Comcare v DSLB - [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

Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238

Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213

Swartz v Commonwealth (1959) 102 CLR 340

Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

Woodhouse v Comcare (2021) 285 FCR 14

Wuth v Comcare (2022) 289 FCR 464

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 144

Date of hearing: 22 May 2024

Counsel for the Appellant: Mr A Berger KC with Ms K Slack

Solicitor for the Appellant: Sparke Helmore

Counsel for the First Respondent: Mr D Villa SC with Mr M Karam and Mr S Hoare

Solicitor for the First Respondent: Snedden, Hall & Gallop Lawyers

Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 1344 of 2023

BETWEEN:
COMCARE

Appellant

AND:
DSLB

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

LOGAN, PERRY AND HORAN JJ

DATE OF ORDER:

14 FEBRUARY 2025

THE COURT ORDERS THAT:
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.

REASONS FOR JUDGMENT
LOGAN J:

I have had the privilege of reading in draft the reasons for judgment of Horan J. I agree with the orders his Honour proposes and generally with his Honour’s reasons. I make the following additional observations, adopting for that purpose abbreviations employed by Horan J.
It is obvious from the reasons for judgment of the learned primary judge that it was well understood that there existed a discretion, conferred by s 10 of the ADJR Act, to refuse relief to the first respondent even in the face of a demonstrated denial of procedural fairness by Comcare. It is for Comcare to demonstrate an error of principle by the primary judge in the exercise of that discretion.
In relation to the discretion conferred by s 10 of the ADJR Act and in addition to the authorities cited by Horan J, reference might usefully be made to Cremona v Administrative Appeals Tribunal (2015) 230 FCR 1 (Cremona). In Cremona, at [22], the Full Court made these observations in respect of s 10 of the ADJR Act:
22 The following relevant features of that provision should be noted:
(a)it is expressly stated in section 10(1)(a) that the rights conferred by ss 5, 6 and 7 of the ADJR Act to challenge a decision or conduct are in addition to, and not in derogation of, any other rights that the person has to seek out review, including by a Tribunal (such as the AAT);
(b)notwithstanding the matter referred to immediately above, s 10(2)(b)(ii) confers upon the relevant court a discretion to refuse to grant an application made under section 5, 6 or 7 of the ADJR Act in respect of a decision or conduct where adequate provision is made by law apart from the ADJR Act under which the applicant can seek a review of that decision or conduct by, relevantly, a Tribunal (such as the AAT); and
(c)it is notable that the discretion which is conferred upon the court in s 10(2)(b)(ii) of the ADJR Act is, on its face, unconfined save for the requirement that there be “adequate provision” for an alternative review. In particular, the Court’s discretion to refuse to grant an application for review because of the existence of an adequate alternative review mechanism is not qualified by any reference to the need for there to be “special circumstances” or other like words which would operate to confine the discretion.
[emphasis in original]
Earlier in time in the Full Court is in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523. One of the bases upon which, in the original jurisdiction, relief was declined in that case was, insofar as the Court’s jurisdiction was invoked under the ADJR Act, by an exercise of the discretion conferred by s 10 of that Act. There existed provision for specialist review on the merits of a decision of the Comptroller-General of Customs under the Customs Tariff (Anti-Dumping) Act 1975 (Cth) by the Anti-Dumping Authority. The Full Court remarked, at 530:
The learned primary judge pointed out that the legislation provided “its own method of review”, referring to the applicant’s right to go to the Anti-Dumping Authority referred to above. His Honour also remarked that, “it should not be thought that it is always appropriate to bring a matter of this kind before the court.” We agree and express the view that in many (perhaps most) circumstances, the Court’s proper response to an application of this particular sort should not be to embark upon a full hearing, but rather to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant.
In reviewing a reviewable decision made under the SRC Act, the Tribunal “stands in the shoes” of the person who made the reviewable decision with the jurisdictional responsibility of making a fresh decision on the merits. This being the nature and extent of the Tribunal’s merits review jurisdiction it is nothing to the point before the Tribunal that a person who made the decision under review may have denied an applicant procedural fairness. That applicant has a complete opportunity to persuade the Tribunal to make a different decision. It was that jurisdiction which the first respondent invoked in this case.
In relation to the exercise of a discretion under s 10 of the ADJR Act, it is possible to conceive of a case where an error of principle constituted by a failure by a primary judge to appreciate that the availability of review on the merits was a complete answer to an asserted or even proved denial of procedural fairness. But no such failure is proved in this case. Further, the issues before the primary judge were not confined to an alleged denial of procedural fairness. They also included novel and difficult questions about the meaning and effect of s 62 of the SRC Act. Further, the plethora of issues arose against the background of a claim for compensation which had a lengthy administrative history both within Comcare and in the Tribunal. Viewed against these wider circumstances and for the reasons given by Horan J, Comcare has not demonstrated any error of principle in the reasons given by the primary judge for declining to exercise the discretion conferred by s 10 of the ADJR Act to dismiss the judicial review application.
Section 62 of the SRC Act is by no means easy to construe. The context in which it falls for construction is that, under the SRC Act, an entitlement to compensation does not arise “unless a claim for compensation is made by or on behalf of the person”: s 54(1) of the SRC Act.
Once a claim is made, it must be determined by the “determining authority”: s 61 of the SRC Act. It is this determination which is termed the “primary determination” in this case. Yet s 61(1A) speaks not of determining a claim made pursuant to s 54 or of a determination under s 61 but rather the determination of “each claim for compensation under section 14”. Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Further, the definition in s 60(1) of “determination” for the purposes of Pt VI of the SRC Act in which s 61 and s 62 are found speaks of, materially, “a determination … under section … 14”.
Thus the liability to pay compensation under s 14 of the SRC Act is contingent upon the making, pursuant to s 54 of a claim and the determination, pursuant to a power conferred by s 61 of the SRC Act, of that claim. Such a determination is, materially, a “determination of liability under section 14”.
Section 62 of the SRC Act speaks of reconsidering such a determination either on the own motion of a “determining authority” (here, Comcare) or upon the request of “the claimant” or, if it affects the Commonwealth, the Commonwealth.
Subsection 62(5) specifies the powers which may be exercised on such a review:
Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
As can be seen, s 62(5) does not, in terms, confer on reconsideration a power to make a determination under s 14. Yet, for example, the mere revocation of a primary determination would not itself create a liability to pay compensation. It would just restore the position of an undetermined claim for compensation.
Parliament must be taken to have intended that the reconsideration under s 62 would be comprehensive in respect of the merits or otherwise of a claim. It must therefore follow by necessary implication that a correlative of the power of reconsideration conferred by s 62(5) of the SRC Act is, where necessary, to make the requisite determination in respect of a claim. Here it was on the initial reconsideration under s 62(1), of the primary determination of liability under s 14 which established the liability under s 14 to pay compensation to the first respondent in response to her claim as a result of the reconsideration.
In turn, being one under s 14, such a determination must be amenable to further reconsideration under s 62, either on request or on a determining authority’s own motion.
It is a feature of the SRC Act that there will always be a power imbalance between a determining authority such as Comcare and a claimant for compensation. Related to that, another feature is that a compensatory income stream upon which a worker, who has claimed compensation, may be dependent is always vulnerable to reduction or cessation upon reconsideration by a determining authority. To some extent, that vulnerability is ameliorated by the conferral of a right of merits review by the Tribunal and the power granted to the Tribunal by s 67 to award costs to an applicant in the event a more favourable decision than the reviewable decision is obtained.
Yet there can be cases which, in light of evidence not available to a determining authority at the time of a primary determination or on reconsideration, are persuasive either that a claim should have been accepted, should not have been accepted or should not sound in continued compensation. This is recognised by the power of reconsideration of a determination under, materially, s 14, conferred by s 62 of the SRC Act.
The vulnerability of a worker to reduction or cessation of compensation upon reconsideration stands in marked contrast to the finality conferred by a judicial determination of damages, including damages for loss of earning capacity, in those cases where a liability in tort, contract or breach of statutory duty can be established against an employer. Save for the exceptional circumstance of a judgment obtained by fraud, a damages award frees a worker from an employer’s second thoughts based, for example, on a later obtained medical opinion.
The SRC Act, by s 44, extinguished in respect of injuries thereafter the right of employees of the Commonwealth and its authorities to claim damages, save in respect of damages for non-economic loss. Further, damages for non-economic loss were “capped” at $110,000: s 45(4). The amount of that cap has not been amended since the SRC Act was enacted in 1988, notwithstanding the impact of inflation over the ensuing 37 years. So the worth of the exception has been much eroded.
There was always a class of case where the facts of a given case yielded a right to claim compensation under a workers’ compensation statute but not to sue for damages. Perhaps the present was such a case. In that class of case, it was usually a feature of a workers’ compensation scheme that a compensation authority might, for cause, review the continuance of compensation. So there is nothing new in the vulnerability noted. And the extinguishment or erosion of the right of those covered by the SRC Act to sue for damages is a parliamentary value judgement.
I mention these features of the SRC Act because the history of the case as related by Horan J brings to mind observations made by Griffiths J (as his Honour then was) in Wuth v Comcare (2022) 289 FCR 464, at [4]. In that case also there were multiple decisions within a determining authority and in the Tribunal in relation to a claim for compensation. Griffiths J related that, in his judicial experience, the history of Ms Wuth’s application was not an isolated one. Thus provoked his Honour to state, “In my respectful view there is an urgent need to conduct a detailed review of the operation of the SRC Act with the objective of producing reforms which simplify and make more efficient substantive, procedural and review aspects of the present statutory regime.” My judicial experience is no different to that of Griffiths J.
Of course the nature of the jurisdiction consigned to the judicial branch is such that the judiciary only encounter the controversial compensation cases under the SRC Act and then only in respect of questions of law including jurisdictional error. Further, the judicial branch is not entrusted with the general administration of the SRC Act and even in cases which come before it may not be in possession of all the facts concerning the administration of a particular claim. But this claim was lodged as long ago as 1 November 2013. Its administration both by Comcare and on external review the Tribunal has undoubtedly been complicated and elongated by uncertainties as to the meaning and effect of s 62 of the SRC Act. Whatever the merits of the claim it requires no medical training to understand the angst which related uncertainty must thereby have inflicted on the first respondent. I therefore respectfully agree with the statement made by Griffiths J as to an urgent need for the review of the SRC Act.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
Associate:
Dated: 14 February 2025

REASONS FOR JUDGMENT
PERRY J:

I have read the reasons of Horan J in draft and agree both with his proposed orders and reasons for dismissing the appeal. I also endorse the observations of Logan J in his separate reasons and Griffiths J in Wuth v Comcare (2022) 289 FCR 464 at [4] as to the pressing need for review of the scheme established by the Safety, Rehabilitation and Compensation Act 1988 (Cth).

