The application is dismissed pursuant to section 101 of the ART Act on the basis that it is misconceived.
The Tribunal orders pursuant to s 101(2) that Stephen Gough either on his own account or as authorised representative of any legal person, must not, without leave of the Tribunal, make a further application to the Tribunal which directly or indirectly raises the question of whether the late John Edward Gough suffered mesothelioma (however described) bearing a connection with his employment with Trans Australian Airlines for the purposes of the Compensation (Commonwealth Government Employees) Act 1971, or the Safety, Rehabilitation and Compensation Act 1988.
Legislation Cited (3)
Review Tribunal Act 2024
Government Employees) Act 1971
Rehabilitation and Compensation Act 1988
Cases Cited (2)
Gough and Comcare (Practice and Procedure) [2026] ARTA 350 (17 March 2026)
In order to appreciate why the Tribunal lacks jurisdiction to further review the decisions of September and December 2017, as this application asks the Tribunal to do, it is necessary to understand precisely what has already been determined and reviewed by the Tribunal previously. There has, in the past, been some confusion about the scope and effect of various decisions that have been made in relation to the matter over the years, but that confusion has been resolved by a number of recent decisions of this Tribunal.
The following discussion of this matter's background has been drawn from one of my earlier decisions, Legal Personal Representative of the Estate of John Edward Gough and Comcare (Practice and procedure)[2025] ARTA 2292.
The history of this matter should be understood in the following way. The first claim for compensation made as a result of John Gough contracting mesothelioma was in 1979. The claim was considered by the relevant authority at the time and ultimately reviewed by the AAT. The Tribunal found that the necessary connection between John Gough's mesothelioma and his employment was not established and the decision under review was affirmed. No application was made to the Federal Court.
Mr John Gough died in 1990. It appears that he had a period of remission from the illness in the mid-1980s but it returned and was ultimately the cause of his death.
On 1 June 2017 Stephen Gough submitted claims for compensation relating to John Gough's mesothelioma. The claims picked up a number of heads of compensation which Stephen was entitled to as a result of being a dependent of John Gough. But claims were made that could only be made by John Gough's estate or by Stephen Gough's mother's estate. It was assumed that Stephen Gough had authority to act for all the relevant claimants.
A number of the claims were resolved favourably to him, the estate of his father and other dependents in a decision dated 21 September 2017. The September 2017 decision was the only decision to accept a contribution from John Gough's employment with TAA to the mesothelioma he contracted and ultimately died from.
Notwithstanding that the September 2017 decision determined that significant compensation was payable under a wide variety of heads of compensation, Stephen Gough sought review of the determinations in very wide terms. On review the necessary connection between the mesothelioma from which John Gough suffered and his employment with TAA was found not to be established. That decision was dated 15 December 2017. It set aside in its entirety the decision of September 2017 which had made determinations favourable to Stephen Gough's parents' estates and favourable to Stephen and his brother as dependents on John Gough when he died.
Review of that decision was sought in the AAT. In a decision of Senior Member Clauson, the decision of 15 December 2017 was affirmed on the basis that the necessary employment contribution was not established.
No application was made to the Federal Court. At that point the Tribunal was functus officio in relation to the 15 December 2017 decision, and the 21 September 2017 decision could not be the subject of an application for review as it had been replaced by the review decision dated 15 December 2017.
In 2023 the applicant sought an extension of time for review of the decision of 21 September 2017 on the basis that it was a reconsideration on own motion of the decision denying liability made back in the 1970s. Despite this being an untenable characterisation of the decision (not least because the September decision determined claims made in 2017 in relation to funeral expenses and dependent claims which were unavailable before 1990) an extension of time was granted to allow the applicant to seek review of that decision in the AAT.
In 2024 a further application to the AAT was made seeking an extension of time to seek review of the decision of 15 December 2017. That application was refused.
On 11 and 12 November 2024 the Tribunal conducted a hearing in relation to the application in respect of which an extension of time had been granted. The Tribunal dismissed the application for want of jurisdiction. That decision depended on the proposition that the September 2017 decision was not a reviewable decision but a determination of a claim. The relevant reviewable decision was the December 2017 decision and that decision was not the subject of the application.
An application was made to reinstate those proceedings on the basis that they had been dismissed in error. That application was unsuccessful.
As a result of these decisions the Tribunal has confirmed that the proper understanding of the September 2017 decision is that it involves a series of determinations in relation to a range of claims for compensation by a number of different legal persons in relation to a variety of heads of compensation. Some of the determinations were favourable, some were not. Mr Gough then sought review of those determinations in the widest possible terms with the result that all of the determinations were subject to the review undertaken in December 2017. To the extent that the delegate who made the December 2017 decision says something different about the nature of his review, the delegate is mistaken.
The effect of the December 2017 decision was to revoke all the favourable determinations in the September 2017 decision and refuse to make favourable determinations in relation to the previously rejected claims. All claims were rejected on the foundational basis that John Gough's mesothelioma was not at any time contributed to to the requisite degree by his employment at TAA.
Review was sought in the AAT and the decision under review was affirmed. In these circumstances there is no vestige of any unresolved claim to which any Tribunal jurisdiction can now attach. There are no unresolved claims in relation to any condition. It is clear on the face of the September 2017 decision that the delegate dealt with incapacity claims which relate to the first episode of John Gough's mesothelioma. It is also clear on the face of the September 2017 decision that it dealt with funeral expenses which must relate to the second episode of mesothelioma that lead to John Gough's death.
In these circumstances the applicant's attempt to further agitate review of either the September 2017 or December 2017 decision is misconceived. The application should be dismissed.