Comcare v DSLB

Case [2025] FCAFC 13

FEDERAL COURT OF AUSTRALIA

Comcare v DSLB [2025] FCAFC 13

Appeal from: DSLB v Comcare [2023] FCA 1222
File number: NSD 1344 of 2023
Judgment of: LOGAN, PERRY AND HORAN JJ
Date of judgment: 14 February 2025
Catchwords:

WORKERS COMPENSATION – appeal from decision of primary judge – construction of s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Comcare had power on its own motion to reconsider determination that was previously revoked on an earlier reconsideration – whether Comcare had power to reconsider previous decision made under s 62 to revoke original determination disallowing claim for compensation and to accept liability to pay compensation

ADMINISTRATIVE LAW – denial of procedural fairness – whether primary judge erred in exercising discretion not to refuse relief – availability of merits review and pending review proceedings in Administrative Appeals Tribunal   

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 26(1), 42A(5), (10), 43(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 10

Administrative Review Tribunal (Consequential and Transitional Provisions No 2) Act 2024 (Cth)

Administrative Review Tribunal Act 2024 (Cth) s 31

Commonwealth Employees’ Compensation Act 1930 (Cth)

Customs Tariff (Anti-Dumping) Act 1975 (Cth)

Federal Court of Australia Act 1977 (Cth) ss 37AF, 37AG

Judiciary Act 1903 (Cth) s 39B

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(12), 5A, 5B, 7(7), 11, 14, 16, 19, 24, 25, 27, 44, 45(4), 50, 54, 57, 60, 61, 62, 64, 67, 114B(5)(a)
Cases cited:

Australian Postal Corporation v Oudyn [2003] FCA 318; 73 ALD 659

Bechara v Bates (2021) 286 FCR 166

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

Boensch v Pascoe (2019) 268 CLR 593

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307

Comcare v Hill (1999) 56 ALD 487

Commonwealth v Snell (2019) 269 FCR 18

Cremona v Administrative Appeals Tribunal (2015) 230 FCR 1

Daley v Child Support Registrar [2020] FCAFC 161

De La Cruz v Australian Postal Commission (1997) 73 FCR 204

DSLB v Comcare [2023] FCA 1222

FER17 v Minister for Immigration, Citizenship and Multicultural Affairs (2019) 269 FCR 580

Hagedorn v Department of Social Security (1996) 44 ALD 274

House v The King (1936) 55 CLR 499

Knowles v Secretary, Department of Defence (2021) 287 FCR 348

Kuru v New South Wales (2008) 236 CLR 1

Lees v Comcare [1999] FCA 753; 56 ALD 84

McGowanv Migration Agents Registration Authority (2003) 129 FCR 118

New South Wales v Kable (2013) 252 CLR 118

Plumb v Comcare (1992) 39 FCR 236

Power v Comcare (1988) 89 FCR 514

Prain v Comcare (2017) 256 FCR 65

Re ACT Department of Health and Nikolovski (1996) 42 ALD 599

Re Coyne and Comcare (1995) 37 ALD 553

Re De Courcy Brown and Comcare (1997) 49 ALD 766

Re Gee and Director-General of Social Services (1981) 3 ALD 132

Re Rebeiro and Comcare (1996) 44 ALD 632

Re Rose and Comcare [2005] AATA 349

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Comcare v DSLB [2025] FCAFC 13
Case
[2025] FCAFC 13
Decision Date

CaseChat Overview and Summary

Comcare v DSLB was a workers' compensation case before the Federal Court of Australia, where the respondent sought compensation for a diagnosed condition of affective disorder: PTSD, anxiety, and depressive disorder. The dispute centred around the interpretation of s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), particularly whether Comcare had the power to reconsider a decision that had been revoked and whether it could reconsider a previous decision made under s 62 to revoke an original determination disallowing the claim for compensation and accept liability to pay compensation. The case also involved issues of procedural fairness and the availability of merits review and pending review proceedings in the Administrative Appeals Tribunal.