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Perry.
Associate:
Dated: 14 February 2025

REASONS FOR JUDGMENT
HORAN J:

The appellant, Comcare, purported to conduct a reconsideration on its own motion under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) of an earlier determination made by it under s 14 of that Act. The effect of this reconsideration was to revoke Comcare’s previous acceptance of liability to pay compensation to the first respondent for an injury arising out of her employment with the Australian Securities and Investment Commission (ASIC). The decision to accept liability in respect of the respondent’s injury had itself arisen from a previous reconsideration under s 62 of the SRC Act that was carried out several years earlier at the request of the respondent following the initial rejection of her compensation claim.
The respondent successfully sought judicial review of Comcare’s “own motion” reconsideration decision on two bases:
(a)that Comcare was not authorised by s 62 of the SRC Act to revoke, vary or substitute the previous reconsideration decision by which it had accepted liability to pay compensation to the respondent in accordance with the SRC Act, and in particular could not do so by purporting to reconsider the original determination that had been revoked; and
(b)that Comcare denied procedural fairness to the respondent when making its “own motion” reconsideration decision.
Comcare now appeals from the decision of the primary judge: DSLB v Comcare [2023] FCA 1222 (J).
There are two main issues raised on the appeal.
(a)First, did the primary judge err in the construction of s 62 of the SRC Act, in particular, by concluding that s 62 did not confer power on Comcare to reconsider either the original determination to disallow the respondent’s claim for compensation or the previous reconsideration decision by which liability to pay compensation was accepted?
(b)Second, in circumstances where it is accepted that the respondent was denied procedural fairness in relation to Comcare’s reconsideration, did the primary judge err by deciding not to exercise the discretion to refuse relief in respect of that denial of procedural fairness in circumstances where merits review of the decision was available and a review application was pending before the Administrative Appeals Tribunal?

For the reasons that follow, the appeal must be dismissed.
In relation to the second issue identified above, there was no error by the primary judge in exercising the discretion to grant relief in relation to the denial of natural justice by Comcare in making the “own motion” reconsideration decision under s 62 of the SRC Act. That conclusion is sufficient to support the orders made below, and is therefore determinative on the appeal.
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.
Almost two years later, on 13 July 2016, another delegate of Comcare (Ms Le) wrote to the respondent to inform her that the delegate intended “to undertake a reconsideration of own motion in relation to the decision which accepted liability for your claim”. The letter stated that, “following the receipt of evidence of longstanding psychiatric illness prior to the illness for which [the respondent] claimed compensation from Comcare”, the respondent may not be entitled to compensation due to s 7(7) of the SRC Act, which excludes liability to pay compensation in respect of a disease where an employee has made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease. In an attachment to the letter, the delegate referred to representations made by the respondent on four occasions, namely, in her claim form and as reported by three medical practitioners, based on which the delegate intended “to undertake a reconsideration of own motion in relation to the determination dated 16 January 2014” (that is, the primary determination). The respondent was invited to provide any additional evidence by 27 July 2016.
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 injury
The 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; and
ŸIncapacity under section 19 of the SRC Act; and
By 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.
On 7 December 2016, the respondent applied to the Tribunal for an extension of time to apply for review of the second reconsideration decision, including on the grounds that the purported reconsideration was beyond power under the SRC Act and that the delegate had failed to provide the respondent with a fair hearing. The respondent also disputed that she had made any wilful and false representation that she did not suffer from the psychiatric illness for which she claimed compensation. The respondent sought orders that the second reconsideration decision be revoked and that the first reconsideration decision accepting liability to pay compensation be reinstated.
On 6 May 2019, Senior Member McGrowdie dismissed the application for review under s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which empowered the Tribunal to dismiss an application without proceeding to review the decision if it was satisfied that the decision was not reviewable by the Tribunal. This order was expressed to have been made on the respondent’s application, noting that “questions as to jurisdiction” had arisen. As the primary judge noted at J [37], the basis on which the Tribunal formed any state of satisfaction that the second reconsideration decision was not reviewable for the purposes of s 42A(5) of the AAT Act is not clear from terms of the order. It appears to have been founded on submissions made on behalf of the respondent that the second reconsideration decision lacked statutory authority, in so far as it purported to “re-enliven” the primary determination that had been revoked by the first reconsideration decision. It may be noted that the Tribunal would not have been deprived of jurisdiction to review the second reconsideration decision merely because that decision was beyond power. Accordingly, rather than going to the Tribunal’s jurisdiction to review the second reconsideration decision, the respondent’s position may be better understood as that the Tribunal, standing in the shoes of Comcare, similarly had no power under the SRC Act to reconsider the original determination or the first reconsideration decision.
By a letter dated 15 September 2020, the respondent’s solicitors asked Comcare to “issue a Determination that covers the content of the reconsideration of own motion dated 2 August 2016, however, is issued in a format that can be reconsidered and appropriately brought before the [Tribunal]”. This request was premised on a contention that the primary determination had ceased to exist once it had been revoked by the first reconsideration decision, with the consequence that the primary determination could not be reinstated by the second reconsideration decision. In order to overcome this perceived problem, the respondent’s solicitors were seeking that a new determination be made to similar effect to the Le decision, denying liability to pay compensation under s 14 of the SRC Act, which could then be subject to reconsideration under s 62 of the SRC Act and review of that decision by the Tribunal.
The respondent later disclaimed this request for a fresh determination on the basis that it had not been made on her instructions: see J [38]. Rather, the respondent adopted the position that the effect of the Tribunal’s orders dismissing the application for review under s 42A(5) of the AAT Act was to recognise the invalidity of the second reconsideration decision, and that the only extant valid decision was the first reconsideration decision which, as a “reviewable decision” within s 60(1), could not itself be reconsidered by Comcare under s 62 of the SRC Act.
Nevertheless, in response to the request from the respondent’s solicitors, a different delegate of Comcare (Ms Fleming) purported to make a fresh determination on 11 December 2020 to reject the respondent’s claim for compensation under s 14 of the SRC Act (the Fleming decision). Ms Fleming found that s 7(7) of the SRC Act operated to exclude liability for the respondent’s claimed conditions such that she had not suffered any compensable “injury” as defined in the SRC Act. Ms Fleming also went on to find that the respondent’s major depressive disorder was suffered as a result of the cessation of her higher duties, which amounted to reasonable administrative action undertaken in a reasonable manner, and that the effects of her claimed condition had resolved by 30 October 2015 at the latest. In other words, the Fleming decision sought to combine the bases for refusal that had been relied on in the primary determination and the Le decision respectively.
On 6 October 2021, upon the respondent’s application pursuant to s 42A(10) of the AAT Act, the Tribunal reinstated the application for review of the second reconsideration decision as having been dismissed in error. Comcare did not oppose the reinstatement application, maintaining its position that the Tribunal had jurisdiction to review the second reconsideration decision.
There have since been further hearings before the Tribunal in relation to the case management of the review proceedings, including a dispute over the issue of a summons to Services Australia for the production of the respondent’s Medicare and Pharmaceutical Benefits Scheme records and the inspection of such records by Comcare: see J [43]–[45]. In that context, the respondent argued that the Tribunal could not or should not review the second reconsideration decision on its merits, as opposed to considering only the question of power or authority to make that decision, ostensibly in reliance on “the principles expounded in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307”: see [14] and [21] of the reasons of Deputy President Pascoe dated 27 May 2022. That argument was not accepted by the Tribunal, which relevantly confirmed that it had jurisdiction to review the second reconsideration decision and dismissed the respondent’s objection to the inspection of the summons material by Comcare.
For present purposes, it suffices to note that the review proceedings remained pending before the Tribunal, subject to the orders that were made by the Court below.
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.
The first three issues were dealt with together by the primary judge. Issues (1) and (2) were directed to the validity of the second reconsideration decision, and in particular whether the primary determination disallowing the respondent’s compensation claim was able to be reconsidered by Comcare under s 62 of the SRC Act in circumstances where that determination had been revoked by Ms Mohr in making the first reconsideration decision. Issue (3) was directed to whether the first reconsideration decision made by Ms Mohr could be varied, set aside or substituted by Comcare or, noting that Ms Le did not purport to reconsider the Mohr decision, by the Tribunal in the proceedings for review of the second reconsideration decision.
The primary judge held that the second reconsideration decision was not authorised by s 62 of the SRC Act and was affected by jurisdictional error: J [54]–[71].
(a)Her Honour accepted that, on its proper construction, s 62 does not confer power to reconsider or cause to be reconsidered a previous “reviewable decision” made under that section, which may instead be reviewed by the Tribunal under s 64 of the SRC Act.
(b)On the other hand, her Honour held that the primary determination was not amenable to reconsideration under s 62 because it had been revoked by Ms Mohr.
(c)The primary judge did not accept that Ms Le, in making the second reconsideration decision, had reviewed the primary determination, notwithstanding that she purported to do so. Rather, her Honour concluded that Ms Le had in fact conducted a review of the merits of the Mohr decision which accepted liability to pay compensation to the respondent.
(d)The primary judge also rejected Comcare’s submission that the Mohr decision comprised two discrete components, namely a revocation of the primary determination and the making of a new determination to accept liability under s 14, with the latter being amenable to a subsequent “own motion” reconsideration by Comcare under s 62 of the SRC Act.
Thus, the primary judge relevantly said (at J [66]–[69]):
Comcare described Ms Le’s expression as “inelegant” but insisted that she was authorised to review the acceptance of liability and revoke it. Comcare characterised the Mohr decision as comprising two components: the revocation of the primary determination under s 62(5) of the SRC Act and the making of a new determination under s 14 of the SRC Act accepting liability to pay compensation for an affective disorder. Comcare submitted that the Le decision was therefore correctly characterised as a reconsideration of the second component of the Mohr decision, with the consequence that the Le decision was a “reviewable decision” which the Tribunal has jurisdiction to review, despite the fact that Ms Le purported to reconsider the primary determination.
The difficulty with Comcare’s submission is that this was not merely a semantic problem. The only provision of the SRC Act that authorises a review of a determination is s 62. While Ms Le did not purport to review the Mohr decision, that is precisely what she did. Otherwise she could not have revoked liability for the claim and substituted a new determination. Although the determination she purported to review was the primary determination, that was a mere artifice constructed to circumvent Rebeiro. She was not conducting a review of the primary determination. That was a determination that Comcare was not liable to pay compensation. In truth, she was reviewing the merits of the reviewable decision with a view to restoring the primary determination. Under the scheme of the SRC Act, however, only the Tribunal could do that. The primary determination was not open to be reviewed. As Ms Mohr had revoked it, there was nothing left to review: ReCoyne and Comcare (1995) 37 ALD 553 at [16]–[22].
In short, as the applicant’s counsel, Mr Karam, put it, in substance if not ultimately in form, the Le decision was an impermissible attempt by Comcare to undertake a reconsideration of a reviewable decision under s 62. It was “an error going to the heart of the process”. It was a jurisdictional error.
As the Tribunal said in Rebeiro, in the absence of express legislative authority to vary or set aside a reviewable decision, Comcare has no authority to revoke, vary, set aside or otherwise tamper with it.

