Legal Personal Representative of the Estate of John Edward Gough and Comcare (Practice and procedure) - [2025] ARTA 2292

Legal Personal Representative of the Estate of John Edward Gough and Comcare (Practice and procedure) [2025] ARTA 2292 (23 July 2025)
Applicant/s:  Legal Personal Representative of the Estate of John Edward Gough
Respondent:  Comcare
Tribunal Number:                2023/3898, 2024/0578

Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:23 July 2025

Decision:The Tribunal dismisses the applications for reinstatement under section 102 of the Administrative Review Tribunal Act 2024 (Cth).

Statement made on 23 July 2025 at 4:44pm
Catchwords
Applications for reinstatement – first application dismissed by earlier Tribunal on the basis that the Tribunal did not have jurisdiction to review the decision – applicant contended that the decision dismissed in error and in breach of procedural fairness – reinstatement refused on basis that there was no utility in reinstating the application as Tribunal had no power to review a revoked decision – second application dismissed by earlier Tribunal on basis that Tribunal was functus officio – reinstatement refused on basis that Tribunal was functus officio and no utility in conducting review even if dismissal attended by error
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 42B, 97
Administrative Review Tribunal Act 2024 (Cth) ss 102
Safety Rehabilitation and Compensation Act 1988, ss 14, 16, 54, 62, 64, 129A
Cases
Comcare v DSLB [2025] FCAFC 13
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11.
Re John Edward Gough and Trans Australia Airlines [1983] AATA 330
Statement of Reasons

Mr Gough has brought two applications under s 102 of the Administrative Review Tribunal Act 2024 (‘ART Act’) seeking to have two substantive applications for review that were dismissed by the Tribunal reinstated. Substantive application 2023/3898 was dismissed by Senior Member Thomae pursuant to s 97 of the ART Act on 14 January 2025. Substantive application 2024/0578 was dismissed by Member Benjamin on 11 October 2024 in his capacity as a member of the Administrative Appeals Tribunal (‘AAT’). He did not specify the basis on which the application was dismissed but given his finding that the AAT was functus officio, I am satisfied that he was exercising power under section 42B of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’).
The applications to reinstate were brought pursuant to s 102(5) of the ART Act.
Under s 102(6), the Tribunal has a discretion to reinstate applications if satisfied that the applications were dismissed in error. The applicant contends that both applications were dismissed in error for reasons that include breaches of procedural fairness obligations.
For reasons of procedural efficiency, after a full day of argument on the majority of the relevant legal issues, but before arguments on the procedural fairness questions were reached, I determined that before I heard argument on the question of whether there were any procedural fairness errors associated with the decisions to dismiss the applications, I would consider whether there was any practical utility in reinstating the applications. I did so on the basis that if there was no practical utility in reinstating the applications then, regardless of whether there was any error associated with the decisions to dismiss, it would not be appropriate to reinstate the applications.
For the reasons that follow, I am satisfied that there is no practical utility in reinstating either substantive application and so both applications to reinstate are dismissed.
Facts
My findings of fact are set out below. To the extent that any are controversial I have cited the evidence on which the finding is based.
On or about 28 November 1979, the late John Edward Gough made a claim for compensation pursuant to the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (‘1971 Act’) in relation to a respiratory condition he was suffering from - mesothelioma. John Gough sought to attribute his mesothelioma to his employment with Trans Australia Airlines (‘TAA’).
On 27 February 1981, it was determined that John Gough had not suffered the contraction of a disease, or the aggravation, acceleration or recurrence of a disease, to which his TAA employment was a contributing factor, with the result that his claim was disallowed under the 1971 Act. That determination was affirmed following an internal reconsideration.
John Gough then applied to the AAT to review the disallowance of his claim.
After a hearing on the merits, the AAT affirmed the disallowance of John Gough’s claim. The decision and reasons are set out in Re John Edward Gough and Trans Australia Airlines [1983] AATA 330. There has never been any suggestion that John Gough sought to overturn that decision by a judicial review application or any other kind of appeal.
It appears that for a period in the 1980s Mr Gough’s respiratory condition went into remission. However, by the late 1980s it had returned. Mr Gough died of mesothelioma in 1990. He was survived by two sons and a widow. His youngest son Stephen was aged 14.
No further steps to seek compensation were pursued in relation to John Gough’s illness or death until 2017, by which time his widow Mrs Gough had also died.
On 1 June 2017, Stephen Gough submitted a claim form for compensation in relation to the death of his father from mesothelioma. Stephen Gough sought to attribute his father’s mesothelioma to his employment with TAA. The scope of the claim, on whose behalf it was made and where the decisions responding to the claim fit within the hierarchy of administrative decision making remains controversial.
