DSLB v Comcare - [2023] FCA 1222

FEDERAL COURT OF AUSTRALIA
DSLB v Comcare [2023] FCA 1222

Review of: DSLB and Comcare (Compensation) [2022] AATA 1369 and various decisions of Comcare and the Administrative Appeals Tribunal

File number: NSD 546 of 2022

Judgment of: KATZMANN J

Date of judgment: 16 October 2023

Catchwords:
WORKERS COMPENSATION – where determination by Comcare to disallow claim for workers compensation set aside on reconsideration and claim accepted, whether open to Comcare on own motion to reconsider primary determination or substitute different decision for decision made on reconsideration

ADMINISTRATIVE LAW – where Comcare purported to reconsider liability to pay workers’ compensation after primary determination to decline liability had been set aside on reconsideration – where Comcare provided applicant with two weeks to be heard before liability revoked but not the material upon which the own motion reconsideration decision was based, whether applicant denied natural justice – whether relief should be refused in any event because of availability of merits review in Administrative Appeals Tribunal

HIGH COURT AND FEDERAL COURT – suppression and non-publication orders – where applicant assigned pseudonym by Administrative Appeals Tribunal and applied to Court for order under s 37AF of the Federal Court of Australia Act 1976 (Cth) prohibiting or restricting publication or other disclosure of information tending to reveal her identity – where evidence revealed applicant suffers from psychiatric disorders and disclosure of her identity would more likely than not precipitate an acute exacerbation of her symptoms and lead to increased risk of self-harm, whether order necessary to protect her safety

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) ss 3(3), 35, 42A, 43(1)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 8, 10(1), s 10(2)(b)(ii), 11, 16(1)

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Judiciary Act 1903 (Cth) ss 39B, 77RF(1)(c)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7(7), 14, 38(4), 54, 59, s 60(1), 62, 64, 68, 69

Federal Court Rules 2011 (Cth) r 4.12

Cases cited:
AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202; 93 ALJR 321

Bechara v Bates (2021) 286 FCR 166

Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383

Courtney v Peters (1990) 27 FCR 404

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

Hogan v Australian Crime Commission (2010) 240 CLR 651

Kioa v West (1985) 159 CLR 550

Lees v Comcare [1999] FCA 753; 29 AAR 350; 56 ALD 84

Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476

McGowan v Migration Agents Registration Authority (2003) 129 FCR 118

Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221

R v Musleh (No 2) [2018] NSWSC 1221

Re Coyne and Comcare (1995) 37 ALD 553

Re Rebeiro and Comcare (1996) 44 ALD 632

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252

Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554

Telstra Corporation v Hannaford (2006) 151 FCR 253

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 142

Date of hearing: 29 June 2023

Counsel for the Applicant: Mr M Karam (pro bono)

Counsel for the Respondent: Mr B Dube

Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

NSD 546 of 2022

BETWEEN:
DSLB

Applicant

AND:
COMCARE

Respondent

ORDER MADE BY:

KATZMANN J

DATE OF ORDER:

16 OCTOBER 2023

THE COURT ORDERS THAT:
1.Pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to protect her safety, any information tending to reveal the identity of the applicant not be published or otherwise disclosed for a period of seven years.
2.The following decisions of the respondent be set aside:
(a)the decision made by Jenny Le on 2 August 2016; and
(b)the decision made by Lara Fleming on 11 December 2020.

3.The following decisions of the Administrative Appeals Tribunal be set aside:
(a)the decisions made by Senior Member McGrowdie on 5 and 6 October 2021;
(b)the decision made by Senior Member Poljak on 1 March 2022; and
(c)the decision made by Deputy President Pascoe on 27 May 2022.

4.The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT
KATZMANN J:
Introduction