The court had to determine whether Comcare had the power to reconsider its own motion a determination that had been revoked and whether Comcare had the power to reconsider a previous decision made under s 62 to revoke an original determination disallowing the claim for compensation and accept liability to pay compensation. The court also had to decide whether the primary judge erred in exercising discretion not to refuse relief and whether the availability of merits review and pending review proceedings in the Administrative Appeals Tribunal denied the respondent procedural fairness.

The court found that s 62 of the SRC Act does not confer power to reconsider a decision that has been revoked and no longer has any operation or effect. However, in so far as a decision made on a reconsideration under s 62 involves a decision whether or not Comcare is liable under s 14 to pay compensation in respect of an injury suffered by an employee, that decision may be regarded as a decision made under s 14 and therefore a "determination" for the purposes of Pt VI of the SRC Act. Section 62(1) therefore confers power on Comcare to reconsider that determination, notwithstanding that the decision is also amenable to review by the Tribunal as a "reviewable decision". The court found that the primary judge did not err in exercising discretion not to refuse relief and that the availability of merits review and pending review proceedings in the Administrative Appeals Tribunal did not deny the respondent procedural fairness.

The appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent, as agreed or taxed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It is nevertheless appropriate in the particular circumstances to address the other grounds of appeal raising the construction issue. The primary judge correctly concluded that s 62 of the SRC Act does not confer power to reconsider a decision that has been revoked and no longer has any operation or effect. However, in so far as a decision made on a reconsideration under s 62 involves a decision whether or not Comcare is liable under s 14 to pay compensation in accordance with the Act in respect of an injury suffered by an employee, that decision may be regarded as a decision made under s 14 and therefore a “determination” for the purposes of Pt VI of the SRC Act. Section 62(1) therefore confers power on Comcare (as the determining authority) to reconsider that determination, notwithstanding that the decision is also amenable to review by the Tribunal as a “reviewable decision”.FACTUAL BACKGROUND The respondent lodged a claim for workers’ compensation under the SRC Act on 11 November 2013, seeking compensation for a diagnosed condition of “affective disorder: PTSD, Anxiety and Depressive Disorder”. The respondent had first sought medical treatment for this condition on 16 August 2013. The respondent claimed that she suffered the injury as a result of the actions of her colleagues and supervisors at ASIC, including as a result of excessive demands and workloads. In her claim form, the respondent responded in the negative to a question whether she had “ever had a similar symptom, injury or illness, work-related or otherwise”. Further, each of the medical reports on which the respondent relied noted the absence of any history of mental illness or pre-existing psychological conditions. On 16 January 2014, a delegate of Comcare (Mr Davidson) made a determination to disallow the respondent’s claim for compensation (the primary determination). While the delegate was satisfied that the respondent suffered from post-traumatic stress disorder and that her employment had contributed to her condition to a significant degree, the delegate found that liability was excluded on the basis that the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the respondent’s employment (see s 5A(1) of the SRC Act), namely, the cessation of the respondent’s higher duties which necessitated return to her substantive position. The respondent requested a reconsideration of the primary determination under s 62 of the SRC Act. On 18 July 2014, a senior review officer of Comcare (Ms Mohr) decided to revoke the primary determination and “in its place” accepted the respondent’s claim for compensation in respect of affective disorder from 16 August 2013 (the first reconsideration decision or, as referred to by the primary judge, the Mohr decision). The review officer was not satisfied that the respondent’s failure to obtain or retain higher duties was a factor that resulted in her condition.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The procedural history set out above may be boiled down to the following central steps, which are critical to an understanding of both the grounds of review and the grounds of appeal:(a)a primary determination was made disallowing the respondent’s claim for compensation under s 14 of the SRC Act, based on the “reasonable administrative action” exclusion under s 5A(1).(b)the first reconsideration decision revoked the primary determination, and instead accepted liability to pay compensation to the respondent for her ailment;(c)the second reconsideration decision purported again to reconsider the primary determination, by revoking the acceptance of liability to pay compensation and disallowing the claim based on adverse findings under s 7(7) of the SRC Act that the respondent had made wilful and false representations about her medical history; and(d)the respondent applied to the Tribunal for review of the second reconsideration decision under s 64 of the SRC Act, seeking to have that decision set aside primarily on the basis that it was beyond the power conferred by s 62 of the SRC Act. THE DECISION BELOW On 14 March 2023, the respondent commenced proceedings seeking judicial review of the second reconsideration decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth). The originating application also sought review of the Fleming decision and the various decisions made by the Tribunal to reinstate the application for review, to issue the summons to Services Australia and to dismiss the respondent’s objection to the inspection of material produced in response to that summons. Nevertheless, the central substantive issue in the proceedings concerned the validity of the second reconsideration decision, with consequential effects on each of the subsequent decisions made thereafter. Comcare accepted before the primary judge that, on any view, the fresh determination purportedly made by Ms Fleming to deny the respondent’s claim for compensation was invalid on the basis that it was not authorised by s 14 of the SRC Act: see J [53]. Further, Comcare also conceded below that, if the second reconsideration decision was invalid on the ground that it was not authorised by s 62 of the SRC Act, the decisions made by the Tribunal would be affected by jurisdictional error: J [53]. The primary judge identified the issues in the proceeding as follows (J [52]):(1)whether it was not open to Comcare to reconsider of its own motion the reviewable decision made by Mr Davidson (ground 2(a));(2)whether the primary determination had already been revoked and was thus not amenable to further reconsideration when the Le decision was made (ground 2(b));(3)whether Comcare was not authorised to vary, set aside or “otherwise tamper with” the Mohr decision or make a different decision in substitution for it (ground 2(c));(4)whether the applicant was denied natural justice because of the speed and circumstances in which the Le decision was made (ground 2(d));(5)whether the subsequent decisions by Comcare and the Tribunal were consequently beyond jurisdiction (grounds 3, 4 and 5); and(6) what order(s) should be made.