The claim was submitted in the name of Stephen Gough. On its face the claim sought funeral expenses that had been paid by Stephen’s mother, medical expenses incurred prior to John Gough’s death, a lump sum payment for the dependents of John Gough (including his wife at the time of death and his children) and, separately, weekly payments for his children.
Comcare engaged constructively with Stephen Gough and over the course of the following months additional evidence was provided and the scope of the claim clarified.
It resulted in a decision dated 21 September 2017 that accepted liability for John Gough’s mesothelioma (both a 1975 instance and a recurrence in 1987). The delegate determined:
(a)That no payment should be made for incapacity between 1978 and 1988 (under the 1971 Act);
(b)A small amount for medical expenses was payable under section 16 of the Safety Rehabilitation and Compensation Act 1988 (‘SRC Act’) to John Gough’s estate;
(c)A large sum should be paid under s 17(3) of the SRC Act to John’s dependents with most of it to go to the estate of Mrs Gough;
(d)A reasonably large sum should be paid to Stephen and his brother under s 17(5) for weekly benefits payable in periods prior to them becoming independent;
(e)Just under $2000 should be paid to Mrs Gough’s estate to reimburse for funeral expenses;
(f)Nothing was payable under ss 24 or 25 to Mr Gough for permanent impairment;
(g)Around $2,500 was payable for palliative attendant care services to the estate of Mrs Gough under s 29;
(h)No payment should be made for a ride-on lawn mower under either ss 16, 29 or 39;
(i)No incapacity payments were payable to John Gough’s estate under s 132 for the period 1 December 1988 to 16 July 1990.
A reconsideration request was made on 16 October 2017. The covering form referred to the Late John Edward Gough as the employee and stated that he was represented by Stephen Gough as his Personal Legal Representative. However, the reconsideration request attached was wide ranging. Reconsideration was sought in relation to:
·The incapacity determination concerning John Gough;
·Reconsideration was sought with regard to permanent impairment;
·Reconsideration was sought seeking non-economic loss;
·Reconsideration was sought ‘with regard to all liability accepted by Comcare in relation to my father’s contraction and recurrence of mesothelioma…’ (although specific issues with the liability calculations were identified.
The form submitted also stated that the applicant sought ‘reconsideration that Compensation be paid to Joan Gough (wife) under 1971 Act s48’.
The submitted material also included the following:
Due to the unique nature of my father’s case and that liability has now been accepted for the contraction of the original disease, we request Comcare provide compensation for all entitlements he should have received from his original claim of 1978. If it is required, we request Comcare apply SRC Act s129A Reconsideration and review of certain determinations under 1971 Act to, by its own motion, compensate my father for his personal injury to recover the income he would have received, but for his injury.
This was the first mention of s 129A of the SRC Act. It would not be the last.
The request for reconsideration also stated:
As there is no legislative section directing the maximum amount for the death claim is the 1990 amount (sic) and given Comcare’s jurisdictional policy identifies the date of the claim and the date of the determination as relevant dates for the applicable death benefit, and given the highly unusual nature of my father’s case, the history of my father’s claim and the substantial merits of the case, we request reconsideration be given to applying the 2017 statutory rate for death benefit as per the date of the claim or determination to be applied.
I am satisfied that in submitting this document, Stephen Gough was seeking a very broad review by Comcare on behalf of himself and his brother, his mother’s estate and his father’s estate. I do not know whether he held formal legal authority to act in that way, but he held himself out as the agent of all of those persons and Comcare proceeded on the basis that he had appropriate authority. Noone except Stephen Gough has ever called into question his authority to seek the reconsideration. Stephen Gough now suggests that he lacked authority to request reconsideration. That is a position that only emerged some years later.
The request for reconsideration had significant adverse consequences for the Gough family.
On 15 December 2017, a delegate determined that he could not be satisfied that there was a relationship between John Gough’s employment with TAA and the mesothelioma from which he suffered in the 1970s and 1980s and from which he eventually died.
The favourable decision of September 2017 was revoked and as a consequence, no compensation was payable to any member of the Gough family.
The December decision included the following comment:
I note that this [the decision of 21 September 2017] is technically a reconsideration on own motion pursuant to section 129A of the SRC Act.
It appears that this comment initially was not afforded much significance. However, it has now become central to a legal point that is driving the current applications to this Tribunal.
Following the decision of 15 December 2017, Stephen Gough applied for review in the AAT. The application became application 2018/0923. The applicant uploaded the decision of 15 December 2017 as the decision he sought review of. He sought review on the basis that the decision was against the weight of the medical evidence.