In relation to issue (4), the primary judge held that the respondent had been denied natural justice in the making of the second reconsideration decision: J [72]–[87]. In summary, the respondent had not been given a reasonable opportunity to respond to the material on which Comcare relied in finding that she made wilful and false representations that she did not previously suffer from a mental illness. The notice given to the respondent did not identify, summarise or particularise the “evidence” that had come to Comcare’s attention after the Mohr decision, such that the invitation to respond to the allegations was “an arid one”, and the opportunity to respond was “manifestly unreasonable”: J [84]. This was exacerbated by the 14-day period that was given for the respondent to provide additional evidence, and the fact that the respondent was travelling overseas at the time and did not in fact receive the notice.
Of particular relevance to the present appeal, the primary judge rejected Comcare’s submission that the Court should exercise its discretion to refuse to grant relief in respect of the denial of natural justice on the basis that the respondent was entitled to seek merits review by the Tribunal of the second reconsideration decision: see s 10(2)(b)(ii) of the ADJR Act; McGowanv Migration Agents Registration Authority (2003) 129 FCR 118 at [49], [55]–[56] (Branson J); Bechara v Bates (2021) 286 FCR 166 at [164] (Allsop CJ, Markovic and Colvin JJ); Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554 at [104] (Weinberg J).
It may be noted that this submission arose only if the respondent was unsuccessful on the first three issues, that is, if Comcare had power to reconsider either the primary determination or the Mohr decision under s 62 of the SRC Act, and “the only problem with the Le decision was that the applicant had been denied natural justice”: J [53], [89]. Because the primary judge decided issues (1) to (3) in favour of the respondent, it was strictly unnecessary for her to decide whether relief ought to be refused in respect of the denial of natural justice in making the second reconsideration decision. This is because Comcare conceded that, if the Le decision was beyond power (as the primary judge ultimately held), the Tribunal decisions should be quashed as “the product of jurisdictional error”: J [53]. Nevertheless, “[i]n the event of a possible appeal”, the primary judge proceeded to answer the question whether relief in respect of the denial of natural justice should be refused on discretionary grounds in any event: J [89].
After referring to the observations made by Mansfield J in Hagedorn v Department of Social Security (1996) 44 ALD 274 at 281 in respect of the factors relevant to an exercise of the discretion conferred by s 10(2)(b)(ii) of the ADJR Act, the primary judge concluded (J [93]):
Having regard to the time that has passed since the Le decision was made, and the energy and costs expended by both parties in the meantime, I do not consider it would be in the interests of justice to refuse relief because of the availability of merits review in the Tribunal. In any event, if the proceeding in the Tribunal were to continue, it is almost inevitable that regardless of the outcome the legal issues raised on the present application would be agitated before this Court.
In the result, the primary judge made orders setting aside the Le decision and each of the procedural decisions made by the Tribunal. The primary judge described the effect of those orders as “the Mohr decision remains in force at least for the time being”: J [94]. While declining to make a declaration that “a determining authority, in the absence of jurisdictional error, does not have power to reconsider a reviewable decision or determination that has been revoked”, the primary judge considered that such an outcome followed from her reasons for judgment: J [95].
For completeness, it should be noted that the primary judge granted an application made by the respondent for a pseudonym order under ss 37AF(1)(a) and 37AG(1)(c) of the Federal Court of Australia Act 1977 (Cth): J [101]–[141]. That order is not subject to any challenge on appeal. For the reasons given by the primary judge, and consistently with the position jointly adopted by the parties to the appeal, it is appropriate that the pseudonym continue to apply in relation to the appeal.
THE GROUNDS OF APPEAL
Comcare appeals from the primary judge’s decision on the following grounds:
(a)that the primary judge erred in concluding that the primary determination could not be reconsidered under s 62 of the SRC Act, and that the second reconsideration decision was an impermissible attempt by Comcare to reconsider a reviewable decision under s 62 of the SRC Act (grounds 1 and 2); and
(b)that the primary judge erred in failing to exercise the discretion to refuse to grant relief in relation to the breach of procedural fairness affecting the second reconsideration decision:
(i)by relying on the erroneous conclusions referred to in grounds 1 and 2 above (ground 3(a)); and
(ii)by failing to consider that an available alternative was to remit the second reconsideration decision back to Comcare to be decided again according to law (ground 3(b));
(c)that the primary judge should have exercised the discretion to refuse to grant relief on the basis that the matter was already before the Tribunal which would conduct a full merits review of the second reconsideration decision or, alternatively, should have remitted the second reconsideration decision to Comcare to be decided according to law (ground 4).
The primary judge’s finding that the second reconsideration decision was affected by a denial of procedural fairness is not challenged by Comcare on appeal.
STATUTORY FRAMEWORK
A detailed summary of the compensation scheme established by the SRC Act was set out in Lees v Comcare [1999] FCA 753; 56 ALD 84 at [13]–[39] (Wilcox, Branson and Tamberlin JJ). While there have been amendments to the SRC Act since the decision in Lees, the essential structure of the statutory scheme remains the same. For present purposes, it is useful to focus on the following features of that scheme.
The entitlements of injured employees to compensation arise under Pt II of the SRC Act. Section 14, which is one of the pivotal provisions in Pt II, provides that, “subject to [that] Part, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment”.
For such purposes, “injury” is relevantly defined in s 5A to include a “disease”, which is in turn defined in s 5B to mean an ailment suffered by an employee, or an aggravation of such an ailment, that to a significant degree was contributed to by the employee’s employment by the Commonwealth or a licensee. The definition of “injury” in s 5A(1) excludes a “disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. An inclusive definition of “reasonable administrative action” is contained in s 5A(2). Further, under s 7(7) of the SRC Act, a disease suffered by an employee, or an aggravation of such a disease, is not taken to be an “injury” if the employee has for purposes connected with his or her employment made “a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease”.
The liability created by s 14 is given content in Divs 2–6 of Pt II of the SRC Act, which respectively deal with compensation for injuries resulting in death, incapacity for work or impairment, and for household and attendant care services. The provisions in each of those Divisions contemplate determinations being made in respect of the payments to be made by Comcare. As the Full Court explained in Lees at [34]:
A determination under s 14 cannot amount to more than a determination that Comcare “is liable to pay compensation in accordance with this Act” in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare’s liability will give rise to a present obligation to make payments are … all matters to be determined under other provisions of the Act.
In other words, Comcare’s liability to pay compensation is based on a determination that s 14 of the SRC Act is satisfied, which amounts to “an acceptance by Comcare that its liability exists”, and other provisions in Pt II of the SRC Act then “control the content, duration and means of satisfying how the liability is met or how compensation is paid”: Woodhouse v Comcare (2021) 285 FCR 14 at [104] (Derrington J, with whom Collier and Rangiah JJ agreed); see also Lees at [27] (Wilcox, Branson and Tamberlin JJ); Prain v Comcare (2017) 256 FCR 65 at [89] (Kenny, Tracey and Bromberg JJ); Australian Postal Corporation v Oudyn [2003] FCA 318; 73 ALD 659 at [31]–[32] (Cooper J).
Section 11 (which is contained in Pt I) also recognises that
[t]he liability of a relevant authority to pay compensation to a person under this Act is the liability of that authority to pay to the person such amount or amounts as are determined by that authority to be payable to the person under this Act.
(Emphasis added.)
In order to be paid compensation under the SRC Act, a written claim for compensation must be made to the relevant authority by or on behalf of the employee: s 54. The decision-making process in relation to such claims is addressed in Pt VI, which is headed “Reconsideration and review of determinations”. As the Full Court stated in Lees at [32]:
Part VI of the Act … establishes a three tiered decision-making process: the original decision or determination to be made by an authorised person within Comcare or a licensed authority, a reconsidered determination to be made within the same authority as the original decision — but ordinarily by a fresh decision-maker, and a decision of the AAT reviewing the reconsidered determination.
Thus, s 61 of the SRC Act requires the “determining authority” to “consider and determine each claim for compensation under section 14” within the prescribed period, and to serve on the claimant a notice in writing setting out the terms of the determination and the reasons for the determination. This is the first tier of the decision-making process under Pt VI of the Act.
Section 62 provides for the reconsideration of determinations by the determining authority, which is the second tier of the decision-making process under Pt VI. Such a reconsideration may be carried out by the determining authority either on its own motion, or on a request made to the determining authority by the claimant or (if they are affected by the determination) by the Commonwealth or a Commonwealth authority. While a request for reconsideration of a determination must be made within a prescribed period, there is no express time limit on an “own motion” reconsideration by the determining authority. In relation to such “own motion” reconsiderations, s 62 relevantly provides:
62 Reconsideration of determinations
(1)A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b)cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
…
(5)Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
For such purposes, “determination” is defined in s 60(1):
determination means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37, 39 or 57, under paragraph 114B(5)(a) or under Division 3 of Part X.
The definition of “determination” encompasses decisions made “under” s 14, which establishes Comcare’s liability to pay compensation, subject to Pt II and in accordance with the Act. The concept of making a determination of a claim for compensation “under section 14” is also contemplated by s 61 of the SRC Act. As is apparent from the list of provisions in the definition, a “determination” may be also made under various other provisions contained in Pt II, as well as several provisions in Pt III (Rehabilitation), s 57 (under which a relevant authority can require an employee to undergo a medical examination), s 114B(5)(a) (dealing with recovery of overpayments to retired employees), and some transitional provisions in Div 3 of Pt X. It may be noted that the definition of “determination” encompasses “a determination, decision or requirement” made under any of the specified provisions, and “decision” has the same broad meaning as in the AAT Act.
The third tier of the decision-making process is external merits review before the Tribunal. Section 64 of the SRC Act provides that an application may be made to the Tribunal by the claimant (or by the Commonwealth or the Commonwealth authority) for review of a “reviewable decision”, which is relevantly defined in s 60(1) to mean a decision made under s 62, that is, a second-tier decision made on a reconsideration of a determination.
One consequence of the “structured” decision-making process under Pt VI of the SRC Act is that the Tribunal “is authorised by s 64 of the Act to review only “reviewable decisions” — that is, for present purposes, second-tier or reconsideration decisions made under s 62 of the Act” — and not primary “determinations”: Lees at [39] (Wilcox, Branson and Tamberlin JJ). While s 43(1) of the AAT Act provides that, for the purposes of reviewing a decision, the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”, this is confined to the powers and discretions that were available to the determining authority at the second-tier reconsideration stage under s 62 of the SRC Act, as opposed to those available to the determining authority when making the first-tier determination.
For completeness, I note that the version of the SRC Act that is relevant to this appeal pre-dates the commencement of amendments made as a consequence of the abolition of the Tribunal and its replacement by the newly established Administrative Review Tribunal: see Administrative Review Tribunal (Consequential and Transitional Provisions No 2) Act 2024 (Cth) Sch 6, items 25–45.
THE EXERCISE OF THE DISCRETION TO GRANT RELIEF
By grounds 3 and 4, Comcare sought to challenge the exercise by the primary judge of the discretion to withhold or refuse to grant relief in respect of the accepted denial of procedural fairness by Ms Le in making the second reconsideration decision.
It is common ground that, in order to establish that the exercise of discretion by the primary judge miscarried, it is necessary for Comcare to demonstrate an error that attracts the principles in House v The King (1936) 55 CLR 499 — in this regard, see e.g.FER17 v Minister for Immigration, Citizenship and Multicultural Affairs (2019) 269 FCR 580 at [89] (Kerr, White and Charlesworth JJ); Knowles v Secretary, Department of Defence (2021) 287 FCR 348 at [58] (Collier, Logan and Charlesworth JJ). Thus, Dixon, Evatt and McTiernan JJ stated in House v The King (at 505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Further, in appeals against decisions involving discretionary judgment, there is generally a presumption in favour of the correctness of the decision appealed from, and “the decision should be affirmed unless the appeal court is satisfied that it is clearly wrong”: see Daley v Child Support Registrar [2020] FCAFC 161 at [45]–[46] (Flick, Perry and Markovic JJ), referring to Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [39] (Dowsett, Foster and Yates JJ).
In its notice of appeal, Comcare identified two errors that were alleged to have been made by the primary judge in the exercise of the discretion to grant relief:
(a)first, Comcare contends that the primary judge relied on conclusions that were based on an erroneous construction of s 62, being conclusions to the effect that the primary determination that had been revoked was not open to be reviewed and the Le decision was an impermissible attempt to reconsider the Mohr decision; and
(b)second, Comcare contends that the primary judge failed to consider an available alternative of remitting the second reconsideration decision to Comcare to be decided again according to law.
At least in relation to the first alleged error, grounds 3 and 4 assume that Comcare succeeds in demonstrating that the primary judge’s construction of s 62 of the SRC Act was wrong, with the consequence that Comcare (and the Tribunal on review) has jurisdiction to reconsider the primary determination and, on such a reconsideration, to make a fresh determination that replaces or supersedes the Mohr decision. Accordingly, Comcare accepted that grounds 3 and 4 do not arise if grounds 1 and 2 are dismissed.
It is not clear whether the second alleged error (ground 3(b)) is intended to be independent of the first alleged error (ground 3(a)). The paragraphs in ground 3 of the notice of appeal are expressed conjunctively. In my view, the “remittal” alternative is also properly regarded as dependent on an acceptance of the construction of s 62 for which Comcare contends in support of grounds 1 and 2 of the notice of appeal. If that construction were not accepted, there would be no point remitting the matter to Comcare for reconsideration under s 62 of the SRC Act.
In any event, it is difficult to see how the primary judge fell into error by failing to consider the “remittal” alternative. While Comcare’s outline of written submissions before the primary judge contended that the Court should exercise its discretion to refuse relief due to the availability of merits review by the Tribunal, it does not appear to have been submitted below that, in the event that the Court found that there had been a denial of procedural fairness, the matter should be remitted to Comcare for redetermination. On Comcare’s construction of s 62 of the SRC Act, such a remittal would have been unnecessary, as it would have remained open to Comcare to reconsider the relevant determination on its own motion at any time.

