DISMISSAL - whether respondent vexed a second time with the same matter - whether proceeding is an abuse of process - allegation of attempting to re-litigate issues in prior proceedings - whether new claim for compensation is for different injury or the same as dealt with in earlier proceedings - no new injury - respondent being vexed a second time on same injury - tests for abuse of process satisfied - proceedings dismissed.

COMPENSATION - injury and aggravation of injury - claim of acceleration of existing injury at later time - onset of delusional disorder - whether acceleration is aggravation - whether aggravation of injury is becoming worse or being made worse by employment - delusional disorder found to be a worsening of existing condition not made worse by employment - no new injury.

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Jablonka and Comcare [2012] AATA 627

Novosel v Comcare [2017] FCA 722; (2017) 72 AAR 269

Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537

Re Grimsley and Telstra Corporation Ltd [2010] AATA 106; (2010) 51 AAR 401

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Slattery v Comcare [1996] FCA 883; (1996) 70 FCR 131

1. Krystyna Jablonka seeks review of a decision by Comcare which denied liability to pay compensation for a psychological injury. Comcare's decision was made on 5 March 2025[1] and it affirmed its earlier decision dated 24 January 2025 following internal review.[2]
2. The decision was made after Ms Jablonka made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) on 13 January 2025 in respect of a psychological injury that was described as 'aggravation of mental condition (namely: delusional features and related to it sequela aggravation in the already suffered mental condition). Note: this injury in global final diagnosis of major depression with delusional features. This claim is not for the aggravation of major depression recurrent episode (as inaccurately nominated in my previous claim).'[3]
3. Comcare has asked the Tribunal to dismiss this application pursuant to section 101 of the Administrative Review Tribunal Act 2024 (ART Act). Comcare submits that the injury subject of this present claim for 'aggravation of mental condition' is not relevantly different to a previous claim that has already been denied. Comcare submits that it is being vexed a second time over the same claim and that this re-agitation of the prior claim is an abuse of process.
4. Ms Jablonka originally made a claim for compensation on 15 December 2009 in respect of a psychological injury identified as 'anxiety and depression'. The liability to pay compensation was denied and eventually became the subject of review before the former Administrative Appeals Tribunal (AAT) which affirmed Comcare's denial of liability. The reasons for affirming the denial of liability were set out in the written decision of the Tribunal made on 19 September 2012 in Jablonka and Comcare [2012] AATA 627 (Senior Member G D Friedman and Dr KA Breen, Member).
5. Comcare's administrative numbering system allocates a numeric identifier for the claimant followed by a numeric identifier for the claim. Employees may make more than one claim. For the purposes of this decision, I will follow the parties' references to the claim made on 15 December 2009 as the '/04 claim' and the claim made on 13 January 2025 as the '/05 claim'. The prior claims made by Ms Jablonka are not relevant to the present issue and were not raised in submissions by the parties.
6. To the extent that Ms Jablonka seeks to reopen the outcome of the earlier 2012 AAT decision, that is beyond the power of the Tribunal. Her written submissions allege that the decision was attended by legal error and misinterpretation of evidence. I advised Ms Jablonka in the hearing of this application that there was to be no further review of the decision giving rise to that case and that her only avenue of appeal of the AAT's decision on 19 September 2012 was on a question of law pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (AAT Act). Such appeal could only be made to the Federal Court of Australia, not to the present Tribunal. During the hearing, Ms Jablonka accepted that fact.
7. The application by Comcare to dismiss the current proceeding in matter number 2025/3365 dealing with the /05 claim gives rise to the following questions:

(a) Should the psychological condition that is the subject of the /05 claim be considered as a separate injury from the original injury characterised by the former AAT in relation to the /04 claim made on 13 December 2009 as 'aggravation of major depressive disorder, recurrent episode.' > > (b) If not, should the review of the /05 claim for compensation made on 13 January 2025 be dismissed as vexatious, an attempt to re-litigate the decision of the former AAT in relation to the /04 claim made on 13 December 2009 or otherwise an abuse of process?

The alleged aggravation injury is the same injury dealt with by the former AAT on 19 September 2012.