As the application progressed though, it appears that Stephen had second thoughts. On 22 March 2019 he submitted that the Tribunal did not have jurisdiction to review the decision made on 15 December 2017 given the effect of s 129A. The Tribunal rejected that argument. Comcare, in the context of that application, submitted that the statement in the decision that the decision of September 2017 was a reconsideration on own motion pursuant to section 129A was incorrect.
The AAT was satisfied that it had jurisdiction, but did not determine whether the decision of 21 September 2017 was a reconsideration on own motion pursuant to section 129A.
Application 2018/0923 then proceeded to hearing and the applicant was unsuccessful in establishing a relationship between his father’s employment and his mesothelioma. The decision of 15 December 2017 was affirmed. That decision was made on 23 November 2020. No action was taken to appeal that decision to the Federal Court.
Comcare waived the overpayment to John Gough in the amount of $51,167.55 on 9 November 2021.
For several years, that appeared to be the end of the matter.
However, despite having been informed on 4 January 2021 that the AAT was functus officio in relation to the claim, Stephen Gough continued to correspond sporadically with the AAT.
On 6 June 2023 Stephen sent an email to the AAT seeking review. It was in the following terms:
I seek assistance of the Registry Office due to the unique circumstances as a deceased claimant’s legal representative to have the correct decisions listed for review by the Tribunal.
I brought these decisions to the Tribunal in 2018, however, I am not the claimant for these decisions, and these decisions are not in scope of a death claim made by me.
1.The claimant for these decisions is John Edward Gough (deceased)
2.The claim is an injury claim lodged by John Gough in 1978 and reconsidered on own motion by Comcare pursuant to SRC Act s129A on 21/9/17.
3.Stephen Gough is the legal personal representative of the deceased claimant for his injury claim as per SRC Act s4(11).
4.The claim is the notice of injury duly served by John Gough in 1978 and the claimant is John Gough as per SRC Act 126.
5.The primary determination is the determination issued under the 1971 Act prior to the commencing day of the SRC Act 1988 as per SRC Act s129A.
6.The reviewable decision is the 21/9/17 decision issued by Comcare pursuant to SRC Act s129A (1) &(2).
7.When the 21/9/17 decision on my father’s injury claim was issued, I was not given any opportunity to provide all the relevant information I held for his incapacity and permanent impairment entitlements.
8.Comcare incorrectly advised me to submit a reconsideration form concerning the incapacity and permanent impairment decisions on my father’s injury and has since conceded I should have been advised these matters needed to be brought to the Tribunal.
9.SRC Act s14 liability has been accepted on the s129A reviewable decision the injury claim of the deceased claimant, John Gough, accepting liability for the contraction of mesothelioma and recurrence of mesothelioma.
10.As this s14 decision issued on the injury claim of John Gough on 21/9/17 is a reviewable decision, it is not able to be revoked, reviewed or disturbed by Comcare.
Injury claim decisions requested to be reviewed;
(i)SRC Act s45 incapacity decision to deny liability – applicant/claimant was not afforded opportunity to provide all relevant information, decision is wrong and should be set aside;
(ii)SRC Act s24 & 25 permanent impairment assessment to deny liability – applicant/claimant was not afforded opportunity to provide all relevant information, decision is wrong and should be set aside.
(iii)SRC Act s24 & s25 – medical aide, liability denied – applicant/claimant was not afforded opportunity to provide all relevant information, decision is wrong and should be set aside.
(iv)Decisions arising from John Gough’s injury claim where s14 liability is accepted but compensation has not been paid
(v)SRC act s16 – travel and parking medical expenses.
(vi)SRC Act s17(3) lump sum death payment
(vii)SRC Act s18 – funeral expenses
(viii)SRC Act s29 – attendant care services.
These decisions where s 14 liability has been accepted are requested to be remitted to Comcare to pay compensation from 21/9/2017 as Comcare has no authority to disturb the 21/9/2017 s129A reconsideration on own motion issued on the injury claim of John Gough.
Thus began the applicant’s efforts to reinstate the decision of September 2017 as the operative decision and an appropriate subject of an application for review by the Tribunal. What he asked the Tribunal to do then, and he continues to ask the Tribunal to do now, is to ignore the adverse decision of Comcare on 15 December 2017 and the adverse decision of the AAT on 23 November 2020 and treat the decision of 21 September 2017 as still in place and operative at least for the purposes of allowing an application to the Tribunal to be made and perhaps for determining entitlements in relation to his father’s mesothelioma.
However, in order for the application of 6 June 2023 to be accepted by the Tribunal, Stephen Gough needed to obtain an extension of time as the decision for which review was sought was made in September 2017. The application for an extension of time was heard by Member Benjamin and granted on 15 September 2023 (2023/3898).
