Adams and Comcare (Practice and procedure) - [2025] ARTA 51

Adams and Comcare (Practice and procedure) [2025] ARTA 51 (31 January 2025)
Applicant/s:  Susan Adams
Respondent:  Comcare
Tribunal Number:                2023/5607

Tribunal:Senior Member S Webb
Place:Canberra
Date:31 January 2025

Decision:Application dismissed.

…………………[SGD]……………………………..
Senior Member S Webb
Catchwords
PRACTICE AND PROCEDURE – workers’ compensation – liability for injury determined by Tribunal – subsequent incapacity claim – nature of ‘injury’ – no reasonable prospect of success – application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Adams and Comcare (Compensation) [2022] AATA 3404
Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2
Beezley v Repatriation Commission [2015] FCAFC 165
Commonwealth of Australia v Snell
Kitoko v University of Technology Sydney [2021] FCA 360
NXPQ and Comcare (Compensation) [2021] AATA 4094
Oliver and Comcare (Compensation) [2018] AATA 1964
Quinn v Australian Postal Corporation [1992] AATA 668
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Woodhouse v Comcare [2021] FCAFC 95 [2019] FCAFC 57
Statement of Reasons

Susan Adams experienced upper limb pain in her employment by the Commonwealth. She claimed compensation for injury. Comcare rejected the claim. On review of this decision, the Administrative Appeals Tribunal (AAT) decided that Ms Adams suffered from an ailment which was aggravated by her employment and Comcare was liable to pay her compensation for temporary aggravations of forearm pain which occurred during her employment after 19 March 2018.[1]
[1] ADAMS AND COMCARE (COMPENSATION) [2022] AATA 3404 (LIABILITY DECISION).
Subsequently, Ms Adams claimed compensation for incapacity in the period from 25 May 2020 to 15 April 2021. Comcare decided to refuse the claim by primary determination and on reconsideration. Ms Adams applied for review by the AAT.[2]
[2] The application for review was lodged with the AAT under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and, as of 14 October 2024, the AAT has been replaced by the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, from 14 October 2024, the Tribunal has jurisdiction to conduct the review under the Administrative Tribunal Act 2024 (ART Act).
In the course of the proceedings, Comcare applied for the application to be dismissed under s 101 of the ART Act.
The parties made submissions addressing related matters.
Having heard the parties at an interlocutory hearing, it is this question of dismissal, alone, which is the subject of this decision.
After conclusion of the interlocutory hearing, Ms Adams provided additional materials and submissions to the Tribunal. These have been taken into account in this decision.
Facts
Many of the background facts are set out in paragraphs [4] to [38] of the Tribunal’s liability decision. It is not necessary to recite these for present purposes other than to note Ms Adams lodged a claim for compensation on 7 June 2018 in respect of an alleged osteoarthritis and soft tissue injury as a result of ‘data entry/processing - involving excessive keyboard and mouse work’.
On review of Comcare’s reconsideration decision to affirm refusal of this claim, the Tribunal made the following observations and factual findings:
102. As to what condition is suffered by the Applicant, I note the following:
(a) In her report of 20 November 2019, Dr Cooley diagnosed an ‘upper limb work-related disorder’.
(b) In that report she opined that it was possible that excessive keyboard work could cause that condition or aggravate a pre-existing condition.
(c) However, in re-examination she changed “possible” to “probable” and I note that in an email dated 18 December 2019 she opined that the Applicant’s work contributed substantially to her condition.
…
108. When considering the evidence above I note in particular the following from the various witnesses:
(a) Mr Campbell agreed that chopping vegetables, for example, would “similarly have a potential to aggravate symptoms in [the Applicant’s] right upper limb”.
(b) Dr Cooley’s clinical impression as outlined at [68] was that of “early osteoarthritis the fingers and soft tissue pain”, with Dr Cooley opining the Applicant has “has an upper limb work related disorder”, with “little or no pain when she has been on leave”. Dr Cooley was of the view that the Applicant’s condition was unrelated to a pre-existing condition.
(c) Dr Cooley opined that the Applicant’s pain episode arose after an increased in her work hours with overtime, both in terms of hours worked but also probably the intensity of the work as well. And I think the increased load in the setting of perhaps less than ideal posture has triggered the pain”.
(d) Dr Cooley opined that the Applicant has had episodes of pain before that put her at risk of a further, more severe episode.
