Rickards and Comcare (Compensation)
[2025] ARTA 1091
•24 July 2025
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 14Statement of Reasons
The parties to this proceeding have come to an agreement as to how to resolve their dispute. The dispute arose concerning a reviewable decision made by the respondent to deny liability to pay compensation for an injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
In the present case, the Applicant made a claim for compensation on 25 September 2023 for a psychological injury and where he notified Comcare that he first felt symptoms of the injury on 5 September 2023.[1] The following day, 6 September 2023, the Applicant submitted leave requests stating the reasons as ‘I need some time to take on the feedback from yesterday’s meeting.’[2]
[1] T10, 32-37. References to ‘T-Documents’ are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), in operation when the application commenced. They are generally known as ‘Tribunal documents’, sequentially numbered, with subsequent page references. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
[2] T12, 46-47.
The claim was rejected by Comcare in a determination dated 6 November 2023.[3]
[3] T19, 92-97.
Comcare is an organisation created by section 68 of the SRC Act and by subsection 69(a) of that Act has a primary function to ‘make determinations accurately and quickly in relation to claims and requests made to Comcare under this Act.’ For the purposes of receiving and determining liability claims for specific compensation, Comcare a ‘relevant authority’ and it has power to do ‘all things necessary or convenient to be done for, or in connection with, the performance of its functions.’[4]
[4] Subsection 4(1) definition of ‘relevant authority’ and section 70 of the SRC Act [Powers].
The Applicant requested Comcare in writing on 20 November 2023 to review that decision.[5]
[5] T20, 98-102.
A different delegate of Comcare from the one who made the original determination made a reviewable decision pursuant to section 62 of the SRC Act on 10 January 2024.[6] That is the decision for which the Applicant made an application for review to the Tribunal.
[6] T21, 103-113.
The Tribunal welcomes and encourages parties to come to agreements concerning the resolution of such disputes. In the workers compensation jurisdiction, the making of such agreements is quite common. The Tribunal congratulates the parties in the present case in coming to terms that resolves their dispute. There are matters raised in the agreement between the parties that the Tribunal had no power to affect. It is nonetheless appropriate for parties to enter into such agreements to resolve a broader range of matters that go beyond the specific dispute before the Tribunal.
However, the Tribunal in making consent orders does not merely approve the written agreement of the parties. The Tribunal must consider whether such a decision would be within the powers of the Tribunal. The following are the reasons for making an order ‘in the terms of the agreement or consistent with those terms’ in accordance with paragraph 103(1)(d) of the ART Act.
Legislation
Section 17 of the ART Act provides that a person whose interests are affected by a reviewable decision may apply to the Tribunal for review of that decision.
By section 12 of the ART Act, that the Tribunal may review a decision that 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.’
Part VI of the SRC Act provides for the reconsideration and review of determinations. Section 64 of the SRC Act relevantly provides that a claimant may apply to the Tribunal for a reviewable decision made under that Act. A reviewable decision is one made pursuant to section 62 of the SRC Act. A reviewable decision is made after review of a primary decision referred to as a ‘determination’. Subsection 60(1) f the SRC Act defines that term as follows:
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.
The powers of the Tribunal on review are the same as those of the decision maker. Section 54 of the ART Act provides:
54 Tribunal can exercise powers of decision-maker
For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act.
Among the powers and discretions of the decision maker is that provided for in subsection 62(5) of the SRC Act:
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
Hence the powers of the decision maker to affirm, revoke or vary are quite broad. On review, the Tribunal’s powers in relation to the making of a decision are set out in section 105 of the ART Act:
105 Tribunal decision on review of reviewable decision
In relation to the reviewable decision, the Tribunal must make a decision:
(a) affirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and:
(i) making a decision in substitution for the reviewable decision; or
(ii) remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
A further power is given to the Tribunal by subsection 67(8) of the SRC Act to make an order as to the costs of the proceedings incurred by the applicant where the decision at the conclusion of review is ‘favourable’ to the claimant.
(8) Where, in any proceedings instituted by the claimant, the Administrative Review Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
A hearing is not required in all cases. The Tribunal may make a decision without a hearing where, for example under subsection 106(2) of the ART Act, the parties agree to determination without hearing, and it appears to the Tribunal that it can determine the issues in the absence of the parties.