At the hearing before Member Benjamin, the respondent advanced two propositions. The first was that the Tribunal lacked jurisdiction because the decision challenged was not a reviewable decision. That argument was rejected by the Tribunal on the basis that the correspondence between the parties in 2017 indicated that the decision of 21 September 2017 was a reconsideration on own motion. The second was that the AAT should decline to exercise its discretion to extend time. The AAT decided to exercise its discretion and grant the extension of time. The reasons were given orally and were very brief.
Following the abolition of the AAT and the creation of this Tribunal, application 2023/3898 was listed before Senior Member Thomae for a substantive hearing. However, when the date on which the hearing was listed arrived, it was not possible to proceed with the substantive question of John Gough’s entitlement to compensation. It was agreed between the parties that the scope of the Tribunal’s powers in relation to the application would be the subject of hearing. According to the decision of Senior Member Thomae:
On the first day of the hearing, the parties agreed that the issue to be determined before the tribunal was a legal question rather than a requirement to lead evidence to relitigate [the earlier AAT decisions].
The legal question was whether the decision of 21 September 2017 was or is a reviewable decision that the Tribunal has jurisdiction to determine, rather than the decision of 15 December 2017 which followed it.
This issue was important because on 11 October 2024, Member Benjamin had refused an application to extend time to enable the applicant to lodge with the AAT an application for review in relation to the decision of 15 December 2017. Member Benjamin accepted the argument that the AAT was functus officio in relation to any review of that decision by reason of its decision in 2020. Further, even if the AAT was not functus officio he would refuse to extend time for discretionary reasons. That decision has file number 2024/0578.
Stephen Gough immediately pursued an application pursuant to s 102(5) of the Administrative Review Tribunal Act 2024 (ART Act) seeking to have dismissed proceedings 2024/0578 reinstated.
On 14 January 2025 Senior Member Thomae dismissed application 2023/3898 pursuant to section 97 of the ART Act on the basis that he was satisfied that the decision of 21 September 2017 was not reviewable by the Tribunal.
In essence, Senior Member Thomae determined that contrary to the applicant’s contention (and the respondent’s past acceptance), the decision of 21 September 2017 could not be characterised as a reconsideration on own motion. Senior Member Thomae was satisfied that it was a decision made that was responsive to a claim made and therefore was best characterised as a determination rather than a reviewable decision. As the Tribunal does not have jurisdiction to review determinations, only reviewable decisions, it had no jurisdiction to proceed to determine the application for review. The application was dismissed under s 97 of the ART Act.

The applicant now applies for reinstatement of that application (2023/3898) pursuant to s 102(5) of the ART Act. I will deal with that application first.
Application 2023/3898
Section 102(6) of the ART Act provides:
If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.
The basis on which the applicant contends that the application was dismissed in error are as follows:
·Senior Member Thomae was wrong to determine whether the decision of 21 September 2017 was a reviewable decision, as that had already been determined by Member Benjamin in 2023. Further, the section 37 statement is a statement setting out findings of fact.[1] The statement confirms that the 21 September 2017 decision of Comcare is a reviewable decision issued under s 129A of the SRC Act, revoking the earlier 1981 primary determination on the claim the late John Gough lodged in 1979. The respondent’s statement on findings of fact[2] confirms the claim that is the subject of 2023/3898 is lodged in 1979 by the late John Gough and is not a death claim lodged in 2017 by Stephen Gough.
[1] T-Documents (2023/3898), T3.
[2] Ibid.
·Senior Member Thomae should have determined whether Comcare had the authority under the SRC Act to issue a second reviewable decision on 15 December 2023 to revoke the earlier reviewable decision that had already revoked the 1981 determination.
·Senior Member Thomae erred by not identifying the correct jurisdictional issue and then determining the issue by reference to the provisions of the ART Act instead of the provisions of the AAT Act.
·Various procedural matters.
·Paragraphs 6 and 7 of the Tribunal decision to dismiss the matter had factual errors and mischaracterised the applicant’s position. The proper characterisation of the decision on 21 September 2017 was it was a reconsideration on own motion by Comcare under s 129A. Comcare reconsidered the determination made in 1983. Further, the notion of reconsidering a revoked determination is counterintuitive. Such a reconsideration would have no practical utility, as any affirmation or variation of a determination that has previously been revoked is incapable of breathing new life into that determination. The 15 December 2017 decision is of no utility on this basis as outlined by the Full Federal Court in Comcare v DSLB [2025] FCAFC 13 (‘DSLB’).
