedings (let alone the applicant being able to, as a matter of procedural fairness, make representations to the respondent about those circumstances before the respondent made its original or reconsidered decisions). The applicant has no automatic right to appeal against the tribunal’s decision, in that any appeal to the Supreme Court is only by leave with the consequence that that [sic] the applicant could find itself in the procedurally-unfair position of its “first shot” being its “only shot” in relation to a consideration of the merits of these new allegations.
On this basis, an order is sought in terms of paragraph 5 with a consequential order in terms of paragraph 7. The applicant is ready to proceed to a final hearing that is confined to those circumstances set out in paragraphs 6.1 to 6.3 above.
Lack of particularity of the new circumstances relied upon
The applicant relies upon the following affidavit:
(a)     Affidavit of Michael Keith Spencer dated 28 November 2023
That affidavit explains that the new circumstances relied upon by the respondent have caused the applicant substantial and (currently) incurable difficulty in attempting to prepare a case to meet those circumstances.
Notwithstanding that the use of the word “includes” appears to open the door to circumstances beyond those referred to in paragraphs 32.1 to 32.6 above (on which the applicant may therefore have no notice at all), even those circumstances that have been set out in paragraphs 32.1 to 32.6 above are so vague that the applicant does not know the case that it needs to meet. The respondent has not filed any further material that clarifies those new circumstances relied upon.
It is procedurally unfair for the applicant to be in the dark about the circumstances it would need to respond to at a full hearing, and thus being left to guess about the case it needs to present at a full hearing.
The applicant says that if the tribunal refuses to make an order in terms of paragraph 5 above, then the tribunal should make an order in terms of paragraph 8.
It is the applicant’s submission that the difficulty that it finds itself now in is as a result of the respondent’s failure to adequately explain its decision making, which is a fundamental obligation under section 35 of the South Australian Civil and Administrative Tribunal Act 2013, notwithstanding that the respondent had the opportunity to correct inadequacies or other deficiencies upon the invitation from President Hughes to reconsider.
The application was listed for directions and was ultimately argued before a Senior Member at a directions hearing on 5 December 2023.
On 6 December 2023, the Senior Member refused to make a preliminary ruling on the scope of the Tribunal’s review jurisdiction and retained the trial date. The Senior Member provided detailed reasons for arriving at that decision.
The application for judicial review
In the proceedings before this Court, the applicant contends that the Tribunal committed jurisdictional error when it refused to determine the question of jurisdiction in advance of the trial because it misunderstood the scope of its jurisdiction, and because the applicant was denied (or would be denied) procedural fairness should the matter proceed to determination in the Tribunal, with the possibility that the Tribunal would take into account post-camp activities.[15]
[15] FDN 1, Statement of Facts Issues and Contentions – Issues.
On 11 December 2023, the application for judicial review was filed in this Court. On the same day, I granted an interlocutory application that the Tribunal be restrained from proceeding to a final hearing until the determination of the proceedings in this Court or until further order.
On 16 January 2024, the Crown Solicitor gave notice to the Court that, pursuant to s 9(2) of the Crown Proceedings Act 1992 (SA), the Attorney-General proposed to intervene in the application. On that basis, on 17 January 2024 an order was made that the Attorney-General was to be joined as an interested party.
The remedy sought by the applicant
As mentioned, the order that is challenged by the applicant is the refusal to vacate the trial date and substitute it with a hearing on the jurisdictional question.
The remedy that the applicant seeks is a declaration that the Tribunal must consider the “same questions” that the Authority considered in its decision dated 23 February 2023, in particular:
3.1.Do any of the reasons (namely the substantiated allegations set out in the report by Red Wagon Workplace Solutions dated 9 June 2022 and the failure to provide to Eastern Health Authority a copy of a letter from the NDIS Commission dated 12 April 2022 and a copy of the report by Red Wagon Workplace Solutions dated 9 June 2022) independently or cumulatively enliven the power of the Eastern Health Authority to refuse to renew MGB Residential Care Pty Ltd’s supported residential facility licence.
3.2.If yes to 3.1 above, how should the discretion to renew the supported residential facility license be granted having regard to the reasons and grounds of the Eastern Health Authority Inc.
(Emphasis added)
It is important to note that the jurisdictional error complained of by the applicant is not about whether the Tribunal had jurisdiction to conduct the review, but whether the Tribunal had jurisdiction to consider evidence that went beyond the six substantiated findings in the Red Wagon Report and the five grounds referred to in the original decision. In the chapeau, the applicant makes reference to the Tribunal being required to consider the “same question” that the Authority considered. The applicant then particularises that question in the qualified terms set out in [3.1]. It follows that it is the applicant’s position that the Tribunal is constrained to consider only the five grounds identified in the original decision which are essentially based on the six substantiated findings in the Red Wagon Report.
The legislative test
Section 28 of the SRF Act governs the circumstances in which a licencing authority may refuse to renew a licence. That discretion may be exercised on the basis of “any ground on which a licence may be cancelled” under the SRF Act.