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 only
Tribunal 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.
By subsection 108(2) of the ART a decision that is varied or one made in substitution of the reviewable decision by the Tribunal is taken to be a decision of the decision-maker and further, by subsection 108(3) of the ART Act, application may not be made to the Tribunal for review of the reviewable decision as varied or made in substitution for the reviewable decision.
Decision within the powers of the Tribunal
The ART Act confers specific powers to the Tribunal when dealing with a proceeding for review of a reviewable decision. Section 105 defines the range of decisions that may be made at the conclusion of the review. Those powers include affirming, setting aside or varying the decision. The Tribunal may substitute its own decision of the reviewable decision, set aside the reviewable decision, or remit the matter to the decision maker for reconsideration in accordance with any orders or recommendations of the Tribunal.
The Tribunal in making a decision at the request of the parties, commonly referred to as a ‘consent order’, no longer needs consider the appropriateness of the order as the former AAT was required. However, the consent order must be limited to those matters within the power of the Tribunal. In Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 (Kovalev) it was noted, relying on the High Court’s decision in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163, that in making a consent order, the court (or as here, the Tribunal,) must have regard to the limits of its power and cannot, by consent, confer power to make orders which the court lacks power to make.[8]
[8] [1999] FCA 557; (1999) 100 FCR 323 at 327 [11]
The Tribunal’s powers are available for use in the exercise of an existing jurisdiction and cannot be used to confer jurisdiction to determined compensation that have not yet been the subject of a determination of reconsideration of a determination (Comcare v Burton).[9] These are not powers that may be exercised at large (Lees v Comcare) (Lees).[10]
[9] (1998) 50 ALD 846, 859 per Finn J.
[10] [1999] FCA 753, (1999) 56 ALD 84, 93 [39] per Wilcox, Branson and Tamberlin JJ.
Further, where there is an agreement by the parties as to the terms of a decision that is within power of the ART, and that decision is one to which the SRC Act applies and is a decision ‘more favourable’ to the applicant, section 67(8) of the SRC Act confers further power on the Tribunal to make an order as to the applicant’s costs of the proceedings.
The requested decision
As to the terms dealing with the reviewable decision, the written agreement of the parties dated 11 July 2025 at clause (C) states:
1. The reviewable decision dated 10 January 2024 is set aside and in substitution it is decided that the Respondent is liable to pay compensation to the Applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for an “adjustment disorder with anxiety” deemed to have been sustained on 6 September 2023 in accordance with s 7(4) of the SRC Act (accepted psychological condition).
2. The matter be referred back to Comcare for Determination relating to entitlements.
3. In accordance with s 67 of the SRC Act, the Respondent is to pay the Applicant’s professional costs and disbursements as agreed or, in default of agreement, as taxed by the Tribunal.
Insofar as the proposed decision finds a liability pursuant to section 14 of the SRC Act where the reviewable decision did not, it is within jurisdiction and is one that is more favourable. In exercising power to make a decision that is at least ‘consistent with those terms’ as required by paragraph 103(1)(d) of the ART Act, I make only two alterations that in no way affect the substance of the agreement, firstly as to the identification of the injury and secondly to deal with the purported ‘referral’ of the matter to Comcare.
The identification of the injury can often be a difficult and contested matter. It is commonplace to describe the injury in terms of some form of medical diagnosis. The identification does not depend upon the existence of an identifiable diagnosis (Comcare v Mooi (1996) 69 FCR 439),[11] and it is very common for diagnoses to change, evolve and become varied over time depending upon the stage of the injury, the state of medical knowledge and the different diagnostic terminology used by medical practitioners in diverse specialisations (Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147).[12] It is useful to give some form of identifier to the injury but since the injury for which liability is to be granted may be one of a series of injuries, or an aggravation of a prior injury, it is preferable to identify that injury as the subject of a particular claim for compensation of an identifiable date. Such a claim must be made pursuant to section 54 of the SRC Act and is a necessary fact underlying the acceptance of liability (Lees).[13] I have altered the text of the agreed decision to reflect this fact to refer to the claim made on 25 September 2023.[14]
[11] Comcare v Mooi (1996) 69 FCR 439 at 443-444 per Drummond J.
