Burns v Comcare [2025] FCA 1327

1. In April 2024 the applicant, Ms Jacqueline Burns, made a workers' compensation claim to the respondent, Comcare. Ms Burns claimed that she had Major Depressive Disorder, Anxiety and Post Traumatic Stress Disorder as the result of events that began in 2013 while she was employed by the Australian Taxation Office.
2. In May 2024 a delegate of Comcare denied Ms Burns' claim pursuant to s 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Ms Burns sought reconsideration of the delegate's decision, and in November 2024 the delegate affirmed their decision to deny the claim. In December 2024 Ms Burns filed an application for review of the delegate's decision of November 2024 to the Administrative Review Tribunal. On 11 March 2025 the Tribunal dismissed Ms Burns' application.
3. Ms Burns now appeals to this Court, on a question of law, from the Tribunal's decision of 11 March 2025. That appeal is brought pursuant to s 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
4. The Tribunal's decision of 11 March 2025 dismissed Ms Burns' application, pursuant to s 101 of the ART Act, as having no reasonable prospects of success. It gave oral reasons at that time, and then written notice of the decision to the parties on the following day 12 March 2025. Ms Burns then made a written request that the Tribunal provide written reasons. The Tribunal provided written reasons on 11 April 2025.
5. Ms Burns' notice of appeal filed in this Court alleged six questions of law and six grounds relied on. Relevantly, the sixth question of law was "[w]hether the Tribunal provided adequate reasons for its decision". That ground was expressed as follows:

6. The Tribunal failed to provide adequate reasons for its decision as it:

a. Failed to state the legal test or legal principles with respect to summary dismissal beyond paragraph 15;

b. Failed to explain the reasons why a settlement in 2018 prevented the Applicant from pursuing a claim for compensation brought in 2024, save for the Tribunal's erroneous explanation that it was for the same condition;

c. Failed to provide a logical path of reasoning for the finding that a fair and just process could not be achieved; and

d. Failed to provide a logical path of reasoning that the Applicant's claim had no prospect of success.

1. By its notice of contention dated 4 June 2025, Comcare opposed Ms Burns' appeal and contended that the Tribunal's decision should be affirmed. The appeal was listed for hearing by the Court to take place on 30 October 2025.
2. On 29 August 2025, the parties filed a joint Minute of consent orders, together with notes supporting the orders, seeking that the appeal be allowed, the decision of the Tribunal be set aside, and the matter be remitted to the Tribunal to be decided again in accordance with law. The parties also sought orders in relation to costs. The parties agreed that the hearing be vacated and that the matter be determined by me on the basis of the Minute, notes and reasons of the Tribunal.
3. For the reasons that follow, I consider it is appropriate to make the orders sought by the parties.

THE COURT MUST BE SATISFIED OF THE ERROR AND RELIEF

1. Despite the consent of the parties, the Court must be satisfied that the Tribunal made the alleged error and that it is otherwise appropriate to exercise its jurisdiction to grant the relief sought.
2. In Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at [12], French J said that "[i]n the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred".
3. In VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921; 181 ALD 49 at [3], Colvin J determined that the Court's satisfaction is necessary because "it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded". At [4], his Honour said:

in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief.

1. Kovalev and VNPC have been cited with approval in recent judgments of this Court: see National Disability Insurance Agency v IHY25 (by next friend IHZ25) [2025] FCA 1122 at [14] (Banks-Smith J); Linfox Australia Pty Ltd v Hilbert [2025] FCA 1213 (McEvoy J) at [8] and Minister for Immigration and Multicultural Affairs v YMGL [2025] FCA 1273 at [10] (Horan J).
2. In YMGL at [11], Horan J said:

It should be noted that, in considering whether it is appropriate to make proposed consent orders, it is not the function of the court to impede settlement between parties who are legally represented and able to understand and evaluate the desirability of agreeing to a settlement, and the approach of the Court "does not require exacting inquiry" into the basis for the proposed orders: Kovalev at [12], [14] (French J). Further, provided that the basis for the orders is clearly identified (e.g. the nature of the error made by the decision-maker or tribunal), whether in a note to the orders or in accompanying reasons, the Court is not required to provide detailed reasons for its satisfaction that the orders are within power and appropriate: Kovalev at [19] (French J).

1. The notes of the parties supporting the orders sought explained the error by the Tribunal in failing to provide adequate reasons as follows:

6. The relevant duty imposed on the Tribunal to provide a statement of reasons for its decision was explained by the Full Court of the Federal Court of Australia (Katzmann, Anastassiou and Abraham JJ) in Wonson v Comcare (2020) 276 FCR 613; [2020] FCAFC 76. Among other things, the Full Court observed that:

• The Tribunal's duty to give reasons is not satisfied merely by setting out its findings on material questions of fact and identifying the bases for those findings. The duty to give reasons carries with it the duty to expose the reasoning process. And the reasons must be sufficient to enable a party aggrieved by the decision to understand why the party lost and to decide whether the decision involved "an unwarranted finding of fact, or an error of law, which is worth challenging": Wonson at [90], and the authorities there cited.
• The Tribunal's duty to give reasons requires the Tribunal to disclose its path or process of reasoning in sufficient detail to enable a court to see whether it has made an error of law. That will necessarily involve making reference to the findings on material questions of fact and the evidence or other material on which those findings were based, but the duty is not discharged merely by including those references: cf Wonson at [93], and the authorities there cited.

