Rickards and Comcare (Compensation)

Case [2025] ARTA 1091

Rickards and Comcare (Compensation) [2025] ARTA 1091 (24 July 2025)

Applicant/s:  Mark Rickards

Respondent:  Comcare

Tribunal Number:                2024/0682

Tribunal:General Member M. Carey

Place:Melbourne

Date:24 July 2025

Decision:

The Tribunal sets aside the decision under review made on 10 January 2024 and in substitution decides:

1. Comcare is liable to pay compensation to the applicant pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) for the injury identified as ‘adjustment disorder with anxiety’ subject of a claim for compensation dated 25 September 2023 with a date of injury for the purposes of subsection 7(4) of the SRC Act as 6 September 2023.

2. The respondent is to pay the applicant’s costs of the proceeding pursuant to section 67(8) of the SRC Act to be agreed or, in default of agreement, as taxed by the Tribunal.

.................................SGD.......................................

General Member M. Carey

Catchwords

DECISION FOLLOWING AGREEMENT – terms of agreement in writing signed by the parties – section 103 of the ART Act – whether decision is within the power of the Tribunal – where terms agreed are within power and resolves the whole of the proceeding – no power to remit such matters as not within the Tribunal’s jurisdiction – notations affixed or annexed to terms of decision – notations contain matters not within the power of the Tribunal – notations contain representations as to findings of fact concerning compensation entitlements not within the jurisdiction of the Tribunal – alleged findings of fact cannot bind future statutory decision maker or future Tribunal sitting in review – compensation recovery provisions not within jurisdiction of Tribunal – accuracy of statements in notations

Legislation

Administrative Review Tribunal Act 2024 (Cth)
Health and Other Services (Compensation) Act 1995 (HOSC Act) (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Social Security Act 1991 (Cth)

Cases

Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289
Casarotto v Australian Postal Corporation (1989) 17 ALD 322
Comcare v Burton (1998) 50 ALD 846
Comcare v Lofts (2013) 217 FCR 220
Comcare v Mooi (1996) 69 FCR 439
Commonwealth v Ford (1986) 9 ALD 433
Fuad v Telstra Corporation Ltd (2004) 39 AAR 496
Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574
Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323
Kumar and Comcare [2025] ARTA 112
Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84
Liu and Comcare [2004] AATA 617; (2004) 79 ALD 119
Plumb v Comcare (1992) 39 FCR 236
Prain v Comcare [2017] FCAFC 143; (2017) 256 FCR 65
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR NSW 157
Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558
Woodhouse v Comcare [2021] FCAFC 95; (2021) 285 FCR 14

Statement of Reasons

  1. The parties to this proceeding…

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AGLC
Rickards and Comcare (Compensation) [2025] ARTA 1091
Case
[2025] ARTA 1091
Decision Date

CaseChat Overview and Summary

The case between Rickards and Comcare involved a dispute over the interpretation and application of the terms of an agreement reached between the parties, which was subsequently formalised in writing and signed. This case was heard and determined by the Administrative Review Tribunal (ART). The crux of the dispute was whether the notations appended to the agreed terms could bind Comcare in future decisions on specific compensation entitlements. These notations, which appeared to dictate the specific evidence required for certain types of compensation, were contested as being outside the Tribunal's jurisdiction.

The primary legal issue the court had to address was whether the notations, which seemed to detail specific compensation entitlements, were within the Tribunal's jurisdiction. The court held that while the terms of the agreement were within the Tribunal's power to enforce, the notations appended to the agreement were not. The court reasoned that the notations contained findings of fact concerning compensation entitlements, which fell outside the Tribunal's jurisdiction. The court further held that these notations could not bind future statutory decision-makers or future Tribunals sitting in review, as any future dispute would have to be considered anew on the facts and circumstances available at the time. The court also noted that the notations appeared to fetter Comcare's discretion in making determinations about specific compensation, potentially limiting the types of evidence Comcare could consider.

