Hatcliffe and Australian Capital Territory (Practice and procedure) - [2025] ARTA 1931

Hatcliffe and Australian Capital Territory (Practice and procedure) [2025] ARTA 1931 (18 August 2025)
Date:18 August 2025
Applicant/s:  Robert Hatcliffe
Respondent:  Australian Capital Territory
Tribunal Number:                2024/2387
Tribunal:General Member F Eylward
Place:Canberra
Date of Hearing:                  11 July 2025, 18 August 2025
Written Decision:                26 September 2025

Decision:The Tribunal dismisses the application for review pursuant to section 101(1)(a) & (c) of the Administrative Review Tribunal Act 2024 (Cth).

........................................................................
General Member F Eylward
CATCHWORDS
PRACTICE AND PROCEDURE – Application for Dismissal under s 101(1) Administrative Review Tribunal Act 2024 – objectives under s 9 – mechanism of review that is fair, just, economical, informal and quick – workers compensation – reviewable decision no present liability – subsequent aggravation claim accepted – liability for similar or worse condition accepted – any practical effect of relief sought – no material benefit to be derived from successful outcome – separate future entitlement to permanent impairment to same body part – any legitimate purpose to be achieved – abuse of process – frivolous, vexatious, misconceived or lacking in substance
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) (repealed)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
Safety, Rehabilitation & Compensation Act 1988 (Cth)
CASES
Re Christopher Paul Williams and Australian Electoral Commission and the Greens (Party Joined) [1995] AATA 160
Re O'Hara and Comcare (Compensation) [2023] AATA 3814
Re Paunovic and Australian Capital Territory (Compensation) [2020] AATA 5070
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
Oliver and Comcare [2018] AATA 1964
Spencer v Commonwealth [2010] HCA 28
Jefferson Ford Pty Ltd v Ford Motor Company of Australian and Others [2008] FCAFC 60
Australian Postal Corporation v Oudyn [2003] FCA 318
Re Minister for Immigration & Multicultural & Indigenous Affairs Ex Parte Applicants S134/2022 (2003) 211 CLR 441
Re Minister for Immigration & Multicultural Affairs Ex Parte Lam (2003) 214 CLR 1
AA v Secretary to the Department of Health and Human Services (2020) 61 VR 436
Public Service Association of South Australia Inc v Industrial Relations Commissioner (SA) (2013) 115 SASR 413; [2013] SASCFC 4
Woodhouse v Comcare [2021] FCAFC 95
Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101
Stenhouse v Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 57
Statement of Reasons

These proceedings relate to an Application for Review lodged with the (former) Administrative Appeals Tribunal on 18 April 2024 under the Administrative Appeals Tribunal Act 1975 (AAT Act)[1] in relation to a reviewable decision dated 16 April 2024 made by a delegate of the Respondent.[2] The reviewable decision affirmed an earlier decision of 14 February 2024 that the Respondent had no present liability to pay compensation for medical expenses and incapacity with respect to the Applicant’s ‘lower back strain’ injury under sections 16 and 19 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) (SRC Act).[3]
[1] T-Documents filed 28 May 2024, T1
[2] T-Docs T1.1
[3] T-Docs T37
Liability had previously been accepted by the Respondent under sections 14, 16 and 19 of the SRC Act on 16 March 2022 for ‘lower back strain’. The accepted injury was stated to arise from an incident on 16 February 2022 when the Applicant injured his lower back while moving a large rock from a footpath (the compensable claim), entitling the Applicant to compensation under sections 16 and 19 of the SRC Act for medical expenses and weekly incapacity payments respectively.[4]
[4] T-Docs T10
The reasons relied on by the Respondent in the reviewable decision included medical evidence indicating the Applicant’s lower back pain was no longer due to the compensable claim, which was said to have resolved, with the current symptoms being caused by a non-work related aggravation and/or superseded by pre-existing multilevel lumbar spondylosis.[5]
[5] T-Docs T1.1
The primary issues before the Tribunal arising from the substantive application included:[6]
(a)Whether the Applicant continued to suffer the effects of the compensable claim as of 14 February 2024;
(b)If so, whether the Applicant’s employment contributed, to a significant degree, to the compensable claim on an ongoing basis;
(c)Whether the Applicant has continued to require reasonable medical treatment for the compensable claim to his lower back beyond 14 February 2024, and therefore entitled to compensation pursuant to section 16 of the SRC Act; and
(d)Whether the Applicant has continued to require time off work as a result of the compensable claim after 14 February 2024, and therefore entitled to incapacity payments under section 19 of the SRC Act.