Comcare’s arguments on the appeal were presented on the basis that the construction issues raised by grounds 1 and 2 should be determined before the questions raised by grounds 3 and 4 relating to the exercise of discretion to grant or refuse relief. This reflects the manner in which the primary judge approached and decided the issues raised by the grounds of review. That is, having determined that s 62 of the SRC Act on its proper construction did not authorise Comcare to reconsider either the primary determination or the first reconsideration decision, the primary judge noted at J [89] that the question whether relief should be refused in respect of the denial of natural justice did not arise, given that Comcare had conceded that the Le decision and the Tribunal decisions should be quashed in that event. That is, Comcare submitted that relief should be refused for discretionary reasons if “the only problem with the Le decision was that the [respondent] had been denied natural justice” (J [53], emphasis added), as opposed to there also being no power to make the Le decision under s 62 of the SRC Act.
The primary judge nevertheless proceeded to answer the question “Should relief be refused in any event?”, on the basis that this may be relevant “[i]n the event of a possible appeal”: J [89]. Accordingly, it is clear that the primary judge would not have exercised the discretion to refuse relief in respect of the denial of natural justice because of the availability of merits review of the second reconsideration decision made by Ms Le. This is significant because, unless Comcare can demonstrate appealable error in the primary judge’s conclusion on this issue, the denial of natural justice in making the second reconsideration decision (which is now conceded by Comcare) would itself be sufficient to support the orders made by the primary judge. Comcare accepts that the Tribunal decisions should be set aside if the second reconsideration decision is quashed. Thus, while Comcare must succeed on grounds 1 and 2 in order to overturn the primary judge’s decision, a rejection of grounds 3 and 4 is also determinative of the appeal irrespective of the outcome on grounds 1 and 2.
In my view, Comcare has failed to identify how the primary judge’s construction of s 62 of the SRC Act, and her Honour’s conclusions about the power of Comcare to reconsider the primary determination or the first reconsideration decision, affected the exercise of the discretion whether to grant relief in respect of the denial of natural justice in making the second reconsideration decision. It is clear that the discretion was exercised by the primary judge on the express assumption that Comcare’s submissions in relation to the power conferred by s 62 of the SRC Act were accepted and that the only problem with the second reconsideration decision was the denial of natural justice. The fact that the primary judge addressed the discretion “[i]n the event of a possible appeal” against her conclusions on the power conferred by s 62 of the SRC Act puts it beyond doubt that the decision on the discretionary reasons for granting or refusing relief was independent of those conclusions. In other words, regardless of whether the primary judge was wrong as to the scope of s 62 of the SRC Act and assuming in Comcare’s favour that s 62 did confer power to make the Le decision, her Honour decided that relief should not be refused in relation to the invalidity of that decision on procedural fairness grounds because of the availability of merits review.
In making this decision, the primary judge identified the principles governing the exercise of the discretion to refuse relief under s 10(2)(b)(ii) of the ADJR Act or s 39B of the Judiciary Act on the basis that adequate provision is made by another law under which the applicant is entitled to seek review of the relevant decision, or because of the availability of an appeal or a right of review that has not been pursued. The primary judge correctly stated that the Court is not bound to exercise the discretion to refuse to grant relief in such circumstances, and canvassed the matters that are relevant to exercising that discretion (at J [92], referring to Hagedorn at 281 (Mansfield J)). Comcare does not suggest that there was any misstatement or misapprehension of the applicable principles by the primary judge.
The primary judge concluded (at J [93]) that it was not in the interests of justice to refuse relief because of the availability of merits review in the Tribunal, “[h]aving regard to the time that has passed since the Le decision was made, and the energy and costs expended by both parties in the meantime”. Matters such as unnecessary delay and increased expense were clearly relevant to the exercise of the discretion. Contrary to Comcare’s submissions, there is nothing to suggest that the primary judge’s consideration of such factors was “infected” by any erroneous conclusion in relation to the power conferred on Comcare (or on the Tribunal) under s 62 of the SRC Act.
It is perhaps difficult to discern precisely what was meant by the primary judge when stating that “[i]n any event, if the proceeding in the Tribunal were to continue, it is almost inevitable that regardless of the outcome the legal issues raised on the present application would be agitated before this Court”. On one view, this might be taken to suggest that a decision by the Tribunal would not resolve questions affecting the validity of the second reconsideration decision, including the scope of the power conferred by s 62 of the SRC Act. Comcare argued that such an observation was misguided, in circumstances where those questions were (subject to appeal) resolved by the primary judge’s determination of issues (1) to (3). Nevertheless, the primary judge’s observation in this respect was not itself expressed as a basis for the preceding conclusion on the exercise of the discretion to grant relief, and can be regarded as broadly consistent with the principal reliance by the primary judge on factors relating to delay and cost.
Accordingly, I do not accept Comcare’s submission that the exercise by the primary judge of the discretion to grant relief miscarried either due to a misconstruction of s 62 of the SRC Act (i.e. acting upon a wrong principle) or due to any failure to consider the alternative of remitting the matter to Comcare.
Grounds 3 and 4 must therefore be dismissed. It was open to the primary judge to grant relief as a consequence of the denial of procedural fairness in making the second reconsideration decision, including by setting aside that decision and the decisions made by the Tribunal in the review proceeding.
Further, and in any event, even if Comcare were able to establish an error falling within the principles in House v The King, it would then be necessary for it to persuade the Court to re-exercise the discretion so as to refuse relief in relation to the invalidity of the second reconsideration decision. Regardless of whether the proceedings in the Tribunal are capable of “curing” the accepted denial of procedural fairness, I would not be inclined to exercise the discretion to refuse relief in the circumstances of the present case. Comcare bears the onus of persuading the Court to exercise the discretion to refuse relief: cf.BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [229]–[237] (Bromberg J). In circumstances where there were live disputes about the power conferred on Comcare by s 62 of the SRC Act and the scope of the Tribunal’s review jurisdiction, it was reasonable for the respondent to have commenced this proceeding for judicial review of the multiplicity of decisions that have been made in relation to her compensation claim. Having demonstrated that the second reconsideration decision was procedurally unfair, in that serious adverse findings were made to the prejudice of the respondent without providing her with a reasonable opportunity to be heard; the respondent should be entitled to have that decision set aside rather than be put to the additional trouble and expense of seeking to overturn those findings before the Tribunal.
The consequence is that, as the primary judge noted at J [94], the Mohr decision (i.e. the first reconsideration decision) under which Comcare accepted liability to pay compensation to the respondent, “remains in force at least for the time being”. The qualification expressed by the primary judge acknowledges that Comcare is not “stuck” with the outcome of that decision (J [71]), and that the findings on which it was based are not “permanently enshrined” under the SRC Act (J [61] referring to Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [8] (Heerey J)). As discussed further below, it remains open for Comcare to revisit those findings in the context of any prospective future determinations that may be made about the payment of compensation to the respondent. In addition, it may be permissible for Comcare to reconsider under s 62 of the SRC Act any determination or decision under s 14 of the SRC Act that was made by Ms Mohr in the first reconsideration decision.
For completeness, I note that the orders made by the primary judge did not expressly deal with the status of the proceeding before the Tribunal for review of the second reconsideration decision, albeit that various decisions made by the Tribunal in that proceeding were set aside. Those decisions included the orders made on 5 and 6 October 2021 reinstating the application for review under s 42A(10) of the AAT Act, following the earlier dismissal of that application on 6 May 2019 under s 42A(5) of the AAT Act. The latter decision having not been set aside, the better view is that the proceeding before the Tribunal stands dismissed.
In any event, while the invalidity of the second review decision did not itself deprive the Tribunal of jurisdiction to review that decision, it is necessarily implicit in the orders made below that there is no longer any utility in the Tribunal conducting such a review. On the construction of s 62 of the SRC Act that was adopted by the primary judge, it would not be open to the Tribunal to reconsider either the primary determination or the first reconsideration decision under that section. Even if that construction were incorrect, in the light of the orders made by this Court setting aside the second reconsideration decision (along with the procedural decisions made by the Tribunal to date), it would be inappropriate for the Tribunal to proceed to review that decision. It is a matter for Comcare whether or not it undertakes any further reconsideration under s 62 of the SRC Act, assuming that it has power to do so.