The applicant is a former employee of the Australian Securities and Investment Commission (ASIC). During her employment with ASIC, she developed symptoms of anxiety and depression. On 11 November 2013, she lodged a claim with Comcare for workers’ compensation.
Comcare initially declined the claim (the primary determination). The applicant applied for a reconsideration and the primary determination was revoked by Sarah Mohr, a Senior Review Officer with Comcare, and liability was accepted for her claimed condition (the Mohr decision). Two years later, however, Comcare, through its delegate, Jenny Le, purported to reconsider the primary determination and, by letter dated 2 August 2016, informed the applicant that she had decided to revoke the acceptance of liability (the Le decision). Since that time, the applicant has been back and forth to the Administrative Appeals Tribunal and, while the Tribunal has made a number of decisions, it has made no substantive determination on Comcare’s liability to pay compensation. In the meantime, on 11 December 2020, another Comcare delegate, Lara Fleming, made another determination rejecting the applicant’s claim (the Fleming decision).
By an application for judicial review the applicant seeks orders in this Court, among other things, quashing or setting aside the Le and Fleming decisions and three decisions of the Tribunal, all of which are, in effect, said to be vitiated by jurisdictional error, and a declaration that the applicant may enforce the Mohr decision.
For the reasons which follow the applicant must succeed, although I do not propose to grant all the relief she seeks.
The legislative scheme
It is convenient to begin with a brief description of the relevant legislative scheme.
Subject to Pt II of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), Comcare is liable to pay compensation in accordance with the SRC Act in respect of any injury suffered by an employee which results in death, incapacity for work or impairment (s 14).
“Injury” is defined in s 5A as follows:
Definition of injury
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include 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.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in s 5B(1) to mean:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
For the purposes of the SRC Act, an employee is taken to have sustained an injury in the nature of a disease or an aggravation of a disease on the day they first sought medical treatment for it or the first day on which it resulted in their incapacity for work or impairment, whichever occurred first: SRC Act, s 7(4).
Section 7(7) provides that:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Compensation is not payable to a person under the SRC Act unless a claim for compensation is made by or on behalf of the person to the relevant authority under s 54. “Relevant authority” is defined in s 4 to mean, in relation to an employee who is employed by a licensee, the licensee, and, in relation to any other employee, Comcare. “Licensee” means “a Commonwealth authority or a corporation that is licensed, or that is taken to be licensed, under Part VIII”.
Comcare is a body corporate established under s 68 of the SRC Act and a “Commonwealth authority” within the meaning of that expression in s 4. One of its statutory functions is “to make determinations accurately and quickly in relation to claims and requests made to Comcare” under the SRC Act (s 69).
The present application turns on the scope of Pt VI of the Act (which includes ss 60—67). As the Full Court (Wilcox, Branson and Tamberlin JJ) observed in Lees v Comcare [1999] FCA 753; 29 AAR 350; 56 ALD 84 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.
The power to reconsider a determination is contained in s 62, which relevantly provides:
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.
(2)A request to a determining authority to reconsider a determination made by it may be made by:
(a)the claimant; or
(b)if the determination affects the Commonwealth—the Commonwealth; or
(c)if the determination affects a Commonwealth authority—that Commonwealth authority.
…
(3) A request for reconsideration of a determination shall:
(a)set out the reasons for the request; and
(b)be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
…
(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.
…
“Claimant”, “determination”, “determining authority” and “reviewable decision” are defined terms. The definitions appear in s 60(1), which relevantly provides:
In this Part:
claimant means a person in respect of whom a determination is made.
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
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, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
determining authority, in relation to a determination, means the person who made the determination.
reviewable decision means a decision made under subsection 38(4) or section 62.
Section 38(4) is irrelevant for present purposes. It deals with reviews by Comcare of decisions with respect to rehabilitation programs made by rehabilitation authorities other than a “relevant authority”.
“Decision” is defined in s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) in the following way:
Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article; or
(g)doing or refusing to do any other act or thing.
Section 64 of the SRC Act enables an application to be made to the Tribunal for review of a “reviewable decision”. Section 64 provides:
Applications to the Administrative Appeals Tribunal
(1)Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a)the claimant; or
(b)if the decision affects the Commonwealth—the Commonwealth; or
(c)if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d)if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
(3)Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.
In Lees at [39] the Full Court said:
In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT 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. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.
(Emphasis added.)
Section 42A of the AAT Act relevantly provides:
Dismissal if decision is not reviewable
(4)The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
…
Reinstatement of application
…
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection (11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
The powers of the Tribunal on review are set out in s 43(1) of the AAT Act:
(1)For the purpose 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 and shall make a decision in writing:
(a)       affirming the decision under review;
(b)       varying the decision under review; or
(c)       setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
The facts
The claim
On 11 November 2013, the applicant made a claim to Comcare for compensation for “Affective disorder: PTSD Anxiety and Depressive Disorder”.
The primary determination
On 16 January 2014 Gavin Davidson, as delegate for Comcare, made the primary determination. He found that the applicant suffered from an “ailment” as defined in the SRC Act, namely “post[-]traumatic stress disorder (PTSD)” and that her employment contributed to her condition to a significant degree. Based on the medical evidence, he decided that the deemed date of injury under s 7(4) of the SRC Act was 16 August 2013. But Mr Davidson disallowed the claim because he considered that “[the applicant’s] condition had been contributed to, in part, by the cessation of [her] higher duties necessitating [her] return to [her] substantive position”. That action, he decided, was “reasonable administrative action” within the meaning of s 5A(2)(f), as it constituted a failure to retain a benefit in connection with her employment. Accordingly, he found that Comcare was not liable to pay compensation.
On 31 March 2014 the applicant applied by email for a reconsideration of the primary determination.
The Mohr decision
On review, Ms Mohr agreed that a failure to obtain or retain higher duties falls within the exclusions in s 5A, but she was not satisfied on the evidence that this was a factor which resulted in the applicant’s condition. Instead, she was satisfied on the medical evidence that the applicant’s condition was due to her increasing workload, performing two roles, and a difficult relationship with one of her supervisors. Further, Ms Mohr considered that the correct diagnosis was an affective disorder, rather than PTSD. Consequently, she found that the primary determination could “no longer be sustained” and proceeded to revoke the determination and accept liability.
On 13 June 2016 the applicant wrote to Comcare advising that she was travelling overseas with her husband, that she had left the country five days earlier, and that her absence had been arranged in consultation with her treating specialist.
The Le decision
On 13 July 2016 Ms Le wrote to the applicant, giving notice of her intention “to undertake a reconsideration of own motion in relation to the decision which accepted liability for [her] claim” (that is to say, the Mohr decision). Ms Le explained in an attachment to the letter that, after the Mohr decision was made, “evidence” had come to Comcare’s attention which prompted a reconsideration of whether the applicant’s claim was precluded by the operation of s 7(7) of the SRC Act. She went on to refer to that evidence and to her interpretation of it. She advised the applicant that in her view the evidence indicated that on at least four occasions the applicant made “a wilful and false representation” that she did not previously suffer from the disease for which she sought compensation from Comcare. She said that the representations were made:
(1)in the applicant’s claim form dated 11 November 2013;
(2)to Dr Brian Richardson, a general practitioner, as reported by him on 3 December 2013;
(3)to Dr Bernadette Keegan, a clinical psychologist, as reported by her on 5 December 2013; and
(4)to Dr Michael Hong, a psychiatrist, as reported by him on 4 December 2014, 30 October 2015 and 10 June 2016.

