8. Member Frost was satisfied that in the relevant period the applicant's employment was no longer contributing to the applicant's psychological ailment to a significant degree.
9. As a consequence of this decision, Comcare then proceeded to make a number of determinations. On 11 April 2024, 3 May 2024, 2 August 2024 and 20 August 2025, Comcare made five reviewable decisions regarding its liability, if any, to pay compensation to the applicant in respect of the adjustment disorder under sections 16 and 19 of the SRC Act. Those reviewable decisions found as follows:

(a) 11 April 2024: the respondent reconsidered its determination dated 19 February 2024 and decided it had no present liability to pay compensation in respect of the applicant's adjustment disorder on and from 10 November 2022; > > (b) 3 May 2024: the respondent completed a reconsideration on own motion of a series of determinations it made between December 2022 and February 2024, which had accepted liability to pay compensation to the applicant under section 19 of the SRC Act, and it revoked those determinations; > > (c) 3 May 2024: the respondent completed a reconsideration on own motion of a series of determinations it made between 18 November 2022 and 3 January 2024, which had accepted liability to pay compensation to the applicant under section 16 of the SRC Act, and it revoked those determinations; > > (d) 2 August 2024: the respondent completed a reconsideration of own motion of its determination dated 15 September 2023, which had accepted liability to pay the applicant compensation for 15 psychology consults under section 16 of the SRC Act, and it revoked that determination; > > (e) 20 August 2025: the respondent reconsidered its determination dated 24 July 2025 and decided that it was not liable to pay the applicant compensation relating to a '28 Day Residential Treatment Program and Withdrawal management' at Byron Private Holistic Treatment Centre'.

10. Each of the decisions took as an established premise the conclusion of the AAT that the applicant's psychological ailment on and from 10 November 2022 was not significantly contributed to by his employment.
11. The applicant sought review of Comcare's reviewable decisions by filing applications in the AAT on 9 May 2024 and 26 September 2024 and by filing an application in the Administrative Review Tribunal ('Tribunal') on 12 October 2025.
12. On 11 November 2024 Comcare applied to have the four extant proceedings in the Tribunal dismissed under ss 101(1)(b) and (c) of the ART Act. On 12 February 2025 General Member Carey heard the dismissal application. On 18 February 2025 the Tribunal denied the dismissal application on the basis that:

...it cannot be concluded that the approach taken in the earlier review concerning the entitlement to 4 weeks of incapacity leave payments make the conclusion to the present review a foregone matter so as to conclude it has no reasonable prospects of success.

13. Consequently the matters proceeded before the Tribunal and the issues between the parties were further refined by statements of facts, issues and contentions and directions made by the Tribunal. Further medical evidence was obtained by the parties.
14. Based on the parties' statements of facts issues and contentions and the medical reports filed in support of their respective cases, it was an accepted premise in the proceedings that the applicant continued to suffer from a psychological condition.[6] The key issues for the Tribunal to determine were:

(a) Whether the applicant's employment continued to contribute to the ailment to a significant degree; and, if so > > (b) Whether the applicant was incapacitated by the condition or reasonably required the medical treatment he obtained (or was intending to obtain).

15. In particular, Comcare contended that the psychological condition that he suffered from was not contributed to to a significant degree by his employment (and had not been since late 2022)[7] and if it was, the applicant did not reasonably require the medical treatment he had undertaken or was seeking to undertake.[8]
16. Comcare further contended that:

...whilst the AAT decision [of Member Frost] did not precisely address the incapacity periods and medical expenses the subject of those proceedings, the Tribunal should give overwhelming weight to the AAT Decision and its material finding of fact...In this case there is no new information that the applicant could not have reasonably put to the Administrative Appeals Tribunal which suggests that the AAT Decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise: cf Snell at [76]; Novosel v Comcare [2017] FCA 722; (2017) 72 AAR 269 at [112]. > > In that latter respect, the primary issue between the parties here turns on a finding of fact as to whether the adjustment disorder retained the continuing characteristic of being contributed to by the applicant's employment 'to a significant degree' after 10 November 2022. That issue was addressed by the AAT Decision. There has been no change in circumstances, such as developments in the fields of medicine or science, that would warrant the Tribunal making a different finding of fact from the finding of fact made in the AAT Decision. And of the apparently 'fresh evidence', namely the medical reports and evidence of Dr Bertucen and Dr Ljubisavljevic, any divergence of opinion between the experts or the evidence before the Tribunal is not of a kind contemplated by Snell and or Novosel to require this Tribunal to give less than overwhelming weight to the AAT Decision. On the contrary, the preferable expert opinion of Dr Ljubisavljevic is consistent with the AAT Decision, such that both the AAT Decision and Dr Ljubisavljevic's evidence may be given overwhelming weight in this review.[9]