CONSTRUCTION OF SECTION 62 OF THE SRC ACT
It follows from my conclusions in relation to grounds 3 and 4 that the orders made by the primary judge must be affirmed and the appeal must be dismissed.
In such circumstances, a question may arise as to whether it is necessary or appropriate for this Court on appeal to proceed to consider grounds 1 and 2, and the issues of statutory construction that are raised by those grounds. An intermediate appellate court is not always required to deal with non-dispositive issues, and may confine itself to the “decisive” ground or grounds raising “only those issues which it considers to be dispositive of the justiciable controversy raised by the appeal before it”: see Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8] (Kiefel CJ, Gageler and Keane JJ), [101] (Bell, Nettle, Gordon and Edelman JJ). Nevertheless, as the High Court acknowledged in Boensch, there is no universal rule and there will be occasions when a different approach is warranted. The appellate court should therefore consider “whether to deal with all grounds of appeal, not just with what is identified as the decisive ground”: Kuru v New South Wales (2008) 236 CLR 1 at [12] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
In the present case, it is appropriate to address the issues raised by grounds 1 and 2 in relation to the power conferred on Comcare by s 62 of the SRC Act to reconsider its determinations on its own motion. Those issues were considered at length in the reasons for judgment of the primary judge, and formed the principal basis of the orders made below. Apart from their potential relevance in the event of any future application for special leave to appeal to the High Court, the issues relating to the power conferred by s 62 of the SRC Act might have consequences for future decisions that may be made in relation to the respondent’s current and ongoing compensation entitlements under the SRC Act.
The arguments raised on appeal
In its submissions in support of grounds 1 and 2, Comcare identified the central question as to whether s 62 of the SRC Act permits it to reconsider on its own motion a determination that has been revoked. This reflects the position adopted by Comcare on the appeal, namely, that an original determination made in relation to a compensation claim can be reconsidered by the determining authority at any time, irrespective of whether the determination has previously been the subject of a reviewable decision under s 62 of the SRC Act or an application for review by the Tribunal under s 64 of the SRC Act. In particular, Comcare submitted that, although the primary determination had been revoked and no longer had any “claims management consequence”, that did not mean that the determination had no existence nor that there was “nothing left to review”: cf. J [67], referring to Re Coyne and Comcare (1995) 37 ALD 553 at [22].
In this regard, Comcare departed from the submissions that it advanced before the primary judge to the effect that the first reconsideration decision made by Ms Mohr comprised two components – first, a decision to revoke the primary determination; and second, a determination to accept liability to pay compensation under s 14 of the SRC Act. On that approach, Comcare had submitted that the second component amounted to a “determination” capable of reconsideration under s 62 of the SRC Act, as opposed to a “reviewable decision” that is amenable only to review by the Tribunal under s 64 of the SRC Act.
The submission advanced by Comcare below may have been somewhat difficult to reconcile with the terms of the second reconsideration decision, in which Ms Le proclaimed that she was reconsidering the primary determination and not the reviewable decision made by Ms Mohr (nor any “component” of the Mohr decision). Nevertheless, the primary judge took the view that Ms Le had in fact purported to review the acceptance of liability under the first reconsideration decision, despite her claim to the contrary: J [67]. In that context, the primary judge accepted the correctness of the Tribunal’s decision in Re Rebeiro and Comcare (1996) 44 ALD 632 as precluding Comcare from revoking, setting aside, varying or “tampering” with an earlier reviewable decision made under s 62 of the SRC Act.
On the hearing of the appeal, in response to questions from the bench, counsel for Comcare maintained the submission that it was not possible for a second-tier reconsideration decision under s 62 to constitute or give rise to both a “determination” and a “reviewable decision”. Accordingly, Comcare submitted that the first reconsideration decision (the Mohr decision) was a “reviewable decision” that could not itself be reconsidered under s 62, but could only be the subject of an application for review by the Tribunal under s 64. It was further submitted that such an application for review could not be made by Comcare as the “determining authority”. In such circumstances, Comcare argued that the primary determination remained subject to reconsideration under s 62 at any time, notwithstanding that it had previously been the subject of such a reconsideration as a consequence of which it had been revoked.
Grounds 1 and 2 of the appeal therefore give rise to the following issues:
(a)first, does s 62 of the SRC Act confer power to reconsider a determination that has been revoked;
(b)second, can a decision made under s 62(5) of the SRC Act constitute or involve a “determination” that may subsequently be reconsidered by the determining authority under s 62?
Section 62 of the SRC Act does not confer power to reconsider a primary determination that has been revoked
Comcare submitted that the text, context and purpose of the statutory scheme supported its construction of s 62(1) of the SRC Act as permitting reconsideration of a primary determination at any time, regardless of what stage has been reached in the decision-making process.
(a)In relation to the statutory text, Comcare relied on the concluding words in s 62(1), which provide that a determining authority may reconsider a determination “whether or not a proceeding has been instituted or completed under [Pt VI] in respect of a reviewable decision made in relation to that determination”. Comcare submitted that this language makes it clear that Comcare has power to reconsider an original determination even if it has previously been reconsidered under s 62.
(b)In relation to statutory context, Comcare referred to s 67(2), which contemplates that a review proceeding before the Tribunal may be “rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination”, and deals with the potential costs consequences in such a situation. Comcare submitted that this was consistent with an ongoing power to reconsider a determination, even if an application had been made for review of a reviewable decision relating to that determination.
(c)In relation to statutory purpose, Comcare submitted that the power to reconsider a determination at any time is consistent with its function of making determinations “accurately and quickly in relation to claims and requests” made to it under the SRC Act: see s 69(a). More generally, Comcare submitted that the statutory scheme envisages “progressive and evolving” decision-making processes which allow Comcare to reconsider previous determinations that are no longer considered to be correct or preferable in the light of new information that may subsequently come to light: see e.g. Hannaford at [10] (Heerey J), [57] (Conti J). Comcare submitted that it would otherwise be “stuck” with a decision accepting liability under s 14 of the SRC Act to pay compensation in respect of an injury, particularly if it were not open to Comcare to apply to the Tribunal for review of a previous reconsideration decision. Accordingly, Comcare argued that it should be allowed to make corrections or changes to determinations (including those in favour of employees) “swiftly, easily and without requiring costs to be incurred by the employee”.
In my view, the power conferred by s 62(1) to reconsider a “determination” is properly construed as referring to an extant or operative determination, and does not include a determination that has been administratively revoked by a previous exercise of power under s 62(5) of the SRC Act.
Dealing first with the text of s 62(1), the concept of “a proceeding … instituted … under [Pt IV] in respect of a reviewable decision” must be read in the light of the following definition in s 4(12):
A reference in this Act to the institution of a proceeding under Part VI in respect of a reviewable decision is a reference to the making of an application to the Administrative Appeals Tribunal for review of that decision.
With this in mind, the concluding words in the “tail” of s 62(1) refer to the institution or completion of a proceeding for review by the Tribunal of a reviewable decision, which is relevantly defined as a second-tier reconsideration decision made under s 62.
One consequence of these words in s 62(1) of the SRC Act is to displace the provisions in the AAT Act that would otherwise prevent the decision from being altered while review proceedings are on foot before the Tribunal: see s 26(1) of the AAT Act (cf. s 31 of the Administrative Review Tribunal Act 2024 (Cth)); see also Re Rebeiro at [47]–[48]. Section 62(1) thereby ensures that the determining authority may exercise its power to reconsider a determination, even if a reviewable decision has been made in relation to that determination and an application for review has been made for review of that decision. In so far as any such reconsideration renders a review proceeding that is pending before the Tribunal “abortive”, s 67(2) imposes liability on the “responsible authority” to reimburse the claimant for costs reasonably incurred in connection with that proceeding, subject to exceptions in s 67(2)–(5) in circumstances where the claimant belatedly provides relevant information which leads to a more favourable determination being made.