(e) Dr Cooley did not record any complaint of pain from the Applicant after engaging in other non-work related activities, such as gardening or dog-walking.
(f) Dr Cooley identified the cause of the Applicant’s pain to be a load increase leading to a maladaptive response.
(g) At [88] Dr Dale opined the Applicant’s condition to be systemic, with no correlation between the type of activity undertaken and the causation of non-specific upper-limb pain.
(h) Dr Dale noted that the removal of the exposure did not result in an impact on the progression of the condition, although he noted that her symptoms improved when she took leave. He considered this to be evidence of her reduced tolerance for a certain level of activity, regardless of what activity she was undertaking.
(i) At [98], Dr Dale drew a distinction between the experience of pain, and the cause of that pain – he opined that just because the Applicant noticed her condition when undertaking certain activities, did not mean those activities were the cause of her condition.
After consideration of the medical evidence set out above, I consider the evidence of Dr Dale to be more consistent and objective than that of Dr Cooley and accordingly, where there is conflict, I prefer the evidence of Dr Dale. In particular, I rely upon the evidence summarised at [108] above together with my comments at [102] and make the following findings:
(a) the Applicant has undergone an exhaustive range of diagnostic examinations relating to her complaints of upper limb symptoms;
(b) the Applicant suffers from non-specific upper limb pain and there has been no identified physiological change relating to those symptoms and there has been no alteration of the underlying pathology;
(c) the Applicant is predisposed to experience pain in her upper limbs when performing some activities involving those limbs;
(d) the Applicant has, at times, suffered an aggravation of her symptoms when peforming some tasks at her work place as well as when performing certain upper limb-related tasks away from her workplace;
(e) the Applicant has a constitutional pre disposition to suffer pain when using her upper limbs to an extent beyond certain ill defined limits;
(f) there has been no significant contribution to the Applicant’s underlying condition by her work;
(g) the underlying condition has not been significantly rendered more susceptible to dehabilitating pain by the Applicant’s employment; and
(h) the Applicant’s condition is one that reduces tolerance for work, rather than a condition that is caused by work.
…
132. As should be clear from my findings above, I do consider that the applicant had specific limited constitutional tolerances for certain kinds of work (which I am satisfied constitutes an ailment) which was prompted into pain symptoms when her work reached a certain intensity. The underlying pathology never changed but the work induced the symptoms. The question that arises is whether this constitutes an aggravation of an ailment for the purposes of the Act.
…
157. … I find that the Applicant has not suffered a frank injury...
158. As noted above, Dr Dale opined that the Applicant’s pain was caused by “her reduced tolerances^”. He clarified that in his view, she has reduced tolerances. In Dr Dale’s opinion, he was satisfied that ‘we are dealing with a condition that reduces tolerance for work, rather than a condition that is caused by work”.
159. This condition meets the description of an ailment, although it derives only from the descriptions of the applicant and is not the subject of formal diagnosis ....
160. I consider that the Applicant’s pain constitutes an ailment but consistent with my findings at referred to above, that ailment was not contributed to by any, let alone a significant, degree by her employment.
161. However, I have found that her ailment was aggravated at times by her employment and, for those periods, she suffered a disease as defined by s 5B(b) of the Act and that disease was, at times, significantly contributed to by her employment.
162. Because the Applicant’s employment has not significantly contributed to her constitutional condition and the aggravations have caused no change to her underlying condition, any subsequent aggravations outside of her employment are not compensable.
163. … I have found that the underlying condition has not been significantly rendered more susceptible to dehabilitating pain by the Applicant’s employment and hence I do not find that the work-related aggravation has significantly contributed to any permanent incapacity.
DECISION
164. Accordingly I set aside the decision and find that the Respondent is liable to pay compensation in relation to the temporary aggravations of forearm pain which occurred during the Applicant’s employment after 19 March 2018, being the date noted by the Applicant as when she first noticed her symptoms.
[Citations and references removed.]
Ms Adams did not challenge this decision in the Federal Court of Australia. Accordingly, the previous Tribunal’s decision stands.
The factual findings the Tribunal made and the related conclusions it drew from the evidence placed before it can be discerned from a fair reading of the text. For present purposes, it is necessary to focus on the particularity of the ‘injury’ the Tribunal found. As can be seen, the ‘injury’ was described as ‘temporary aggravations of forearm pain which occurred during Ms Adams employment from 19 March 2018’ when performing ‘some tasks in her workplace’. The Deputy President stated at [105]:
In the absence of evidence showing any strong correlation or causative connection between the type of work undertaken by the Applicant and the cause of her non-specific upper limb pain, the only basis on which I could find a causative relationship would be the coincidence of the Applicant’s work causing her pain.