[6] Applicant’s Statement of Facts, Issues & Contentions dated 31 January 2025; Respondent’s Statement of Facts, Issues & Contentions dated 5 August 2025
In October 2024, the Administrative Review Tribunal was established and any active applications before the Administrative Appeals Tribunal as at 14 October 2024, including these proceedings, were deemed to be applications before this Tribunal with the appropriate authority to continue and finalise any aspect of review not already completed empowered under the transitional provisions.[7] Accordingly, because the issues set out above had not yet been determined at that time, the substantive application falls within the jurisdiction of this Tribunal and the Administrative Review Tribunal Act 2024 (ART Act) applies.
[7] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
Subsequently, the Respondent made an Application to the Tribunal seeking to have the substantive application dismissed pursuant to section 101 of the ART Act. The parties appeared before me on 18 August 2025. The Applicant was represented by Mr Prail, with Ms Blair of Counsel representing the Respondent, where the parties helpfully addressed me further on whether there were any jurisdictional issues to be taken into account in determining the dismissal application, having already had the benefit of the parties’ written submissions[8] and ventilation of the parties’ respective positions at an interlocutory hearing on 11 July 2025.
[8] Respondent’s written submissions dated 10 June 2025 and Reply of 4 July 2025; Applicant’s written submissions dated 24 June 2025
Ultimately, I accepted the Respondent’s contentions, having considered the interests of both parties with regard to their submissions, applicable case law and the evidence contained within the Joint Hearing Bundle, including the Respondent’s Tender Bundle for Dismissal Application, and dismissed the substantive proceedings under section 101(a) and (c) of the ART Act. This is my written statement of reasons for the decision, as requested by the Applicant following the dismissal.
BACKGROUND
The Applicant is a 62 year old facilities manager employed by the ACT Government to work at the UC High School Kaleen, having commenced employment on 15 January 2015.[9]
[9] T-Docs T6; Applicant’s Statements 20 August 2024 and 17 February 2025
It is accepted that on 16 February 2022, the Applicant suffered an injury to his lower back when he moved a large rock from a footpath in front of the workplace while performing his duties as facilities manager. He immediately reported it to his manager and later consulted his treating general practitioner, Dr Douglas Rogers, on 17 February 2022. Dr Rogers diagnosed the Applicant as having a low back strain, expected to be temporary in nature.[10]
[10] T-Docs T5
The compensable claim was accepted by the Respondent on 16 March 2022, pursuant to section 14 of the SRC Act, and the Applicant entitled to medical expenses and incapacity payments under sections 16 and 19 of that Act from the date of injury.[11]
[11] Ibid 5
On 30 March 2022, the Applicant was assessed by Dr Michael Ow-Yang, spinal surgeon, who, in summary, reported that the Applicant had sustained a lower back strain upon moving a large rock and that he would require lighter duties initially with a full recovery anticipated after the acute inflammation settled.[12] He also noted the CT scan results showed some minor spondylotic changes in the lumbar spine.