17. As noted above, the medical evidence favoured by Member Frost was that provided by Dr Ewer. Dr Ewer was sceptical about the applicant as a historian and believed that although events at work precipitated the applicant's psychological condition, the employment contribution was no longer significant and the condition was maintained by the litigation concerning his compensation entitlements, and his underlying vulnerabilities.
18. By the time the matter came before this Tribunal the key medical evidence relied upon by the parties was the evidence of Dr O'Hare for the applicant and Dr Lubisavljevic for the respondent. Dr O'Hare concluded that the applicant suffered from a moral injury in the workplace and developed an adjustment disorder with mixed anxiety and depression. The moral injury he suffered involved him doing things in the context of Australia's agreements with Nauru concerning offshore processing which were against his deeply held moral code and ethics. She was satisfied that his condition continued to be contributed to to a significant degree by his employment with the Department of Home Affairs.[10]
19. Dr Ljubisavljevic concluded:

Dr Elias presents with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and an Alcohol Use Disorder... I do consider that Dr Elias has continued to experience symptoms of an adjustment disorder with mixed anxiety and depressed mood from 10 November 2022 to the date of examination on 12 August 2025.[11]

20. As to contribution, Dr Ljubisavljevic opined as follows:

I consider that the condition that originally developed in 2021 was due to reported difficulties in the workplace. Those stresses, however, would have resolved within six months, with major significant contributing factors by 2022 being legal proceedings, multiple independent medical examinations with no obvious progress being made about moving forward and obtaining alternative employment. It appears that his alcohol intake has been fluctuating throughout this period of time.[12]

21. He concluded that the original work-related stresses would have ceased to be significant contributors by early 2022.
22. Deciding which medical views should be accepted requires a decision to be made on whether the history accepted by the doctors reflects events that happened in the workplace and the applicant's subjective reaction to them. At the very least it is necessary to consider the applicant's evidence on what events troubled him when the condition developed and what troubles him now in order to decide which medical report best captures the employment contribution to the applicant's ongoing condition.
23. It was against this background that the matter came on for hearing.

1. The matter was listed for five days from 9 February 2026. The only witnesses to be called for cross examination were the applicant himself and Dr Ljubisavljevic. The applicant could not meet the costs of making Dr O'Hare available,[13] and so she was not going to be made available for questioning at the hearing.
2. A directions hearing was held on 4 February 2026. At the directions there was a discussion of the process that would be followed at the hearing and what accommodations would be made in light of the fact that the applicant was self-represented and was suffering from a psychological condition. Set out below are the relevant parts of a transcript of that directions hearing generated by the program Microsoft Teams.