Contrary to the statement made in the covering letter, however, in the attachment Ms Le advised that she intended to undertake a reconsideration of own motion of the determination of 16 January 2014 (the primary determination which disallowed the claim, not the reconsideration decision in which liability was accepted) and that she proposed to revoke the acceptance of her claim (by Ms Mohr).
Ms Le went on to say:
If you would like to provide any additional evidence before I complete the reconsideration of own motion, please ensure it is received by 27 July 2016. If the requested information is not provided by 27 July 2016, I will proceed to make a determination based on the evidence on your claim.
The applicant did not respond to the 13 July 2016 letter or provide further evidence in accordance with the invitation it contained and Ms Le proceeded to make the determination she had foreshadowed, notifying the applicant by letter dated 2 August 2016.
Apart from the reports mentioned in the 13 July 2016 letter, the Le decision referred to reports from the applicant’s treating psychiatrist, Dr Augustus Pusic, and to clinical notes and other documents from Dr Sheehan, another general practitioner, which included information said to be at odds with representations the applicant had made to other medical practitioners and to Comcare.
The reasons for the decision included the following statements:
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 [January] 2014, which denied liability for your injury.
…
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 [sic] this matter will be addressed separately.
(Emphasis added.)
The applicant claims not to have received the 13 July 2016 letter or the Le decision until she returned to Australia in about September 2016.
The applicant applies to the Tribunal for review of the Le decision
On 7 November 2016 the applicant applied to the Tribunal for a 30 day extension of time to seek review of the Le decision. While the outcome of that application was not in evidence, it appears that the extension was granted at some stage by Senior Member Poljak.
The applicant consequently applied for review of the Le decision in the Tribunal on 7 December 2016, claiming, amongst other things, that it was “beyond power and is void” and that she was not provided with “[n]atural justice and fair hearing” (the review application). On this latter claim, the applicant contended in her application signed by senior counsel and her solicitor:
In particular, the decision maker relied upon material that had not been provided to [the applicant] to consider and respond to. These documents included the supplementary reports of Dr Hong and the clinical notes of Dr Sheehan.
The applicant sought orders (relevantly) staying the Le decision, revoking “orders dated 2 August, [sic] 2016”, restoring her compensation benefits, dismissing Comcare’s claim for overpayment, and reinstating the Mohr decision.
The review application is dismissed without a review
The review application was listed for a five-day hearing commencing 6 May 2019 before Senior Member McGrowdie. The applicant’s then counsel, Mr Seymour, submitted that the Tribunal did not have jurisdiction to review the Le decision because it was a primary determination and on the applicant’s application, the Senior Member dismissed the application under s 42A(4) of the AAT Act, “noting questions as to jurisdiction have arisen” (the McGrowdie decision). The Senior Member did not determine the answers to those questions. Since the discretion conferred by s 42A(4) is only enlivened “if the Tribunal is satisfied that the decision is not reviewable by the Tribunal”, it is doubtful, to say the least, that the Senior Member was entitled to do what he did. But the point was not argued so I will say nothing further about it.
The applicant’s solicitors ask Comcare to issue a determination covering the Le decision
On 15 September 2020 Slater and Gordon, the solicitors then retained by the applicant, wrote to Comcare, referring to the jurisdictional issue raised on 6 May 2019 and asking Comcare to issue a determination that “covers” the Le decision “in a format that can be reconsidered and appropriately brought before the AAT”. The applicant denies that Slater and Gordon had instructions to communicate with Comcare on her behalf at the time the letter was sent. It is unnecessary to determine whether or not they did. It is sufficient to note that Comcare did as Slater and Gordon requested.
The Fleming decision is made
On 11 December 2020 the Fleming decision was made. Ms Fleming essentially affirmed the Le decision but, “for completeness” went on to consider “whether section 14 liability for [the applicant’s] claimed conditions [was] otherwise established”. Ms Fleming determined that the applicant suffered from a major depressive disorder to which her employment with ASIC was a significant contribution but that she suffered from that ailment as a result of reasonable administrative action undertaken in a reasonable manner. Ms Fleming was also satisfied that the effects of the claimed condition had resolved by 30 October 2015 at the latest.
The applicant applies to the Tribunal to have her review application relisted
On 24 April 2021 the applicant wrote to the Tribunal seeking the relisting of her application for the purpose of making formal orders, including orders summarily staying or setting aside the Fleming decision as “an unlawful and improper abuse of power and process” and confirming and declaring the Mohr decision as “remaining in force and effective”.
On 6 September 2021 the applicant made a formal application for the review application to be reinstated. Her stated purpose was to affirm the McGrowdie decision and to make appropriate orders to give effect to that decision, including orders awarding costs in her favour on an indemnity basis and to “address the conduct by Comcare which may be potentially considered a contempt of the Tribunal and its processes”.
The review application is reinstated
On 5 October 2021 Senior Member McGrowdie reinstated the application under s 42A(10) of the AAT Act, noting that the applicant “applied under subsection 42A(8) of the AAT Act for reinstatement of the application”. The following day, presumably at the applicant’s request, the Senior Member revoked the reinstatement order and reinstated the application under s 42A(10) of the AAT Act, noting that the applicant “applied for the reinstatement of the application”, but this time removing any reference to the section of the AAT Act pursuant to which that application was made.
Comcare seeks production of the applicant’s Medicare and PBS records
On 16 November 2021 Comcare asked the Tribunal to issue a summons to Services Australia for the production of the applicant’s Medicare and Pharmaceutical Benefits Scheme records for the previous 21 years. On 4 December 2021 the applicant wrote to the Tribunal objecting to the summons and raising questions about the Tribunal’s jurisdiction to proceed to a review on the merits.
Senior Member Poljak conducted a telephone hearing on 1 March 2022 in which the applicant’s husband appeared on her behalf. He informed the Tribunal that he accepted the Tribunal had jurisdiction to review the decision. The Senior Member decided that the request for the summons was appropriately founded and the summons was issued. Upon the return of the summons, orders for inspection were made.
Pascoe DP dismisses the applicant’s objections to inspection
On 18 May 2022 Deputy President Pascoe dismissed the applicant’s objections and dismissed it on 27 May 2022 on the basis that the objections had been dealt with by Senior Member Poljak in March.
The judicial review application
The application is brought under ss 5 and 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).
Section 5 of the ADJR Act entitles a person who is aggrieved by a decision to which the Act applies to apply to the Court for an order of review in respect of the decision on various grounds including, relevantly:
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision; [and]
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made[.]
There was no dispute that the decisions in question were all decisions to which the Act applies within the meaning of that expression in the ADJR Act.
Section 11 deals with the manner in which applications are to be made.
Section 16(1) of the ADJR Act relevantly provides that on an application for an order of review in respect of a decision, the Court may, in its discretion, make an order quashing or setting aside the decision and/or declaring the rights of the parties in respect of any matter to which the decision relates.
Section 39B of the Judiciary Act gives this Court original jurisdiction, amongst other things, in any matter arising under any laws made by the Parliament, other than criminal matters. Jurisdiction is also conferred by s 8 of the ADJR Act.
The issues
The application raises the following issues:
(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.
Comcare conceded that the Fleming decision was not valid in that it was not a determination under s 14 of the SRC Act but denied that this would mean that the Tribunal decisions were invalid. Comcare also conceded that, if the Le decision was invalid, then the Tribunal decisions were also the product of jurisdictional error and must be quashed. If, however, the only problem with the Le decision was that the applicant had been denied natural justice, then Comcare urged the Court to refuse relief in the exercise of its discretion because of the availability of merits review in the Tribunal.
Was it not open to Comcare to reconsider of its own motion the earlier reviewable decision? Was the primary determination not amenable to further reconsideration when the Le decision was made because it had already been revoked? Was the Tribunal authorised to vary, set aside or “otherwise tamper with” the Mohr decision or make a different decision in substitution for it (grounds 2(a)–(c))?
It is convenient to deal with the first three issues together.
It is evident from the terms of s 64 of the SRC Act that the Tribunal’s jurisdiction to conduct a review turns on whether the Le decision was “a reviewable decision” within the meaning of that term in s 60(1).
In Re Rebeiro and Comcare (1996) 44 ALD 632 at [48], the Tribunal noted that the power conferred by s 62(1) is the power to reconsider, or cause to be reconsidered, a “determination” as defined in s 60(1), that is to say, a “primary determination”. The Tribunal held that s 62(1) does not confer the power to reconsider, or cause to be reconsidered, a “reviewable decision” as defined in s 60(1), that is to say a decision made under s 38(4) or s 62.
In the primary determination in Rebeiro, Comcare declined liability for a surgical procedure Ms Rebeiro was due to undergo for an injury for which Comcare had accepted liability. Some 13 months later, the decision to decline liability was affirmed on reconsideration (a “reviewable decision” as defined by s 60(1)). The applicant applied to the Tribunal for review of the reviewable decision. But on 15 October 1996, two days before the application was due to be heard, of its own motion Comcare purported to reconsider both the primary determination and the reviewable decision of its own motion and accepted liability for the surgery. In so doing, the delegate purported to exercise the power under s 62(1) to revoke the two earlier determinations declining liability (the primary determination and the reviewable decision) and, in their place, to determine that Comcare was liable to pay the total cost of Ms Rebeiro’s surgery “to the extent that Comcare has the power to revoke (and has not already validly revoked or replaced)” the two earlier determinations.
At the beginning of the hearing, Comcare submitted that, as the decision of 15 October 1996 revoked the reviewable decision of 26 September 1995, there was nothing to review and therefore the Tribunal had no jurisdiction to undertake a review. Ms Rebeiro was keen for the Tribunal to review the reviewable decision because she was dissatisfied with Comcare’s description of her compensable injury as an aggravation of a pre-existing condition (thoracic outlet syndrome) and, as the Tribunal observed (at [60]), a decision on that question could have significant consequences for Ms Rebeiro’s future entitlements to compensation.
The Tribunal rejected Comcare’s submission. It stated (at [49]) that Comcare was authorised by s 62(1) to reconsider, or cause to be reconsidered, the primary determination of 23 August 1995, despite the fact that it had already been reconsidered and a reviewable decision had been made which was the subject of an application pending in the Tribunal. In the absence of express legislative authority to vary or set aside the reviewable decision, however, the Tribunal held (at [50]) that Comcare did not have authority to revoke, vary, set aside or otherwise “tamper with” the reviewable decision so that the Tribunal’s jurisdiction remained unaffected by the reconsideration on 15 October 1996. Consequently, the Tribunal held (at [51]) that the purported revocation of the reviewable decision was “invalid and ineffectual”. As it had foreshadowed it would do in that event, Comcare offered no evidence and withdrew from the proceeding. After considering Ms Rebeiro’s evidence, the Tribunal set aside the reviewable decision of 26 September 1995 and substituted a decision, amongst other things, that Comcare was liable under s 14 of the SRC Act to pay compensation to her in respect of the injury “occupational overuse syndrome, including thoracic syndrome, with subsequent neuropathic pain” and for the costs of the surgery.
I was informed by counsel that in the 27 years since Rebeiro was decided the Tribunal’s construction of s 62(1) has never been called into question. It is apparent that Ms Le, herself, considered Comcare was bound by it.
In Telstra Corporation v Hannaford(2006) 151 FCR 253 at [8] Heerey J made the following observations upon which Comcare relied:
The text, structure and underlying policy of the SRC Act do not suggest that a determination under s 14 permanently enshrines every finding of fact on which the determination was based. Mr Hannaford’s case concedes that a reconsideration under s 62 (and AAT review of the making or declining of such reconsideration) of a s 14 determination would be available. This would necessarily include the reconsideration of any finding of fact. Section 62 reconsideration is not subject to any time limit. The argument then must be reduced to saying that Telstra (or the AAT on review) cannot do under, eg, a reconsideration of a s 16 determination exactly the same thing as it could under a s 14 determination. Such a degree of formalism, reminiscent of the old common law forms of action, does not fit well with a modern, practical statutory scheme for the compensation of injured workers.
Similarly, Conti J remarked at [57] that:
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature or course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances.
That much must be accepted. The applicant did not contend otherwise. But that does not mean that what Ms Le did was authorised by the Act. The context in which these remarks were made was different. In Hannaford there was a primary determination that was never the subject of a reconsideration under s 62.
In Hannaford Telstra had initially accepted liability to compensate Mr Hannaford for Ross River fever and paid him compensation for his medical expenses and incapacity for work. After receiving medical evidence that he was not suffering from Ross River fever, Telstra determined that it was not liable to pay any further compensation for medical expenses or incapacity for work and also refused his claims for permanent impairment and non-economic loss. Telstra affirmed those determinations on a reconsideration under s 62. Telstra did not reconsider or revoke the original determination to compensate Mr Hannaford. Mr Hannaford persuaded the primary judge that the Tribunal had no jurisdiction to make a finding of fact contrary to the original determination under s 14 when that determination was not the subject of review. The Full Court allowed the appeal. Conti J, with whom Dowsett and Heerey JJ agreed, held (at [59]) that, contrary to the decision of the primary judge:
[T]he AAT below was duly empowered, upon the true construction of the [SRC] Act and in the events which happened:
(i)to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation;
(ii)to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii)to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.
It will be recalled that in the present case Ms Le accepted she was unable to reconsider the reviewable decision made by Ms Mohr (which substituted a decision that Comcare was liable to compensate the applicant for the primary determination that it was not liable) and said that she was reconsidering the primary determination.