[12] T-Docs T15
It also appears to be accepted that the Applicant returned to work on 17 March 2022 with restrictions and on modified hours, though continued to experience some residual symptoms before he successfully returned to full duties after being certified as fit to work without restriction by his treating GP on 6 June 2022.[13]
[13] Applicant’s Statement dated 20 August 2024
The Respondent closed the compensable claim by letter on 17 June 2022 following the Applicant’s return to pre-injury employment and an end to treatment, referring to a discussion with the Applicant where he confirmed this.[14]
[14] T-Docs T26
Notwithstanding this, there is reference within the T-Docs and the Joint Hearing Bundle to the Applicant continuing to have ‘a mild form of pain in [my] back’ up until October 2023 when the symptoms increased following a number of days moving furniture at work.[15]
[15] Ibid 12; Summonsed medical records of Ochre Medical Centre
The Respondent subsequently issued its determination of no present liability on 14 February 2024 after obtaining a medical report from Dr Gautum Khurana, neurosurgeon, dated 29 January 2024 diagnosing the compensable claim as a mild musculo-ligamentous strain in the lumbar region that had generally resolved. He noted a non-work related flare up in May 2023 that settled and a further incident to the lower back in October 2023 that had now superseded the compensable claim.[16] The determination accepted the Applicant continued to have lower back pain, but considered that the compensable claim had resolved and the lower back pain was now due to other factors on the basis of Dr Khurana’s report, and referencing medical certificates and letters of Dr Rogers and Dr Ow-Yang.
[16] T-Docs T36
While Dr Khurana appeared to initially proceed on the understanding that the symptoms arising from the incident in October 2023 were not work-related and therefore his symptomatology when he assessed the Applicant was not attributable to his employment, it is no longer in dispute that the incident on 6 October 2023 was work-related and significantly contributed to the Applicant’s presentation.
APPLICATION FOR DISMISSAL
During the proceedings, the Applicant obtained a medical report from orthopaedic surgeon, Dr Anil Nair dated 29 August 2024.[17] Based on that report (and Dr Khurana’s report), he then subsequently submitted a further claim for compensation to the Respondent’s claims manager on 17 February 2025 for ‘permanent aggravation of pre-existing asymptomatic lumbar spondylosis’ (the new claim). The injury was stated to have arisen from the second work incident, as referred to above, on 6 October 2023 when the Applicant was moving furniture over the course of a week, including moving filing cabinets weighing more than 100kgs as part of his duties at UC High School, Kaleen.[18]
[17] Joint Hearing Bundle filed by the parties on 7 August 2025, JHB 2.1
[18] JHB 6.1
The Hearing to determine the substantive application was initially listed before the Tribunal on 16-18 June 2025, before being vacated at the request of the parties to allow for the new claim to be determined given the significant overlap between the two claims.
A release from the implied undertaking over a number of medical documents obtained as part of these proceedings was also granted for the purpose of assessing the new claim with the parties opining at a directions hearing on 10 April 2025 that it was plausible the substantive application may very well resolve of itself should the new claim be accepted.[19]
[19] Orders of GM Eylward dated 10 April 2025
Evidently the new claim for ‘permanent aggravation of pre-existing asymptomatic lumbar spondylosis’ was accepted by the Respondent on 17 April 2025 under section 14 of the SRC Act and for medical expenses relating to the lower back and any incapacity payments under sections 16 and 19 of the SRC Act from 6 October 2023 – notably before the date of the reviewable decision of 14 February 2024 determining no present liability for the compensable claim for ‘lower back strain’, the subject of the proceedings.
On 26 May 2025, the parties appeared before me for a telephone directions hearing on the status of the matter and whether it was ready to proceed to Hearing, and if so, for directions to be made for efficient case management.
At that directions hearing, the Respondent informed the Tribunal the new claim had been accepted on an ongoing basis resulting in there being no time period since the first date of injury on 16 February 2022 where the Applicant was not entitled to compensation for medical expenses or incapacity relating to his lower back – either under the compensable claim, or alternatively the new claim. The Respondent noted that, accordingly, the proceedings ought to properly be dismissed under section 101(a) of the ART Act.
