Jablonka and Comcare (Compensation) - [2025] ARTA 2176

Jablonka and Comcare (Compensation) [2025] ARTA 2176 (17 October 2025)
Applicant/s:  Krystyna Jablonka
Respondent:  Comcare
Tribunal Number:                2025/3365

Tribunal:General Member M. Carey
Place:Melbourne
Date:17 October 2025

Decision:The review application in matter number 2025/3365 is dismissed pursuant to section 101 of the Administrative Review Tribunal Act 2024.

.................[sgd].......................................................
General Member M. Carey
Catchwords
DISMISSAL – whether respondent vexed a second time with the same matter – whether proceeding is an abuse of process – allegation of attempting to re-litigate issues in prior proceedings – whether new claim for compensation is for different injury or the same as dealt with in earlier proceedings – no new injury – respondent being vexed a second time on same injury – tests for abuse of process satisfied – proceedings dismissed.
COMPENSATION – injury and aggravation of injury – claim of acceleration of existing injury at later time – onset of delusional disorder – whether acceleration is aggravation – whether aggravation of injury is becoming worse or being made worse by employment – delusional disorder found to be a worsening of existing condition not made worse by employment – no new injury.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Jablonka and Comcare [2012] AATA 627
Novosel v Comcare (2017) 72 AAR 269
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Re Grimsley and Telstra Corporation Ltd (2010) 51 AAR 401
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Slattery v Comcare (1996) 70 FCR 131
Statement of Reasons

Krystyna Jablonka seeks review of a decision by Comcare which denied liability to pay compensation for a psychological injury. Comcare’s decision was made on 5 March 2025[1] and it affirmed its earlier decision dated 24 January 2025 following internal review.[2]
[1] T18, 118-131. References commencing with the letter ‘T’ are references to Tribunal documents that are lodged with the Tribunal pursuant to a Notice to the respondent pursuant to s 23 of the Administrative Review Tribunal Act 2024 (ART Act), requiring a decision-maker to give to the Tribunal all documents within its control relevant to the review. They are generally known as ‘T-Documents’, sequentially numbered, with subsequent page references.
[2] T15, 86-98.
The decision was made after Ms Jablonka made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) on 13 January 2025 in respect of a psychological injury that was described as ‘aggravation of mental condition (namely: delusional features and related to it sequela aggravation in the already suffered mental condition). Note: this injury in global final diagnosis of major depression with delusional features. This claim is not for the aggravation of major depression recurrent episode (as inaccurately nominated in my previous claim).’[3]
[3] T14, 76-83.
Comcare has asked the Tribunal to dismiss this application pursuant to section 101 of the Administrative Review Tribunal Act 2024 (ART Act).…

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.

Continue reading Jablonka and Comcare (Compensation)

Details

AGLC: Jablonka and Comcare (Compensation) [2025] ARTA 2176
Case: [2025] ARTA 2176
Decision Date: 17 October 2025

CaseChat Overview and Summary

Jablonka, the applicant, sought compensation from Comcare, the respondent, for an injury sustained during employment. The dispute involved whether the applicant's delusional disorder was an aggravation of an existing condition or a new injury. The case was heard by the Administrative Appeals Tribunal (AAT). The primary legal issues the court had to resolve were whether the proceedings constituted an abuse of process and whether the delusional disorder was an aggravation of an existing injury or a new injury. The AAT examined whether the proceedings were vexatious and an abuse of process, considering if the applicant was attempting to re-litigate issues previously determined in a 2012 AAT decision. The AAT found that the new claim was an attempt to re-litigate the same issue, which had already been conclusively dealt with. The court applied the principles of res judicata and issue estoppel, affirming that it would be an abuse of process to allow repeated litigation of finally determined matters. Furthermore, the AAT assessed whether the delusional disorder was an aggravation of an existing condition or a new injury. It concluded that the delusional disorder was a worsening of an existing condition, not made worse by the employment, thus not constituting a new injury.

In reaching its decision, the AAT relied on the principle that abuse of process not only causes prejudice to the respondent but also involves broader public policy considerations. The court emphasized the importance of finality in litigation to promote fairness, justice, and efficiency in the review process. The AAT determined that the new claim was an abuse of process as it sought to re-litigate the same issue without new evidence. The delusional disorder was found to be a worsening of the existing condition, which did not result from the employment, and therefore did not qualify as a new injury. Consequently, the application was dismissed as vexatious and an abuse of process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That is not a new employment contribution to make the ailment worse but only recalling the employment contribution that excluded the /04 claim from liability pursuant to the SRC Act. That issue was raised and dealt with by the former AAT in its decision of 2012.The application is an abuse of process by attempting to re-litigate the same issue determined in the 2012 AAT decision. Section 101 of the Administrative Review Tribunal Act 2024 (ART Act) provides: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 the 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. The use of the term ‘vexatious’ is apt to describe not only those proceedings that are commenced only to harass the other party but also where there is a re-litigation of issues such that the opposing party is vexed a second time about the same cause previously dealt with conclusively. The framing of the new /05 claim for aggravation is on the basis of the material available to the Tribunal, an attempt to re-litigate the same issue dealt with in 2012 when the former AAT affirmed the denial of liability to pay compensation on the ground that the events of July 2010, particularly the interview with Mr Seneviratne, was contributory to the ailment to a significant degree but constituted reasonable administrative action such that the ailment could not be accepted as a compensable injury. The former AAT had repeatedly accepted that re-litigation of the same issue in later Tribunal proceedings constituted an abuse of process (see Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 and Re Grimsley and Telstra Corporation Ltd (2010) 51 AAR 401). The fact that a further claim is made does not mean that if such a claim is made that it cannot be an abuse of process, especially if there is no new evidence to warrant a further decision. In Novosel v Comcare (2017) 72 AAR 269, it was noted:[18]… abuse of process is not merely concerned with prejudice to a respondent but also with matters of broader public policy. Thus, principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because “a person ought not to be vexed twice for one and the same cause”, but also because it is in the interests of the State that there be an end to litigation: see eg Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 (Wong) at [36]-[37]. The same policy considerations may equally inform the Tribunal’s approach to issues of abuse of process as they would plainly promote the objective which the Tribunal is to pursue by virtue of s 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. … It may be an abuse of process not only to re-litigate the same issue twice, but also to seek to litigate an issue that properly belonged to the earlier litigation: Wong at [37] (by analogy).[18] (2017) 72 AAR 269, 298 [112] per Perry J.

Ratio Decidendi

Legal Principle Established

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