DP O'Donovan: I might just begin by confirming Dr Elias that you are aware the matter's listed for hearing from the 9th to the 13th of February in the Brisbane registry and the expectation is that you'll be attending in person at this stage. > > Are you able to confirm that remains suitable for you? > > Dr Elias: Yes, I'm well aware that the hearing is starting on the 9th in Brisbane. I have made arrangements by cancelling my health insurance in order for me to pay for myself for a hotel room at least on Sunday night. So I will be in Brisbane on the morning of Monday first thing and hopefully if I'm required to come back up to Brisbane again because of the travel time I'd rather avoid it. But for financial reasons at this stage the cheapest hotel I could find I can afford to stay in for one night only. > > ... > > DP O'Donovan: And then, well, firstly let me inquire, I is likely that you'll be well enough to remain at the hearing for the whole of the day?...our normal sitting hours are 10:00 am till 1:00 pm, then 2:00 pm until 4:00 pm? > > Dr Elias: Absolutely, I will do my best. I'm very much hoping that our witness Dr Vlad will be there on the first day because it's critical that I'm able to see him face to face when I'm examining him. So yes, my capacity, usually mid after the afternoon is when the fatigue from my depressant medicine kicks in. That's why I want to come up on Sunday night to make sure I'm there first thing in the morning and be fresh and clear-headed. I don't want to have to negotiate public transport for two hours. So yes, in principle I'll be there for as long as I possibly can. The only thing I would mention is now that school is back, if I don't have enough money to stay a second night in Brisbane, then I would probably need to leave the hearing at around about 2:00 pm or 2:45 pm at the latest in order to get in an Uber to the train so that I can get a make sure that I can get a guaranteed seat at the sort of the commencement of the journey. > > ... > > DP O'Donovan: So just so you understand the format of the hearing. So as I understand it, at this stage, there's only going to be two witnesses called for cross examination. The first one will be yourself and then the second one is the witness the respondent relies on, which is Dr Vlad...Now I'll check with Ms Cains shortly just to find out how long you're likely to be in the witness box. But the usual process is that the parties give opening statements. They certainly don't have to. And, some parties just simply say, 'look, I've said everything I want to say in opening in my statement of facts, issues and contentions'. So if, if that's where we- if that's how the parties proceed, then we will get to the evidence pretty quickly. And then then next step is for you to give your evidence and, and your evidence in chief will be by- will consist effectively of any statement that you've already filed. > > And then we'll proceed straight to cross-examination. And then I- until that has been going for a little while, it's often hard to tell how long it's going to take. Sometimes it can be very quick, sometimes it can be extensive. And I simply don't have a sense of what it's likely to be in this case...and then assuming that that's the close of your case, you're the only live witness for your case, then the respondent would call Dr Vlad and then and then you'd have an opportunity to cross-examine him....

3. The respondent indicated that cross-examination of the applicant may take the afternoon of the first day and possibly the Tuesday as well. The respondent was then asked if it required Dr Elias to be cross-examined in person or whether cross-examination could take place over video. The respondent expressed a preference for cross-examination in person given the nature and complexity of the documentary evidence. It was decided to leave the question of whether the applicant would be required to attend in person on the second day of the hearing until the conclusion of the first day.
4. The following exchange then took place:

DP O'Donovan: Dr Elias, the I mean, I think that gives you a sense of, of what the hearing might entail. We're fortunate and then we have quite a lot of days allocated so we can be flexible in terms of start times to accommodate your travel times and, and your fatigue levels potentially. So, it's so at this stage we'd hope that we can list the matter in a way where you're able to attend in, in person on each of the days, even if it does mean travelling up from, I think it's the Gold Coast. Is that where you are? > > Dr Elias: Correct, Deputy President. > > DP O'Donovan: But look, let's see how we go. But if it's a priority for you to be, I suppose present in the Tribunal to cross examine Dr Vlad, then at this stage, attendance on the Thursday would be necessary for you to meet that goal...

5. In relation to his capacity to attend the applicant said:

Dr Elias: Look, all I can give you regarding my capacity is my current medical certificate from GP, which says I have 15 to 20 hours per week. So I'm, I work to that. So that's all I can share with you on that point, Deputy President, is that I have 15 to 20 hours of cleared medical clearance to attend work, and I'm not going to put myself at risk by exceeding that. I'm going to do my very best to be as present in the Tribunal as my physical and financial capacity allows.

6. The directions hearing then moved to other matters.
7. There was nothing raised in that the directions hearing that suggested that the applicant's capacity to attend the hearing on the first day of hearing was highly constrained by health considerations. The only issue raised was the possible need to depart early in the afternoon around 2:30 pm to reach his train and before his anti-depressant medicine kicked in.
8. On 9 February 2026 the hearing commenced as scheduled at 10 am in the Brisbane registry. The respondent was represented by interstate counsel and solicitors who were both physically present. Dr Elias was also present. Shortly after the hearing commenced Dr Elias advised that it was his intention to give his opening statement and then leave the hearing room. When I asked why he was intending to leave, Dr Elias explained that it would be explained in his opening statement. Dr Elias was asked to read those parts of his opening statement that related to his intended departure from the hearing room, which he did.
9. The relevant part of the statement was as follows:

As I have repeatedly pointed out to Comcare and the ART, I have no medical insurance to be here today. It is at my own risk. The ART has no protocols for managing challenges for the mentally ill, although I have asked about this for over 18 months. As such, I have to manage my time this 20 week in line with my capacity with the medical documents that I've shared with the ART and Comcare over the past several weeks. I have just learned that the ATO has approved a very small amount of money to help keep the bank at bay before I am bankrupt. > > I need to get this paperwork in motion today to have the money released as an urgent priority to provide for my family. I am legally obliged to transfer that amount in 40 days to the bank. In the meantime, I'll use it for my family to survive. I will think of something in the meantime. It has taken weeks to prepare this opening statement, and I am utterly depleted and fuzzy headed 30 from five nights of sleeping tablets. Over the remainder of this week, I need to revise my senate submission, which is due on Friday, share new evidence with the ombudsman, and start on a new statement for the crimes and corruption I witnessed for the AFP. That will be my fourth statement. > > I need to overhaul my questions for Dr Vlad's cross-examination. I need to finalise yet another application for the ATO to access my superannuation, and I need to finish writing my closing statement. I have already well passed my capacity this week as per my medical advice and I also need to see my general practitioner. As such, at the conclusion of my opening statement, I'll 40 be going home now to be with my family. It is the only thing that keeps me going, although every day sees me fail more as a husband and a father. I will not, however, sit back and passively participate in this blatant attempt by Comcare to further humiliate me, parade me around and taunt me in public in this feeble and inevitably doomed attempt to misdirect the focus of what is ultimate concern.[14]

10. I note that at the directions hearing on 4 February 2026 the applicant advised the Tribunal that he had already written his opening and closing statements.
11. The applicant then said he didn't need to hear what the respondent had to say and would be leaving to look after his health. When pressed on what medical evidence there was to support his decision to depart, the applicant indicated that he only had medical clearance for 15 hours per week. I indicated to the applicant that the only evidence I was aware of had him cleared for 20 hours per week. I also indicated that what he was proposing to do was not consistent with what had been discussed at the directions hearing.
12. I invited the respondent to indicate what its position would be if the applicant behaved in the manner foreshadowed. The respondent sought an adjournment to take instructions. After the adjournment the respondent advised that in the event that Dr Elias left the hearing room it may apply to have the matter dismissed or invite the Tribunal to proceed to make a decision under s 105 of the ART Act on the material available to it.
13. I asked Dr Elias whether he understood that and he indicated that he did.
14. I then took into evidence the documentary material relevant to the determination of the applications and gave Dr Elias an opportunity to open his case.
15. In his opening Dr Elias did not engage with any of the issues that were identified as significant in the respondent's statement of facts, issues and contentions. Rather, he used the opportunity to make wide ranging but non-specific allegations of corruption and victimisation against Comcare, McInnis Wilson, the Australian Government Solicitor, a former Secretary of the Department of Home Affairs and former colleagues.
16. The central premise of his opening was to suggest that he had been the subject of a concerted campaign by Comcare to gaslight him because he was a whistleblower. Dr Elias alleged that in doing this Comcare was deploying the DARVO technique which, he explained, was a defensive technique deployed by abusers when dealing with their victims. The technique is called the DARVO technique because it involves denial, attack and reverses victim and offender. This was the behaviour said to be engaged in by Comcare.
17. The allegations at least as far as they were directed towards Comcare seemed misplaced. Comcare's only role in the process on the material available to me was:

(a) to accept the initial claim as made; > > (b) to pay compensation consistently with the SRC Act until challenged by the applicant's employer in the AAT; > > (c) to apply a decision of the AAT (that was not the subject of appeal) to the ongoing management of Dr Elias' claim.