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.
It is a moot point whether Comcare itself could have applied to the Tribunal for review of the Mohr decision. Mr Dube, who appeared for Comcare, argued that that course was not available, despite the express provision in s 64(1)(c) for Commonwealth authorities affected by a decision to apply for review of a reviewable decision. I doubt that is so.
In any event, Comcare would not be stuck with the Mohr decision in perpetuity. Comcare’s liability only continues as long as the applicant remains incapacitated for work by reason of an injury within the meaning of that term in the SRC Act or requires medical treatment for that injury. Rightly or wrongly, Dr Hong concluded in his report of 10 June 2016 that the applicant had recovered from the effects of the injury sustained on 16 August 2013 and she was fit for employment. Further, there is no reason in principle why the next time the applicant makes a claim on Comcare for it pay medical expenses, for example, it would not be empowered to decline the claim. That would be a “determination” within the meaning of s 60(1), reviewable under s 62. Whether that would be justified now, in the light of the medical evidence the applicant has since provided, is another matter.
Was the applicant denied natural justice because of the circumstances in which the Le decision was made (ground 2(d))?
The applicant alleges that the Le decision was also invalid because she was denied natural justice. The allegation was originally made on two bases: first, that she was denied a reasonable opportunity to present evidence or make submissions on the proposed reconsideration and second, that the reconsideration was tainted by apprehended bias because Ms Le appears to have prejudged the outcome. But the claim of apprehended bias was not pressed.
Natural justice – or procedural fairness as it is now commonly called – relevantly requires that a decision‑maker provide a person whose rights or interests may be affected by the decision with a reasonable opportunity to be heard before the decision is made. In Kioa v West (1985) 159 CLR 550 at 628–629 Brennan J said:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya; Ridge v. Baldwin per Lord Morris; De Verteuil v. Knaggs. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance …
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made …
See also Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [19] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
Was the applicant given a reasonable opportunity to be heard?
The applicant complains that she was denied natural justice because the notice of reconsideration sent on 13 July 2016 (the Notice):
·gave her only 14 days to provide additional evidence, failing which the determination would be completed;
·was sent to a postal address in Australia after she had informed Comcare that she had left Australia and was travelling overseas;
·was not accompanied by all medical and other reports mentioned in it and relied upon to support the preliminary conclusions in the letter when she had not previously been provided with all of that material; and
·did not afford her with “an advance opportunity” to raise any claims of privilege or rebut the substance of the material before Comcare relied on it.
Comcare submitted that there is no statutory obligation under the SRC Act for notice to be given to a claimant or compensation recipient of an intention to make a decision. Comcare also pointed out that the letter was addressed to the applicant’s permanent home address, as recorded in her claim form.
In an affidavit sworn on 23 June 2023, however, the applicant deposed that she was overseas on 13 July 2016, when the Notice was sent, and that she had informed Comcare by email on 13 June 2016 that she had left Australia on 8 June 2016. A copy of the email is annexed. She said she did not become aware of the Notice or the Le decision until she returned in around September 2016, although she was alive to the existence of “some problem” in about August 2016 because her “payments changed at around that time”.
The applicant also annexed to her affidavit an email she had received on 14 July 2016 from Fiona McCarthy, ASIC’s “P&D Work Health and Safety Advisor”, in the following terms:
Comcare recently provided me with an email that you had sent to them on June 13, 2016, stating that you had been overseas since June 8, 2016.
It would be helpful to know your expected date of return. I am requesting this information to enable me to plan your next independent medical examination appointment, and to allow you reasonable notice to attend.
The email was copied to Ms Le.
The evidence does not indicate whether the applicant replied to Ms McCarthy’s email.
On 13 September 2016, the applicant sent an email to Comcare. In the email she advised Comcare that she received a copy of the Le decision on 9 September 2016 and sought copies of the four reports upon which Comcare had relied to revoke liability. Comcare replied a little over a week later, enclosing copies of the reports, saying that they had been “released” under s 59 of the SRC Act.
In her affidavit of 23 June 2023 the applicant deposed that she had not previously been provided with any of the material upon which the Le decision was based. It was an agreed fact that not all of the evidence referred to in the Notice and the Le decision was provided to the applicant, either with those documents or in other dealings between the parties.
Screenshots captured from Comcare’s claims management software were annexed to an affidavit affirmed by Kristina Miller on 29 June 2023. They indicate that a letter dated 13 July 2016 was emailed to the applicant the following day and another letter was emailed to the applicant on 2 August 2016. Ms Miller deposed that she had been informed (by whom she did not say) that this was the information recorded in the annexures. While copies of the letters were not included, they were identified in the annexures by the titles “Comcare Letter – Information – Section 62: Recon on Own Motion (Intent)” and “Comcare Letter – Information – Section 62: Reconsideration on Own Motion”. Neither annexure, however, records whether the letter to which it relates was received and Ms Miller does not say one way or the other whether Comcare otherwise received a notification that they were not received.
It will be recalled that, in the Notice, Ms Le stated that evidence “came to Comcare’s attention” after the Mohr decision which required Comcare to reconsider whether her claim was precluded by s 7(7) of the SRC Act. After setting out the terms of s 7(7), Ms Le wrote:
In my view, the evidence indicates that, on at least four occasions, you made a wilful and false representation that you did not previously suffer from the disease for which you sought compensation from Comcare.
Those representations were made on the following occasions:
…
On each occasion, you denied suffering from previous mental illness, but in fact you have a long history of mental illness which appears to be closely related to the illness for which you have sought compensation.
On the current evidence, I intend to undertake a reconsideration of own motion in relation to the determination dated 16 January 2014, under section 7(7) of the SRC Act. I propose to revoke the acceptance of liability for your claim.
If I conduct a reconsideration of own motion and revoke liability for your claim, I must inform you that such a decision on your claim will raise an overpayment.
If you would like to provide any additional evidence before I complete the reconsideration of own motion, please ensure it is received by 27 July 2016. If the requested information is not provided by 27 July 2016, I will proceed to make a determination based on the evidence on your claim.
The “evidence” Ms Le said had come to Comcare’s attention which required the reconsideration was not identified in the Notice. Nor was it summarised or particularised. The Notice does not purport to enclose copies of documents containing the evidence. In the circumstances, the invitation to respond to the allegations with “additional evidence” was an arid one. Even if, contrary to her sworn evidence, the applicant had received the Notice on or about the date it was sent, without knowing what evidence had come to Comcare’s attention, how could she sensibly respond, whether in the two weeks afforded to her or at all? As she was given no particulars of the evidence upon which Comcare formed the view that the representations were “wilful and false”, let alone the evidence itself, the opportunity to respond was manifestly unreasonable. The evidence was obviously credible, relevant and significant to the decision Ms Le was minded to make. It should at least have been particularised.
It is immaterial that the SRC Act did not expressly require notice to be given to a claimant or compensation recipient of an intention to make a decision against their interests or depriving them of their rights. Where there is no express requirement and no clear or necessary exclusion, the requirement is taken to be implied. As the plurality explained in Saeed at [11]‑[14]:
11In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
“[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that ‘the justice of the common law will supply the omission of the legislature’. The true intention of the legislation is thus ascertained.”
12The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.
13Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.
14In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by “plain words of necessary intendment”. And in Commissioner of Police v Tanos Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from “indirect references, uncertain inferences or equivocal considerations.” Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.
(Footnotes omitted.)
Comcare did not point to “plain words of necessary intendment” in the SRC Act which would exclude the principles in the present case.
It is no answer that the applicant had a right to merits review in the Tribunal when no such review has been conducted, let alone concluded. As Davies J observed in Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476 at 480, “ordinarily” the existence of that right does not exclude the principles of natural justice. Section 10(1) of the ADJR Act relevantly provides that the rights conferred by the Act on a person to make an application to this Court in respect of a decision are “in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision …”. The very fact that judicial review is available to the applicant under the ADJR Act (and, for that matter s 39B of the Judiciary Act) indicates that the ordinary position operates here: see Courtney v Peters (1990) 27 FCR 404 at 412 (Lee J).
Should relief be refused in any event?
Section 10(2)(b)(ii) of the ADJR Act relevantly provides that the Court may refuse to grant an application for review of a decision because “adequate provision is made by any law other than [the ADJR Act] under which the applicant is entitled to seek a review” of that decision “by the court, by another court, or by another tribunal, authority or person”.
The question of whether relief should be refused despite the denial of natural justice does not arise in light of Comcare’s concession (see [53] above). In the event of a possible appeal, however, I propose to answer it.
The discretion vested in the Court by s 10(2)(b)(ii) is conditional on the Court finding that adequate provision is made by another law under which the applicant is entitled to seek review of a respondent’s decision by a court, tribunal, authority or person: McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 at [49] (Branson J). The capacity of the Tribunal under the AAT Act to review a decision affected by jurisdictional error is “adequate provision” within the meaning of that expression in s 10(2)(b)(ii) of the ADJR Act: McGowan at [55].
Relief under s 39B of the Judiciary Act is also discretionary: see, for example, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. In Bechara v Bates (2021) 286 FCR 166 at [164] the Full Court (Allsop CJ; Markovic and Colvin JJ) provided examples of the circumstances in which relief may be refused on discretionary grounds. They included, relevantly, the availability of an appeal which has not yet been pursued or an alternative remedy such as the power of a court to grant a permanent stay. It seems to me that a right of review in the Tribunal would be another obvious example. As Weinberg J observed in Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554 at [104], courts will often exercise their discretion to stay or dismiss applications for judicial review where full merits review is available to, and has already been invoked by, an applicant.
But the Court is not bound to refuse to grant an application for review because of the availability of alternative mechanisms for review. In Hagedorn v Department of Social Security (1996) 44 ALD 274 at 281 Mansfield J said in respect of the discretion granted to the Court by s 10(2)(b)(ii) of the ADJR Act:
As with any judicial discretion, it is neither possible to list all matters which will be relevant to its exercise for every case nor appropriate to attempt to do so. The category of material factors is never closed and will vary from case to case and the weight to be given to any one factor will depend upon the particular circumstances. It is relevant, generally speaking, to have regard to any unnecessary delay and any increased expense if the alternative suggested remedy is pursued: Mercantile Credits Ltd v FCT (1985) 8 FCR 510; 61 ALR 331. Indeed, any hardship involved in pursuing the alternative remedy will generally be relevant: Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829. Consequently, there will be cases where there is clearly involved a matter of law, and where the court will determine to resolve that matter of law despite adequate alternative review procedures: Kelly v Coats (1981) 35 ALR 93; AB Scaniainventor v Commissioner ofPatents (1981) 36 ALR 101; 54 FLR 367. It will generally also be relevant to have regard to the court's need to provide properly for speedy resolution of matters before it where no other avenue of recourse is available: Bragg v Secretary, Department of Employment, Education & Training (1995) 38 ALD 251.
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.
What orders should be made?
The Le and Fleming decisions should be set aside and so, too, should the four Tribunal decisions made on 5 October 2021, 6 October 2021, 1 March 2022 and 27 May 2022. It follows that the Mohr decision remains in force at least for the time being. There is no utility in making a declaration to that effect and I decline to do so.
The applicant also sought a declaration that a determining authority, in the absence of jurisdictional error, does not have power under the SRC Act to reconsider a reviewable decision or a determination that has been revoked. That, too, follows from my reasons, and I therefore decline to make a declaration to that effect.
The applicant also sought an order that Comcare return to her or otherwise destroy “confidential documents relating to [her] obtained in the proceedings before the AAT”. I am not persuaded to make the order, certainly not in that form and no alternative was proposed.