The concluding words of s 62(1) also have a broader operation in relation to situations in which a review proceeding before the Tribunal has been completed, as well as situations where no such review proceeding is instituted in respect of a reviewable decision made in relation to the determination in question. This suggests that a determining authority retains power to reconsider a determination even if a second-tier reconsideration decision has been made under s 62 in relation to the determination, whether or not there are or have been any proceedings before the Tribunal for review of that reconsideration decision. Thus, for example, a determination that has been affirmed or varied under s 62(5) might still be reconsidered by the determining authority on its own motion under s 62(1).
Nevertheless, the terms of s 62(1) do not necessitate a conclusion that a determination made by a determining authority can be reconsidered by that authority even after it has been revoked, whether on a previous reconsideration by the determining authority or on review by the Tribunal. The revocation of a determination under s 62(5) is an administrative decision to remove, cancel or take back the effect of that determination, so that it ceases to have any operative consequences under the SRC Act. The notion of reconsidering a revoked determination is counterintuitive. Such a reconsideration would have no practical utility, as any affirmation or variation of a determination that has previously been revoked is incapable of breathing new life into that determination. Further, a reconsideration of the revoked determination would not itself address the status or effect of the reviewable decision that was made on a past reconsideration of that determination under s 62, or potentially any decision made by the Tribunal on a review of that decision under s 64.
On the facts of the present case, the primary determination was revoked by the first reconsideration decision, which accepted liability to pay compensation to the respondent under s 14 of the SRC Act. A purported reconsideration of the primary determination under s 62, by which the determination disallowing the claim for compensation was purportedly affirmed or varied, does not adequately explain what happened to the first reconsideration decision that was made by Ms Mohr. The upshot of Comcare’s submissions was that the Mohr decision is simply overtaken or superseded by the subsequent reconsideration of the primary determination. However, Comcare’s submissions proceeded on the basis that Ms Le did not have power under s 62 to set aside or vary the Mohr decision, and Ms Le did not in fact purport to reconsider that decision under s 62. In such circumstances, unless and until the Mohr decision is itself validly revoked or set aside, it is difficult to see why it does not continue to operate according to its terms. As discussed below, this does not prevent the underlying factual findings from being revisited in the context of subsequent determinations that might be made in relation to the respondent’s compensation entitlements. But in so far as the Mohr decision was a decision under s 14 to accept liability to pay compensation in accordance with the Act, that decision remains in effect unless and until it is itself varied or set aside.
The power conferred by s 62 therefore provides a means for the reconsideration of extant and operative determinations. A historic determination that has previously been revoked and has no current force or effect does not provide a foothold for the determining authority on its own motion to reconsider and make a fresh determination in its place, whether in the same terms as the past determination or in different terms. As discussed below, it may remain open to a determining authority to reconsider a determination as affirmed or varied following a reconsideration under s 62, or a decision made under s 14 (or another provision specified in the definition of “determination”) as a result of a reconsideration under s 62. But the better view is that, in doing so, the determining authority is not reconsidering the original determination, particularly where it has been revoked. Rather, the determining authority is reconsidering an extant determination that results from the reviewable decision made under s 62.
The conclusion that it is not open under s 62 of the SRC Act to reconsider a determination that has been revoked is consistent with Swartz v Commonwealth (1959) 102 CLR 340. In that case, the Commissioner for Employees’ Compensation made a determination under the Commonwealth Employees’ Compensation Act 1930 (Cth) that the appellant had sustained a particular injury arising out of or in the course of his employment by the Commonwealth, but that his incapacity had ceased shortly prior to the date of the determination. Under the statutory scheme, an appeal from such a determination could be made to the “County Court” (which was defined to include the Magistrates Court of Queensland), with such an appeal to be in the nature of a rehearing. After the appellant had appealed to the Magistrates Court, and before the appeal was heard, the Commissioner exercised a statutory power to reconsider the determination, which was in analogous terms to s 62 of the SRC Act, and decided to revoke the previous determination that was subject of the pending appeal and in its place make a new determination. As a result of the revocation of the original determination, the Magistrates Court concluded that the appeal had “lapsed”. On appeal, the High Court held that, while the jurisdiction of the Magistrates Court was not affected, the revocation of the original determination operated to remove the subject matter of the appeal to that Court: Swartz at 345 (Dixon CJ, Kitto and Windeyer JJ). The High Court stated:
It seems clear enough that a determination is open to revocation notwithstanding that an appeal has been instituted. In other words the pendency of the appeal does not deprive the Commissioner of any of the powers which s 6(2) gives him. It may not be quite right to say that the appeal “lapses” if the Commissioner exercises his power under s 6(2) or any of them with respect to the determination. The power given by s 20 to the court in respect of a determination appealed against could not for example, be lost by an alteration or amendment, much less by a reconsideration resulting in a confirmation. The better view is that the “jurisdiction” of the court under s 20 is not affected by the exercise while the appeal is pending of powers given by subs (2) of s 6: what is affected is the subject matter of the appeal, the determination. Here the whole subject matter was revoked: the appellant complained of it all and it had all gone. Nothing existed for the magistrate to review.
(Emphasis added.)
Although Comcare sought to distinguish the decision in Swartz as having addressed a previous statutory regime with a different decision-making structure, the central point in that case was that the appeal by way of rehearing ceased to have any effect or utility once the determination the subject of the appeal was revoked. The appeal to the “County Court” considered in Swartz was equivalent to review by the Tribunal under the current SRC Act. The circumstances were therefore analogous to a situation in which a review proceeding before the Tribunal might be rendered abortive by a reconsideration decision that varies or revokes the determination to which the reviewable decision relates, a situation that is now addressed by s 67(2) of the SRC Act.
The Tribunal reached a similar conclusion in Re Coyne in which, after an application had been made for review of an earlier reconsideration decision, Comcare conducted a further reconsideration and made a decision that ostensibly “supersede[d]” the first reconsideration decision and “replaced” the primary determination with a new determination. The Senior Member accepted that Comcare had power to conduct the second reconsideration, notwithstanding that an application had been made to the Tribunal for review of the earlier reconsideration decision. The Senior Member (at [17]) characterised the second reconsideration as having “revoked” the decision that had been made by Comcare on its earlier reconsideration, which was “up till then the latest operable decision” and which had itself revoked (i.e. annulled or cancelled) the primary determination. In such circumstances, the Senior Member concluded (at [18]) that the Tribunal’s jurisdiction in relation to the earlier reconsideration decision had “failed” because the decision “was no longer in existence, and no longer able to be reviewed”. The Senior Member relevantly stated (at [21]–[22]):
Hence, in this matter, where a reviewable decision is cancelled, annulled or revoked by a further reconsideration, the applicant is entitled to costs because the review is aborted and comes to a premature and fruitless end, and the appeal therefore fails, there being nothing to review.
Hence, I would find that the first reconsideration is no longer a “reviewable decision” because it no longer exists, and there is nothing for the tribunal to review, and hence no jurisdiction for the tribunal to proceed with that review. The decision has been revoked, and the proceedings aborted.