[12] Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at 153 [21] per Madgwick J.
[13] [1999] FCA 753; (1999) 56 ALD 84 at 92 [35] per Wilcox, Branson and Tamberlin JJ.
[14] T10, 32-37.
The term referring to the deemed date of injury implies that it is a ‘disease’, that is, an ailment which employment has contributed to in a significant degree, for the purposes of the definition of injury in paragraph 5A(1)(a) of the SRC Act. The date of injury in respect of a ‘disease’ is defined in subsection 7(4) of the SRC Act for the present purposes as the first date of either medical treatment, incapacity for work or impairment. Section 7 of the SRC Act is not one by which a ‘determination’ is made that may be the subject of review under Part VI of the SRC Act.
However, that provision has been said to do ‘useful work by providing a certain starting point in the case of diseases, some of which may be of gradual development, to enable the calculation of such matters as entitlements to benefits …’ (Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289).[15] Any entitlements to compensation for medical treatment will be considered at the date of injury or later. Compensation for lost income due to incapacity for work resulting from injury will be calculated by reference to the ‘normal weekly earnings’ to be determined by reference to a ‘relevant period’ prior to the date of injury as determined by sections 8 and 9 of the SRC Act. While a decision identifying the date of injury pursuant to section 7 is not one that is reviewable, a decision under section 8 would be.
[15] (1992) 15 AAR 289, 293 per Heerey J.
There is a practical benefit for settling that date as part of the determination of the liability for injury. As noted in Lees, the determination of an injury may take into consideration several sections of the SRC Act that are themselves not defined ‘determinations’ that might, if disputed, become reviewable. Should there be a dispute concerning payment of a particular medical expense or a dispute concerning the quantum of weekly compensation, those matters, being determinations, may be reviewed by the processes identified in Part VI of the SRC Act.
I have considered that the date of injury would be a matter to consider in making a determination pursuant to section 14 of the SRC Act and the order pursuant to section 103 of the ART Act in settlement of that matter will record the agreed date of injury.
I briefly mention the term at clause (C)(2) of the agreed terms stating the ‘matter be referred back to Comcare for Determination relating to entitlements.’ Once the decision pursuant to section 14 of the SRC Act is made in substitution for the reviewable decision, there is nothing left of the matter for review to ‘refer back’.
It may have been otherwise had the claim entertained by the original decision maker had expressly sought those additional benefits. It is well accepted that an employee may simultaneously request liability for injury and entitlement to specific compensation entitlements, in which case, a rejection of the liability claim will also be an implicit rejection of the claims for specific compensation (Fuad v Telstra Corporation Ltd)[16] (2004) 39 AAR 496; Irwin v Military Rehabilitation and Compensation Commission).[17] A refusal or failure to act on a claim on the part of a relevant authority is just as much a decision in respect of the claim as a determination (Telstra Corporation Ltd v Kotevski [2013] FCA 27; (2013) 209 FCR 558).[18] In such a case, it would be appropriate to either consider terms as to a decision of those matters or to exercise power to ‘remit’ such matters to Comcare.
[16] (2004) 39 AAR 496, 498 [4] per Downes J, President.
[17] (2009) 174 FCR 574, 579 [22] per Downes, Greenwood and Tracey JJ.
[18] [2013] FCA 27; (2013) 209 FCR 558, 571-571 [52] per Rares J.
However, the parties agree that no such further claim was either overlooked or impliedly rejected in the determination which was affirmed by the reviewable decision. Hence, there is nothing of the reviewable decision of 10 January 2024 remaining to refer back to Comcare.
The term to ‘refer back’ this matter is superfluous since the liability having been established pursuant to section 14 of the SRC Act by the present decision in substitution for the reviewable decision it is Comcare’s obligation to make such determinations from time to time as is necessary to confer particular benefits to which the employee is, on the facts as they may be from time to time entitled and to do so without the intervention of a fresh claim once it became clear that additional benefits are payable (Commonwealth v Ford ) (Ford).[19]
[19] (1986) 9 ALD 433, 437 per Wilcox J
The parties agreed that this clause may be deleted.