Section 31 provides for the cancellation of licences. That section relevantly reads:
31—Cancellation of licences
(1)The relevant licensing authority may cancel a licence if satisfied, on reasonable grounds—
…
(b)     that the holder of the licence has contravened, or failed to comply with, a condition of the licence; or[16]
(c)     that the holder of the licence has contravened, or failed to comply with, a provision of this Act; or[17]
…
(e)     that serious irregularities have occurred in the management of the facility, or in relation to the care of any resident; or[18]
…
(g)     that the holder of the licence, or any person involved in the management of the facility or the provision of services within the facility, has been guilty of negligent or improper conduct that has adversely affected the interests of a resident of the facility; or[19]
…
(i)    that the holder of the licence is no longer a fit and proper person to hold a licence under this Act or, in the case of a body corporate, that a person who has gained or is in a position to control or influence substantially the affairs of the body corporate is not or has ceased to be a fit and proper person to exercise such control or influence in respect of a body corporate that is the holder of a licence; or[20]
…
[16] Ground 1 of the Authority’s decision came under this subsection.
[17] Ground 2 of the Authority’s decision came under this subsection.
[18] Ground 3 of the Authority’s decision came under this subsection.
[19] Ground 4 of the Authority’s decision came under this subsection.
[20] Ground 5 of the Authority’s decision came under this subsection.
It follows that the SRF Act sets out a two-stage process. First, pursuant to s 28 of the SRF Act, the Authority was required to consider whether or not it was satisfied on reasonable grounds of any of the matters set out in s 31(1) of the SRF Act. Secondly, if so satisfied, was it open to the Authority to exercise its discretion to refuse to renew the licence. In undertaking that exercise, the question that the Authority was addressing was “should the applicant’s licence be renewed?”.
The Authority concluded that it was satisfied on reasonable grounds of the matters in pars (b), (c), (e), (g), and (i) of s 31(1) of the SRF Act, and, on that basis, with the statutory preconditions met, proceeded to exercise its discretion not to renew the applicant’s licence.
Pursuant to s 32(1) of the SRF Act, a person may apply to the Tribunal under s 34 of the SACAT Act for a review of a decision not to renew a licence.
Section 34 of the SACAT Act provides, amongst other things, that a review under that section of a decision of a decision-maker is by way of a rehearing and:
34—Decisions within review jurisdiction
…
(4)On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
(5)A procedure on a rehearing will include—
(a) an examination of the evidence or material before the decision-maker (unless any such evidence or material is to be excluded under another provision of this Act or under any other law); and
(b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.
(6)In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with this Act and the relevant Act.
…
Section 34(5)(a) imposes a mandatory obligation on the Tribunal to consider the evidence and material that was before the original decision-maker (with the relevant caveat as to legal admissibility), whilst s 34(5)(b) is permissive. Significantly, the SACAT Act provides no criteria or preconditions to the exercise of the Tribunal’s discretion under sub-s (5)(b) to admit further evidence.
In WWZ v Department for Child Protection,[21] President Hughes had cause to consider the review provisions under the SACAT Act. Her Honour summarised the role of the Tribunal in its review jurisdiction, as it arose in the hearing over which she was presiding:[22]
We must reach the correct or preferable decision regarding the placement decision that has been made by the Department. The review is a rehearing in the sense that we take into account all of the material that was considered by the original decision-maker, and any further evidence we determine to receive and, having regard to, and according appropriate weight to, the original decision, we are to arrive at the correct or preferable decision. That may be to affirm the original decision, set it aside and substitute our own different decision, or remit the matter back to the Department to make another decision.
(Footnote omitted)
[21] [2020] SACAT 111.
[22] Ibid at [23].
President Hughes went on to explain the status of the decision of the Tribunal:[23]
When the Tribunal makes its decision, which may be to affirm, substitute or remit the original decision, the decision made by the Tribunal is to be regarded as the decision of the Department, which is quite different from the orders of the Court which stand separate to and binding on the Department.
[23] Ibid at [84].
In WWZ, both parties sought to introduce evidence that had not been before the original decision-maker. In that context, President Hughes discussed the approach that should be taken in relation to the provision of further evidence in the Tribunal:[24]
… once a review is initiated, the question of whether the decision is properly supported by evidence is one for the Tribunal to make. It can, as stated above, direct the provision by the Department of such evidence within the Department’s possession or control as it thinks fit, and direct the obtaining of other evidence if required of its own motion.
[24] Ibid at [87].
It is evident from that discussion that there will be occasions upon which the Tribunal will take into account evidence or material that was not before the original decision-maker. The SACAT Act says as much.
A preliminary question – Refusal of discretionary relief?
The declaratory relief sought by the applicant in this Court is discretionary. Relief may be refused in the Court’s discretion on a number of grounds in advance of considering the substantive issue. Each of the parties took a different position on whether the Court should, in its discretion, refuse to grant the relief sought by the applicant.