In conclusion, the court found that while the agreement itself was within the Tribunal's jurisdiction and could be enforced, the notations appended to the agreement were not. The notations, which contained findings of fact concerning compensation entitlements, were outside the Tribunal's jurisdiction and could not bind future decision-makers. The court did not remit the matter back to Comcare, as the terms of the agreement were within the Tribunal's power to enforce. However, the court made it clear that any future dispute regarding specific compensation entitlements would have to be determined anew on the facts and circumstances available at the time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Thirdly, the ‘notations’ identifying the agreement as to specific entitlements to determine the entitlement to specific compensation is a question for Comcare, not the Tribunal, and one which, if it became the subject of a subsequent dispute, may become the subject of review in accordance with Part VI of the SRC Act and review by the Tribunal. Those parts of the SRC Act cannot be suspended by agreement. Any dispute that was later the subject of review to the Tribunal must be considered on the facts and circumstances available to that future Tribunal. Nothing in the notations could prevent such a review. Evidence required before future determination of specific entitlements In a very real sense, the terms of the notations appear to fetter the discretion of Comcare in making determinations as to specific compensation. Take the case of medical treatment. Paragraph 3 of the Annexure to the Terms of Agreement appears to bind Comcare to consider ‘accounts and receipts for out-of-pocket medical treatment incurred’. The SRC Act requires Comcare to have regard to evidence of sufficient ‘specificity’ in relation to particularised medical treatment for an injury so as to perform its statutory function (Comcare v Lofts).[21] That evidence might not be limited to consideration of past ‘accounts and receipts’ and may even encompass future treatment. Similarly, determination of the entitlement to weekly compensation for lost income due to incapacity for work resulting from injury, the term requiring the production of ‘medical certificates from a legally qualified medical practitioner reflecting any claimed periods of incapacity for employment’ is unduly restrictive of the evidence Comcare may consider. A medical certificate is only required to be produced at the time of making a claim for compensation pursuant to section 54 of the SRC Act. That is a claim to accept liability, but which may include request for specific compensation. [21] Comcare v Lofts (2013) 217 FCR 220, 224-5 [13]-[15] per Mortimer J. Comcare at all other times must act on ‘requests’ as it has a duty to ‘make such determinations from time to time as were necessary to confer upon [the employee] the particular benefits to which [the employee] was, on the facts as they may be from time to time entitled’ (Commonwealth v Ford).[22] Comcare may be satisfied in any number of ways that there is a liability to pay weekly compensation for incapacity unfettered by the need to establish certification by a legally qualified medical practitioner. A delegate is permitted to accept the evidence of another health practitioner or even from the applicant, unsupported by the certificate of a health practitioner. [22] Commonwealth v Ford (1986) 9 ALD 433, 437 Wilcox J. This case dealt with the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), the forerunner to the SRC Act. With respect to the making of determinations for continuing entitlements, the 1971 Act is not relevantly different and the decision is equally applicable to the SRC Act.Expression of reasons for limiting or terminating specific compensation

Decision

Reasons for decision

Section 103 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that where the parties to a review proceeding have reached an agreement as to the terms of a decision of the Tribunal concerning the whole or a part of the proceeding, then a decision may be made by the Tribunal and the hearing of the proceeding or the hearing of that part so agreed need not take place:103 If parties reach agreement—review of decisions onlyTribunal may make decision agreed by parties(1) If, at any time:(a) the parties to a proceeding for review of a decision agree on the terms of a decision of the Tribunal:(i) in the proceeding; or(ii) in relation to a part of the proceeding; or(iii) in relation to a matter arising out of the proceeding;that would be acceptable to the parties; and(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and given to the Tribunal; and(c) if the terms of the agreement are signed in a dispute resolution process under Subdivision C of Division 6—7 days pass after the terms of the agreement are given to the Tribunal and none of the parties has notified the Tribunal in writing that the party wishes to withdraw from the agreement; and(d) the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal; the Tribunal may act in accordance with subsection (2) or (3).Decision agreed by parties(2) If the agreement reached is an agreement on the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding or completing the hearing of the proceeding, make a decision in accordance with those terms. Section 103 of the ART Act is the equivalent provision to section 42C of the Administrative Tribunal Act 1975 (Cth) (AAT Act) but there is an important difference to note. The AAT was required, when making a decision at the request of the parties, to consider not only whether the decision was within the powers of the AAT but also whether making such a decision was ‘appropriate to do so’.[7][7] The Administrative Review Tribunal Bill 2024 Revised Explanatory Memorandum at paragraph [695] noted that alteration stating, ‘if the parties agree, the decision is lawful and is within the power of the Tribunal to make, the Tribunal is not required to undertake a further assessment of its terms.’ Paragraph [691] stated the new provision ‘recognises the agency of parties, promotes efficient use of Tribunal resources, and avoids an unnecessary hearing if the parties can independently resolve their dispute. It supports the Tribunal objective in paragraph 9(b) that applications be resolved as quickly and with as little formality and expense as possible.’ Paragraph 111(2)(b) of the ART Act provides that the Tribunal must give a statement of reasons for its decision under section 105, such as the affirmation, variation or setting aside the reviewable decision and either substituting a new decision or remitting the matter back to the decision maker with reasons, but that applies to the making of a decision other than a decision in accordance with subsection 103(2) of the ART Act.

Ratio Decidendi

Legal Principle Established

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