The powers of the Tribunal on review extend to the powers of the original decision makers and in this case, the power to set aside a decision on review is conferred. The Tribunal’s powers on review are not only derived from the ART Act but also from the statute that is the subject of review. Subsection 67(8) of the SRC Act specifically modifies the ART Act relevant to the setting aside of the reviewable decision in this case, in confering power on the Tribunal to require Comcare to pay the applicant’s costs of the proceedings where the decision on review is more favourable. It is apt in the present case to make such an order and to note that the Tribunal’s jurisdiction encompasses the power to adjudicate disputes concerning the amount of the costs to be paid.
The notations to the agreement
I now come to the remaining matters to which the parties have come to terms, and which are headed ‘Annexure to Terms of Agreement’ and described as ‘Notations’.
There is also a tendency in recent years under the former AAT to attach to consent orders, as in the present case, terms of agreement by the parties which are clearly not within the jurisdiction of the Tribunal and yet, parties clearly ask the published order of the Tribunal to reflect. In the present case, these notations cover the further agreement of the parties as to:
(a)The specific compensation entitlements that Comcare are to be determined for a limited period in respect of the costs of medical treatment in relation to the injury and weekly compensation for lost earnings due to incapacity resulting from the injury pursuant to sections 16 and 19 of the SRC Act.
(b)Those specific entitlements will be made by reference to specific evidence to be submitted before those entitlements are determined.
(c)Expression of a reason for the termination of those yet to be determined entitlements to specific compensation at a specific date, being 30 December 2023.
(d)Expression of a conclusion that such specific compensation is ‘not due and payable’ by the respondent for a period by operation of the Health and Other Services (Compensation) Act 1995 (Cth) (HOSC Act) and the Social Security Act 1991 (Cth) (SSA).
The ‘Annexure to the Terms of Agreement’ states:
Notations
(A) It is noted that the Applicant and Respondent acknowledge and agree to the following in relation to the compensation payable in accordance with the Tribunal decisions made in accordance with paragraph (C) above:[20]
[20] Paragraph (C) was the terms of the proposed decision to be made by the Tribunal.
1. The Applicant is entitled to compensation under ss 16 and 19 of the SRC Act for the accepted psychological condition from 6 September 2023 to 29 December 2023.
2. As at 30 December 2023 the Applicant’s employment ceased to significantly contribute to the accepted psychological condition and from 30 December 2023 until the date of the Tribunal’s decision the Applicant is not entitled to compensation under the SRC Act in relation to the accepted psychological condition.
3. Compensation payable under ss 16 and 19 of the SRC Act for the accepted psychological condition in the period 6 September 2023 to 29 December 2023 is to be calculated and determined by the Respondent after the Tribunal issues a Decision consistent with these Terms of Agreement as to the Decision and following receipt by the Respondent of accounts and receipts for out-of-pocket medical treatment incurred, medical certificates from a legally qualified medical practitioner reflecting any claimed periods of incapacity for employment, and details of any superannuation pensions and/or lump sum benefits received by the Applicant.
4. Compensation is not due and payable by the Respondent until after the expiration of 28 days after the later of either:
(a) the date on which the Respondent receives clearance from the relevant Department or Agency and/or Centrelink as to whether an amount is repayable to the relevant Department or Agency and/or Centrelink; or
(b) the date on which the Respondent receives a valid notice of charge from Medicare.
5. That the Respondent must deduct or pay, from compensation payable under the SRC Act, in respect of the accepted psychological condition:
(a) any amount payable to Services Australia – Medicare Program under the Health and Other Services (Compensation) Act 1995
(Cth); and(b) any amount payable to the Services Australia – Centrelink Program under the Social Security Act 1991
(Cth)..The making of an agreed order disposing of a dispute of a claimant and a government agency is, as noted in Kovalev, a public function. To express a view as to the matters which the parties have privately agreed but which are not within the jurisdiction of the Tribunal is a misuse of the Tribunal’s obligation to make consent orders ‘within the Tribunal’s powers.’ Hence, and for the further reasons set out below, there is to be no public expression of approval, event ‘notation’ of, the matters set out in the Annexure to the Terms of Agreement.