18. Some further documents were tendered during the course of the opening. At the end of his statement the applicant reiterated that he was going to depart the hearing room once he was finished. He indicated that he was not 'in the mood' to hear what the respondent had to say and was only willing to read the transcript.[15]
19. I reminded him that he had a statutory duty to assist the Tribunal and that he was likely to benefit from listening to the respondent so he could understand what the issues in the application were. I also made clear that if he left, I would entertain the application that the respondent foreshadowed concerning the dismissal of the proceedings. I indicated that his decision to leave was not consistent with the medical evidence as I understood it and was not justified by it. The respondent had previously referred me to the report of Dr O'Hare dated 2 December 2025 at page 783 of the tender bundle which indicated that the applicant was fit to attend work for 20 hours per week.
20. My own observation was that the applicant was alert and oriented and could readily understand and engage with the process that was taking place. The applicant's proposed departure was inconsistent with his own assessment of his physical and mental capacities given at the directions hearing the week before.
21. At around 11:45 am, the applicant left the hearing room.
22. After a short adjournment, the applicant had not returned. The respondent made an application that the applications be dismissed under either section 99 or 100 of the ART Act.
23. After hearing from the respondent, I indicated that I would give the applicant an opportunity to respond before determining the respondent's application. As the applicant was aware that the application would be made and the basis for it, this opportunity was not strictly necessary but I wanted to give the applicant every opportunity to explain his behaviour. I asked my associate to provide him with a link to the recording of the application if that was possible. I gave the applicant until 4 pm to respond. Around 2:30 pm the Tribunal received the following response:

I just got home and am taking a sleeping tablet now. I will be ready from 9 am tomorrow for the hearing and need to get ready for the Dr at 11.30 as agreed. That gives us a few hours to move forward.

I told the hearing call last week that Comcare would try and escape from the hearing and here we go ...

If I am to be attacked for my mental health then fine.

---------------------------------------------------

... Is my statement this morning public? If not why not?

I cannot access your document I have no account and it does not accept my email address as you have said.

This morning. I have been directed by VP O'Donovan to obtain medical evidence. As a result I will see my treating GP at 12.15 tomorrow on the gold coast to obtain a medical certificate.

1. Attached to his response was a screenshot of a mobile phone screen indicating he was unable to access the link of the recording that was provided.

1. The following sections of the ART Act are relevant to the application.
2. Section 9 provides:

The Tribunal must pursue the objective of providing an independent mechanism of review that:

(a) Is fair and just; and

(b) Ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

(c) Is accessible and responsive to the diverse needs of parties to proceedings; and

(d) Improves the transparency and quality of government decision-making; and

(e) Promotes public trust and confidence in the Tribunal.

Parties and their representatives to assist Tribunal

(2) A party to a proceeding in the Tribunal (other than the decision-maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9.

Tribunal may dismiss application if applicant does not appear

(a) The applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and

(b) The Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event:

1. A Tribunal case event is defined in s 4 of the ART Act as follows:

Tribunal case event, in relation to a proceeding in the Tribunal, means:

(a) The hearing, or part of the hearing, of the proceeding...

Tribunal may dismiss application if applicant fails to comply with order etc.

The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:

(a) Proceed with the application;

(b) Comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.

(c) Comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.

Tribunal may dismiss application if frivolous, vexatious etc

(1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) has no reasonable prospects of success; or

(c) is otherwise an abuse of the process of the Tribunal.

1. The respondent contends that the preconditions for dismissal under ss 99 and 100 were engaged by the applicant's conduct.
2. In relation to s 99 the respondent contends that because Tribunal case event included part of a hearing, the applicant's failure to appear after the adjournment of the matter was sufficient to trigger the precondition for the exercise of the discretion in paragraph (a). As the applicant had been given notice of the date, time and place of the Tribunal case event and was aware that the application would continue to be heard after his departure, then the requirements of paragraph (b) were satisfied.
3. The respondent also contended that the preconditions in s 100 were also satisfied on the basis that the applicant's decision to leave the hearing room amounted to a failure to proceed with the application in a reasonable time. The respondent cited Andelman v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299 ('Andelman').
4. The respondent also noted that the preconditions in s 101 may also be satisfied on the basis that by his opening the applicant had made clear that he was pursuing a collateral purpose which rendered the applications vexatious and/or an abuse of process.
5. The respondent contended that as the threshold for dismissal had been met the Tribunal should dismiss the applications because:

(a) There is no medical evidence before the Tribunal addressing the applicant's alleged incapacity to deal with the hearing in other than the orthodox fashion, which is the preparation for hearing and attendance at the hearing, including representing one's self in this particular context, together with giving evidence-in-chief, being cross-examined and giving evidence by way of re-examination.