The Solicitor-General, who appeared for the Attorney-General, submitted that there are a number of considerations that weigh heavily against the grant of discretionary relief and, on that basis, the application should be refused, without the Court being required to proceed to rule on the substantive question that the applicant seeks to agitate, concerning the nature of the Tribunal’s review jurisdiction. The Solicitor-General relied on a number of reasons that, both individually and collectively, weighed in favour of a discretionary refusal of relief. There was a significant overlap between these factors, with the greatest intersection around the fact that this was an interlocutory decision. These were conveniently summarised by the Solicitor-General:[25]
[25] FDN 17, Written Submissions of the Attorney-General for the State of South Australia at [18]-[24].
[18]Decision of an administrative tribunal: The impugned decision was made in the context of a merits review by an administrative tribunal, the objectives of which include to be flexible, and to resolve matters quickly and with as little formality and technicality as possible. Interference by the Court would cause disruption and delay to the Tribunal proceedings which is inconsistent with the Tribunal’s purposes. Further, as discussed below, the decision (to the extent it is a ‘decision’ at all), is interlocutory and contestable.
[19]Interlocutory decision: The decision to refuse to separately determine the jurisdictional question is properly characterised as an interlocutory one in that it relates to a determination made along the way to reaching a final determination. That the matter is presently before the Tribunal points against interference by this Court, which would lead to the undesirable fragmentation of proceedings.
[20]Contestable decision: It is conceivable that a credible argument can be mounted (indeed, for the reasons advanced below, the argument is not only credible, but correct) by the respondent that the Tribunal’s ‘jurisdiction’ does extend to receiving and relying on evidence of ‘post-camp activities.’ In those circumstances, the decision is properly characterised as ‘contestable’. In the present case, in the absence of a clear reason to do so, the appropriate course is to leave that question to be resolved by the Tribunal.
[21]No clear adverse consequences: The applicant complains that the possibility of the Tribunal having regard to further evidence amounts to a denial of procedural fairness to the applicant ‘at an inherently practical level.’ That is because the applicant has already prepared its case to enable it to respond to the allegations arising from the Red Wagon Report. However, the applicant’s complaints may be entirely moot, given that it is not yet clear whether the further evidence will be relied upon by the Tribunal and whether the applicant might be prejudiced in its response to that material. Whether it chooses to respond to the allegations contained in the further evidence is a forensic choice which is clearly open to it in a merits review.
[22]Appeal rights not exhausted: The applicant, should it ultimately not receive a decision in its favour, can appeal that decision. It is a factor weighing against the exercise of the Court’s discretion that the Applicant has effectively not exhausted their appeal rights.
[23]Practice and procedure: The Court should not interfere in matters pertaining to the Tribunal’s practice and procedure: the decision to refuse to fragment the proceedings by conducting a separate hearing on ‘jurisdiction’ is a matter of practice and procedure.
[24]No decision at all: Even if the applicant could satisfy this Court that the evidence which the applicant complains of is irrelevant such that reliance on it would necessarily amount to unreasonableness (which is a ‘very high threshold’), the Tribunal simply has not yet made a decision about the receipt of that evidence or the weight which it might be assigned. Nor does anything in the statutory context of the impugned decision impose a duty on the Tribunal to do so. There is, therefore, no meaningful way for this Court to review the ‘decision’ or make a pronouncement as to its correctness.
(Footnotes omitted)

The Solicitor-General summarised his submissions on the topic of discretionary relief by saying the following:[26]
All of the above factors demonstrate the futility of a declaration by this Court. Declaratory relief is only justified where ‘it serves to do justice between the parties to the controversy by playing a part in the resolution of their dispute.’ As Justice Edelman said in Agricultural Land Management Ltd v Jackson [No 2]:
courts only make declarations concerning the rights of parties. Legal rights include claimed rights, powers, privileges and immunities. They do not include observations about breaches of duty that have no legal consequence. Declarations are not granted where they will ‘produce no foreseeable consequences for the parties.’
(Footnote omitted)
[26] Ibid at [25].
It was the Solicitor-General’s primary position that the considerations outlined above weigh heavily against the grant of declaratory relief and that the application should be refused without proceeding to determine the substantive issue. However, having heard the submissions of counsel for the Authority, the Solicitor-General acknowledged that there may be some practical considerations that will weigh in favour of determining the answer to the substantive question, and that is ultimately relevant to the exercise of the discretion.
Finally, the Solicitor-General made the observation that the extraordinary aspect of this case is that no decision has in fact been made, in circumstances in which the Tribunal should be entitled to conduct its procedures as it sees fit. It was submitted that there should only be a judicial review of a procedural decision in exceptional circumstances.[27]
[27] T75-76.
