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Administrative Appeals Tribunal Act 1975 (Cth) (repealed)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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 1931
Decision Date: 18 August 2025

CaseChat Overview and Summary

The case involves Hatcliffe, an employee of the Australian Capital Territory, who was injured at work. Hatcliffe brought proceedings against the Territory for workers' compensation, but the Territory denied liability. The Territory later accepted a new claim for a subsequent aggravation of the original injury, which led to the Tribunal considering an application for dismissal of Hatcliffe's substantive application. The central issue before the Tribunal was whether the Applicant's substantive application should be dismissed, considering the new claim had been accepted by the Respondent.

The Tribunal determined that the Applicant's application was vexatious and an abuse of process, given the acceptance of the new claim. The Tribunal noted that if the new claim had been accepted, there was no practical or legitimate purpose to be achieved from the substantive application. The objectives under section 9 of the ART Act emphasize the need for proceedings to be fair, just, economical, informal, and quick. The Tribunal concluded that proceeding with the substantive application, which was now vexatious and lacking in substance, was inconsistent with these objectives. The Tribunal thus granted the Respondent's dismissal application, finding that the substantive application had become an abuse of process.

The Tribunal dismissed the substantive application in line with section 101(1)(a) of the Administrative Review Tribunal Act 2024 (Cth). The issue of costs under section 67 of the SRC Act was reserved pending written submissions from the parties. The Tribunal's decision was grounded in the objectives of the ART Act and the need to prevent abuse of the Tribunal's process.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 69DECISION 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 PrailSolicitor for the Applicant: David Healey Solicitors Counsel for the Respondent: A Allan & F BlairSolicitor for the Respondent: HWL Ebsworth Lawyers

Ratio Decidendi

Legal Principle Established

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; andc)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.