(b) Paragraphs (a), (b), and (e) of s 9 of the ART Act say the Tribunal must pursue the objective of providing an independent mechanism of review that is fair and just, ensures that applications to the Tribunal are resolved as quickly and with as little formality and expense as a proper consideration of the matters before the Tribunal permits and relevantly, promotes public trust and confidence in the Tribunal. It is not open to a party to simply absent themselves from a hearing without evidence in support of that proposition and refuse to participate in a hearing in the circumstances as they obtained today.

(c) This is not the applicant's first case before the Tribunal. The matter has been listed for a long period, and it is being set down and heard in circumstances which consume particular resources of the Tribunal. The applicant's representations were inconsistent with the matters that were discussed as to his capacity at the last directions hearing on 4 February 2026.

(d) The applicant's opening makes clear that he wants to delve into issues in this hearing that are not germane. It appears that the hearing was clearly going to be used for the applicant to ventilate many of his grievances about what is said to have occurred prior to the onset of his claimed compensable condition or claimed ailment. The way the applicant seeks to present the case is not consistent with the issue in dispute and not consistent with the obligation in section 9. If the hearing were to proceed, subject of course to direction, it could have the potential of going off the rails and would not be an application that could be resolved with as little expense as a proper consideration of the matters before the Tribunal commits.

(e) The applicant is very much focused on pursuing collateral issues, such as preparing statements in the context of the other interests that he seeks to pursue, at the expense, effectively, of the five-day hearing that has been allocated to him in this proceeding. That approach is not consistent with his obligation to assist the Tribunal to achieve the objective in section 9.

(f) Even if the Tribunal were to accede to the applicant's request to break the hearing down into further smaller sittings - there is no clear pathway on the evidence for the hearing to get concluded in the next five days as has been allocated.[16]

1. I am satisfied that Dr Elias failed to appear at a Tribunal case event, namely the part of the hearing of his matter that took place after the short adjournment following his departure from the hearing room. I am satisfied that he received appropriate notice of the date, time and place of the Tribunal case event and chose not to appear.
2. Under the Administrative Appeals Tribunal Act 1975 there was some controversy about whether attendance at a hearing for a limited purpose and then departure constituted a failure to appear.[17] Any ambiguity that attended the AAT Act has been eliminated in the ART Act by the clear definition of a Tribunal case event as including 'part of the hearing'.
3. The applicant was advised of the listing. The applicant had notice of the time and place and date of the event. His knowledge of it was confirmed at the directions hearing on 4 February 2026 and established by his attendance at the Tribunal at the start of the hearing. He was aware that the hearing would continue if he left the hearing and that an application may be made to dismiss the matters if he did so. Despite this knowledge he chose not to appear at the part of the hearing following the short adjournment of proceedings following his departure.
4. In these circumstances I am satisfied that the preconditions for exercising the dismissal power under s 99 are satisfied.
5. In relation to the preconditions in s 100 of the ART Act, I am not satisfied that by departing the hearing room the applicant failed within a reasonable time to proceed with the application. While the facts bear a similarity to the facts in Andelman, the difference in this case is that the applicant signalled an intention to attend portions of the subsequent days of the hearing by video. Accordingly, his departure from the hearing room lacked the finality of the departure considered in Andelman.
6. I am however satisfied that paragraph (b) of s 100 is satisfied. The applicant was advised that departure from the hearing room would not be consistent with his duty to assist the Tribunal to meet the statutory objectives set out in s 9 of the ART Act. To comply with the ART Act within a reasonable time, the applicant needed to remain in attendance and listen to the respondent's opening and make himself available for cross-examination. He did not do those things.
7. In relation to s 101, I am not satisfied that the applicant was conducting the proceedings for a collateral purpose despite the fact that he made very serious allegations without particularising the basis for them in his opening. Some of what he opened with was relevant to issues that needed to be determined.

Should the discretion to dismiss be exercised?

1. Having satisfied myself that the preconditions for the exercise of the discretion are satisfied, the next question is whether the discretion conferred should be exercised. The discretions conferred by ss 99 and 100 are expressed in broad terms. The discretion is however not unconfined and cannot be exercised without regard for the reasons for its conferral. It is constrained by the scope and purpose of the ART Act. In particular it must be exercised having regard to the objective stated in s 9 to provide a mechanism of review that:

(a) is fair and just; and

(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

(c) is accessible and responsive to the diverse needs of parties to proceedings; and

(d) improves the transparency and quality of government decision-making; and

(e) promotes public trust and confidence in the Tribunal.