The Tribunal found Ms Adams experienced aggravation of pain symptoms ‘when using her upper limbs to an extent beyond certain ill defined limits’ within and outside her employment, and the aggravations were not conditioned by or associated with any physiological change or alteration of any underlying pathology. The Tribunal found the underlying ailment affecting her upper limbs was constitutional and it was not contributed to by her previous employment. Furthermore, the Tribunal found Ms Adams was not rendered more susceptible to experience of pain by her employment.
With regard to the particularities of the present claim for compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in the period from 25 May 2020 to 15 April 2021 and the application for dismissal I must decide, the following information is of particular relevance.
The primary determination of Ms Adams compensation claim in respect of incapacity for work by Services Australia adopted the recommendation of an Allianz Australia Insurance Ltd claims specialist.[3] A similar approach was adopted in the reconsideration decision[4] which is the subject of Ms Adams’ application for review.[5] In the application, Ms Adams set out reasons for the application, including assertions she has “an ongoing incapacity that would restrict her to sell her labour in the open labour market” and “The injury relates to a time where she is no longer restricted to sell her labour due to the injury”.[6]
[3] T26.
[4] T1.2 and T1.3.
[5] T1.
[6] Ibid, 2.
The clinical notes of Dr Alice Stoneman (treating general practitioner) on 29 April 2020, 13 May 2020 and 20 May 2020 refer to Ms Adams experiencing psychological and neck symptoms, without reference to upper limb symptoms[7]. Clinical notes from 27 May 2020 refer to psychological matters without reference to upper limb symptoms.[8]
[7] T21, 1028-1100.
[8] Ibid, 1101.
On 20 May 2020, “Dr Alice LDS” issued a medical certificate which included the following information:
Current symptoms: Right wrist improved. Persistent elbow and hand pain, recurrence of neck pain R>L worsening neck stiffness since working from home work station
Current diagnosis: Repeatitive strain injury/soft tissue injury, neck strain
…
Is fit for suitable duties … from.:    13/05/2020
to:  26/06/2020
…
Are rest breaks required:                Yes
If yes, provide details:  Rest breaks 5 mins after every hour
…
Are there any other impediments to return to work?      The patient should not perform telephony for more than a 2 hour block of time
Suggested spread over the course of a day would be:
-    Telephony 2 hours with 5 min break hourly
-    Processing 2-3hours with 5 min break hourly
-    Telephone 1-1.5 hours with 5 min break hourly
…
On 28 May 2020 Ms Adams was admitted for psychiatric treatment.[9] Related matters are set out in the reports of Dr Leonard Lee and Dr Kevin Daly, consultant psychiatrists.[10] For present purposes it is not necessary to disclose the contents of these reports other than to note Ms Adams experienced extended periods of incapacity for work as a result of psychological ailments after 27 May 2020.
[9] Ibid, 1102.
[10] T19; T22.
On 21 September 2020, Ms Adams commenced a graduated return to work.
On 24 September 2020 and 1 October 2020, Ms Adams consulted Dr Stoneman who noted:
Thursday September 24 2020
…
2 days back at work Monday and Wednesday
L side of neck aching posterior auricular area and ecurrence of background long standing R arm pain (WC case/litigation) feels much the same
…
Discussed nature of chronic pain and reactivation of the pre-existing pain pathways
Pain doesn’t equal damage
…
Thursday October 1 2020
…
Re pain:
Had session with remedial massage therapist on weekend who was very thorough – physical exam/advised stretching and massage
Found very helpful
Also doing bath soaks which is finding very helpful
2 days back at work pain hasn’t escalated
Discussed again chronic pain
…
Other contemporaneous clinical notes from June 2020 refer to psychological issues and symptoms but not upper limb symptoms or any related incapacity for work.[11]
[11] Ibid, 1103-1125.
Ms Adams provided a large bundle of claims for time off work and medical certificates. With the exception of the medical certificate on 20 May 2020 to which I have referred above, Ms Adam’s lawyer, Mr Andrew Wright, did not draw attention to any other certificate referring to Ms Adams’ incapacity for work after 25 May 2020 due to her upper limb condition. My review of the documents available at the interlocutory hearing confirms this to be so, although references are made to her mental health condition in the certificate of Dr Stoneman on 28 October 2020, for example. When these documents and the documents Ms Adams provided after the interlocutory hearing on 24 January 2025 are read with the available clinical notes from this period, there is nothing to change this conclusion.
