DSLB and Comcare (Compensation)

This matter concerned an interlocutory hearing before the Administrative Appeals Tribunal (AAT) concerning an objection to the inspection of summonsed material. The applicant, DSLB, sought review of a decision by Comcare which revoked an earlier determination accepting liability for a psychiatric illness and instead affirmed a determination denying liability. The proceedings had a complex history, including a previous dismissal of the application for review by Senior Member McGrowdie in May 2019, its subsequent reinstatement in October 2021 at the invitation of Comcare, and a subsequent request by Comcare for summonses to Services Australia for various Medicare and Pharmaceutical Benefits Scheme records.

The primary legal issues before the Tribunal were whether it had jurisdiction to proceed with the review on the merits, and whether the applicant's objection to the inspection of the summonsed material by Comcare should be upheld. These issues had previously been considered by Senior Member Poljak on 1 March 2022, who had determined that the request for summons was appropriately founded and the summons was issued. The applicant subsequently lodged a further objection to the inspection of the summonsed material.

The Deputy President, John Pascoe AC CVO, reasoned that the AAT does not have the power to review a decision made by a previous Tribunal member. He noted that the time for the applicant to seek review of Senior Member Poljak's decision in the Federal Court had expired, but acknowledged the Federal Court's power to extend time and the potential for confusion in the proceedings. The Deputy President dismissed the applicant's objection to the inspection of the summonsed material, finding that these objections had already been dealt with by Senior Member Poljak.

The Deputy President made directions allowing either party to apply within 14 days to have the matter relisted before Senior Member Poljak for any clarification regarding her decision of 1 March 2022. He also noted that this direction did not preclude the applicant from seeking to appeal to the Federal Court regarding the issues raised.