Counsel for the applicant made limited submissions on the issue of declaratory relief, but rather focussed on the substantive issue. He made the point that the fact that it was an interlocutory decision that was the subject of the application did not entirely close the door to the granting of declaratory relief. He relied on Minister for Immigration and Citizenship v Hassani,[28] and Lesi v Administrative Appeals Tribunal,[29] as examples of the Federal Court intervening and granting a discretionary remedy in circumstances in which the decision under consideration was in respect of the adjournment of proceedings. There was however, no suggestion by the Authority or the Solicitor-General that the interlocutory nature of proceedings was a complete impediment to the granting of a discretionary remedy, but rather it was one of a number of factors to be taken into account.
[28] (2007) 219 FCR 144.
[29] (2015) 238 FCR 145.
In response to the submission that this application has the effect of fragmenting, interrupting, and frustrating proceedings before the Tribunal, the applicant submitted that it was a relevant factor that the Tribunal had not yet embarked on a hearing. I fail, however, to see how this can counter the submission that the pursuit of judicial review has had a significant impact in delaying and disrupting the proceedings before the Tribunal. The matter has already been remitted back to the Authority for reconsideration of the confidential material, three trial dates have been vacated, and there has been delay of the type invariably caused by the institution of judicial review proceedings in this Court. In my view, there was a much more efficient and cost-effective way of proceeding, by allowing the matter to take its course, and proceed to an outcome in the Tribunal. That is a matter that weighs heavily in the scales as to whether this is an appropriate matter in which to grant discretionary relief.
Counsel for the Authority took a different position to the Solicitor-General on the preliminary issue. Whilst she contended that the application is capable of being dismissed as incompetent, and acknowledged the force of the Solicitor-General’s submissions in support of the Court refusing to exercise its discretion to grant relief against the Tribunal’s ruling, she urged the Court to adopt a more pragmatic approach. To that effect, she made the submission that she did not wish to place any great weight on the preliminary point in circumstances in which her client was concerned about “rolling litigating” and said “were your Honour minded to make findings with respect to jurisdiction that may assist everyone, given where we now find ourselves”.[30]
[30] T57.
There is considerable force in this submission. A great deal of time and expense has been involved in bringing these proceedings in this Court. Given the history of this litigation, I have no doubt that if I do not determine the jurisdictional question this matter will come back before this Court to consider that issue at some subsequent point in time. In my view, these proceedings have already been unnecessarily fragmented. The damage has been done. To determine the substantive question will hopefully expedite the process from this point in time. That is particularly important in circumstances in which these proceedings have necessarily meant that the applicant continues to be responsible for the care of highly vulnerable members of the community, when the Authority has made a determination that it is not fit and proper to do so.
It follows that I have come to the decision that, whilst there is much merit in the arguments made by the Solicitor-General as to why the Court should refuse in its discretion to grant the relief sought by the applicant, I should consider the substantive question raised by this application.
The Tribunal’s review jurisdiction
The Tribunal’s review jurisdiction is governed by Division 3 of Part 3 of the SACAT Act. The review is by way of a rehearing.[31] The Tribunal’s task is to conduct a review on the merits and to make the correct or preferable decision at the time, on the basis of all of the material before it.[32] The Tribunal is not bound by the rules of evidence and is required to act according to equity, good conscience and the substantive merits of the case.[33] Appropriate weight must be assigned to the decision of the original decision maker,[34] and the Tribunal is empowered to admit further evidence or material.[35]
[31] SACAT Act s 34(3).
[32] Archer (a Pseudonym) Chief Executive of the Department for Child Protection [2022] SASC 94 at [204].
[33] SACAT Act s 39(1)(c).
[34] SACAT Act s 34(4).
[35] SACAT Act s 34(5)(b).
The determination of whether a decision is ‘correct’ or ‘preferable’ requires the Tribunal to make the legally correct decision or, where alternatives exist that are equally lawful, to make the preferable decision.[36] When the Tribunal considers that the correct or preferable decision was not made, it may set aside that decision without having identified either a process or an outcome error.
[36] See, eg, Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [140] (Kiefel J).
The Tribunal is required to affirm, vary or set aside and substitute a new decision, or set aside and send the matter back to the original decision-maker for reconsideration on review.[37]
[37] SACAT Act s 37(1).
The Tribunal’s decision on review is taken to be the decision of the decision‑maker, that has effect from the time when the decision under review would have had effect.[38]
[38] SACAT Act s 37(3).
To perform the Authority’s function, the Tribunal must answer the same statutory question considered by the Authority, having regard to any further evidence or material and assigning appropriate weight to the decision under review. The statutory question considered by the Authority which became the question before the Tribunal was “should the applicant’s licence be renewed?”.
The primary issue raised by this application is whether the Tribunal is permitted, when reviewing the decision made by the Authority under s 34 of the SACAT Act, to take into account the post camp activities (or any other materials or evidence that may be adverse to the interests of the applicant) when such conduct was not part of the reasons identified by the original decision-maker, in both the letter advising of the decision not to renew the licence and the statement of reasons provided to the Tribunal.