The Applicant’s solicitor indicated that they did not hold instructions on whether the Applicant intended to pursue or withdraw his substantive application in light of the recent developments of the acceptance of the new claim with compensation ongoing. Directions were issued for the parties to file submissions in this regard, should the Applicant decide to proceed with his substantive application notwithstanding the acceptance of the new claim for his lower back, together with a case management timetable to hearing.[20]
[20] Orders of GM Eylward dated 26 May 2025
On 10 June 2025 the Respondent filed a formal application seeking to have the substantive application dismissed pursuant to section 101(1)(a)-(c) of the ART Act on the basis that it was vexatious, lacked substance or was otherwise an abuse of process in circumstances where liability had been accepted for a similar or worse condition than the compensable claim and the Applicant presently remained entitled from the date of first injury to ongoing compensation for his lower back (dismissal application).
The dismissal application was heard over 11 July 2025 and 18 August 2025 where Counsel for each party made oral submissions, supplementing their written submissions with helpful reference to the T-documents, the Joint Hearing Bundle and the Respondent’s Tender Bundle for Dismissal Application.
Respondent’s Submissions
The Respondent contends that the substantive application no longer serves any practical or legitimate purpose in circumstances where even should the Tribunal find in favour of the Applicant, there is no practical outcome or benefit to be derived where the Respondent has now accepted liability for injury to the same body part under section 14 of the SRC Act, and for medical expenses together with any time off work arising from incapacity due to the lower back condition under sections 16 and 19.
The Respondent, in oral submissions, confirmed that it did not contend that there were no reasonable prospects of success in the subject proceedings, but that even were the Applicant to be successful, such an outcome would serve no practical purpose to him and there would be no additional outstanding compensation that would be payable in light of the acceptance of the new claim with an overlapping period of entitlement with the compensable claim.
As a result of the acceptance of liability for the new claim, the Respondent confirmed that there is no period of time from the initial injury on 16 March 2022 to present date where the Applicant was not entitled to compensation for medical expenses or incapacity payments relating to his lower back, with liability for the new claim presently ongoing.
The Respondent relied on the decision of Re Christopher Paul Williams and Australian Electrical Commission and the Greens citing former President Matthews (with which Deputy Presidents Hill and Beaumont JJ concurred):
“But where, as here, the significant factual matters agreed between the parties, and the only issue in dispute relate to the legal consequences which follow, the genuineness of the applicant’s belief as to the legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing the proceeding.
…

In this case, the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect… The interest which gave the applicant standing to commence the proceedings has long since ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, whilst the proceedings were not instituted vexatiously, they have become vexatious. They have been thus ever since 22 December 1992, when the only interest of the applicant which could possibly have been affected by the disputed decision, ceased to exist. It would impose unnecessary expense and hardship upon the respondent and the Greens if the case were to proceed further. Accordingly, we consider that the application should be dismissed as requested.” [21]
[21] [1995] AATA 160 at [38]
The Respondent noted that where the ‘Applicant can achieve no practical effect, greater benefit or better position,’[22] the Tribunal must have regard to its objectives as set out in section 9 of the ART Act, that is that the Tribunal is required to provide a mechanism for review that fair and just, and that applications are to be resolved quickly with as little formality and expense as proper consideration of the application permits.[23]
[22] Re O’Hara and Comcare (Compensation) [2023] AATA 3814 at [28], cited in the Respondent’s submissions
[23] Section 9 ART Act 2024
In that regard, the Respondent contended that pressing the matter to a substantive Hearing where there was no material benefit to be achieved was inconsistent with those objectives.
The Respondent agreed that the power of the Tribunal to dismiss substantive applications should only be used sparingly and only upon careful consideration, but that ultimately this matter was one such matter where the alternative would be costly to both parties, utilise valuable resources of the Tribunal, and was diametrically opposed to the Tribunal’s objectives in the circumstances.
The Respondent submitted that if the Tribunal is of the view there is no practical purpose and nothing to be gained by pursuing the substantive application, then the continuation of the substantive application is vexatious and therefore ought to be dismissed.