On 12 December 2023, Dr Cooley reported:
1.    Upper limb work related disorder.
2.    She reports ongoing right lateral elbow pain and uses a non steroid anti-inflammatory agent twice weekly. [Ms Adams] reports her pain flares if increases her activities such as gardening.
3.    I think she is able to sell her labour in open market but would involve work with less extensive keying compared to her previous work.
4.    Medical therapy still required relates to intermittent use of anti-inflammatory medications for pain. She does not require ongoing physiotherapy or other interventions.
5.    Her pain has not completely resolved.
6.    …
On 5 June 2024, Dr Jack Dale, an occupational and environmental medicine consultant, produced a report in which he stated:
Ms Adams’ tolerances were reduced and she had brief flare-ups with relative overactivity in and out of the workplace. Such exacerbations are brief and would have each lasted a few days to a few weeks at most.[12]
I understand that as at 25 May 2020, Ms Adams was certified unfir for work due to a psychiatric condition and was admitted to hospital for that condition on 28 May 2020. Any work-related component to her symptoms would have therefore ceased within a few days to a few weeks after ceasing employment-related exacerbations ([presumably 25 May 2020 at the latest, thus work-related reduced capacity would have ceased as early as 28 May or as late as 15 or 22 June 2020. I understand that Ms Adams tried to return to work for around 5 weeks from September 2020 and stopped work on 20 October 2020, with an email suggesting resolution of residual symptoms written on 5 November 2020.
…
It should be noted that Ms Adams’ underlying condition caused her to have reduced tolerances to activity in any occupational or non-occupational setting. She had the physical capacity to engage in any work that was within her tolerances. The reason for her absences from work seems to have been a psychiatric condition.[13]
[12] Report of Dr Dale, 5 June 2024, page 3.
[13] Ibid, page 4.
On 2 September 2024, Ms Adams provided a statement which included the following information:
…
4. During the above period [25 May 2020 to 15 April 2021], I can confirm that I was still being treated by various Health Professionals in relation to my Upper Limb injury…
…
11. Body System Physiotherapy also provided me with ongoing support and treatment for the duration of the accepted claim period (18/03/2018-15/4/2021) to manage pain and discomfort associated with my Upper Limb injury.
12. Initial treatment consisted of a program of postural stretches and strengthening in a rehabilitation gym but later required the intervention of dry needling to combat flare ups.
13. I believe my last physiotherapy session with Body System was in May 2020 however, I continued my gym program at home with equipment that I had purchased.
14. From September 2020, my treatment involved remedial massage with ‘Sandford Massage Wellness centre’ and a continuation of my physiotherapy program conducted at home.
15. As I was absent from the workplace more than not during the disputed period (25/05/2020 to 15/04/2021), I was not required to undertake any computer-based work and thus my symptoms became more tolerable.
16. In or around April 2020, I was requested to work from home by Services Australia. This was during the Covid pandemic period…
…
18. On 13 May 2020 I was still being treated by Body System Physiotherapy and at this time was continuing to experience persistent lateral elbow pain and increased neck pain. The neck pain and associated headaches were a result of insufficient computer equipment that was assigned to me for working at home. I then made a request to Services Australia for a larger monitor in an effort to improve the intense neck pain I was experiencing.
19. On 24 July 2020, I was still working from home…
20. To this day, I am not entirely symptom free.
21. I still experience ongoing discomfort in my upper forearm/elbow and shoulder/neck with increased computer-based activity however to a lesser extent than that experienced during my employment with Services Australia.
22. I am currently employed as an Administrative Assistant with [a private corporation]…
23. My role requires computer-based operations using a keyboard, mouse and dual monitors.
…
25. I am restricted to working a maximum of 8 hours per week in this role. I find that by doing so, I can manage and/or prevent myself from experiencing flare-ups.

I note but will not recite the facts set out in the Applicant’s Statement of Facts, Issues and Contentions on 2 September 2024 in paragraphs [1] to [33], and the Respondent’s Statement of Facts, Issues and Contentions on 26 September 2024 in paragraphs [4] to [62].
Legislation
The power to dismiss an application under s 101 is discretionary:
(1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospects of success; or
(c) is otherwise an abuse of the process of the Tribunal.
