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VETERANS - claim for incapacity payments - substantially similar application previously decided - dismissal application - misconceived or lacking in substance - abuse of process - application dismissed

Administrative Review Tribunal Act 2024

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

Boots and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 177

Boots and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 1089

Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18

1. Mr Boots served as a soldier from October to December 1992. Mr Boots has claimed incapacity payments for an adjustment disorder with elements of post-traumatic stress disorder under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) from 7 July 2023. This claim was refused on 11 September 2023 and affirmed on 27 May 2025.
2. In the decision under review, the Respondent relied upon Boots and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 177 (Deputy President Bean and Dr Stephan, Member) (2017 decision). That decision found that the Respondent was liable to pay compensation to Mr Boots for six months for his adjustment disorder with elements of post-traumatic stress disorder, with a date of injury of 18 November 1992. At [15], the Tribunal relied upon the evidence of multiple psychiatrists: Dr Nagesh, Dr Ewer, and Dr Davis.
3. On 27 May 2025, Mr Boots made an application for review to the Tribunal. Mr Boots claimed that the decision to deny him incapacity payments was wrong:

because I was diagnosed with 20% WPI and they won't approve any incapacity payments and gave me compensation for a fraction of the 20% that being 10%

1. The Respondent has sought dismissal of Mr Boots' substantive application on the basis that it is an abuse of process or has no reasonable prospects of success. The Respondent has submitted that Mr Boots now seeks to relitigate an issue that was substantially decided in the 2017 decision and again in Boots and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 1089 (Senior Member Thomae) (2025 decision).
2. The 2017 decision and the 2025 decision have numerous similarities as they both address Mr Boots' accepted condition of adjustment disorder with elements of post-traumatic stress disorder. Centrally, both decisions raise the question as to whether Mr Boots continues to suffer from an adjustment disorder with elements of post-traumatic stress disorder. Consistent with the psychiatric evidence relied upon in the 2017 decision, the Tribunal found at paragraph [32] of the 2025 decision that Mr Boots' adjustment disorder with elements of post-traumatic stress disorder resolved within six months of his Army service in 1992.
3. It is material that the 2025 decision relies upon updated evidence from Dr Nagesh. It is unnecessary to quote that material at length, except to note at paragraph [9] that Dr Nagesh had been treating Mr Boots for 22 years and made an exception to undertaking medico-legal work to provide a report for those proceedings.
4. It is also material that Mr Boots did not appeal either the 2017 decision or the 2025 decision. In his oral submissions, Mr Boots indicated that the cost of filing in the Federal Court of Australia was prohibitive.
5. The Tribunal has considered both the oral and written submissions of the parties. In his written submissions, Mr Boots wrote:

If this process isn't ruled in my favour there will be new evidence coming from my new treating psychiatrist as Dr Nagesh is retiring so im soon to be seeing my new Doctor and definitely will be back again.

1. The issue here is that the Tribunal has no indication what any new evidence could be proffered by a new psychiatrist that would help advance Mr Boots' case. Furthermore, this submission indicates an abuse of process in committing to re-litigation in the Tribunal. This commitment was reinforced in oral submissions. It may be that Court costs restrict access to justice, but this does not in turn grant the Tribunal jurisdiction to merits review matters that should properly be subject to judicial review.
2. There is strength to the Respondent's submission that the present application is substantially similar to the proceedings that resulted in the 2025 decision and the 2017 decision. The issue of entitlement to incapacity payments has been squarely decided already and there is no new evidence before the Tribunal to undermine the 2025 decision. There is no realistic prospect of new evidence that would permit this Tribunal to be reasonably satisfied that Mr Boots suffered from an adjustment disorder with elements of post-traumatic stress disorder on and from 7 July 2023.
3. The Respondent has relied upon authority contained in Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18, [74]-[76], [78] (Allsop CJ, Reeves & Derrington JJ). The Tribunal regards the present matter to be a repetitious claim based substantially on the same facts as the 2017 decision and the 2025 decision. To this end, Mr Boots' substantive application is misconceived and lacking in substance within the meaning of section 101(1)(a) of the Administrative Review Tribunal Act 2024. Noting that Mr Boots also seeks to re-litigate matters rather than appeal the 2025 decision, his substantive application is also an abuse of process within the meaning of section 101(1)(c) of the Administrative Review Tribunal Act 2024. Given these findings, it is unnecessary for the Tribunal to engage further with the parties' submissions regarding reasonable prospects of success.
4. Accordingly, the substantive application must be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

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