Applicant’s Submissions
The Applicant opposed the dismissal application on the basis that if he is successful in the proceeding, his right to claim compensation for the initial injury as the compensable claim, would be reinstated. The Applicant asserts in his written submissions, ‘[that] is an outcome which would have an obvious practical effect, and would put him in a better position than he is in now’ and further, that the practical effect of a reinstatement of liability for the compensable claim,
“…would be more acute if, at a point in the future, the respondent were to stop paying compensation for the reason that the effects of the 2023 aggravation had ceased. The applicant would regain his right to make claims for compensation in respect of the (permanent) 2022 injury if he were successful in the proceeding, but that right would be (unfairly) extinguished if the Tribunal were to dismiss the proceeding.”[24]
[24] Applicant’s Written Submissions dated 24 June 2025, pgs 6-7
Notably, the Applicant’s written submissions do not extend or go beyond this to explain what these ‘obvious practical effect’ are that place the Applicant in a better position than the one he is in presently but contends that where there is an arguable case in the proceeding for reinstatement, the Tribunal cannot properly be satisfied that the substantive application should be dismissed.

In oral submissions, the Applicant extrapolated that there is clearly a benefit or gain to be derived should the Applicant be successful in the substantive proceedings, including a potential entitlement to permanent impairment under section 24 of the SRC Act. He contended that, with reference to Robson v Military Rehabilitation and Compensation Commission[25], because the Applicant has essentially suffered two separate injuries to his lower back, he is entitled to two separate claims for permanent impairment should he meet the applicable thresholds for both injuries to his lower back in the future, being the lower back strain and the permanent aggravation of asymptomatic lumbar spondylosis.
[25] [2013] FCAFC 101
Counsel for the Applicant expressed that were the Applicant to withdraw the substantive application and rely on the acceptance of the new claim for medical expenses or incapacity, he is in effect agreeing with the decision that he no longer suffers from the first injury, terminating any right he may have to claim for permanent impairment in the future for that injury should he reach the applicable threshold.
It was noted that withdrawing also places the Applicant in the unenviable position of not being able to seek compensation for medical expenses or incapacity payments for the compensable claim in the event the Respondent ceases his entitlements on the new claim on the basis the need for treatment or incapacity arises from the underlying condition rather the aggravation.
From this perspective, the Applicant submitted that there was no inconsistency with the Tribunal’s objectives, observing that the first set of rights are not extinguished by virtue of a second accepted claim, and therefore it would be a grave decision for any Tribunal to dismiss a substantive application in those circumstances and not allow the Applicant to proceed to proper determination at Hearing. By doing so, the Applicant asserted that the Tribunal is saying he has no right to claim against the compensable injury.
LEGAL PRINCIPLES
The Tribunal has the discretionary power to dismiss a substantive application under section 101 of the ART Act, which relevantly prescribes:
101 Tribunal may dismiss application if frivolous, vexatious etc
(1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abuse of process of the Tribunal.
(2) If the Tribunal dismisses an application (the substantive application) under subsection (1), the Tribunal may, on application by a party to the proceeding in relation to the substantive application or on its own initiative, order that the applicant for the substantive application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a specified kind or kinds.
(3) The order has effect despite any other provision of this Act or any other Act.
This discretionary power must be taken into account in the context of the overarching objectives of section 9 of the ART Act in mind, and weighed to a lesser degree, with a parties’ right to present their case expressed under section 55 of the ART Act:
9 Objectives
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision-making; and
(e) promotes public trust and confidence in the Tribunal.
The Tribunal’s objectives under section 9 are intertwined throughout the ART Act as an intrinsic part of the Tribunal’s priorities in its primary function of merits review. Notably, the adherence to those objections is emphasised in section 56 of the ART Act requiring parties and their representatives to use their best endeavours to assist the Tribunal in achieving those objectives. Logically, proceeding with an application that is frivolous, vexatious, misconceived or lacking in substance once one is aware that it lacks substance, or is an abuse of process is counterproductive to the objectives and the parties’ obligations to aide in the achievement of those objectives.