That leaves the question of costs.
When this application was filed, the applicant was unrepresented. At the time she filed the application, she also filed another application (NSD 470 of 2022), which sought review of the same decisions. After the applicant obtained legal assistance, I made orders by consent dismissing the proceeding in NSD 470 of 2022 and reserved the question of costs.
The applicant applied for costs in the present application. While it had initially applied for costs in NSD 470 of 2022, in this proceeding Comcare submitted that the parties should bear their own costs of both applications.
In this proceeding I see no reason to depart from the general rule that costs should follow the event. Accordingly, I will order that Comcare pay the applicant’s costs of this matter. In view of the position taken by Comcare in NSD470/2022, however, I will make no order as to the costs of that proceeding.
Should a pseudonym order be made?
Background
The applicant was allocated the pseudonym “DSLB” by the Tribunal and permitted to prosecute the review application under that name. The applicant commenced the proceedings in this Court using the same pseudonym and the appeal was conducted with it in place.
However, a party before this Court is not automatically entitled to take part in proceedings under a pseudonym, even where another court or tribunal has previously allocated a pseudonym to them. The power of the Court to prohibit the disclosure of any information, including information tending to reveal the identity of or otherwise concerning a party to a proceeding before the Court, is exhaustively contained in Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act). I will come to that power shortly. It is sufficient at this point to observe that the power conferred by Pt VAA of the FCA Act is much more constrained than the power conferred on the Tribunal. Unlike the Court, the Tribunal may make such an order without being satisfied that it is necessary to do so for any particular reason: AAT Act, s 35.
The application
After I raised this matter with the parties at a case management hearing, the applicant filed an interlocutory application seeking an order under s 37AF of the FCA Act prohibiting or restricting the publication or other disclosure of information tending to reveal her identity. The ground upon which the order was sought was not identified. But in an affidavit submitted to the Court, but not filed, DSLB stated that, if her name had to be publicly disclosed in relation to “the sexual assault background that underpins much of the issues in the proceeding”, it would be “very upsetting and distressing” for her and she would need to reconsider whether to continue with the case and that would also be distressing for her. In written submissions her counsel argued that an order under s 37AF is necessary “to prevent the frustration of the administration of justice and protect the psychological safety of the applicant”. He submitted that:
Openness is likely to destroy the attainment of justice by causing the applicant to discontinue the proceeding in order to avoid the further psychological harm she will suffer were her “name to be disclosed in relation to the sexual assault background that underpins much of the issues in the proceeding” (DSLB non-publication Aff [8]). If she does not discontinue the proceeding, the risk to her psychological safety is certain; its gravity may be severe. A pseudonym order is accordingly appropriate, particularly as “pseudonym orders interfere with open justice only minimally”.
While that affidavit was described in written submissions as the affidavit in support of the interlocutory application, it was never filed or read. At the hearing, the applicant pressed her application relying only on the ground that the order was necessary to protect her safety (the ground contained in s 37AG(1)(c)). I granted her 14 days to present any evidence in support and, following a brief extension, an affidavit sworn on 18 July 2023 was filed to which four psychiatrists’ reports were annexed.
The applicant submitted that the question was “whether observance of open justice would frustrate the administration of justice or another recognised other public interest, including relevantly the safety of a person”. She argued that, if an order were not made, her psychological safety would be at risk, potentially to a severe degree.
The Court’s power to make the order
Section 37AF(1)(a) of the FCA Act relevantly empowers the Court to make a suppression order or non-publication order restricting the publication or other disclosure of information tending to reveal the identity of any party to a proceeding. Both “suppression order” and “non‑publication order” are defined in s 37AA. The latter means “an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”. The former means “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”. It follows that the order actually sought in the interlocutory application is a suppression order.
Section 37AG provides:
Grounds for making an order
(1)The Court may make a suppression order or non‑publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non‑publication order must specify the ground or grounds on which the order is made.
“Necessary” is “a strong word”; it is not enough that the order is convenient, reasonable or sensible: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [43] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). As their Honours observed:
The placing of material in evidence, even on the faith of what for the time being would be a restriction imposed by a [non-publication] order, is a matter of forensic decision. The price of such a decision may be the subsequent disclosure, as is often the case in litigation, of embarrassing publicity.
Section 37AE provides that “[i]n deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.
If the power is enlivened, however, there is no discretion to withhold making the order: Hogan at [32]–[33].
In AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202; 93 ALJR 321 Nettle J considered the requirements for making an order under s 77RE of the Judiciary Act on the ground that it was necessary to protect the safety of the applicant’s children. The applicant was a police informant, whose information had contributed to the convictions and imprisonment of numerous individuals for serious crimes. Section 77RE of the Judiciary Act is in relevantly identical terms to s 37AF of the FCA Act. Section 77RF(1)(c), the ground upon which the applicant relied, is relevantly identical to s 37AG(1)(c) of the FCA Act. His Honour made the following pertinent observations at [14]–[17].
First, it is not necessary that the court be satisfied on the balance of probabilities that, absent the order sought, the person would suffer harm. Rather, the court must be satisfied on the balance of probabilities that the order is necessary to protect the safety of a person, informed by the nature, imminence and degree of likelihood of apprehended harm.
Second, the statutory criterion is “not one of necessity to prevent harm to a person but of necessity to protect the safety of a person” and “safety is a protean conception” distinguishable from harm. As “the idea of safety invariably entails the assessment of risk”, the criterion will be made out if:
upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.
Third, while any assessment of the risk to a person’s safety involves “a degree of conjecture”, that difficulty can be overcome by compelling opinion evidence.
In that case, senior police officers gave unchallenged evidence that the risk to the safety of the applicant’s children was “acute” and that it would increase with the publication of the applicant’s name. That was enough to satisfy his Honour that the order was necessary to protect their safety.
The approach to construction favoured by Nettle J in AB was followed by the NSW Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383 at [228]–[229] (Bathurst CJ, Leeming JA and Simpson AJA), an appeal from orders of the New South Wales Civil and Administrative Tribunal (NCAT) made in a disciplinary proceeding against a barrister. As the Court explained:
Put briefly, the “probable harm” approach requires proof of the probability of harm in the absence of an order. The “calculus of risk” approach requires a more nuanced consideration, taking into account the nature, imminence and degree of likelihood of harm to occur to the relevant person. The “calculus of risk” approach appears, in the decided cases, to have gained ascendency as the preferred approach: see AB (a pseudonym) v CD (a pseudonym) (2019) 93 ALJR 321; [2019] HCA 6; AB (a pseudonym) v R (No 3); Wilson v Basson [2020] NSWSC 512 at [18].
We likewise prefer the calculus of risk approach. The evidence established that, were the identity of the respondent to be publicly revealed, his mental health would be at risk. That conclusion would favour the making of an order restricting publication of identifying information. Against that has to be balanced the important consideration of open justice. More particularly, what has to be considered is the degree to which an order that would restrict identification of the respondent would encroach upon that principle. That encroachment would be minimal. Such an order would not restrict publication of the salient facts of the proceedings, that a barrister was the subject of disciplinary proceedings, the nature of the conduct that underlay the disciplinary proceedings, and the outcome of the disciplinary proceedings.