·Further, a reconsideration of the revoked determination would not itself address the status or effect of the reviewable decision that was made on a past reconsideration of that determination under s 62, or potentially any decision made by the Tribunal on a review of that decision under s 64.
·The Tribunal dismissed the application in error because the decision of 21 September 2017 was in fact a reconsideration on own motion and was not prompted by the death claim of 1 June 2017. The SRC Act does not allow for Comcare to issue decisions for compensation under the various sections that allow for compensation entitlements as prompted by another claim such as a death claim unless they are in scope of a death claim.
·No SRC Act liability was issued by Comcare to accept liability for death from mesothelioma in these matters or any matter before the Tribunal to have ever been about a review of Comcare’s assessment of s 14 liability for a death claim.
·The decision made under the repealed 1971 Act for incapacity from 1978 to 1988 is direct evidence of the reconsideration on own motion of Comcare of the 1971 Act claim of the late John Gough. It is not possible for Stephen Gough to lodge a claim with Comcare for incapacity payments under the 1971 Act on 1 June 2017 that 1971 Act was repealed on 1 December 1988. There is no claim form approved by Comcare to enable a claim for incapacity payments under s 45 of the repealed 1971 Act. The only way a decision on liability under s 45 of the Compensation (Commonwealth Government Employees) Act 1971 could be issued by Comcare on 21 September 2017 was by a reconsideration on own motion decision on the 1979 claim of the late John Gough under the 1971 Act.
·The Tribunal erred in finding that the decision of 21 September 2017 is a response to a death claim. Section 29 attendant care services are not in scope of a death claim under the SRC Act, and this highlights an obvious error in law. The decision document shows liability was accepted for time periods that are prior to death – injury in 1975 and recurrence of injury in 1987. It follows that s 14 liability was accepted prior to death and this liability arose from injury, not death, and all compensation determinations flowed from the two s 14 liability decisions dated 1975 (15 years before death) and dated 1987 (three years before death).
·Sections 54(1) and (2)(a) of the SRC Act stipulates an attendant care services compensation claim determination cannot be ‘prompted’ by a death claim, the legislation requires there must be a claim made on the appropriate claim form approved by Comcare for attendant care services for compensation to be paid. The fact that no claim form was lodged as required by s 54 is compelling evidence that the 21 September 2017 decision is a s 129A reconsideration on own motion reviewable decision as already determined by Member Benjamin on 15 September 2023.
Further submissions were added following the hearing in a five-page submission submitted by Stephen Gough on 11 July 2025.
The respondent resists the applications for reinstatement.
Consideration
The Tribunal has a discretion to reinstate this application if it is satisfied that it was dismissed in error. The analysis which follows proceeds on the basis that there may have been an error in the dismissal of the application, but makes no finding that there was. Irrespective of whether there was an error in the dismissal, reinstatement is not appropriate because there is no practical utility in reinstatement.
It is important to note the background against which this application takes place. A decision was made on 21 September 2017 that was favourable to Stephen Gough and other members of his family and their estates. That decision was revoked on review in December 2017 and full merits review of the December 2017 decision has already been undertaken in the AAT. The AAT affirmed the decision of December 2017 which revoked the favourable decision of 21 September 2017. The AAT determined that Comcare was not liable to pay any compensation. If a party to an AAT proceeding has an issue with the AAT’s decision, the usual course is to appeal to the Federal Court. No further review is usually available in the Tribunal because it is functus officio – i.e. it lacks power to make any further lawful decision.
The applicant however seeks to sustain further review in the Tribunal by reviving for review the decision of 21 September 2017 as the operative decision notwithstanding that it was revoked by the decision of 15 December 2017. To revive the September 2017 decision as the potential foundation for a review process, it is necessary for the applicant to establish that the decision-making chain that was followed fundamentally miscarried such that all the reviews that followed the decision of September 2017, were effectively unlawful or at the very least incomplete in terms of the range of issues dealt with. To achieve this outcome, Stephen Gough insists that the decision of September 2017 is not what it appears on its face to be – a determination (or series of determinations) responding to a claim made on 1 June 2017 (supplemented in correspondence with Comcare). Stephen contends that it is in fact a reviewable decision by virtue of the fact that it is a reconsideration of own motion undertaken by Comcare pursuant to s 129A of the SRC Act. The determination it is reviewing is the determination made in relation to his father’s claim considered and determined in the 1980s. As a consequence, the December 2017 decision is ineffective and the Tribunal never undertook a valid review. Understood in this way the Tribunal review in 2020 is also rendered ineffective or incomplete.
There are two difficulties with this analysis. The first is that it does not reflect the facts, the second is that it does not reflect the law.