CONSIDERATION
The issue in dispute is whether the Applicant’s substantive application should be dismissed in the context of the new claim for the lower back being accepted rendering the application vexatious and an abuse of process with no practical or legitimate outcome to be achieved.
The Applicant’s submission is essentially that if he is successful in the substantive application, the benefit he stands to gain or the practical purpose is:
a)reinstatement of his compensable claim affording him the choice of claiming medical expenses or incapacity against either claim;
b)retaining the right to seek compensation under the compensable claim in the event the Respondent denies compensation for the new claim on the basis the need arises from the injury on 16 August 2022; and
c)the opportunity to potentially make a permanent impairment claim under section 24 of the SRC Act for the lower back twice – one on each claim in line with the Federal Court decision in Robson v Military Rehabilitation and Compensation Commission[26].
[26] Ibid 25
Where no practical or legitimate purpose can be achieved or derived from determination of the substantive application, placing the Applicant in a better position, it is difficult to see how an application does not then become vexatious or lacking in substance that otherwise is an abuse of process, such that it should be dismissed.
In that regard, the objectives under section 9 of the ART Act must be considered of primary importance – that is, an application is to be determined fairly, justly, expediently and with as little formality and expense as possible. Proceeding with an application that is vexatious lacking in substance or an abuse of process is clearly inconsistent with these objectives.
Future entitlement for compensation against either claim
The Tribunal notes that it was on receipt of the reports from Drs Nair and Khurana, that the Applicant submitted a new claim to the Respondent with the updated diagnosis, and for which the substantive proceedings were effectively stayed to allow for that to be properly considered and determined. The Respondent accepted liability for the new claim for permanent aggravation of pre-existing asymptomatic lumbar spondylosis under sections 14, 16 and 19 of the SRC Act.
The Applicant stated that should the Tribunal dismiss the application, or if the Applicant was to withdraw it, he risks seeking payment of treatment expenses or incapacity in the future relating to his lower back under the new claim, only to be rejected on the basis the Respondent views the need for that medical treatment or incapacity relates to the underlying condition, rather than the currently accepted permanent aggravation claim.
The Respondent contends that if there were to be a successful outcome for the Applicant, the practical effect is that the Applicant has the choice of claiming any medical expenses or incapacity against two claims. In my view, the option to claim against two separate claims does not a constitute a material or actual gain to be realised for the Applicant.
Proceeding with a substantive application to achieve a mere opportunity to have a notional choice of which claim the Applicant will seek compensation for fits squarely into the definition of vexatious. It is open now to the Applicant to make a claim for medical treatment or incapacity for his lower back regardless.
The question of ongoing entitlements is subject to the provision of any future claims by the Applicant, as in any other compensation claim under the SRC Act and is a risk that all applicants face regardless of any Tribunal determination. In reality, simply because a liability determination is made by the Tribunal on a particular date, the Respondent is not prohibited from then issuing a decision ceasing liability shortly thereafter. While generally that is unlikely without compelling further evidence being obtained by a Respondent to base their decision on and given their obligations as a model litigant, it remains that the Tribunal does not have the power to make orders into the future under the SRC Act and can only determine what is immediately before it.[27]
[27] Australian Postal Corporation v Oudyn [2023] FCA 318; Oliver and Comcare [2018] AATA 1964
Permanent Impairment
The Guide to the Assessment of the Degree of Permanent Impairment for the purpose of calculating an applicant’s entitlement under section 24 of the SRC Act sets out the following terms:
6. Combined Impairments
… Where two or more injuries give rise to the same impairment a single rating only should be given.