More recently, in Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221 at [27], the Full Court (Rares, Perry and Hespe JJ) emphasised that:
Considerations of embarrassment, convenience or personal sensitivity to the publication of personal and often very private circumstances given in evidence or revealed in the course of a proceeding in open court, of themselves, cannot justify or support the exercise of any inherent or implied power of a court to suppress or prohibit the publication of those matters. None of the grounds in s 37AG(1) for a statutory suppression or non-publication order refers to such a basis other than, perhaps, the ground in s 37AG(1)(d) (which, however, only applies in a criminal proceeding). The reason that considerations of embarrassment, convenience or personal sensitivity are not relevant to a Court’s inherent and statutory powers to derogate from the principle of open justice is that the principle is a fundamental condition for the exercise of every court’s jurisdiction, subject to any common law or statutory exception.
The applicant in that case had been assigned a pseudonym by the President of the Australian Human Rights Commission who had given a direction prohibiting the disclosure of the applicant’s identity. She filed an originating application in this Court using that pseudonym and the primary judge followed suit, ordering that her name not be published and the pseudonym be used instead. In the course of argument on her applications for leave to appeal, the Full Court noted the continued use of the pseudonym and ordered the applicant to file and serve an affidavit and written submissions to justify its continued use. The applicant submitted that continued use of the pseudonym would be justified under s 37AG(1)(c) of the FCA Act because she had suffered from a number of mental illnesses over the years, including a recurrent depressive disorder, and filed some evidence in support within the limited time afforded to her by the Full Court.
However, during the hearing of her substantive application before the Full Court the applicant was referred to by name as she requested. Her identity was readily ascertainable, even to those who were not in the courtroom, because she was identified by name in previous judgments on which both she and the primary judge relied. Despite the redaction of her name from the citations of those previous judgments, any person could have discovered her identity by navigating to those publications. The Full Court observed that in these circumstances, the use of the pseudonym was both “wholly ineffective in anonymising [her] identity” and “could not conceivably have been necessary in the interests of justice or her safety to protect her identity from disclosure, since it was never protected from disclosure…” (at [39]). The applicant accepted that the use of a pseudonym was futile (at [44]). Moreover, the Full Court said that there was no evidence to suggest that the applicant’s mental illness “creates any occasion in respect of her safety, let alone necessity or otherwise in the interests of justice, for suppressing publication of or anonymising her name in connection with the proceeding” (at [42]). The Full Court proceeded to make orders substituting the applicant’s real name for the pseudonym.
The evidence in support of the application
In her affidavit of 18 July 2023, the applicant said that after the hearing she had consulted Dr Augustus Pusic, a psychiatrist. A report from Dr Pusic, dated 13 July 2023, was annexed to her affidavit together with an earlier report from Dr Pusic and reports from two other psychiatrists.
Dr Pusic first assessed the applicant in February 2007, and treated her intensively (after her injury in the employ of ASIC) between April 2014 and January 2018. He interviewed the applicant by telephone on 10 July 2013, presumably because she was still overseas at the time. He noted that the applicant had been the victim of sexual assault at boarding school “in her developing years”, which she did not report at the time, and at the age of 19 was subjected to further inappropriate sexual advances at her workplace. He wrote that she has experienced “frequent suicidal ideation with strong urges to self-harm”.
Dr Pusic said that the applicant “continues to suffer from incapacitating symptoms of post[‑]traumatic stress disorder related to sexual assault and sexual harassment” and “continues to display emotional lability, distressing anxiety, pervasive dysphoria as well as acute sensitivity to intrusive recollections of past incidents of sexual abuse and harassment”.
He considered that publication of her identity “would more likely than not, precipitate acute exacerbation of already severe and pervasive post-traumatic stress disorder symptoms and also lead to increased risk of self-harm impeding her hopeful eventual recovery”. Accordingly, he expressed the view that an order suppressing her identity was not only reasonable but necessary.
Dr Pusic’s earlier report, dated 22 September 2016, was apparently prepared for provision to Comcare following the Le decision. The applicant relied in particular on the following passages:
Taking into account the nature of [DSLB]’s traumatic experiences as an adolescent it is quite understandable that she may not wish to retraumatize herself by recollecting and therefore re[-]experiencing highly distressing personal incidents.
…
A careful reading of the symptoms and signs elicited by Dr Hong which he documents in his October 2015 report would clearly support my opinion that [DSLB] now displays all the hallmarks and DSM V criteria [of] a Major Depressive Disorder characterised and complicated by severe Agoraphobia.
The applicant was also examined by Prof Alexander McFarlane AO on 24 November 2016. She relied on his report dated 22 December 2016, which appears to have been prepared in contemplation of Prof McFarlane giving expert evidence in the Tribunal. Prof McFarlane is a renowned expert on post-traumatic stress disorder.
Prof McFarlane summarised the applicant’s medical history, personal history and current symptoms as at the date of the report, which included “panic attacks on a regular basis”. He also noted that at the time of the consultation the applicant was depressed and had “daily suicidal thoughts”. She reported a suicide attempt in 2013.
Prof McFarlane referred to the applicant’s history of being sexually assaulted in her late adolescence and summarised his conclusion as to the applicant’s state of mental health as follows:
[DSLB] suffers from a chronic major depressive disorder, agoraphobia, and an unspecified trauma and stress related disorder (DMS-5 Code 309.9). These disorders have arisen as a consequence of the harassment and bullying which she experienced in the … workplace. Her symptoms developed over a period beginning in late 2011…
The applicant relies in particular on the following passages of Prof McFarlane’s report:
The question arises as to whether she also suffers from a chronic posttraumatic stress disorder … In response to these stresses she has developed a range of symptoms of posttraumatic stress disorder. Firstly, she has a pattern of intrusive and distressing recollections of these events, which she experiences in both dreams and spontaneous intrusive memories in the course of her waking hours. She also has had symptoms of a triggered nature of physiological and psychological distress, particularly related to her increasing apprehension and anxiety about attending the workplace prior to her going off sick. Only one of the intrusive phenomena of PTSD is required to satisfy the diagnostic criteria.
…
Also, the issue of the shame and humiliation about the public disclosure of a sexual assault which [DSLB] had attempted to repress from her mind is also not adequately considered.
Prof McFarlane remarked that, while the applicant was not diagnosed with PTSD at the time of the sexual assault, her history is “strongly suggestive of her experiencing a posttraumatic stress disorder in response to that event”, as demonstrated by her subsequent abandonment of tertiary studies and taking up employment in a remote location. These actions were said to be an “active form of avoidance” and together with her distress in reaction to sexual interest from a manager at the remote location and “parasuicidal behaviour” were “indicative of the severity of her psychological reaction to that assault”.
The purpose of the applicant’s specific reliance on the second extract is unclear. It appears that Prof McFarlane was of the opinion that the shame and humiliation associated with the public disclosure of a sexual assault was not adequately considered in the Le decision or in Dr Hong’s later reports upon which the Le decision was largely based.
The third psychiatrist was Ass Prof Michael Robertson. His report, dated 27 February 2018, also appears to have been prepared for the purpose of proceedings in the Tribunal.
After discussing the applicant’s history, Ass Prof Robertson wrote:
[DSLB] was a victim of sexual assault in her late adolescence, which brought about a psychopathological state characterised by externalising behaviour that upon reflection was likely the consequence of dissociation, which seemed to be the primary psychopathological response to the trauma. … [DSLB] appeared to have quite a torrid period following…