1. These provisions establish a framework for considering how the discretion should be exercised.
2. Focussing first on paragraph (b), it is clear that the Parliament wants matters to be resolved quickly and with as little expense as is possible without sacrificing the other important goals of the Tribunal. Parties have a duty to assist the Tribunal to achieve that. The procedure to be adopted in resolving any particular matter is to be determined by the Tribunal.[18]
3. The applicant decided to disregard the procedure adopted by the Tribunal for the determination of the matter. Contrary to his duty to the Tribunal, he made a unilateral decision to absent himself from the hearing. The consequence was that the hearing of the application did not proceed as arranged and expenses incurred by the respondent were wasted as was the valuable time the Tribunal allocated to considering the applicant's application for review. It is a matter of public record that the Tribunal resources are under significant strain. The cases on hand at the Tribunal now exceed 100,000 applications and consequently decision-making resources are precious. When the Tribunal allocates five days to the determination of a matter those hearing days need to be used efficiently and effectively. The applicant decided not to submit to the procedures that the Tribunal determined were appropriate but instead made unilateral decisions that suited his own temperament.
4. I am satisfied that the applicant's decision to leave the hearing room was not the result of any medical need. It was a conscious decision on his part to not take part in the hearing. The applicant was aware that the respondent's expressed preference was that he be available for cross-examination in person and that was most easily facilitated on the first day. The applicant's decision to leave the hearing room meant that the Tribunal's and respondent's resources were wasted and expenses incurred. I am satisfied that exercising the power to dismiss would be consistent with the goal of resolving applications quickly and minimising expense. The efficient running of the Tribunal requires that parties submit to the procedures determined by the Tribunal as appropriate for the resolution of an application. Parties cannot be permitted to treat their participation in the hearings as optional depending on their mood. Such conduct weighs heavily in favour of the exercise of the discretion to dismiss.
5. I am however conscious that it is accepted by both parties that the applicant is unwell, and in my own assessment may have a meritorious case. The question of whether it is fair and just to dismiss such a case due to the applicant absenting himself for one afternoon must be considered carefully. I have considered those issues and made the following assessments.
6. As noted previously, I am not satisfied that the applicant's mental illness played any significant role in his decision to absent himself from the hearing. Although all the parties agree that the applicant is suffering from a psychological condition, there is medical evidence to indicate that it is in partial remission.[19] As recently as 4 February 2026 the applicant advised that the effects of his medication came on later in the afternoon rather than in the morning. I am satisfied that the applicant's decision to leave the hearing room had nothing to do with any identified effects of his medications or his psychological condition. There was no observable medical condition impairing the applicant from continuing to participate in the review at the point in time when he left.
7. The applicant is clearly preoccupied with other matters and it is these, rather than the state of his health, that motivated his desire not to fully participate in the hearing scheduled by the Tribunal.
8. I have given some consideration to the merits of the applicant's case. That task is made considerably easier by the fact that the applicant has had a full merits review, on a substantially similar set of issues in the AAT. On that occasion the applicant was represented by experienced senior counsel. While the periods of compensation in question are different, one of the critical questions in these proceedings and in the proceedings before Member Frost is whether the applicant's ongoing condition is contributed to to a significant degree by the applicant's employment after November 2022. That question was determined adversely to the applicant after full merits review. While more evidence has been obtained, it remains critical to the resolution of the case to determine whether the applicant's history as given to doctors should be accepted as accurate. Once that question is resolved the next question is whether, in light of an accurate history, the applicant's ongoing symptoms related to his employment. In circumstances where those questions have been thoroughly examined previously and determined adversely to the applicant, I am not inclined to indulge the time-wasting behaviour in which he has engaged. While it was perfectly appropriate for General Member Carey to refuse summary dismissal of the matter on the basis that a different conclusion in relation to different periods of compensation were possible, that does not mean that in circumstances where the applicant is not conscientiously participating in procedures to determine the merit of his case, that his failure to do so should be discounted because there is a chance that a different conclusion might be reached on the critical questions determined by Member Frost in his earlier decision. The fact that there is a chance that the applicant may have a good case is not a persuasive basis for refusing the application to dismiss.
9. Finally, I have no confidence that if the matter proceeds, that the applicant will comply with his duty to assist the Tribunal to meet its objectives. The applicant has publicly declared that he:

...will not however, sit back and passively participate in this blatant attempt by Comcare to further humiliate me, parade me around and taunt me in public in this feeble and inevitably doomed attempt to misdirect the focus on what is of ultimate concern.