When the primary documents are examined, they clearly support the conclusion that the decision of September 2017 is a determination rather than a reviewable decision. Accordingly, the decision to revoke it in December 2017, is an effective reviewable decision that eliminates it as a decision that can be an effective or appropriate subject of review by the Tribunal.[3]
[3] Comcare v DSLB [2025] FCAFC 13 at [117]
Even if that were not the case and the better characterisation of the facts is that the September 2017 decision is a reconsideration on own motion, the recent Full Federal Court decision DSLB makes clear that the September 2017 decision can be either the subject of review in the Tribunal or the subject of a reviewable decision by Comcare. The review undertaken by Comcare in December 2017 at the request of Stephen Gough was therefore lawful and effective to revoke the decision of September 2017 even if that decision was a reconsideration on own motion. Once the December 2017 decision revoked the September 2017 decision, it could not (and cannot) be the subject of any valid review.
The following discussion elaborates on each of these conclusions.
September 2017 decision is, as a matter of fact, a reviewable decision
The applicant now contends that in the second half of 2017, a death claim was lodged by him, but that claim was then put to one side and the delegate proceeded to reconsider on own motion the earlier determination that rejected his father’s claim. The applicant seizes on particular facts as supporting this narrative and in particular the absence of a claim for compensation under s54.
When the facts are closely examined there can be no doubt that in 2017 there was a claim submitted for:
·Funeral expenses
·Medical expenses
·Lump sum payment to dependents of deceased; and
·Weekly payments for children of the deceased.[4]
[4] T-Documents (2023/3898), T6.
Claims for all of those matters were made on the forms submitted by Stephen Gough on 1 June 2017.
Each claim corresponds to a matter determined by the delegate on 21 September 2017. Notably:
·Reimbursement of $1,741.51 to the Estate of the late Mrs Gough
·Reimbursement of $368.57 payable to Mr Gough’s estate under s16 of the SRC Act;
·$139,320.72 paid to John Gough’s dependents under s 17(3) of the SRC Act;
·$17,068.82 paid to Stephen Gough and $6,234.59 paid to Darren Gough for weekly payments payable under s 17(5) of the SRC Act.
It is also clear during the course of consideration of the claim that Stephen Gough added other claims. For example, in an email dated 26 July 2017 Stephen stated:
With regard to the SRC Act, I also wanted to raise with reference to s124 that we discussed re pre existing injuries as another possible section to address:
The death of my father has resulted from the aggravation of a disease and as defined in 5A and 5B should be deemed to be its own injury as per the Act that commenced around 1987 when he first sought medical treatment.[5]
[5] Ibid, T10,78-79.
Stephen progressively provided more information in relation to various claims including, for example, a claim for the cost of a ride-on mower purchased by his father prior to his death.
It is clear from the correspondence, that the Comcare delegate with whom Stephen dealt, believed she was responding to claims rather than reconsidering any earlier decision. For example, she says in an email dated 4 August 2017:
I believe that you have provided sufficient circumstantial evidence (Case Law examples) to support your claim for compensation, and I understand your argument regarding legislative reasoning.[6]
[6] Ibid, T15, 91.
The determination on 21 September 2017 responded to various matters raised through the correspondence following the claim. When each claim is dealt with, it is expressed as a determination not as a reconsideration.
When the material is examined as a whole, it supports only one conclusion - that claims were made by Stephen Gough in various capacities seeking compensation in a range of categories. The requirements in s 14 were considered in relation to the claims as a necessary gateway through which the claims needed to pass, and each of the heads of compensation claimed were considered and determined. In all cases Comcare’s actions were responsive to a claim submitted by Stephen Gough either on his own behalf or as an authorised agent for others. Those claims were made when the claim form was lodged in June 2017 or in the course of correspondence that followed with the Comcare representative.
Stephen contests this latter conclusion and contends that no claim was submitted as required by s 54 of the SRC Act in relation to a number of the heads of compensation. I reject that submission. The delegate in making the September 2017 decision was responding to claims advanced by Stephen Gough. Comcare was entitled to treat the email requests for the consideration of claims as substantial compliance. Strict compliance with the requirements of s 54 is not required.[7] In dealing with the claims as made, Comcare was to be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities.[8] It was entitled to treat subsequent requests for consideration of heads of compensation as claims.
[7] SRC Act, s 54(5).
[8] SRC Act s 72.
I am satisfied that the decision of 21 September 2017 was a determination as that term is defined in s 60 of the SRC Act. The determination responded to the claims submitted by Stephen Gough on and from 1 June 2017 and are properly characterised as first-tier decisions which could be the subject of a reviewable decision and for which there is no right to apply directly to the AAT or to this Tribunal.