As Comcare submitted, the circumstances in Re Coyne are not on all fours with those in the present case. In Re Coyne, Comcare had purported to reconsider and revoke a previous decision made on a reconsideration under s 62 of the SRC Act, which had accepted liability to pay compensation for permanent impairment under ss 24 and 27 of the SRC Act, as opposed to reconsidering the original determination. The applicant was dissatisfied with that decision and applied for review by the Tribunal, seeking a recalculation of compensation for non-economic loss under s 27 and an interim payment of compensation under s 25 of the SRC Act. The second reconsideration decision was made while the review application was pending before the Tribunal. In so far as the Senior Member stated (at [22]) that the jurisdiction of the Tribunal had “failed” and that there was “no jurisdiction … to proceed” with the review, this should perhaps be qualified in the light of the observations made in cases such as Swartz and Re Rebeiro that the revocation of a decision does not itself affect jurisdiction on an appeal or application for review of that decision. Nevertheless, the revocation removes the subject matter of such an appeal or review. This is consistent with a construction of s 62 of the SRC Act that there is nothing to reconsider once a determination has been administratively revoked.
Comcare argued that the decision in Re Coyne proceeded on an erroneous basis that there was power under s 62 to reconsider a reviewable decision that was made on a previous reconsideration under that section, which was said to be inconsistent with the construction of s 62 that was later adopted by the Tribunal in Re Rebeiro. It will be necessary to return to this argument below. It suffices to note that nothing in Re Rebeiro suggests that there is power under s 62 to reconsider an original determination that has previously been reconsidered and revoked.
The issues in the present case are not informed by the line of authority under which the fact of an invalidly made administrative decision can continue to have legal consequences for some purposes, such as founding an application for administrative review: see Brian Lawlor at 314–315 (Bowen CJ), 335–337 (Smithers J); Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219 (von Doussa J, with whom Spender and French JJ agreed); see also New South Wales v Kable (2013) 252 CLR 118 at [52] (Gageler J). The primary determination in the present case has not been set aside by reason of jurisdictional error, but rather has been revoked (that is, annulled or cancelled) by a subsequent exercise of administrative power.
There is nothing in the broader statutory context which supports a construction under which s 62 confers power to reconsider a first-tier determination at any time, even if that determination was revoked at a subsequent stage in the decision-making processes. In so far as Comcare relied on s 67(2) as recognising that a determination may be reconsidered by the determining authority while review proceedings are on foot in respect of a reviewable decision relating to that determination, this simply reflects what is made explicit in s 62(1) — namely, that a determining authority can reconsider, and vary or revoke, a determination even if it has been the subject of a reviewable decision in respect of which an application has been made to the Tribunal. This does not necessitate a conclusion that there is power to affirm, vary or revoke a determination that has previously been revoked.
Comcare submitted that the statutory purpose or object is best achieved by its preferred construction of s 62(1), relying on the decision in Hannaford in which this Court recognised that the SRC Act allows for “progressive and evolving decision-making”. Thus, Comcare submitted that the SRC Act establishes a flexible decision-making regime which allows decisions with respect to liability and entitlements to be revisited in circumstances where new or additional information becomes available, or where an error or oversight is discovered, or where there are changes in the understanding of the law.
Hannaford concerned a decision made by a Commonwealth authority that it was not liable to pay any further compensation to an employee under ss 16, 19, 24 and 27 of the SRC Act in the light of medical evidence establishing that he was not suffering from the relevant disease. However, the Commonwealth authority in that case did not reconsider or revoke the original determination by which it had accepted liability under s 14 to pay compensation to the employee in respect of the disease, based on which it had made past payments for medical expenses and incapacity under ss 16 and 19. The Court held that, on a review of the Commonwealth authority’s decision, the Tribunal could make findings which departed from the underlying factual basis of previous decisions to accept liability and pay compensation to the employee — in particular, it was open to the Tribunal to make a finding that the employee did not suffer from the relevant disease. Each of Heerey J and Conti J, with whom Dowsett J agreed, concluded that the SRC Act allowed for “progressive and evolving decision-making allowing for the changes in circumstances which are inevitably likely to happen” (Heerey J at [10]) or “giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen” (Conti J at [57]). In that sense, while the determination under s 14 had not itself been reversed on reconsideration or review, that determination did not permanently enshrine every finding of fact on which it was based: Hannaford at [8] (Heerey J).
The references to “progressive and evolving decision-making” in Hannaford were primarily concerned with subsequent events or circumstances which necessitate an adjustment or change to an employee’s ongoing entitlements to compensation. The observations were not directed to the revocation of a past decision to accept liability to pay compensation under s 14 of the SRC Act on the basis that it should never have been found that there was a compensable injury, let alone a purported reconsideration of a determination to disallow a claim for compensation which was later revoked and replaced by a decision to accept liability. While Heerey J (at [8]) appeared to accept the premise that a decision to accept or deny liability under s 14 of the SRC Act, including any findings of fact, could be reconsidered under s 62 at any time, there is nothing to suggest that this was intended to encompass the reconsideration of a decision under s 14 that has since been revoked.
It is not correct to say that Comcare is “stuck” with a decision made under s 62 accepting liability under s 14 in respect of an injury, irrespective of any additional information that might subsequently come to light. First, it is not in doubt that Comcare can make determinations in relation to ongoing liability and compensation entitlements in accordance with the provisions of Pt II of the SRC Act, and that such determinations or decisions are not constrained by factual findings made in previous determinations or decisions under the SRC Act: Hannaford at [10] (Heerey J), [57] (Conti J); see also Plumb v Comcare (1992) 39 FCR 236 at 240–241 (Lockhart J, with whom Black CJ and Gummow J agreed); Power v Comcare (1988) 89 FCR 514 at 526–527 (Sackville J); Comcare v Hill (1999) 56 ALD 487 at [8]–[10] (Spender J); Commonwealth v Snell (2019) 269 FCR 18 at [70]–[71] (Allsop CJ, Reeves and Derrington JJ). Secondly, as discussed below, while s 62 does not confer power to reconsider the reviewable decision itself, it remains open to reconsider an extant “determination” within the meaning of s 60(1), including a determination as affirmed or varied on reconsideration or any decision on reconsideration that is made under s 14 (or any of the other specified provisions).
The respondent also contended that it was open to Comcare, as a “Commonwealth authority”, to apply to the Tribunal for review of a reviewable decision under s 64 of the SRC Act. However, this was disputed by Comcare, and it is unnecessary to resolve that question for the purposes of the present appeal.
It follows that a construction of s 62(1) under which a determining authority does not have power to reconsider an original determination that has been revoked is not inconsistent with the purposes or objects of the statutory scheme established by the SRC Act.
The letter preceding the second reconsideration decision contained conflicting statements as to whether Ms Le was proposing to undertake a reconsideration “in relation to the decision which accepted liability for your claim” (which can only mean the first reconsideration decision) or “in relation to the determination dated 16 January 2014” (which can only mean the primary determination). In her statement of reasons for the second reconsideration decision, Ms Le stated that she was reconsidering the primary determination denying liability under s 14, and not the first reconsideration decision which accepted liability for the claimed injury. Nevertheless, the terms of the second reconsideration decision referred to Ms Le having decided that the respondent was not entitled to compensation for her claimed mental illness pursuant to s 7(7) of the SRC Act and that, “[b]y conducting a reconsideration of own motion and revoking liability” (emphasis added), the second reconsideration decision had raised an overpayment.
In such circumstances, it was not surprising that the primary judge concluded at J [67] that, “[w]hile Ms Le did not purport to review the [first reconsideration decision], that is precisely what she did”, because “[o]therwise she could not have revoked liability for the claim and substituted a new determination”. However, putting to one side the question whether Ms Le had power under s 62 of the SRC Act to reconsider the decision made by Ms Mohr to accept liability to pay compensation under s 14, it is clear that Ms Le proceeded on a misconception of s 62 as permitting reconsideration of the primary determination notwithstanding that it had been revoked.
For the reasons set out above, the primary judge was correct in concluding that the primary determination, having been revoked by the first reconsideration decision, was not open to be reviewed. As this was the focus of Comcare’s arguments in support of grounds 1 and 2 of the appeal, those grounds must be dismissed.
A decision on reconsideration under s 62 of the SRC Act can be a “determination” that is capable of being reconsidered