In order to succeed on this application, the applicant must make good the argument that s 34(5)(b) is to be read down such that “any further evidence or material that the Tribunal decides to admit” must be limited to material that is relevant to the “factual substructure” underpinning the reasons provided by the Authority, namely the substantiated allegations in the Red Wagon Report.
For reasons that I will come to, I do not agree with this interpretation of s 34. It does not accord with the words of the section and there is no textual or contextual basis upon which to read down the breadth of the Tribunal’s discretion in this manner.
Frugtniet v Australian Securities and Investments Commission
During his submissions, counsel for the appellant relied heavily on the decision of the High Court in Frugtnietv Australian Securities & Investments Commission[39] in support of his contention that the question before the Tribunal should be reframed as a far more refined question than that which was before the Authority.
[39] (2019) 266 CLR 250.
In Frugtniet, the Administrative Appeals Tribunal (‘the AAT’) reviewed a decision of the Australian Securities and Investment Commission (‘ASIC’) which banned Frugtneit from undertaking credit activities on the basis he was not a fit and proper person. The National Consumer Credit Protection Act 2009 (Cth) prescribed a statutory test to determine whether a person is a “fit and proper person”. Critically to the outcome of that decision, the statutory test excluded reliance on spent convictions in determining whether a person was fit and proper. Notwithstanding that express exclusion, the AAT upon its review relied upon spent convictions in affirming the decision that the appellant was not a fit and proper person. By doing so, the AAT clearly went beyond the scope of the statutory question which was before ASIC.
Frugtniet is clearly distinguishable, as the error of the AAT, by straying into territory that it was statutorily mandated not to consider, is an entirely different proposition to what the applicant says is the error of the Tribunal. There is no suggestion that the Tribunal has gone beyond the scope of the statutory pre conditions set out in s 31(1) of the SRF Act.
The material before the original decision maker (s 34(5)(a) of the SACAT Act)
It is mandated that, on a review, the Tribunal will conduct an examination of the evidence or material before the decision-maker.
In considering the issue raised by the applicant, it is important to avoid conflating “reasons for the decision” with the “evidence or material” before the decision maker. Given the breadth of the jurisdiction of the Tribunal, the nature and amount of material before a decision-maker, and the detail of any reasons, will vary dramatically.
It follows that, in some cases, there will be volumes of materials, with the decision maker referring to very few matters in their reasons. At the other end of the spectrum, there may be a meticulous decision-maker who documents each piece of evidence that has been considered.
At times during his submissions, counsel for the applicant appeared to conflate the two concepts. It was contended that the Tribunal’s review was restricted by the parameters of the reasons provided by the Authority, and practically, in the circumstances of this case, that meant being limited to those matters contained within the Red Wagon Report.[40]
[40] T40.
This submission does not accord with the SACAT Act. The words are clear and free from ambiguity: it is “the evidence or materials” before the decision‑maker that must be reviewed. It is not the evidence or materials as set out in the original decision or statement of reasons, or even the evidence or materials upon which the decision was arrived at. It is to include all of the material before the decision-maker.
The reason behind that is plain. It may be, that in the circumstances of a particular case, there was a single transgression that was sufficient for the original decision to be arrived at. It may be that, on review, the Tribunal does not attach the same weight to that piece of evidence. In order for the Tribunal to stand in the shoes of the decision-maker so as to arrive at the correct or preferable decision, it is necessary that all of the material before the decision-maker be taken into consideration.
Section 35(2) of the SACAT Act creates the corresponding obligation on the decision-maker to assist the Tribunal by providing not only “a written statement of the reasons for the decision”,[41] but also “any document or thing in the decision maker’s possession or control that may be relevant to the Tribunal’s review of the decision”.[42] There are no restrictions on the nature of the material to be provided other than it must be relevant.
[41] SACAT Act s 35(2)(a).
[42] SACAT Act s 35(2)(b).
The point is highlighted by the chronology of events in the Tribunal in this case. As mentioned, there was a volume of confidential material, that although not considered by the Authority, was provided to the Tribunal and the applicant pursuant to s 35(2)(b). There was no suggestion that the Tribunal could not have regard to those materials, or that before they could receive them they were required to relate to matters in the Red Wagon Report.
Further evidence or material that the Tribunal decides to admit (s 34(5)(b) of the SACAT Act)
Whilst the applicant accepted that the Tribunal has a discretion to admit further material or evidence, it was submitted that the new evidence must relate to the reasons provided by the original decision-maker: here, the Red Wagon Report.
There are two fundamental problems with this submission. The first is the failure of the applicant to identify the parameters of any new evidence that it would be open for the Tribunal to admit. Whilst phrases like “the horizon of the Red Wagon Report”, or “the substratum of facts which gave rise to the decision of the original decision maker” have been used, at no stage did counsel for the applicant particularise or identify the parameters of the evidence that it suggested could be admitted. Even at this stage of proceedings, the applicant has not articulated the nature of the materials that may fall under this rubric other than by reference to the reasons of the Authority which make reference to the Red Wagon Report.
