Kondylas and Comcare (Compensation)

This matter concerned an interlocutory application brought by Comcare (the Respondent) to dismiss an application for review filed by Mr. Kondylas (the Applicant) on the grounds that it constituted an abuse of process. The Applicant sought to review a reconsideration on own motion (ROM) concerning his normal weekly earnings (NWE) calculation. The core of the dispute was whether the failure to include a "duty at sea" allowance in the NWE calculation, which had previously been the subject of a final decision by the Tribunal, could be revisited through a review of the subsequent ROM.

The legal issues before the Tribunal were whether the Applicant's attempt to re-litigate the NWE calculation, specifically the exclusion of the "duty at sea" allowance, constituted an abuse of process. The Tribunal was required to determine if the ROM, which was made to correct an error in indexation adjustments to the NWE, could serve as a vehicle to reopen a previously settled NWE calculation that had been affirmed by a final decision of the Tribunal.

The Tribunal reasoned that the Applicant had previously sought review of decisions relating to his NWE calculation, and these matters had been resolved by consent on 9 May 2022, with a final decision made under section 42C(1) of the Administrative Appeals Tribunal Act 1975. This final decision had affirmed the exclusion of the "duty at sea" allowance and other aspects of the NWE calculation. The ROM was initiated to rectify a calculation error in indexation, not to re-examine the fundamental NWE calculation itself. The Tribunal concluded that allowing the Applicant to use the review of the ROM to re-agitate issues that had been finally determined would be an abuse of the Tribunal's process, particularly in the absence of fresh and compelling evidence.

Consequently, the Tribunal ordered that pursuant to section 42B(1)(c) of the Administrative Appeals Tribunal Act 1975, the Applicant's application for review dated 21 April 2023 was dismissed.