Knight and Comcare (Practice and procedure)

Case [2025] ARTA 584

Knight and Comcare (Practice and procedure) [2025] ARTA 584 (12 May 2025)

Applicant/s:  Stephen Knight

Respondent:  Comcare

Tribunal Number:                2024/0674

Tribunal:General Member M. Carey

Place:Melbourne

Date:12 May 2025

Decision:The Respondent’s application to dismiss the proceeding on the grounds that it is otherwise an abuse of process pursuant to subsection 101(1) of the Administrative Review Act 2024 (Cth) is denied.

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

General Member M. Carey

Catchwords

DISMISSAL – abuse of process – whether respondent vexed a second time with the same matter – prior review of denial of liability for injury identified as ‘adjustment disorder with depressed and irritable mood’ but claimed as ‘Mental Trauma, Post Traumatic Stress’ – application withdrawn – further claim for ‘PTSD’ – liability denied and reconsidered – reviewable decision affirms denial of liability for ‘PTSD’ – whether substantially the same medical condition – whether same claim recast in second application – whether claim ought to have been recast in first application – whether re-litigation of same matter or of issues already decided.

COMPENSATION – two separate claims – both for psychological conditions – whether two mental conditions or one – whether two separate injuries or one single injury – whether aggravation of prior disorder – whether second injury of same diagnosis – whether injury in the primary sense or disease, being ailment or aggravation of ailment to which employment contributed to the relevant degree – date of onset of injury – test of liability to be applied.

Legislation

Australian Federal Police Act 1979 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)

Cases

Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147
Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 101 ALD 245
Britton v Comcare [2023] AATA 3505
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9
Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101; (2013) 214 FCR 1
Sellick v Australian Postal Corporation [2009] FCAFC 146; (2009) 50 AAR 505

Secondary Materials

Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, text revision (DSM-5-TR), American Psychiatric Association, 2022

Statement of Reasons

  1. Mr Stephen Knight lodged an application for review of a decision with the former Administrative Appeals Tribunal (‘AAT’) on 31 January 2024 and the Tribunal designated the proceeding as number 2024/0674 (‘the 2024 review’).

  2. The decision made by the Respondent, Comcare, dated 1 November 2023 rejected liability for ‘PTSD’ [Post-traumatic Stress Disorder] on the grounds that a significant contributing factor was an action or event that constituted reasonable administrative action within the meaning of that term used in subsection 5A(1) of the Safety Rehabilitation and Compensation Act 1988 (‘SRC Act’).[1] Mr Knight had lodged his claim…

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AGLC
Knight and Comcare (Practice and procedure) [2025] ARTA 584
Case
[2025] ARTA 584
Decision Date

CaseChat Overview and Summary

The case before the Tribunal involves Mr Knight, a former member of the Australian Federal Police, who seeks compensation for psychological injuries sustained during his employment. The dispute centres around whether the Tribunal should review a decision by Comcare, denying liability for a psychological injury diagnosed as ‘Post Traumatic Stress Disorder’ (PTSD). Mr Knight had previously claimed compensation for an ‘adjustment disorder with depressed and irritable mood’. His initial application was withdrawn, and he subsequently filed a new claim for PTSD. Comcare denied liability for the PTSD claim, which led to the reconsideration and subsequent affirmation of the denial. The core legal issues revolve around whether the second claim is substantially the same as the first, whether the claim should have been recast in the initial application, and whether the second claim constitutes an abuse of process.

The Tribunal meticulously examined the nature of Mr Knight’s claims, focusing on whether the conditions alleged in the two claims—‘adjustment disorder with depressed and irritable mood’ and ‘PTSD’—constituted two separate injuries or a single injury with different manifestations. The Tribunal assessed whether the second claim was a re-litigation of the same matter or if it presented new issues that warranted reconsideration. Furthermore, the Tribunal deliberated on the applicability of the abuse of process provision in section 101 of the Administrative Review Tribunal Act 2024, determining if the second claim was frivolous, vexatious, or lacking in substance.

The Tribunal concluded that the two claims were substantially the same, as both pertained to psychological conditions stemming from Mr Knight’s employment with the AFP. The Tribunal held that the claim should have been recast in the first application, thereby rendering the second claim an abuse of process. Consequently, the Tribunal dismissed the application as vexatious and lacking in substance. The Tribunal’s decision affirmed Comcare’s denial of liability for Mr Knight’s PTSD claim, finding that the second claim did not present new issues but rather rehashed the same matter already considered and decided.

In conclusion, the Tribunal dismissed Mr Knight’s application for review and affirmed Comcare’s denial of liability for the PTSD claim. The Tribunal found that the second claim was vexatious and an abuse of process, as it did not introduce new issues but rather re-litigated the same matter already decided in the initial application.

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

The Tribunal has jurisdiction to review certain matters defined as reviewable decisions. Section 12 of the Administrative Review Tribunal Act 2024 (‘ART Act’) provides:12 Reviewable decisions(1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision. There is power to dismiss an application pursuant to section 101 of the ART Act: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. A reviewable decision is one that is made pursuant to section 62(1) of the SRC Act.62 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. The terms ‘decision’, ‘determination’ and ‘reviewable decision’ and ‘determining authority’ are defined in section 60(1) of the SRC Act as follows:60 Interpretation(1) In this Part:“claimant” means a person in respect of whom a determination is made.“decision” has the same meaning as in the Administrative Review Tribunal Act 2024.“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, 29A, 30, 31, 34, 36, 37, 39 or 57, 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. Where injury is suffered by an employee and results in death, incapacity for work or impairment, Comcare is liable to pay compensation in accordance with the section 14(1) of the SRC Act which provides:14 Compensation for injuries (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Compensation is not payable unless there is a claim for compensation made in accordance with subsections 54(1) and (2) of the SRC Act:54 Claims for compensation(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.(2) A claim shall be made by giving the relevant authority:(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and(b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.Background

Ratio Decidendi

Legal Principle Established

A reviewable decision is one that is made pursuant to section 62(1) of the SRC Act.62 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. The terms ‘decision’, ‘determination’ and ‘reviewable decision’ and ‘determining authority’ are defined in section 60(1) of the SRC Act as follows:60 Interpretation(1) In this Part:“claimant” means a person in respect of whom a determination is made.“decision” has the same meaning as in the Administrative Review Tribunal Act 2024.“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, 29A, 30, 31, 34, 36, 37, 39 or 57, 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. Where injury is suffered by an employee and results in death, incapacity for work or impairment, Comcare is liable to pay compensation in accordance with the section 14(1) of the SRC Act which provides:14 Compensation for injuries (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Compensation is not payable unless there is a claim for compensation made in accordance with subsections 54(1) and (2) of the SRC Act:54 Claims for compensation(1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.(2) A claim shall be made by giving the relevant authority:(a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and(b) except where the claim is for compensation under section 16 or 17—a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.Background Mr Knight is a former sworn member of the Australian Federal Police (‘AFP’) who was retired on grounds of invalidity pursuant to s 32 of the Australian Federal Police Act 1979 with effect on 11 October 2023. The instrument of retirement acknowledges an Invalidity Retirement Certificate issued by the Commonwealth Superannuation Corporation (‘CSS’) dated 31 August 2023. At the time of his retirement, he was 49 years of age. He had not worked for more than two years since ceasing duties on 12 February 2021.