Keyte and Comcare (Compensation)

Case [2025] ARTA 1292

Keyte and Comcare (Compensation) [2025] ARTA 1292 (8 August 2025)

Applicant:Glenn Keyte

Respondent:  Comcare

Tribunal Number:                2024/7968

Tribunal:Senior Member D Thomae

Place:Brisbane

Date:8 August 2025

Decision:  The Tribunal affirms the decision under review.

................................[SGD]...........................

Statement made on 07 August 2025 at 4:50pm

CATCHWORDS

COMPENSATION – Settlement of proceedings in Administrative Appeals Tribunal (AAT) on basis Applicant entitled to compensation – subsequent reconsideration on own motion – whether s 118 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ‘double dipping’ applies – where documents under compulsion showed Applicant received state compensation in AAT proceedings – use of s 58 notice by Respondent to obtain documents showing Applicant received state compensation – whether an implied undertaking applies to documents from AAT proceedings – whether the documents are able to be used for the purpose of present review – whether the Respondent breached an implied undertaking – application for leave nunc pro tunc to be released from the implied undertaking – release denied - affirm decision under review

Legislation

Administrative Review Tribunal Act 2024 (Cth)

Income Tax Assessment Act 1936 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Taxation Administration Act 1953 (Cth)

Cases

Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Amcor Limited (ACN 000 017 372) (2008) ATPR 42-224
Casey v Repatriation Commission (1995) 60 FCR 510
Comcare v DSLB [2025] FCAFC 13
Commonwealth v Snell (2019) 269 FCR 18
Deputy Commissioner of Taxation v Rennie Produce (Aust) Pty Ltd (in liq) (2018) 260 FCR 272
Ellercamp and Comcare [2025] ARTA 637
Esso Australia Resources Limited v Plowman (1995) 183 CLR 10
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Hazel-Wright v 32 Domain Pty Ltd (ACN 163 035 603) [2020] VSCA 129
Hearne v Street (2008) 235 CLR 125
La Mancha Africa S.A.R.L v Commissioner of Taxation [2021] FCA 1546
Lees v Comcare [1999] FCA 753
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Maric v Comcare (1993) 40 FCR 244
Re Butler and Australian Postal Corporation [1992] AATA 361
Re Chin and Comcare (Compensation) [2017] AATA 634
Re DVFW and Comcare (Compensation) [2019] AATA 2366
Re Ellercamp and Comcare [2025] ARTA 637
Re Oliver and Comcare (Compensation) [2018] AATA 1964
Re Pidgeon and National Disability Insurance Agency [2023] AATA 2207
Re Warner and Comcare (Compensation) [2017] AATA 2709
Secretary, Department of Social Security v Jordan (1998) 83 FCR 34
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95

Secondary Materials
Administrative Appeals General Practice Direction 2015

Administrative Review Tribunal (Common Procedure) Practice Direction 2024

Statement of Reasons

INTRODUCTION

  1. The applicant, Mr Glenn Keyte (Mr Keyte), made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by Comcare (Comcare), on its own motion under s 62(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (

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AGLC
Keyte and Comcare (Compensation) [2025] ARTA 1292
Case
[2025] ARTA 1292
Decision Date

CaseChat Overview and Summary

In this matter, the parties are Mr Keyte and Comcare, and the dispute revolves around whether Mr Keyte is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for an injury sustained on 23 April 2014. The case was heard by the Administrative Appeals Tribunal (AAT), which initially found in favour of Mr Keyte. However, Comcare subsequently investigated and determined that Mr Keyte had already received compensation from the state for the same injury. This led to the reconsideration of the case on Comcare's own motion, resulting in a decision that Mr Keyte is not entitled to federal compensation due to the receipt of state compensation. Mr Keyte has sought review of this reconsideration decision.

The central legal issues before the court were whether section 118 of the SRC Act applied to bar Mr Keyte from receiving federal compensation due to his recovery of state compensation, and whether an implied undertaking existed that would prevent the use of certain documents obtained from the AAT proceedings. Specifically, the court needed to determine if the documents obtained under a section 58 notice could be used to establish that Mr Keyte had received state compensation. Additionally, the court considered whether Comcare breached an implied undertaking by using these documents in the reconsideration decision.

The court found that section 118 of the SRC Act did apply to Mr Keyte, barring him from receiving federal compensation due to the receipt of state compensation. The court also determined that there was no implied undertaking preventing the use of the contested documents obtained under the section 58 notice. The court concluded that the documents were relevant and admissible, and that their use did not breach any implied undertaking. Consequently, the reconsideration decision affirming Comcare's liability to compensate Mr Keyte was upheld.

In summary, the court affirmed the reconsideration decision, ruling that Mr Keyte is not entitled to compensation under the SRC Act due to the recovery of state compensation. The court's decision was based on the applicability of section 118 of the SRC Act and the admissibility of the contested documents.