The threshold is one of satisfaction.
Submissions
Comcare alleges Ms Adams has not produced evidence of incapacity for work as a result of the ‘injury’ for which Comcare is liable. Without relevant material of probative value addressing the central plank of her claim for compensation and the statutory question the Tribunal must decide,[14] applying the principles discussed in Kitoko v University of Technology Sydney[15] and Oliver and Comcare (Compensation)[16] (Oliver), Comcare contends the application has no reasonable prospect of succeeding.
[14] Beezley v Repatriation Commission [2015] FCAFC 165, [68].
[15] [2021] FCA 360, [56].
[16] [2018] AATA 1964, [67]-[68]
Comcare argues the ‘injury’ found by the Tribunal in the liability decision has very narrow scope: it is confined to “temporary aggravations of forearm pain which occurred during the Applicant’s employment after 19 March 2018”.[17] In Comcare’s submission, the available materials do not establish that Ms Adams experienced temporary aggravations of forearm pain in her employment from 25 May 2020 to the cessation of her employment on 16 April 2021. From this it follows, so the argument goes, applying the causal thresholds discussed in Woodhouse v Comcare[18] (Woodhouse), Ms Adams is not entitled to compensation for incapacity for work in the period from 25 May 2020 to 15 April 2024.
[17] T24, 177.
[18] [2021] FCAFC 95, [103]-[104], [109].
Comcare alleges Ms Adams had incapacity for work from 25 May 2020 to 15 April 2021 as a result of a psychological condition which is not before the Tribunal in these proceedings, for which Comcare has no liability. To the extent Ms Adams experienced upper limb symptoms after 25 May 2020, Comcare submits these are the result of the underlying non-compensable ailment the Tribunal described in the liability decision.
Comcare contends there is not sufficient relevant material to justify revisiting the findings made in the Tribunal’s liability decision and, consistent with the principles discussed in Commonwealth of Australia v Snell[19] (Snell) and NXPQ and Comcare (Compensation)[20] relitigating those matters should not be permitted. To do so, Comcare alleges, would undermine the previous Tribunal’s decision and the quality of government decision-making in a manner prejudicial to Comcare. This would not be consistent with the statutory objectives of the Tribunal which are set out in s 9 of the ART Act and Comcare submits the Tribunal should dismiss the application forthwith.
[19] [2019] FCAFC 57, [78]-[79].
[20] [2021] AATA 4094, [48]-[50].
Ms Adams asserts there is a significant factual dispute which the Tribunal, as a trier of fact, should determine on evidence adduced at the hearing listed in this proceeding. In Ms Adams’ submission, her employment did not end on 25 May 2020. She understands the Tribunal’s liability decision does not close off her entitlement to compensation for periods of incapacity when she was not at work. She alleges there is sufficient medical evidence to establish she experienced incapacity for work on and after 25 May 2020 as a result of the injury for which she claimed compensation.
Ms Adams argues there are live medical issues of cause, condition and predisposition in the context of her continuing pain symptomatology and the applicable legal thresholds. The relevant threshold, she submits, is the causal nexus between the ‘disease’ the Tribunal found met the definition of an ‘injury’ in its liability decision and Ms Adams’ related incapacity for work in the period from 25 May 2020 to 15 April 2021.
Ms Adams rejects the proposition the employment-caused symptoms ceased when she finished her employment duties on any particular day and asserts the symptoms persisted thereafter. In her submission, the Tribunal’s liability decision permits such a conclusion without controverting the factual findings it made.
With reference to Arnotts Snack Products Pty Ltd v Yacob,[21] Ms Adams advances the proposition that after 25 May 2020 she continued to have a partial incapacity for work at the same level as that in which she was engaged immediately prior to the injury, and she had an inability to sell her labour on the open market which reduced her ability to earn and this should be taken into account.
[21] [1985] HCA 2, [13]-[17].
Ms Adams explained she returned to work and experienced employment-related pain symptoms in September and October 2020 as noted by her treating doctor, Dr Alice Stoneman.[22] This, she argues, is consistent with and supported by the report of Dr Helen Cooley, a consultant rheumatologist, on 12 December 2023. She contends the report of Dr Cooley clearly establishes the continuation of her upper limb symptoms and her employment-caused injury.
[22] T21, 1114.