Neither of the parties contended on appeal that the first reconsideration decision made by Ms Mohr could be reconsidered under s 62 of the SRC Act. In this regard, the parties relied on the construction of s 62 that was adopted in Re Rebeiro, under which a “reviewable decision” is not properly regarded as a “determination” for the purposes of s 62 of the SRC Act. As discussed above, Comcare submitted that a second-tier reconsideration decision could not be both a “reviewable decision” and a “determination”. This submission departed from the argument that Comcare had advanced before the primary judge, to the effect that one component of the Mohr decision was the making of a “determination” under s 14 of the SRC Act to accept liability to pay compensation to the respondent for an affective disorder.
It is clear that that primary judge proceeded on the basis that it was impermissible for Ms Le to reconsider the merits of the first reconsideration decision, in so far as Ms Mohr had accepted liability to pay compensation to the respondent under s 14 of the SRC Act, because Comcare had “no authority to revoke, vary, set aside or otherwise tamper with a reviewable decision”: J [69], referring to Re Rebeiro at [46]. However, for the following reasons, that premise requires further examination.
Section 60(1) of the SRC Act relevantly defines the term “determination” in Pt IV to mean “a determination, decision or requirement made under section … 14”, or under a number of other provisions most of which are concerned with the specification or calculation of compensation entitlements.
Generally, in order for compensation to be payable to an employee, it is necessary for a determination to be made that Comcare is liable under s 14 of the SRC Act to pay compensation in accordance with that Act in respect of an injury suffered by the employee that results in death, incapacity for work or impairment. Such a determination is referred to elsewhere in the Act as being made “under section 14”. In particular, s 61 imposes an obligation on the determining authority to “consider and determine each claim for compensation under section 14 within the period prescribed by the regulations”. Compensation is not payable to a person under the SRC Act unless a claim for compensation has been made by or on behalf of the person: s 54.
A claim for compensation under s 14 of the SRC Act must result in a determination made by the determining authority as to whether or not Comcare is liable under that section to pay compensation in accordance with the Act. Such a determination will either accept liability in respect of the relevant injury, or will refuse or disallow the claim. If liability is accepted, determinations may be required under other provisions of the SRC Act dealing with the quantification or calculation of the employee’s particular compensation entitlements from time to time.
Section 62(1) relevantly provides that a determining authority may, on its own motion, reconsider a “determination” made by it. Section 62(2) provides that a determination may also be reconsidered on a request made by the claimant, or by the Commonwealth or the Commonwealth authority if it is affected by the determination. While a request for reconsideration must be given to the determining authority within 30 days, or within such further period as the determining authority allows, there is no express time limit on an “own motion” reconsideration by the determining authority. Among other things, this ensures that the basis of earlier determinations may be reconsidered by the determining authority when making subsequent decisions about the liability to pay compensation and the quantum of compensation payable: see Snell at [70] (Allsop CJ, Reeves and Derrington JJ).
When the determining authority reconsiders a determination, s 62(5) provides that the authority “may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit”. While conferring power to affirm, revoke or vary a determination, s 62(5) does not expressly confer a power to substitute or replace a determination. However, at least in relation to a determination in relation to liability to pay compensation under s 14, the replacement of that determination with a fresh decision made under s 14 either falls within the concept of variation, or is otherwise incidental to and necessarily implied from the power to revoke the determination. The mere revocation of such a determination would leave an unfulfilled statutory duty on the determining authority to “consider and determine” the employee’s claim for compensation. Accordingly, when a determination accepting or denying liability under s 14 is revoked, the determining authority will inevitably be required to make a decision under s 14 in the place of that determination.
There is no reason why such a decision under s 14 cannot be a “determination” for the purposes of Pt VI of the SRC Act, even where it is made by the determining authority on a reconsideration under s 62. It seems clear that, where a reviewable decision has been made to affirm or vary a determination under s 62(5), it is open to the determining authority subsequently to reconsider the determination as affirmed or varied. In particular, in circumstances where a determination has been varied on a reconsideration by the determining authority, it would be odd if s 62 continued to confer power to reconsider the original determination without any regard to the varied determination. If a determination is revoked on a reconsideration, and a different decision is made by the determining authority as to Comcare’s liability to pay compensation under s 14, the new decision is capable of being regarded as a “determination” within the meaning in s 60(1) of the SRC Act, and may therefore be subject to reconsideration, irrespective of the fact that the decision made under s 62 is a “reviewable decision” in respect of which an application for review may be made to the Tribunal.
It may be accepted for present purposes that a “reviewable decision” is not itself a “determination” which can be reconsidered under s 62, so that a determining authority does not have power to vary or revoke the reviewable decision itself: see Re Rebeiro at [47], [50]; De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207 (Emmett J). The reviewable decision can be reviewed by the Tribunal on an application for review made under s 64 of the SRC Act, in relation to which the Tribunal has the powers conferred by s 43(1) of the AAT Act, including the powers and discretions that are conferred by s 62(5) of the SRC Act on determining authority as the person who made the reviewable decision.
However, contrary to Comcare’s submissions, a decision on a reconsideration under s 62 can be a “reviewable decision”, and can also be or result in a “determination” for the purposes of Pt VI of the SRC Act. This means that a decision that is made by a determining authority on a reconsideration under s 62 that Comcare is liable (or is not liable) to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee can be the subject of an “own motion” reconsideration by the determining authority under s 62(1), notwithstanding that the reviewable decision is itself amenable to review by the Tribunal.
This conclusion is consistent with past decisions of the Tribunal in which, although a Commonwealth authority had no power to reconsider a reviewable decision, it remained open to reconsider the operative determination as affirmed or varied on the previous reconsideration: see e.g. Re De Courcy Brown and Comcare (1997) 49 ALD 766 at [29]–[30], [34]–[36]; Re Rose and Comcare [2005] AATA 349 at [27]–[33]; c.f. Re Gee and Director-General of Social Services (1981) 3 ALD 132 at 139–140.
In short, it does not advance the purposes of the statutory scheme established by the SRC Act for a first-tier decision as to liability or entitlements to be subject to reconsideration by the determining authority on its own motion at any time under s 62(1), but for a second-tier reconsideration decision as to such liability or entitlements to be immune from any further reconsideration by the determining authority and subject only to review by the Tribunal on an application under s 64.
I do not accept the submissions made by Comcare that such a construction of s 62 would result in anomalies or circularity, or would undermine the integrity of the three-tiered decision-making process established by Pt VI of the SRC Act. To the contrary, this construction promotes the flexibility of the statutory scheme by permitting Comcare to reconsider current and operative determinations of liability, and avoids the artificiality of Comcare purporting to reconsider determinations that have been revoked and no longer have any operation or consequences under the SRC Act. The structured decision-making process established by Pt VI of the SRC Act does not necessarily require a one-way linear progression through the three tiers of determination, reviewable decision, and review by the Tribunal. There is no inconsistency in a determining authority having power to reconsider an extant determination and the reviewable decision that produced that determination being subject to review by the Tribunal.
Where a determination is made as a result of a reconsideration under s 62, a subsequent reconsideration of that determination does not entail setting aside or otherwise “tampering” with the reviewable decision itself, which remains amenable to an application for review under s 64. If the effect of the second reconsideration is to render “abortive” any such review proceeding, there may be costs consequences under s 67(2). If the second reconsideration decision is not more favourable to the review applicant or if there are outstanding issues to be determined as to the existence or extent of the liability to pay compensation, it would remain open to the Tribunal to proceed to hear and determine the application for review of the reviewable decision, and the Tribunal may make a decision on that review which might supplant or supersede the second reconsideration decision: see e.g. Re ACT Department of Health and Nikolovski (1996) 42 ALD 599 at [56].
Comcare raised the prospect that claimants might make repeated requests for reconsideration of decisions made under s 62, rather than applying for review of the reviewable decision under s 64, and that this would be contrary to the scheme for the reconsideration and review of determinations that is established by Pt VI of the SRC Act. However, this is likely to be a remote or theoretical possibility. Among other things, it is difficult to see why an employee who is dissatisfied with a reviewable decision made by a determining authority would insist on further reconsideration by that authority rather than seeking external merits review. Such a scenario does not provide a reason to distort the proper construction of the clear language employed by ss 60(1) and 62 of the SRC Act.
Accordingly, on the facts of the present case, Ms Le may in fact have been able to reconsider the Mohr decision, in so far as that decision accepted liability under s 14 to pay compensation in respect of the respondent’s injury. Nevertheless, for the reasons set out above, this conclusion is not ultimately relevant to the outcome of the appeal.
CONCLUSION
For the reasons set out above, the appeal is dismissed with costs.

I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan.
Associate:
Dated: 14 February 2025

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 Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 Swartz v Commonwealth (1959) 102 CLR 340 Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 Woodhouse v Comcare (2021) 285 FCR 14 Wuth v Comcare (2022) 289 FCR 464
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	144
Date of hearing:	22 May 2024
Counsel for the Appellant:	Mr A Berger KC with Ms K Slack
Solicitor for the Appellant:	Sparke Helmore
Counsel for the First Respondent:	Mr D Villa SC with Mr M Karam and Mr S Hoare
Solicitor for the First Respondent:	Snedden, Hall & Gallop Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDER MADE BY:	LOGAN, PERRY AND HORAN JJ
DATE OF ORDER:	14 FEBRUARY 2025