Orders

Orders of the court

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Background

Background to the litigation

Mr Keyte and Comcare agreed that the relevant facts are as follows (the Agreed Facts):(a)On or about July 1990, Mr Keyte commenced employment by Victoria Police (VICPOL). He was employed as a police officer, ultimately rising to the rank of Detective Sergeant.(b)From 23 August 2004 to 4 November 2006, Mr Keyte was seconded to the Australian Federal Police (AFP). He was deployed to Papua New Guinea from 21 November 2004 until 16 May 2005. He was deployed to the Solomon Islands from 21 May 2005 to 4 November 2006, following which he returned to his usual VICPOL duties. However, while seconded, the Applicant always remained an employee of VICPOL.[4][4] Exhibit R1 - T21.1 & T21.3(c)Mr Keyte made a claim for compensation under the Victorian workers compensation scheme (WorkCover). On 22 October 2015, that claim settled, relevantly, on the basis that:[5][5] Exhibit R1 - T21.2(i)the defendant pays Mr Keyte’s reasonable medical treatment and like expenses relating to his claimed injury ‘to date and continuing’; and(ii)the defendant maintained its rejection of payment of weekly compensation.(d)In 2016, Mr Keyte ceased employment with VICPOL, apparently on the grounds of ill health.(e)On 2 June 2016, it was determined that Mr Keyte was eligible for a permanent disability benefit under the Emergency Services Superannuation Scheme. Mr Keyte was subsequently advised that his fortnightly superannuation pension would commence on the ‘pension payday’, 28 July 2016.[6][6] Exhibit R1 - T7.1.(f)On 18 April 2018, the Veterans’ Review Board decided that Mr Keyte was entitled to a disability pension assessed at ‘100% of the General Rate’ with effect from 19 June 2016 and at the ‘Special Rate’ with effect from 3 July 2016 pursuant to the Veterans’ Entitlements Act 1986 (Cth).[7][7] Exhibit R1 - T4.(g)On or about 17 April 2019, Mr Keyte received a payment from WorkCover after he was sent to a medical panel which assessed his impairment under section 91 of the Accident Compensation Act 1985 (Vic) and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition. Mr Keyte’s psychiatric whole person impairment was determined to be 30%, which amounted to an entitlement in the sum of $75,410.00. (h)On 31 January 2022, Mr Keyte made a claim for compensation in respect of the Condition under the SRC Act.(i)By determination dated 15 February 2022, liability to pay compensation to Mr Keyte in respect of the Condition was denied under section 14 of the SRC Act. On 21 April 2022 Comcare made a reviewable decision by which that determination was affirmed.(j)Mr Keyte sought review by the AAT of the reviewable decision dated 21 April 2022.(k)On 18 September 2023, by the AAT Decision, Comcare was found liable to compensate Mr Keyte in respect of the Condition, sustained on 23 April 2014, pursuant to section 14 of the SRC Act.[8] [8] Exhibit R1 - T5.(l)Subsequently, Comcare made incapacity payments to Mr Keyte.(m)On or about 30 April 2024, Comcare wrote to Mr Keyte to advise that it was investigating whether he had recovered State workers compensation in respect of the Condition sustained on 23 April 2014.[9][9] Exhibit R1 - T18; Exhibit A1.(n)Further documentation was sought from Mr Keyte for Comcare, by the s 58 Notice, to assess the claim and to decide whether Mr Keyte recovered State workers compensation in respect of the Condition, requiring, inter alia:[10][10] Exhibit A1.·Claim for compensation form dated 4 June 2014 (part of claim #21130073716).·Letter of correspondence from the Victorian Workcover Authority (WorkSafe) accepting liability for your PTSD.·Letter of correspondence from the Victorian Workcover Authority (WorkSafe) or Gallagher Bassett confirming payment for medical expenses in respect of your PTSD.·Letter of correspondence from Maurice Blackburn to Gallagher Bassett dated 11 March 2016 acknowledging receipt of payment for $11,944.55 for settlement monies for claim #21130073716.·Your claim for Impairment Benefits for PTSD dated 2 February 2018 (claim #21130073716).·Letter of correspondence from Gallagher Bassett dated 1 August 2018 accepting liability under section 98C (Notice of Entitlement) and payment of $75,410 (part of claim #21130073716).(o)On or about 28 May 2024, Mr Keyte responded to the s 58 Notice. Mr Keyte’s relevant responses establish that he recovered State workers compensation in respect of the Condition which was sustained on 23 April 2014.[11].(p)Subsequently, Comcare undertook the reconsideration on own motion and made the Reviewable Decision.(q)Mr Keyte then sought review by the AAT and has maintained this proceeding in the Tribunal.[11] Exhibit R1 - T21-T21.1.14The Contested Documents (T21-T21.14)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal must decide:(a)Whether s 118 of the SRC Act applies to Mr Keyte and he is no longer entitled to the benefit of the decision of the AAT on 18 September 2023, by settlement between the parties, that determined Comcare was liable pursuant to s 14 of the SRC Act for the Condition (the AAT Decision) because he has recovered State workers compensation in respect to the Condition.