Limitation on specific compensation entitlements
There is nothing unusual in the parties coming to an agreement as to the terms of either a decision of the Tribunal or even as to the decision of Comcare. The notations point to an agreement concerning the terms of a decision of Comcare, not the Tribunal.
It is not appropriate to annex these terms to any order of the Tribunal pursuant to section 103 of the ART.
Firstly, there is clearly no power to deal with such matters since there is no reviewable decision made in respect of unquantified benefits under sections 16 and 19 of the SRC Act.
Secondly, the Tribunal cannot express a view concerning the limitation on the defined period in the absence of jurisdiction. It would be otherwise where, as noted above, the applicant had made a simultaneous request liability for injury and entitlement to specific compensation entitlements or Comcare had made a specific decision to reject liability pursuant to section 14, 16 and 19 of the SRC Act in response to the initial claim. Comcare did none of those things. It is inappropriate for the Tribunal to make up for the shortfall in Comcare’s decision-making by purporting to express a view on future determinations yet to be made by Comcare.
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
The notation that ‘employment ceased to significantly contribute to the accepted psychological condition’ from ‘30 December 2023 until the date of the Tribunal’s decision’ expresses a factual conclusion which in relation to ‘disease’ injuries within paragraph 5A(1)(a) of the SRC Act. It is the form of finding discussed in the decisions of the Full Court of the Federal Court in Prain v Comcare[23] and Woodhouse v Comcare[24] suggesting the applicability of the statutory test for acceptance of a ‘disease’, being an ‘ailment’ to which employment contributed to a significant degree, at some time after liability has been accepted, failing which, liability is to cease. I have noted the problems in these decisions elsewhere (Kumar and Comcare).[25] However, it is factual finding that requires evidence. So would any other conclusion as to the state of affairs on 30 December 2023 such that the applicant ‘ceased to suffer from the effects of the condition’ which is a statement of fact which, if found by the Tribunal, would exclude the applicant from liability for specific compensation payments. That would be a factual finding based on evidence that employment was ‘purely temporary in its effects’ (Salisbury v Australian Iron and Steel Ltd)[26] and this requires a finding having regard to ‘the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue’ (Casarotto v Australian Postal Corporation).[27]
[23] [2017] FCAFC 143; (2017) 256 FCR 65.
[24] [2021] FCAFC 95; (2021) 285 FCR 14.
[25] [2025 ARTA 112 [80]-[93].
[26] (1943) 44 SR NSW 157 at 162 Jordan CJ.
[27] (1989) 17 ALD 322 at 332, Hill J.
The parties accept that such a notation does not constitute a decision within the power of the Tribunal. However, the danger in such ‘notations’ lies in its possible effect in conveying approval for the agreement as to matters beyond the power of the Tribunal that might be felt to bind a future decision maker, whether Comcare or, on review, the Tribunal.
A decision maker like Comcare cannot bind itself not to receive or consider further claims where a primary liability is established pursuant to section 14 of the SRC Act, as this decision in settlement of the proceeding will achieve (Australian Postal Corporation v Oudyn (2003) 73 ALD 659.[28] Further, such ‘notations’ could not bind a future Tribunal to exercise its powers on review in accordance with the prior decision’s notations and more than one Tribunal’s factual findings in one review could bind a future Tribunal considering a later dispute between the same parties (Plumb v Comcare (1992) 39 FCR 236).[29]
[28] 2003) 73 ALD 659 at 666–7, per Cooper J.
[29] (1992) 39 FCR 236 at 240 per Lockhart J with whom Black CJ and Gummow J agreed.
It might have been otherwise had Comcare, in making its primary determination denying liability pursuant to section 14, exercised its decision-making powers to also deny specific liability to pay compensation pursuant to sections 16 and 19 of the SRC Act or have impliedly rejected such entitlements as noted above. Jurisdiction would have been thereby established and an order by consent concerning all three sections of the SRC Act would have been open to the parties, or indeed, remitting part of the dispute to Comcare concerning specific liability.