Ms Adams contends the additional materials she gave the Tribunal on 24 January 2025 are relevant and support her case. She contends there should be further relevant documents in the previous employer’s holdings which can reasonably be expected to assist the Tribunal to make the correct or preferable decision at a hearing. She referred to return-to-work documents and pay slips and alleged the employer or the Respondent (as the applicant for dismissal) bears the onus of producing such documents.
In her email to the Tribunal on 24 January 2025, Ms Adams stated:
1.    It is to my detriment and disadvantage that my treating physician is on leave for an ‘indefinite’ period and is therefore unable to make comment or provide any further clarification to assist in my case.
2.    I also believe that my case has been misrepresented to some degree. The information contained in the T Documents only relates to that prior to 2020. The most current document being around March 2019?? As I have had at least 4 different Case Managers throughout the course of my claim, I question whether some of my information has not filtered through to the appropriate delegate for actioning.
3.    Whilst I acknowledge that in June 2020, there was a period of hospitalization for 18 days, this was unrelated to my claim for physical injury and thus I accept that no compensation can be granted for that period specifically. However, before that period and that after, I do have evidence (which is attached in this email) that supports I worked up until 28 October 2020.
I conclude that from 28 October 2020, I was absent from the workplace for reasons unrelated to my claim for physical injury.
Ms Adams alleges she has a reasonably arguable case which should be allowed to proceed to hearing. She intends to adduce further medical evidence at the hearing which, she asserts, can reasonably be expected to buttress and reinforce her case. This, she asserts, is within the Tribunal’s usual practice and dismissing her application on the present materials would be premature and unjust. Ms Adams presses for Comcare’s application for summary dismissal to be refused.
Consideration
The discretionary power to dismiss an application under s 101 of the ART Act complements and supports the Tribunal’s procedural powers in Subdivision A, Div. 5, Part 4. These are for the purposes of the Tribunal’s objective in s 9:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision‑making; and
(e) promotes public trust and confidence in the Tribunal.
Three important principles must be kept squarely in mind.
Firstly, the Tribunal is required to make the correct or preferable decision on the relevant materials placed before it. In so doing, under the interlinked provisions of the ART Act and the SRC Act, it is not strictly bound by any previous determination, factual finding or decision in earlier Tribunal proceedings.[23] Nevertheless, as was said in Quinn v Australian Postal Corporation[24]:
It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination. In compensation cases like the present, the issues of causation and level of incapacity for the period the subject of the earlier decision would thus not be areas contested in a subsequent hearing.
[23] Snell, [4].
[24] [1992] AATA 668, [32].
Thus, the Tribunal should properly allow re-agitation of matters it has previously decided only where there is a good reason to do so. In the context of the evolving decision-making the scheme of the SRC Act allows, a good reason might arise where new material of probative value has been produced of some relevant change in circumstances which has not previously been considered[25].
[25] Telstra Corporation Limited v Hannaford [2006] FCAFC 87 (Hannaford), per Conti J, [57].
Secondly, exercise of the discretionary power to summarily dismiss an application is essentially preconditioned by satisfaction of one of the elements set out in s 101(1)(a), (b) or (c). The power is not materially different than the power previously conferred under s 42B of the AAT Act, in respect of which it has been accepted the power is one which should be used sparingly and, in respect of the ancillary banning power in s 42B(2), proportionately.[26]
[26] Re Filsell and Comcare [2009] AATA 90, [33] cited with approval in Soames v Secretary Department of Social Services [2014] FCA 295, [29], [37]; Oliver, [68].
Nevertheless, where the power is enlivened, exercise of the discretion requires consideration of the Tribunal’s statutory objective and what a proper consideration of the matters before the Tribunal permits in the particular circumstances of the case. This does not require a finding the particular case is hopeless or bound to fail, although such a finding would weigh heavily in the balance of relevant considerations.
Thirdly, the mechanism of review the Tribunal provides in any case must be fair and just to each party. The Tribunal does not dispense justice but must proceed in a manner which is fair and just within the statutory law it is bound to apply in the particular case.
Ms Adams correctly observed the Tribunal is ostensibly a fact-finding body. The Tribunal is not a court. It and the applications made to it for review are creatures of statute. As an independent merits review body, despite common misperceptions and appearances, Tribunal proceedings are not adversarial. Under the ART Act, each party must be afforded a reasonable opportunity to present their case (s 55) and they (and their representatives) are required to use their best endeavours to assist the Tribunal (s 56). The objective of providing a mechanism of review that is fair and just must be viewed through this lens.