(b)If Mr Keyte’s claim for ‘privilege’ applies to the Contested Documents, produced to the Respondent in response to the s 58 Notice, that establish Mr Keyte recovered State workers compensation.(c)Should the Reviewable Decision be affirmed or otherwise under s 105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).MATERIAL FACTSAgreed Facts Mr Keyte and Comcare agreed that the relevant facts are as follows (the Agreed Facts):(a)On or about July 1990, Mr Keyte commenced employment by Victoria Police (VICPOL). He was employed as a police officer, ultimately rising to the rank of Detective Sergeant.(b)From 23 August 2004 to 4 November 2006, Mr Keyte was seconded to the Australian Federal Police (AFP). He was deployed to Papua New Guinea from 21 November 2004 until 16 May 2005. He was deployed to the Solomon Islands from 21 May 2005 to 4 November 2006, following which he returned to his usual VICPOL duties. However, while seconded, the Applicant always remained an employee of VICPOL.[4][4] Exhibit R1 - T21.1 & T21.3(c)Mr Keyte made a claim for compensation under the Victorian workers compensation scheme (WorkCover). On 22 October 2015, that claim settled, relevantly, on the basis that:[5][5] Exhibit R1 - T21.2(i)the defendant pays Mr Keyte’s reasonable medical treatment and like expenses relating to his claimed injury ‘to date and continuing’; and(ii)the defendant maintained its rejection of payment of weekly compensation.(d)In 2016, Mr Keyte ceased employment with VICPOL, apparently on the grounds of ill health.(e)On 2 June 2016, it was determined that Mr Keyte was eligible for a permanent disability benefit under the Emergency Services Superannuation Scheme. Mr Keyte was subsequently advised that his fortnightly superannuation pension would commence on the ‘pension payday’, 28 July 2016.[6][6] Exhibit R1 - T7.1.(f)On 18 April 2018, the Veterans’ Review Board decided that Mr Keyte was entitled to a disability pension assessed at ‘100% of the General Rate’ with effect from 19 June 2016 and at the ‘Special Rate’ with effect from 3 July 2016 pursuant to the Veterans’ Entitlements Act 1986 (Cth).[7][7] Exhibit R1 - T4.(g)On or about 17 April 2019, Mr Keyte received a payment from WorkCover after he was sent to a medical panel which assessed his impairment under section 91 of the Accident Compensation Act 1985 (Vic) and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition. Mr Keyte’s psychiatric whole person impairment was determined to be 30%, which amounted to an entitlement in the sum of $75,410.00. (h)On 31 January 2022, Mr Keyte made a claim for compensation in respect of the Condition under the SRC Act.(i)By determination dated 15 February 2022, liability to pay compensation to Mr Keyte in respect of the Condition was denied under section 14 of the SRC Act. On 21 April 2022 Comcare made a reviewable decision by which that determination was affirmed.(j)Mr Keyte sought review by the AAT of the reviewable decision dated 21 April 2022.(k)On 18 September 2023, by the AAT Decision, Comcare was found liable to compensate Mr Keyte in respect of the Condition, sustained on 23 April 2014, pursuant to section 14 of the SRC Act.[8] [8] Exhibit R1 - T5.(l)Subsequently, Comcare made incapacity payments to Mr Keyte.(m)On or about 30 April 2024, Comcare wrote to Mr Keyte to advise that it was investigating whether he had recovered State workers compensation in respect of the Condition sustained on 23 April 2014.[9][9] Exhibit R1 - T18; Exhibit A1.(n)Further documentation was sought from Mr Keyte for Comcare, by the s 58 Notice, to assess the claim and to decide whether Mr Keyte recovered State workers compensation in respect of the Condition, requiring, inter alia:[10][10] Exhibit A1.·Claim for compensation form dated 4 June 2014 (part of claim #21130073716).·Letter of correspondence from the Victorian Workcover Authority (WorkSafe) accepting liability for your PTSD.·Letter of correspondence from the Victorian Workcover Authority (WorkSafe) or Gallagher Bassett confirming payment for medical expenses in respect of your PTSD.·Letter of correspondence from Maurice Blackburn to Gallagher Bassett dated 11 March 2016 acknowledging receipt of payment for $11,944.55 for settlement monies for claim #21130073716.·Your claim for Impairment Benefits for PTSD dated 2 February 2018 (claim #21130073716).·Letter of correspondence from Gallagher Bassett dated 1 August 2018 accepting liability under section 98C (Notice of Entitlement) and payment of $75,410 (part of claim #21130073716).(o)On or about 28 May 2024, Mr Keyte responded to the s 58 Notice. Mr Keyte’s relevant responses establish that he recovered State workers compensation in respect of the Condition which was sustained on 23 April 2014.[11].(p)Subsequently, Comcare undertook the reconsideration on own motion and made the Reviewable Decision.(q)Mr Keyte then sought review by the AAT and has maintained this proceeding in the Tribunal.[11] Exhibit R1 - T21-T21.1.14The Contested Documents (T21-T21.14)

Ratio Decidendi

Legal Principle Established

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