When compensation is ‘due and payable’
Clause 4 of the Annexure to the Terms of Agreement states that compensation agreed to be paid by reason of Clause 1 relating to the period from 6 September to 29 September 2023 is ‘not due and payable’ until 28 days following the later of various notices to be received from a relevant ‘Department of Agency and/or Centrelink’ or from ‘Medicare’. Further, Clause 5 states that the respondent must ‘deduct or pay from’ the compensation payable to Services Australia by reason of compensation recovery legislation.
The Social Security Act 1991 (Cth) (SSA), in respect of various social security pensions and benefits, and the Health and Other Services (Compensation) Act 1995 (Cth) (HOSC Act), in respect of Medicare benefits, both contain provisions that may affect the payment of compensation in various circumstances.
Periodic payments of weekly compensation pursuant to section 19 of the SRC Act may be suspended by operation of subsection 1184B(1) of the SSA. That provision states that a compensation payer, here Comcare, ‘is not liable to pay’ compensation where one or both of two notices are served on it by the Secretary of the Department of Social Services. The first is a ‘preliminary notice’ given under section 1182 of the SSA given to a ‘potential compensation payer’ that the Secretary ‘may wish to recover’ an amount from the compensation payer where there has been a period of days where a ‘compensation affected payment’ (a social security benefit) has been paid in the ‘periodic payments period’ and that the compensation payer must within 7 days notify the Secretary of becoming liable to the compensation payments. The other notice is one given by the Secretary under section 1184 of the SSA that recovery specifying that amount that is proposed to be recovered, representing the benefits paid during the period payments period.
The suspension of the payment of compensation cannot be made in the absence of such notices and there may be situations, clearly provided for in the SSA, where notices may not be given, and the recovery is made directly from the compensation recipient (see sections 1184F and 1184G of the SSA).
I have no information as to the state of notices served, if any, and cannot possibly determine the correctness of the statement in clauses 4 and 5 of the Annexure.
Section 30 of the HOSC Act contains a similar statement that in the circumstances where an amount of Medicare benefits is recoverable under section 28 of that Act ‘the compensation payer is not liable to pay’ until the amount recoverable is paid or until the end of the 28-day period for complying with section 28. That refers to a notice given to the compensation payer by the Chief executive Medicare pursuant to sections 24 or 25 of the HOSC Act. Section 24 refers to a notice of charge in respect of ‘judgement or settlement’ while section 25 refers to ‘a reimbursement arrangement’ which is a situation where the sums to be paid are not specified in judgement or settlement but are yet to be determined once a liability to pay compensation is established.
I have not been provided with any information concerning the existence of such notices that are likely to satisfy the criteria causing suspension of the payment of compensation.
It is also clear that the Tribunal has no jurisdiction to deal with subjects raised by compensation recovery provisions under the SSA or the HOSCA Act in the absence of a reviewable decision and application for review.
Further, there are provisions in the SSA for the Secretary to ‘treat the whole or part of a compensation payment as ‘(a) not having been made’ or ‘(b) not liable to be made’ if the Secretary thinks it is appropriate to do so in the special circumstances of the case’ and challenges may be made as to the validity of the notices or their service. Some of these decisions may be reviewed and become the subject of a proceeding to review in the Tribunal, albeit with the Secretary as the respondent.
There are also provisions for disputing the correctness of certain notices (sections 18 and 23A and 23B of the HOSC Act which may become the subject of review before the ART (see section 23D of the HOSC Act).
Expression of any sort of view on such matters by the Tribunal, as offered by the parties in clauses 4 and 5 of the Annexure, may become the subject of later review and hence be considered a prejudgement on the validity of notices, the correctness of the circumstances of recovery, or upon the absence of special circumstances. The capacity for the Tribunal to independently review decisions made by the executive government under statutes providing for ART review is to be guarded. The perception of pre-judgement of potential issues would tend to count against the need to provide review that is fair and just.
That is a powerful reason, in addition to the clear absence of jurisdiction, to reject making any comment on the compensation recovery processes.
Accordingly, the Tribunal will only make an order limited to those matters within its power and which is consistent with the written terms of agreement.
Dates of Hearing: 14 July 2025
Appearances for the:
Applicant: Mr Karl Pattenden, instructed by Slater and Gordon Limited.
Respondent: Mr Roy Seit, instructed by Sparke Helmore, Solicitors.
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