This and other elements of the Tribunal’s statutory objective are conjunctive, and they must be considered together. Fairness and justice in any case must be considered with conceptions of accessibility, transparency, public trust and confidence, as well as what a proper consideration of the matters before the Tribunal permits in respect of formality, expense and speed of resolution.
Considering Ms Adams case and the available materials, it is not entirely clear to me her case seeks to re-agitate matters previously decided by the Tribunal in the liability decision. If it does, I would not allow it to proceed as no good reason to do so has been made out. Ms Adams appears to assert, although it is not entirely clear, her persisting upper limb and neck pain are attributable to her employment and she is entitled to compensation as a result. Claims of this kind were squarely considered and decided by the Tribunal in its previous liability decision. Unlike Hannaford’s case, Ms Adams has not produced sufficient new material of probative value of a relevant change in circumstances to justify re-visiting the previous Tribunal’s liability decision or the factual findings made. That being so, it would not be appropriate or fair to allow her to re-agitate the matters previously decided. If that is her case, I would not allow it to proceed as it would be within the terms of s 101(1)(a) or (c) of the ART Act.
To the extent Ms Adams claims compensation for incapacity for work as a result of persisting upper limb and/or neck symptoms from 25 May 2020 to 15 April 2021, this exceeds the ambit of the ‘injury’ previously determined by the Tribunal in the liability decision. In order to expand the ambit of the ‘injury’ for which Comcare is liable, it would be necessary to revisit the Tribunal’s previous findings. As I have said, no good reason to allow this has been made out.
It is conceivable Ms Adams purports persisting upper limb and/or neck symptoms are an extension of the ‘injury’ as previously decided, although no such case has been clearly expressed. Aside from the difficulty of re-agitating matters which have previously been decided, for such a claim to have any prospect of success, relevant material of sufficient probative value would be required to support a positive finding of such a development. The materials given to the Tribunal in these proceedings, including the materials Ms Adams produced on 24 January 2025, do not meet this requirement.
The case Ms Adams put most clearly runs on the claim she suffered incapacity for work from 25 May 2020 to 15 April 2021 as a result of the ‘injury’ previously decided. For her case to have a reasonable prospect of success, relevant material of sufficient probative value is required to support a positive finding that any ‘incapacity for work’ during this period is ‘as a result of’ the ‘injury’. The available materials, including those Ms Adams gave the Tribunal on 24 January 2025, do not meet this threshold. At the highest, the available materials suggest:
(a)Ms Adams suffered a psychological ailment after 25 May 2020 which resulted in incapacity for work;
(b)she commenced a graduated return to work on 21 September 2020 which came to an unsuccessful end on or about 28 October 2020;
(c)she experienced persistent upper limb and/or neck symptoms.
The medical certificate issued on 20 May 2020 refers to Ms Adams’ upper limb symptoms, but it does not serve to establish she suffered incapacity for work as a result of temporary aggravation of forearm pain caused by computer-based duties or other tasks involving her upper limbs in her employment. Rather, the certificate refers to persistent elbow and hand pain and recurrence of neck pain. This is consistent with and supported by Dr Stoneman’s clinical notes on 29 April 2020 and 13 May 2020, and Dr Cooley’s 12 December 2023 report. Dr Dale’s opinion in respect of the likely duration of flare-up symptoms lasting a few days or weeks does not suggest any different conclusion. The previous Tribunal decided the ailment which resulted in persisting symptoms was not work-caused or contributed to by Ms Adams’ previous employment.
There is simply no other evidence Ms Adams experienced incapacity for work on and after 25 May 2020 as a result of temporary aggravations of forearm pain caused by undertaking computer-based duties in her employment within the scope of the ‘injury’ found by the previous Tribunal.
Consideration of the clinical records of treatment Ms Adams obtained in September and October 2020 does not compel any different conclusion or finding.
Dr Cooley’s report of Ms Adams having a work-related upper limb disorder characterised by “ongoing right lateral elbow pain” which “flares” if she increases her activities “such as gardening” is consistent with the persistence of Ms Adams upper limb condition. It is not consistent with the previous Tribunal’s finding that the persistent ailment affecting Ms Adams’ upper limbs is not work-related. In the liability decision, the Tribunal carefully weighed Dr Cooley’s evidence with the evidence of Dr Dare (and other medical evidence), and preferred Dr Dare’s evidence. I am not satisfied Dr Cooley’s 12 December 2023 report and the arguments made in relation to it are sufficient grounds on which to permit re-agitation of related matters which were previously decided by the Tribunal following a thorough examination of relevant probative materials. The prospect of possible further relevant material or evidence is speculative, and it does not change this conclusion.