That of itself highlights the problem. The Red Wagon Report is lengthy, detailed, and contains multiple annexures and statements that go beyond the findings. It raises the question of how close must the nexus be.
The second difficulty with this submission is that it requires the insertion of limiting terms within the section that are not present.
In Archer (a Pseudonym) v Chief Executive of the Department for Child Protection,[43] Blue J considered the nature of the Tribunal’s review jurisdiction.
[43] [2022] SASC 94.
In terms of the discretion to admit further evidence, Blue J said the following:[44]
These provisions allow the Tribunal’s approach to a review to be tailored to the circumstances of the case. At one extreme, in some cases there will be no call to admit further evidence or material. In intermediate cases, there may be call to admit substantial further evidence or material. At the other extreme, where the evidence before the decision-maker was inadequate, there may be call to admit comprehensive further evidence or material largely superseding the evidence or material before the original decision-maker.
[44] Ibid at [205].
If it is envisaged that there may be cases in which the further evidence or material supersedes that before the decision-maker, it could hardly be said that the nature of the material must be confined to those matters identified by the original decision maker.
In WWZ v Department for Child Protection,[45] President Hughes discussed the various factors that may impact upon the discretion of the Tribunal to admit new evidence or material:[46]
The Tribunal may, in the exercise of its discretion, allow the decision-maker or the challenger to adduce evidence that was not before the decision-maker when the original decision was made. As to whether a party should be permitted to adduce further evidence in support of the challenge to the decision brought under s 34, the discretion should be exercised by reference to a number of factors including the likely relevance of the evidence, whether (in respect of evidence sought to be adduced by the decision-maker) it was available when the original decision was made, and the time it will take to obtain the evidence, bearing in mind the option of remitting the decision to the decision-maker at any time for the decision to be re-made, and the need for expedition.
[45] [2020] SACAT 111.
[46] Ibid at [88].
In none of those considerations did President Hughes constrain the nature of the evidence by reference to the reasons provided by the original decision-maker. To the contrary, generally speaking, those matters to be taken into account relate to relevance and the efficient conduct of proceedings.
That accords with the main objectives of the Tribunal,[47] to afford a broad discretion to provide flexibility in the decision-making process, as to the circumstances in which to take into account any further evidence or material.
[47] 8—Main objectives of Tribunal
(1)The main objectives of the Tribunal in dealing with matters within its jurisdiction are—
(a)    in the exercise of its jurisdiction, to promote the best principles of public administration, including—
(i)independence in decision-making; and
(ii)natural justice and procedural fairness; and
(iii)high-quality, consistent decision-making; and
(iv)transparency and accountability in the exercise of statutory functions, powers and duties; and
(b)    to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with special needs; and
(c)     to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures wherever appropriate; and
(d)    to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and
(e)     to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and
(f)     to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit; and
(g)     to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.
…
It follows that I do not agree with the narrow reading of s 34(5)(b) of the SACAT Act contended for by the applicant. The question that the Tribunal is required to consider is should the applicant’s licence be renewed.
Was the applicant denied procedural fairness?
As the argument developed, there were two limbs to the applicant’s complaints about a denial of procedural fairness. These were that the Tribunal’s decision to allow the evidence to be adduced de bene esse deprived the applicant of procedural fairness in understanding the case it had to meet and that it stripped the applicant of a level of merits review otherwise contemplated by the SRF Act.
Procedural unfairness during the hearing in the Tribunal
As previously mentioned, the matter was listed for a directions hearing in the Tribunal on 5 December 2023, at which time submissions were heard about the application to vacate the trial date, and for that date to instead be used for an argument about jurisdiction. The following day, the Tribunal handed down its decision and provided detailed reasons. It is necessary to set out some of these reasons to put the submission on this application into context.

The Tribunal correctly identified that the issue to be determined at the hearing was whether the correct or preferable decision was to decline to renew the applicant’s licence and that, as it was a merits review, the question of the receipt of additional evidence was at the discretion of the Tribunal.
Significantly, the respondent did not intend to introduce any new material and the matters raised in [31]-[33] arose out of material already before the decision‑maker. That is, they related to the conduct of Mr Poethke surrounding and subsequent to the provision of the Red Wagon Report.
The Tribunal observed that it was the applicant who in fact sought to put additional material before it. It was proposed by the applicant that, at the full hearing, the Tribunal would be asked to receive witness statements that it had filed, and to hear the oral evidence of those witnesses. It was envisaged that much of the evidence would be directed to challenging the factual findings in the Red Wagon Report, or at least the significance of those findings. The Tribunal observed that the respondent would be entitled to test that evidence and make submissions about what orders the Tribunal should ultimately make based on the totality of the evidence. During cross-examination, it would be open to the applicant to object to any questions on the basis of relevance, procedural fairness, or other potential grounds of objection. Those objections could be ruled on at the relevant time.