Ratio Decidendi

Legal Principle Established

By letter dated 2 August 2016, the delegate informed the respondent that she had reviewed liability for her claim and had determined that the respondent was not entitled to compensation for her claimed mental illness (the second reconsideration decision or, as referred to by the primary judge, the Le decision). In an attached statement of reasons, the delegate set out evidence of previous representations made by the respondent that she had not suffered from a similar mental illness or psychological condition before the problems arose in her employment. Based on the respondent’s past medical records and a further expert report about her psychiatric history, the delegate found that the respondent had made wilful and false representations that she did not suffer or had not previously suffered from the disease for which she sought compensation. The delegate further found that those representations had been made for purposes connected with her employment with the Commonwealth, and that s 7(7) of the SRC Act operated to exclude liability for her claimed mental illness. Accordingly, the delegate concluded that the respondent had not suffered a compensable “injury” for the purposes of the SRC Act, and that Comcare was not liable to pay compensation to the respondent under s 14 of the SRC Act. The delegate acknowledged in her reasons that she was not authorised by s 62 of the SRC Act to reconsider the first reconsideration decision, which was a “reviewable decision” amenable to review by the Tribunal under Pt VI of the SRC Act. The delegate relevantly stated:The case of Rebeiro and Comcare [1996] AATA 364 held that the definition of ‘determination’ in section 60 of the SRC Act only extends to ‘primary determinations’ and that the power to reconsider a determination conferred by section 62(1) of the SRC Act only extends to primary determinations.If I follow that decision, I must conclude that I am unable to reconsider the reviewable decision which accepted liability for your claimed injury. Instead, this decision is a reconsideration of the determination of 16 August 2014 [sic], which denied liability for your injuryThe reference to “the determination of 16 August 2014” must be taken from its context to mean the primary determination made on 16 January 2014. Under the heading “Decision”, the delegate stated:Having regard to the medical and other evidence available on your claim file, I have decided that you are not entitled to compensation for your claimed mental illness pursuant to section 7(7) of the SRC Act.This means that compensation is not payable under the SRC Act for the following entitlements for the above conditions:ŸMedical expenses under section 16 of the SRC Act; andŸIncapacity under section 19 of the SRC Act; andBy conducting a reconsideration of own motion and revoking liability, I must inform you that such a decision on your claim has raised an overpayment in which this matter will be addressed separately. The respondent was travelling overseas between 8 June 2016 and early September 2016. After she returned to Australia and received a copy of the second reconsideration decision, she asked Comcare to provide copies of the reports upon which it had relied in making that decision.