The documents Ms Adams produced on 24 January 2025 do not advance the matter. Those documents include leave and return to work records, medical certificates and submissions, including in respect of a statement of Lisa Woehler dated 25 November 2020. The contents of these documents serve to establish that she engaged in a graduated return to work on 21 September 2020 following a period of incapacity related to a psychological condition. The documents do not serve to support the proposition she suffered partial incapacity for work as a result of temporary aggravations of forearm pain attributable to computer duties in her previous employment. Furthermore, the documents do not support or point to Ms Adams suffering incapacity for work as a result of the ‘injury’ found by the previous Tribunal.
Mr Wright’s contentions in respect of the causal nexus between ‘injury’ as found by the previous Tribunal and Ms Adams claimed incapacity for work and his contention in respect of the characterisation of a partial incapacity for work, applying the definition set out in s 4(9) of the SRC Act do not advance the matter. For an injured employee to be entitled to compensation in respect of a partial incapacity for work, the causal test in s 19(1) of the SRC Act must be satisfied. In other words, it must be established by relevant material of probative value that the incapacity is as a result of an ‘injury’. On the available materials, there is no reasonable prospect the causal question posed in s 19(1) of the SRC Act is likely to be met at any time in the period from 25 May 2020 to 15 April 2021.
It is possible, as Mr Wright asserts, Ms Adams could adduce evidence at a hearing which might raise her case from the very scant material on which it is presently raised. Comcare argues, correctly, that the question of summary dismissal is to be determined on a critical examination of the available materials to determine if there is a real question of fact to be decided.
The available materials and the arguments Mr Wright and Ms Adams advanced do not raise a real factual question of the kind contended for, namely the causal question set out in s 19(1) of the SRC Act. To the extent there is a question whether Ms Adams returned to work after 25 May 2020 and performed computer duties of the kind capable of triggering a temporary aggravation of her forearm pain, the question is unlikely to be determinative as the available evidence does not go to the real question whether her incapacity for work is a result of her accepted ‘injury’. The available material is not of sufficient probative value to support a positive finding on this point. Simply put, on the available materials, Ms Adams’ claimed entitlement to compensation for incapacity for work as a result of her accepted ‘injury’ from 25 May 2020 to 15 April 2021 is not supported by sufficient relevant material to enable a positive finding to be made.

That being so, I am satisfied Ms Adams’ case lacks any reasonable prospect of success for the purposes of s 101 of the ART Act.
From this it follows, the discretionary power to dismiss the application under s 101 of the ART Act is enlivened.
Having carefully considered the submissions Mr Wight and Ms Adams have made, no good reason to allow the application to proceed has been made out.
In these circumstances, I am satisfied it would be unfair to Comcare to allow it to proceed. To do so would require a commitment of time and resources without reasonable justification and it would not be consistent with the Tribunal’s statutory objective.
I do not accept the proposition dismissing the application would be unjust or unfair to Ms Adams. Ms Adams is legally represented. The Tribunal proceedings have been on foot since July 2023. Ms Adams has been given a reasonable opportunity to prepare and present her case. She was given a reasonable opportunity under directions issued on 15 July 2024, as subsequently extended, to give the Tribunal and Comcare all the materials on which she intended to rely at the hearing in the application. It is no answer now to assert that additional materials or evidence could be adduced or given in a hearing.
In conclusion, on the available materials, I am satisfied the application lacks any reasonable prospect of success and it is appropriate in all the circumstances and for the reasons given to dismiss the application under s 101(1)(b) of the ART Act.
To the extent Ms Adams cavils with and seeks to re-agitate matters decided by the Tribunal previously, I am satisfied that no good reason has been made out to justify such action and, for this reason, insofar as it is necessary to address this point, I am satisfied the application is misconceived and lacking substance for the purposes of s 101(1)(a) and it amounts to an abuse of process for the purposes of s 101(c) of the ART Act.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Webb.

.....................[SGD]..................................................
Tribunal Officer
Dated: 31 January 2025

Date of interlocutory hearing:

23 January 2025

Applicant’s Representative:

WK Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

Peter Woulfe

Australian Government Solicitor