The Applicant contended that in effect he has two injuries – the lower back sprain the subject of these proceedings, and the new claim of permanent aggravation of pre-existing asymptomatic lumbar spondylosis. It was submitted, therefore, that he would be entitled to make a permanent impairment claim for each should he so choose at some point in the future notwithstanding the injuries are to the same body part in accordance with the Full Federal Court’s decision in Robson v Military, Rehabilitation and Compensation Commission (Robson),[28] adopting the principles set out by the High Court in Fellows v Military Rehabilitation and Compensation Commission (Fellowes).[29]
[28] Ibid 25
[29] [2009] HCA 38
In those cases, in brief summary, it was established that each separate injury and its impairment should be separately assessed in isolation when considering permanent impairment even where, in Robson, those separate injuries are to the same body part.
The High Court in Fellowes in considering permanent impairment of injuries to separate knees (and not the exact same body part as in this matter) was of the view that where the same impairment was alleged, the matter had to be judged by reference to the ‘particular identified effect’ of each injury.[30]
[30] Ibid
Accordingly, the Applicant submitted that that potential entitlement to a lump sum for permanent impairment of both claims is sufficient to satisfy a benefit or gain that he would derive should the substantive application be found in his favour at Hearing.
The Respondent argues that the Applicant has two claims comprising of the same injury affecting the lower back and they are not separate injuries. The Applicant’s expert, Dr Nair says that the current diagnosis is a permanent aggravation of pre-existing asymptomatic lumbar spondylosis as a result of the two work incidents on a foundation of degenerative lumbar spondylosis associated with advancing age and manual roles.[31]
[31] JHB 2.1
For the dismissal application ad for the reasons set out below, it is not necessary me to determine whether the Applicant has suffered from two separate injuries or one. The Applicant’s contention relating to permanent impairment as a gain or practical purpose to be derived presupposes that if successful in the proceedings, the Applicant would continue to require, and be entitled to, ongoing medical expenses and incapacity payments from the date of determination right through until such time if, and when, he chooses to make a permanent impairment claim on each claim without allowance for further changes, intervening and non-related developments or a determination ceasing liability.
It secondly assumes that the Applicant will reach the required whole person impairment (WPI) threshold to be eligible for permanent impairment on one or both injuries, notwithstanding the second injury is a similar or worse condition to the lower back strain.
The Respondent correctly asserted that the Tribunal only has the power to consider the application/s before it, and it does not have the power to consider future possible claims. The Respondent observed that the Applicant’s perceived or alleged practical gain was fanciful and fictitious and beyond what the Tribunal can consider at this time.
I tend to agree. It is speculative at best. The Tribunal only has the power to consider what is presently before it and cannot determine matters based on what may or may not happen in the future. There is no permanent impairment claim currently before the Tribunal, nor is there any reference to a WPI calculation in the medical evidence. It does not seem to be a factor that the medical experts have even notionally considered at this time. It is outside of my power to consider permanent impairment in this matter. That should only be determined when or if that time arises.[32] On that basis, the Tribunal cannot be satisfied that the potential to possibly make two claims for permanent impairment if the required WPI threshold is met in the current context is a sufficiently material or practical outcome to be achieved such that the substantive application should not be dismissed.
[32] Ibid 27
Whether Vexatious & Abuse of Process
As articulately expressed by Senior Member McCabe when considering the definition of ‘vexatious’ under the comparable dismissal provisions of section 42B(1)(a) of the AAT Act in Stenhouse v Secretary, Department of Education, Employment and Workplace Relations;
“The expression “frivolous or vexatious” is often misunderstood. In one sense, the words are unfortunate: an applicant might suppose the Tribunal is not taking his or her complaint seriously if it is described as being “frivolous”. That word has a particular meaning when it is used in the Act. It means the application is futile or pointless, most obviously because the Tribunal is not able to assist the applicant in a meaningful way.
…
The Tribunal is unable to make any order that will have a practical effect. The applicant’s position will not be improved if I put the parties to the expense and inconvenience of conducting a hearing. It is pointless to do so in the circumstances.