7. A failure by the Tribunal to give adequate reasons, or to provide reasons to the standard required above, amounts to an error of law: Wonson at [122]; cf Karabolovska v Comcare (2019) 169 ALD 117; [2019] FCA 2153 at [40] and [95] (Perry J).

8. In this case, the Tribunal gave the applicant a statement of reasons for its decision on 11 April 2025. The Tribunal's reasons are annexed to the applicant's notice of appeal dated 8 May 2025. The only reasons given by the Tribunal which appear to be squarely relevant to whether the Tribunal could be satisfied that the applicant's application for review had no reasonable prospects of success at the time the Tribunal made its decision appears at paragraph 16(b) at pages 10-11 of 12 of the reasons, and which the parties respectfully ask the Court to read in conjunction with these Notes.

9. The reasons at paragraph 16(b) at pages 10-11 of 12 of the Tribunal's reasons, it is respectfully submitted, fail to adequately explain why the applicant's acceptance of a settlement for her claimed psychological condition in 2018 meant that her present application for review had no reasonable prospects of success. Rather than providing reasons which exposed its reasoning process in compliance with the observations of the Full Court in Wonson at [90] and [93] as discussed at paragraph 6 above, the Tribunal merely referred to the state of the evidence, or certain items of evidence, without explaining how those matters supported a finding that the application for review had no reasonable prospects of success.

10. In other words, it may reasonably be concluded that the Tribunal's relevant reasons:

• were not sufficient to enable the applicant to understand why she lost and to decide whether the decision involved "an unwarranted finding of fact, or an error of law, which is worth challenging";
• did not disclose the Tribunal's path or process of reasoning in sufficient detail to enable a court to see whether it has made an error of law;
• did not make the basis of the Tribunal's decision intelligible (cf ARM Constructions Pty Ltd v Deputy Commissioner of Taxation [1986] FCA 108; (1986) 10 FCR 197 at 204); and/or
• failed to explain in clear or unambiguous language why the applicant's acceptance of a settlement for her claimed psychological condition in 2018 meant that her present application for review had no reasonable prospects of success (cf Wonson at [90]; cf Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500 at 507).

11. Accordingly, the Court may be satisfied that the Tribunal fell into legal error as alleged by question of law 6 and the first clause of ground 6(b) of the applicant's notice of appeal and that the consent orders are within power, such that it would be appropriate for the Court to make the consent orders sought.

(Original emphasis.)

1. At [16] of the reasons for the Tribunal's decision, the Tribunal considered that Ms Burns' claim had "no prospect of success" on three grounds. The ground at [16(a)] was that Ms Burns had "failed to give notice of her claimed conditions as required by section 53 of the SRC Act". The Tribunal explained that it did not concur with Comcare's submission that it did not have jurisdiction to deal with the matter in light of s 53. The Tribunal further commented that it:

did not consider this factor alone was the cause of Ms Burns' application having no reasonable prospects of success. However, it was an added speed bump on her [Ms Burns'] way to explaining why after 11 years and previously accepting a settlement for the same condition she was now seeking to press a supposedly new claim.

1. The Tribunal accepted that this factor alone cannot be the basis by which Ms Burns had no reasonable prospects of success. It must be taken together with other factors.
2. At [16(c)], the Tribunal identified a ground of "the significant delay in proceeding with the claim will prejudice all concerned, making a determination of the matter costly, complex and slow". No further explanation is provided about how the delay would prejudice all concerned.
3. At [16(b)], the Tribunal identified the ground that "Ms Burns had accepted a settlement for her claimed psychological condition". The Tribunal stated:

There was no evidence before the Tribunal to satisfy it that Ms Burns claim was for a new claimed condition. Ms Burns accepted a settlement, whilst legally represented in 2018 for her mental health condition. The evidence before the Tribunal from Ms Burns and Dr Fitzpatrick indicates her psychological condition whilst present in 2013 was improving and it was the subsequent actions of the performance management in 2017 that caused her injury.

1. The Tribunal then excerpted an email from Ms Burns to Comcare dated 27 October 2024 which explained the basis for her new claim. It is not clear from those reasons in [16(b)] how Ms Burns' acceptance of a settlement in 2018 means that her application had no reasonable prospects of success.

1. I am satisfied that the reasons provided by the Tribunal at [16(b)], read with the balance of [16], are insufficient and that is an error of law. The reasons do not meet the requirements expressed in Wonson v Comcare [2020] FCAFC 76; 276 FCR 613. They do not:

(a) sufficiently enable Ms Burns to understand why she was unsuccessful;

(b) adequately disclose the Tribunal's path or process of reasoning to enable a court to assess whether it has made an error of law; and

(c) explain in clear or unambiguous language why the applicant's acceptance of a settlement in 2018 meant that her application for review had no reasonable prospects of success.

1. In the circumstances, the appeal is allowed and I am satisfied it is appropriate to make the orders sought in the Minute. The parties agree on an order that the respondent pay the applicant's costs of this appeal as between party and party. They agree on a method of assessment of those costs in the absence of agreement. I am satisfied that it is appropriate to make those costs orders.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.