The Tribunal found that there was a difficulty in ruling in advance of the hearing on which topics counsel for the respondent could, or could not, cross-examine.
The Tribunal did not accept the submission “that ‘post camp conduct’ would necessarily be outside jurisdiction”.[48] The position arrived at by the Tribunal was helpfully summarised in the following paragraph: [49]
… The Tribunal’s jurisdiction is to conduct a merits review of the decision not to renew the licence. The question that more likely arises is relevance of evidence as opposed to jurisdiction. If, as part of that exercise, the applicant challenges the factual basis for what happened ‘at camp’, or the importance or significance thereof, the respondent might say that ‘post camp conduct’ sheds light on whether the events at camp did or didn’t happen in the manner alleged, or might shed light on significance of those events. Further, in terms of relevance, the Tribunal, if it decides that those allegations were made out, in whole or in part, would then have to decide whether, on those facts as found, it should exercise the discretion to cancel the licence or not. ‘Post camp conduct’ might be relevant to the exercise of that discretion. Different permutations might arise depending on the facts – not all misconduct or breaches of legislation or conditions would lead to a cancellation decision; even serious matters might not lead to cancellation if, for example, they were isolated events or, were explicable in some way, or mechanisms were put in place to ensure that the conduct did not happen again, whilst conversely a refusal to recognise a legitimate problem, or a deliberate decision to ignore a problem might lead to a different exercise of the discretion.
[48] Tribunal Reasons at [43].
[49] Tribunal Reasons at [44].
In those circumstances, it was determined that it was not desirable to make a ‘blanket’ ruling about ‘post camp’ conduct.[50] The Tribunal also observed that ‘post camp conduct’ was not a useful description in determining the question of admissibility, particularly when the applicant was intending to lead further evidence to challenge the “factual substratum” of the decision under review. In that situation, the Tribunal found that it was not appropriate to determine in the abstract what questions could be asked to challenge the further evidence led by the applicant.
[50] Tribunal Reasons at [45].
For all of those reasons, the Tribunal determined that it was not appropriate to adjourn the hearing. An order was, however, made for the Authority to file ‘supplementary opening submissions’ to provide further clarity and to identify the material facts relied upon for sub-pars 32.1 to 32.6 of its written submissions.
On 18 December 2023, the Authority filed a further outline of submission addressing the impugned paragraphs of the original submissions. The further submissions make abundantly clear the nature of the allegations relied upon by the respondent. They also demonstrate that the allegations are not separate from the matters raised in the Red Wagon Report, but are in fact interconnected with the issues raised in that report. I provide a paragraph from that report by way of example:[51]
3.2The continual denial of any concerns and attempts to avoid scrutiny;
Particulars
3.2.1.The ‘concerns’ are to the issues raised in the initial complaint, the allegations investigated in the Red Wagon Report and the NDIS Commission’s findings;
3.2.2.The ‘attempts to avoid scrutiny’ are the actions, decisions and steps taken by Mr Poethke upon receipt of the initial complaint, and during the course of the NDIS Commissions investigation, including the Red Wagon investigation and reporting process.
3.2.3.These actions, decisions and steps are discernible by reference to Mr Bernard Poethke’s Affidavit filed in this proceeding, his record of interview conducted by Red Wagon, the documents authored by him and his solicitors contained with the filed documents, and the matters reported to the Respondent by various witness during the course of its investigation, all of which are contained within the filed documents.
[51] FDN 10, Affidavit of Ellen June McGettigan dated 24 January 2024, EJM 11.
In my view, no procedural unfairness was created by the course proposed by the Tribunal. The application for the adjournment had to be considered in the context that the matter had already had a lengthy procedural history, including the making of orders staying the operation of the Authority’s decision; an order for the Authority to reconsider its decision; timetabling of evidence; an application to stay the proceedings pending referral to the Ombudsman; and the adjournment of an earlier trial date.
The Authority’s submissions had been filed and served on 3 October 2023, which provided adequate time for the applicant to prepare its case for trial. There has been no suggestion that the applicant did not have all of the documents and material upon which the original decision-maker had relied and that were before the Tribunal.
In addition to this, the applicant was also provided with the supplementary submissions by the respondent that made the allegations relied upon abundantly clear.
Had there remained any residual potential procedural unfairness, there were other avenues open to the applicant, including an application for an adjournment of the trial, if, at some point, the applicant became embarrassed by the manner in which the Authority presented its case.
It is noteworthy that at no stage did the applicant seek further time simpliciter. The application to adjourn the trial was always contingent on a separate hearing for a jurisdictional argument. The applicant put all of its eggs into one basket. It was not unreasonable for the Tribunal to refuse the application, and to deal with the matter in a pragmatic manner.