He concluded:
[DSLB] describes sufficient symptoms to justify a diagnosis of post-traumatic stress disorder that was likely comorbid with a major depressive disorder although the latter condition has probably improved with treatment.
In particular, the applicant relied on the following passage:
The conduct of the co-workers, particularly the overtly sexualised behaviour of a female co-worker and the aggressive behaviour of a male co-worker were clearly triggers that were salient to [DSLB] and seemed to have precipitated recurrence of what appears to be a dissociative subtype PTSD.
Ass Prof Robertson considered that the applicant’s prognosis was poor:
I think is a poor prognosis [sic]. [DSLB] is disabled by significant and persistent dissociative symptoms and other features of PTSD in addition to ongoing dysphoria and phobic anxiety.
…
There is little indication of any potential improvement. [DSLB] has had extensive psychological treatment and antidepressant medication with little sign of improvement to the point where she could return to employment.
Consideration
With the exception of the recent report of Dr Pusic, the psychiatrists’ reports were prepared for a different purpose and do not address the question before the Court. They are now five to seven years old, while the question posed by s 37AG(1)(c) is whether the making of a suppression order is now necessary to protect the safety of any person. Still, the evidence is relevant because it reveals a history of self-harm and suicidal ideation.
Dr Pusic’s recent report indicates that the applicant continues to suffer disabling symptoms of two psychiatric disorders. And Dr Pusic’s current opinion is that disclosure of her identity in this proceeding would more likely than not precipitate an acute exacerbation of her symptoms and lead to increased risk of self-harm. These circumstances indicate that there is a proper foundation for the doctor’s opinion about the risk to her safety if her identity were disclosed in this proceeding and, consequently, for an order of the kind sought. I have taken into account the primary objective of the administration of justice in safeguarding the public interest in open justice. In the absence of any challenge to Dr Pusic’s evidence, however, and in view of Dr Pusic’s involvement in the applicant’s care over a number of years, I accept his opinion. I therefore find that an order prohibiting the publication or other disclosure of the identity of the applicant is necessary to protect her safety.
Unlike the situation in Ogawa, the evidence is sufficient to show that the disclosure of the applicant’s identity would give rise to significant concerns about her safety. Unlike the situation in Ogawa, too, a non-disclosure order would be effective, as there is no evidence of the disclosure of her identity in other judgments. Moreover, knowledge of the applicant’s identity is immaterial to understanding the judgment. Accordingly, any prejudice to the administration of justice would be minimal: cf R v Musleh (No 2) [2018] NSWSC 1221 at [9]–[10] (Adamson J).
The duration of the order
Section 37AJ of the FCA Act provides:
(1)A suppression order or non-publication order operates for the period decided by the Court and specified in the order.
(2)In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.
(3)The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.
The pseudonym order sought by the applicant in her interlocutory application is not expressed to expire at any particular time in future. No submissions were made about the appropriate duration of the order.
Given the applicant’s poor prognosis, it is not immediately clear what the duration of the order should be. Any estimation of when the applicant’s mental health may improve to the point where the order would no longer be necessary to protect her safety would be highly speculative. I propose that the order be made for seven years.
A postscript
Finally, I wish to formally record the Court’s gratitude to the parties and their legal representatives for the way in which the case was conducted and to Mr Karam, in particular, who appeared pro bono for the applicant having agreed to accept a referral for legal assistance made under r 4.12 of the Federal Court Rules 2011 (Cth). Until that time, the applicant was unrepresented. Understandably, given the applicant’s emotional investment in the proceeding and her protracted dispute with Comcare, the Court was provided with a plethora of irrelevant and otherwise inadmissible material. Mr Karam’s representation enabled the proceeding to be conducted efficiently and effectively.