10. By this the applicant is effectively declaring that he will not cooperate with attempts by Comcare to test his evidence. Given that on the last occasion when the matter went to full merits review the applicant's evidence was given no weight as a consequence of his answers in cross-examination, proper testing of his evidence is appropriate and necessary to deal with the issues that the Tribunal needs to determine. If the applicant is unwilling to cooperate with the process (and I infer from his statements that he is not) then it is difficult to see how persisting with the hearing of the matter will be fair and just and result in the matter being resolved quickly and with as little expense as possible.
11. The applicant's view appears to be that he does not have to be present for anything that he doesn't want to hear. That is not how hearings are conducted. The Tribunal has a process for defining issues and testing evidence and the parties need to participate in it to assist the Tribunal in meetings its objectives. Opting out of hearings for reasons of preference rather than medical necessity is not an option available to a party. On 4 February 2026 the applicant indicated a willingness to be available for a sensible amount of time to allow the hearing to proceed and be determined in the time allocated by the Tribunal. Now the applicant takes the view that his attendance is optional, and it is a matter for him to decide whether he is willing to participate. In those circumstances I cannot be satisfied that the applicant will attend all of the necessary portions of the hearing for the matter to be conducted fairly.
12. I have considered whether rather than dismissing the application I should proceed to determine the matter on the papers without a further hearing. I have a significant amount of documentary material available that would assist me to determine the issue. In most circumstances that is an option I would raise with the parties. Alternatively, I could conduct the hearing in the absence of the applicant with him attending as he sees fit.
13. I have decided not to proceed in either of those ways. On the last occasion Member Frost's finding on credit was critical to the determination of the application. Similar credit questions seem likely to arise in relation to the applicant's medical history in this case. To proceed in a way that may not give the respondent any fair opportunity to test the applicant's credit does not in my view provide a mechanism of review that is fair and just. Accordingly, proceeding to conduct the matter in circumstances where the applicant's attendance is optional or not required is inappropriate.
14. I am satisfied that the discretion to dismiss the application under s 99 of the ART Act is available to me and should be exercised in the present circumstances.
15. Section 100 was an available alternative but it is unnecessary to consider the discretion in light of my decision under section 99.

Applicant's representative Self-represented litigant

[1] Transcript of proceedings, Elias and Comcare (2024/3006, 2024/3007, 2024/3008, 2024/7384, 2025/5501, Deputy President O'Donovan, 9 February 2026) 3.

[5] Secretary, Department of Home Affairs and Comcare (Compensation) [2024] AATA 592, [272]-[273].

[6] Comcare ('Respondent's Statement of Facts, Issues and Contentions, Submission in Elias and Comcare, (2024/3006, 2024/3007, 2024/3008, 2024/7384, 2025/5501, 12 December 2025), [42], [47].

[10] Report of Dr Mary O'Hare dated 2 December 2025, 20-21, [154]-[164].

[11] Report of Dr Vladan Ljubisavljevic dated 25 August 2025, 20-21.

[13] See: Administrative Review Tribunal (Common Procedures) Practice Direction 2024, 14 October 2025, [6.4].

[14] Transcript of proceedings, Elias and Comcare (2024/3006, 2024/3007, 2024/3008, 2024/7384, 2025/5501, Deputy President O'Donovan, 9 February 2026) 3.

[16] Transcript of proceedings, Elias and Comcare (2024/3006, 2024/3007, 2024/3008, 2024/7384, 2025/5501, Deputy President O'Donovan, 9 February 2026) 30-33.

[17] See: Goldie v Minister for Immigration & Multicultural Affairs [2002] FCAFC 367 cf Carr J at [88].

[19] Report of Dr Mary O'Hare dated 2 December 2025, 20 [155], [157]; Report of Dr Jeff Bertucen dated 16 September 2024, 6; Report of Dr Vladan Ljubisavljevic dated 25 August 2025, 24.