It was a further relevant factor that there was no suggestion that, even if the applicant’s arguments were correct, the Tribunal did not have the jurisdiction to hear the proceedings. The question was as to the scope and the proper course for the Tribunal to take in its discretion to admit further evidence (if that was, in fact, what it was) in the exercise of its jurisdiction. That is to be distinguished from Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union,[52] upon which the applicant relied. In Boulton, the success of the constitutional challenge to jurisdiction would have resulted in the Australian Industrial Relations Commission, in that case, having no authority to procced at all. That is very different to the issues raised by the applicant.
[52] (1998) 73 ALJR 129.
It was a further practical consideration that, at the time of the application, the Senior Member had not had the opportunity to read all of the evidence, nor had he heard detailed submissions. The Tribunal considered that the time that would be required to make a considered ruling on the jurisdictional point, if not the same as the length of the trial, was close to it. Further, in dealing with the application at short notice, a practical difficulty was created in that it was unclear to the Tribunal how each of the matters in the respondent’s impugned paragraphs fit in with the material already before the decision-maker or impacted it in responding to the case that the applicant sought to make.
It is significant that the Tribunal did not cut off the applicant’s argument, or express a concluded view as to its merits, but rather considered that it would be better to address the argument in closing submissions “rather than by way of a pre-emptive ruling as to what evidence in the abstract the respondent might elicit in cross-examination”.[53] The Tribunal concluded:[54]
In my opinion it is appropriate for the hearing to commence. Objections to documents or questions in evidence can be dealt with on their merits. The applicant is not precluded from running an argument that any case the respondent presents should be not be accepted in so far as it goes beyond jurisdiction, or that aspects of the respondent’s case should not be received into evidence. The applicant is also not precluded from arguing that the trial go off part heard if questions were allowed that took it by surprise and required proper time to obtain evidence in response. I am not, by refusing the adjournment application, ruling that the applicant’s jurisdiction argument is incorrect.
[53] Tribunal Reasons at [32].
[54] Tribunal Reasons at [47].
It was contended by the applicant that the suggestion of the trial going off part heard created an inefficient process. That submission elevates this statement by the Tribunal to a level to which it was never intended to rise. It was not suggested that it was expected that this would be the course of events, but rather, there was a remedy that remained open for any unexpected developments.
In my view, given the manner in which the respondent had identified and particularised the issues that it proposed to raise, it was highly unlikely that would have occurred, and even less likely now with the further passage of time. The approach adopted by the Tribunal was pragmatic and sensible and met with the main objectives of the Tribunal, in particular, “to act with as little formality and technicality as possible, including by informing itself in such manner as the Tribunal thinks fit”,[55] and “to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction”.[56]
[55] SACAT Act s 8(1)(f).
[56] SACAT Act s 8(1)(g).
The applicant was not denied any procedural fairness during the hearing in the Tribunal.
Was the applicant stripped of a level of merits review otherwise contemplated by the SRF Act?
It is the applicant’s contention that, by proposing to proceed in the manner set out by the Tribunal, the applicant was effectively deprived of a level of merits review, because it would not have the opportunity of persuading the Authority at first instance that those “new” matters should not weigh against it.
This argument fails to take into account the hierarchical nature of the general merits review tribunal system and the SACAT objectives, in particular, s 8(1)(a) of the SACAT Act which provides:
8—Main objectives of Tribunal
(1)The main objectives of the Tribunal in dealing with matters within its jurisdiction are—
(a)     in the exercise of its jurisdiction, to promote the best principles of public administration, including—
(i)    independence in decision-making; and
(ii)     natural justice and procedural fairness; and
(iii)    high-quality, consistent decision-making; and
(iv)    transparency and accountability in the exercise of statutory functions, powers and duties; and
…
The Tribunal is intended to provide the highest standard of administrative decision-making and review. As the Solicitor-General described it, “[i]n that sense it’s perhaps a Rolls-Royce system of administrative review, so we say nobody misses out by having the issues that they want ventilated before SACAT, determined by the SACAT, because it is designedly the most fulsome of Merits Review”.[57]
[57] T89.
It is intended that the merit review that comes before the Tribunal is one which is fulsome and intended to correct any errors. Further, if the Tribunal felt, in coming to its conclusion, that the applicant might have been deprived of an opportunity, it has an ability to correct that by sending the matter back to the original decision-maker.
The review regime has been created to provide a comprehensive process by which the Tribunal determines the correct or preferable decision. For the Tribunal to come to the correct or preferable decision, it is necessary for it to be able to consider the statutory question in full, and there is no basis upon which to confine that question to particular circumstances, reasons, or evidence.
The applicant suffers no procedural unfairness as a consequence of a merits based review process that requires the Tribunal to consider not only all of the evidence or material that was before the decision-maker, but any further evidence that the Tribunal decides to admit.
Conclusion
I decline to provide the declaratory relief sought.
The application is dismissed.

[2024] SASC 109

22 August 2024