Section 2A of the AAT Act says the Tribunal is required to provide “a mechanism of review that is fair, just, economical, informal and quick”. None of those competing demands will be served by allowing these proceedings to continue. The proceedings must be dismissed, for the reasons I have explained.”[33]
[33] [2012] AATA 57
In the subject proceedings, where there is no time from the date of first injury to the present date where the Respondent is not liable to pay compensation for medical expenses and incapacity payments relating to the Applicant’s lower back (whether for the lower back sprain or the permanent aggravation of pre-existing lumbar spondylosis), and where treatment is likely to be precisely the same regardless on the medical reports, the substantive application cannot assist the Applicant any further in any meaningful way.
The Tribunal is satisfied there is nothing else the Applicant stands to gain or achieve by continuing his substantive application and therefore has become vexatious. By continuing with the proceedings in those circumstances, it would be an abuse of process, as similarly considered in the decision in Re Paunovic and Australian Capital Territory (Compensation), where it was observed that:
“In this regard, any future favourable decision of the Tribunal in this proceeding regarding the ACT’s liability to pay compensation for an ‘injury’ would not provide Mr Paunovic anything that he has not already obtained by way of the ACT’s recent own motion decision finding in his favour. Having regard to the above findings in these reasons, the Tribunal is satisfied that Mr Paunovic’s application has become ‘vexatious’; it has no serious purpose or value following the ACT’s recent own motion decision to accept liability for his compensation claim. That is, were the application to continue and be successful it would nevertheless be devoid of any practical effect. Accordingly, as the Tribunal held in Williams and Australian Electoral Commission, ‘whilst the proceedings were not instituted vexatiously, they have become vexatious’ and they presently have no practical purpose and would therefore impose unnecessary burden and expense on both the ACT and the Tribunal were they to continue.”[34]
[34] [2020] AATA 5070
A three day Hearing will place an unnecessary burden, in terms of cost, time and resources on the Respondent and the Tribunal, where a successful outcome will not change the current position of the Applicant where he is already entitled under the new claim to medical expenses and incapacity payments arising from his lower back condition. Additionally, there is an equal risk the Applicant may be unsuccessful, having gone through the stress, time and cost of a Hearing.
I should make it clear that I do not believe the Applicant has been purposefully vexatious or frivolous in the subject proceedings and indeed it was appropriate for him to commence these proceedings when he sought review. This decision should not be taken as any reflection of his genuineness or integrity. It is simply through the course of events, however, the proceedings themselves have become vexatious upon the acceptance of the new claim and thereby an abuse of process to continue where he will achieve no material benefit.
Having regard to the applicable case law relating to the dismissal of substantive proceedings and the broad nature of the wording of section 101(1) of the ART Act, I am of the view there is no practical purpose to be served by continuing with the application to Hearing where even a favourable outcome for the Applicant will not achieve any additional or material benefit, but in doing so would require him to undergo the stress and anxiety that arises from legal proceedings as well as the increased legal costs to both parties.
I have also considered the objectives in section 9 of the ART Act and fairness to both parties taking into account costs, resources, and emotional distress for the Applicant. I agree with both parties that the power to dismiss substantive proceedings should only be used very sparingly and only after careful and serious consideration.[35] In this instance, the Tribunal is satisfied that the circumstances warrant dismissal of the substantive proceedings.
[35] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
DECISION
Based on the above, I grant the Respondent’s dismissal application filed on 10 June 2025.
Accordingly, the Tribunal dismisses the substantive application in the terms of section 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth) in that upon the acceptance of the new claim, the proceedings became ‘vexatious’ and ‘lacking in substance’ and therefore becoming an abuse of process under section 101(a)(c) of the Administrative Review Tribunal Act 2024 (Cth).
The issue of costs pursuant to section 67 of the SRC Act is reserved pending written submissions from the parties upon receipt of this decision.
Counsel for the Applicant:             A Schofield & D Prail
Solicitor for the Applicant:             David Healey Solicitors
Counsel for the Respondent:         A Allan & F Blair
Solicitor for the Respondent:         HWL Ebsworth Lawyers