I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

Associate:
Dated: 16 October 2023

Review of:	DSLB and Comcare (Compensation) [2022] AATA 1369 and various decisions of Comcare and the Administrative Appeals Tribunal
File number:	NSD 546 of 2022
Judgment of:	KATZMANN J
Date of judgment:	16 October 2023
Catchwords:	WORKERS COMPENSATION – where determination by Comcare to disallow claim for workers compensation set aside on reconsideration and claim accepted, whether open to Comcare on own motion to reconsider primary determination or substitute different decision for decision made on reconsideration ADMINISTRATIVE LAW – where Comcare purported to reconsider liability to pay workers’ compensation after primary determination to decline liability had been set aside on reconsideration – where Comcare provided applicant with two weeks to be heard before liability revoked but not the material upon which the own motion reconsideration decision was based, whether applicant denied natural justice – whether relief should be refused in any event because of availability of merits review in Administrative Appeals Tribunal HIGH COURT AND FEDERAL COURT – suppression and non-publication orders – where applicant assigned pseudonym by Administrative Appeals Tribunal and applied to Court for order under s 37AF of the Federal Court of Australia Act 1976 (Cth) prohibiting or restricting publication or other disclosure of information tending to reveal her identity – where evidence revealed applicant suffers from psychiatric disorders and disclosure of her identity would more likely than not precipitate an acute exacerbation of her symptoms and lead to increased risk of self-harm, whether order necessary to protect her safety
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 3(3), 35, 42A, 43(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 8, 10(1), s 10(2)(b)(ii), 11, 16(1) Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Judiciary Act 1903 (Cth) ss 39B, 77RF(1)(c) Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7(7), 14, 38(4), 54, 59, s 60(1), 62, 64, 68, 69 Federal Court Rules 2011 (Cth) r 4.12
Cases cited:	AB (a pseudonym) v CD (a pseudonym) (2019) 364 ALR 202; 93 ALJR 321 Bechara v Bates (2021) 286 FCR 166 Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383 Courtney v Peters (1990) 27 FCR 404 Hagedorn v Department of Social Security (1996) 44 ALD 274 Hogan v Australian Crime Commission (2010) 240 CLR 651 Kioa v West (1985) 159 CLR 550 Lees v Comcare [1999] FCA 753; 29 AAR 350; 56 ALD 84 Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476 McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221 R v Musleh (No 2) [2018] NSWSC 1221 Re Coyne and Comcare (1995) 37 ALD 553 Re Rebeiro and Comcare (1996) 44 ALD 632 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Saitta Pty Ltd v Commonwealth (2000) 106 FCR 554 Telstra Corporation v Hannaford (2006) 151 FCR 253
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	142
Date of hearing:	29 June 2023
Counsel for the Applicant:	Mr M Karam (pro bono)
Counsel for the Respondent:	Mr B Dube
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDER MADE BY:	KATZMANN J
DATE OF ORDER:	16 OCTOBER 2023