That being the case, the September 2017 decision is not a decision that can be the subject of an application to the AAT or this Tribunal and it would be futile to reinstate the application. The Tribunal would inevitably lack jurisdiction to review the determinations. Senior Member Thomae was correct to find that the Tribunal lacked jurisdiction. Even if there were other discernible errors in the process by which he reached his conclusions (about which I make no findings), there would be no point in reinstating the application. It would have to be dismissed again.
Legal barrier to jurisdiction
Even if these factual conclusions were wrong, the applicant is no better off if it is assumed that the decision in September 2017 was an attempt at a reconsideration on own motion by Comcare of the adverse decision in relation to Mr Gough’s claim made on 27 February 1981.
Section 129A relevantly provides as follows:
(1)Comcare may, on its own motion, reconsider under section 62 of this Act, a determination under the 1971 Act having effect immediately before the commencing day…and, for that purpose, section 62 of this Act applies as if:
(a)The person in respect of whom the determination was made were a claimant under this Act; and
(b)The determination were a determination by Comcare within the meaning of Part VI of this Act
(2)Part VI of this Act applies to a decision of Comcare on a reconsideration of a determination mentioned in subsection (1) as if the decision were a reviewable decision by Comcare within the meaning of that Part.
Treating the September 2017 decision as having been made under this provision does not assist the applicant. The decision still cannot be the subject of a valid application to the Tribunal for review. The difficulty arises as a result of the approach taken by the Full Federal Court in the recent decision of DSLB.
The case concerned the power of Comcare to undertake a reconsideration of own motion in relation to a decision that had been the subject of a reviewable decision which revoked the earlier decision pursuant to s 62(5) of the SRC Act. In the judgment of Horan J, with which the other two judges agreed, he stated that the correct conclusion was that s 62 of the SRC Act does not confer power to reconsider a decision that has been revoked and no longer has any operation or effect.[9]
[9] See [28], [105],[118] and [140]
Horan J also concluded that:[10]
…a decision on a reconsideration under s 62 can be a ‘reviewable decision”, and can also be or result in a ‘determination’ for the purposes of Pt VI of the SRC Act. This means that a decision that is made by a determining authority on a reconsideration under s 62 that Comcare is liable (or is not liable) to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee can be the subject of an “own motion” reconsideration by the determining authority under s 62(1), notwithstanding that the reviewable decision is itself amenable to review by the Tribunal.
[10] At [137]
Applying these principles to the present situation, which is analogous but not identical, the result is as follows.
Accepting the premise advanced by the applicant that the decision of September 2017 was a reconsideration on own motion by Comcare of the earlier negative determination in relation to his father’s claim, the subsequent favourable September 2017 decision can function both as a favourable ‘determination’ of liability (which is susceptible to an application for internal review) or as a reconsideration on own motion that triggers a right to apply to the AAT and subsequently this Tribunal, for review of the reconsideration on own motion decision.
Stephen Gough elected to treat the decision as a determination and sought internal review pursuant to s 62 of the SRC Act. The decision in December 2017 revoked the decision of September 2017. DSLB is clear that the effect of a revocation is that the decision no longer has any operation or effect. It is a decision that has been annulled or cancelled by a subsequent exercise of administrative power and is not legally capable of being the subject of a reconsideration on own motion.[11] If a revoked decision is incapable of being the subject of a reconsideration on own motion, it logically follows that it is equally incapable of providing a proper foundation for an application to the AAT or this Tribunal.
[11] Ibid at [117]
Consequently, regardless of how the September 2017 decision is characterised, it is incapable of providing a foundation for an application for review.
Conclusion
In these circumstances, there is no utility in reinstating the application for review. The September 2017 decision is incapable of forming a sound legal basis for this Tribunal’s jurisdiction.
On what I am satisfied is the correct view of the facts, it is merely a determination (or more accurately a series of determinations). Only the decision of December 2017 amounts to a reviewable decision that is capable of supporting an application for review to this Tribunal.
Even if that were not the case and the facts were as the applicant asserts, that the September 2017 decision constitutes a reconsideration on own motion, DSLB makes clear that decisions of that kind can be the subject of either an application for review in the Tribunal or a request for internal review. Stephen Gough elected to have the decision reviewed internally and the review conducted in December 2017 resulted in the revocation of the September 2017 decision. The consequence is that the September 2017 decision has been annulled by the subsequent exercise of administrative power and is now incapable of being the subject of review – either internally or in this Tribunal.

In these circumstances it is unnecessary to consider the arguments advanced contending that the dismissal decision should be set aside applying the principles in Bhardwaj[12]. Even if a jurisdictional error could be identified, it would be inappropriate to reinstate the application in circumstances where the Tribunal has no jurisdiction to proceed with any review.
[12] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11.
Application 2024/0578
Turning then to application 2024/0578. My initial view was that Member Benjamin had only dismissed an application for an extension of time to bring an application, but at the hearing it was pointed out that the terms of the order were:
The application for review is dismissed.
The applicant seeks reinstatement pursuant to section 102(5) of the ART Act on the basis that the substantive application was dismissed, and it was dismissed in error.
Member Benjamin dismissed the application on two bases. First, that the Tribunal was functus officio and lacked power to review a decision that had already been reviewed by the AAT. Further, even if he was wrong about the AAT being functus officio and the AAT had jurisdiction to review the application, he would not grant the necessary extension of time to file the application because:
(a)There was a delay of more than 5 years in filing the review and extension application;
(b)There was no reasonable explanation for the delay in lodging the application;
(c)Any substantive review appeared to have poor prospects of success.
I am satisfied that the Tribunal is functus officio and regardless of whether Member Benjamin’s decision is attended by any error, it would not be appropriate to reinstate the application. Doing so can have no utility.
The Tribunal is functus officio as a consequence of the decision made by Senior Member Clauson on 23 November 2020 affirming the decision of December 2017.
The doctrine of functus officio was neatly summarised by Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311 as follows:
…it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform…
This means that as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, recognises that it has made an error within jurisdiction, or because there has been a change of circumstances.[13]
[13] Ibid.
The High Court’s decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (‘Bhardwaj’) however recognised that in some cases it is possible for a tribunal upon becoming aware that ‘it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required’ to do again what it was required by law to do in the first place, could revisit the decision and make a fresh one.
The Bhardwaj principle however does not displace the general doctrine of functus officio and the favouring of the finality of proceedings that the principle encapsulates.
In this case, it would involve a misunderstanding of the scope of the Bhardwaj principle for the Tribunal to treat as a nullity a decision that was made five years ago following a full review in which both parties were represented, and which resulted in a decision underpinned by extensive reasons. The Bhardwaj principle is not available to allow the Tribunal to conduct judicial review of its own decisions, it is available for the correction of obvious error where the Tribunal has failed to perform its statutory function. It sits as a rare exception to the general principle of functus officio. The remedy for error in Tribunal decisions is in most circumstances a statutory appeal to the Federal Court.
I am satisfied that the Tribunal is functus officio and does not have jurisdiction to deal with a further application for review of the December 2017 decision. In those circumstances there is no utility in reinstating the application.
Other Matters
The applicant provided further submissions on 11 July 2025 resisting the proposition that reinstatement of his applications would be futile. They are for the most part addressed by the reasons provided above, but out of an abundance of caution I not the following.
Those submissions reveal more clearly the applicant's misapprehension at a factual level about what has taken place.
The submission contends that 'Comcare purported to conduct a further reconsideration of the 1981 determination on 15/12/17 after it had been revoked'. That proposition is untenable. It is clear on its face that the decision of December 2017 is a reconsideration of the September 2017 decision. On its face the December 2017 decision revokes the September 2017 decision.[14]
[14] See in particular T25 p 181
In the same submission the applicant rightly contends that 'conducting a further reconsideration of a revoked determination is beyond Comcare's authority'. That statement is true. That is why it is impossible for the Tribunal to revisit the September 2017 determination. It was lawfully revoked when it was reconsidered in December 2017.
The applicant notes repeatedly the findings of Member Benjamin and the concessions made by the respondent in submissions before SM Thomae as a basis for finding that the Tribunal has jurisdiction. Neither of those matters impact upon the need for the Tribunal to be satisfied of its jurisdiction before issuing a decision to affirm, set aside or vary the decision under review. If the decision the subject of the application is not a reviewable decision, the Tribunal must dismiss under s 97 of the ART Act. An earlier misapprehension on the part of the Tribunal in an interlocutory process or a misplaced concession by a respondent cannot relieve the Tribunal of its obligation under s 97 or convert a decision which is not at law a reviewable decision into one that is.
The applicant also contends that the December 2017 decision was unlawful and involved a denial of natural justice. That may be true, and I make no finding in relation to the claim, but even defective administrative decisions are capable of grounding valid applications to the Tribunal. The subsequent Tribunal decision then replaced the December 2017 decision as the operative decision.
Having considered all of the extensive submissions made by the applicant I am satisfied that there would be no utility in reinstating either application.
Decision
The applications for re-instatement are dismissed.
Date of Hearing   25 June 2025
Representative for Applicant  Stephen Gough
Counsel for the Respondent   Peter Woulfe
Solicitor for the Respondent   Sparke Helmore Lawyers.