1. Ms Jablonka's /05 claim made on 13 January 2025 sought compensation pursuant to the SRC Act specifically for an aggravation of a mental condition.
2. The pre-existing mental condition which is claimed to have been aggravated was claimed on 15 December 2009 as 'anxiety and depression' was itself, an aggravation of a pre-existing disorder and the injury subject of the /04 claim was characterised in the 2012 decision of the former AAT as 'aggravation of major depressive disorder, recurrent episode.' Ms Jablonka had been treated for symptoms of anxiety and depression for some time prior to July 2009.
3. When that /04 injury was claimed, Ms Jablonka identified the onset, or at least, the date when she first noticed the injury as 10 July 2009 following a meeting with her Director, Mr Johann Seneviratne on that day to discuss issues concerning her employment including a re-structure within the ATO and a change in her duties.[4] Ms Jablonka had been working for the Australian Taxation Office (ATO) since January 2000 as a compliance officer initially involving advisory work in complex tax law but later in auditing work. She had tertiary qualifications in economics and international trade. Much of the history of work duties and problems with her classification and remuneration and issues that led her to seek a transfer to a different office is set out in the 2012 AAT decision.
4. That decision found that the actions of her manager, Mr Seneviratne, to decline retrospective payment for work done over the previous years at a rate higher than her normal earnings and conveyed to her in the 10 July 2009 meeting was an administrative action in respect of Ms Jablonka's employment that was reasonable in the circumstances. This was sufficient, in the AAT's decision to affirm the decision to deny liability since the definition of injury within section 5A of the SRC Act excludes any injury which is the result of such reasonable administrative action.
5. Ms Jablonka characterised the action, particularly in respect of the meeting with her Director, Mr Seneviratne, on 10 July 2009 as unreasonable and constituted bullying stating to the AAT, 'the Director meeting contained a threat because Mr Seneviratne warned her not to take legal action to seek retrospective payments, and the meeting contributed significantly to her medical condition and led to the cessation of employment.'[5]
6. She had taken two days away from work following the 10 July 2009 meeting and on 17 July 2009 she presented with symptoms to her general practitioner, Dr Alice Jane. A report by Dr Jane dated 26 January 2010 was considered in the 2012 AAT review.[6] That report detailed the pre-2009 history of anxiety and depression, together with the events of July 2009, including the meeting with Mr Seneviratne. Dr Jane concluded that feeling 'threatened by a supervisor,' referring to the July 2009 meeting with the Director, was a specific contributor to the claimed injury. She headed the report 'Depression and Anxiety - Claim began after a meeting on 14 July 2009'.[7]
7. The AAT in 2012 made a reference to the 'veiled threat' allegedly made by the Manager in the 10 July 2009 meeting when receiving the opinion of Ms Jablonka's treating psychiatrist, Dr Susan Graham, in her report of 14 March 2011:[8]

Dr Graham concluded that, in reviewing her earlier report, she considered that the main factor leading to Ms Jablonka ceasing work was the Director meeting in which Ms Jablonka interpreted Mr Seneviratne's remarks as a form of veiled threat if she decided to seek financial compensation through the courts for backdated remuneration. Dr Graham said that in the context of growing concerns about a cover-up by the ATO and with perceived threats by Mr Seneviratne, Ms Jablonka's feelings of fear and vulnerability increased progressively, and she developed delusional beliefs that the ATO would take covert steps to have her dismissed if she returned to work. These persecutory delusions were associated with and led to a dramatic worsening of Ms Jablonka's depression, resulting in her inability to continue working.

8. The Tribunal did not accept the contention that the actions taken by the manager were unreasonable. The decision to deny liability to pay compensation was affirmed.
9. In her new /05 claim made on 13 January 2025 for 'aggravation', Ms Jablonka characterises that aggravation as the production of a delusional disorder to which she traces the onset to 6 October 2009. In a statement to Comcare dated 18 February 2025 she sought to correct the statement on the /05 claim form in which the date on which she first noticed symptoms of the aggravation was said to be 14 July 2009:[9]

The reason for this correction is that on October 6, 2009, I attended consultation with Doctor Susan Graham I [sic] and she detected my delusional disorder. Prior to this I did not notice any delusional thinking in me, and nobody diagnosed it. I strongly believed in the correctness of my thoughts. While I had some difficulty accepting the diagnosis initially, a subsequent event approximately six months after the diagnosis further solidified my understanding. During this event, I thought that I overheard personnel at the Knox Mayer Department speaking negatively about me and mentioning my surname. However, I realized that it was impossible for them to know my surname and my private thoughts, confirming to myself that I truly delusional nature of the experience.

10. To resist the allegation that she is re-litigating the same issue as the /04 claim, Ms Jablonka submits that the developments of new, more serious symptoms in October 2009 mark a distinct aggravation of the condition dealt with in the 2012 AAT decision. It is possible for the worsening of an existing condition by way of aggravation to be regarded as a new and distinct injury entitling the employee to compensation (see Slattery v Comcare [1996] FCA 883; (1996) 70 FCR 131). The word 'injury' is defined in section 5A(1) of the SRC Act so as to include a 'disease'. Section 5B(1) defines 'disease' in the following manner:

5B Definition of disease > > (1) In this Act: > > disease means:

(a) an ailment suffered by an employee; or

(b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

(3) In this Act:

significant degree means a degree that is substantially more than material.

1. The terms 'aggravation' and 'ailment' are also defined in subsection 4(1) of the SRC Act as follows:

aggravation includes acceleration or recurrence. > > ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

2. The injury said to be aggravated has consistently been treated as of the 'disease' variety. The definition of 'aggravation' in the SRC Act is an inclusive definition. The word aggravation in compensation statutes has been the subject of interpretation in the courts.
3. In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch), the High Court of Australia considered the word 'aggravation' as it appeared in the NSW compensation statute of the time. The employee had suffered from chronic schizophrenia for a number of years but on a particular day at work, she lifted a heavy box and strained her muscles. The physical injury passed relatively quickly but the injury had triggered an acute worsening of her psychiatric disorder. Windeyer J considered the question whether an 'aggravation' has been suffered was one of fact where a psychiatrists' opinion may be helpful but, he continued:[10]

... the answer depends upon whether for the sufferer the consequences of his affliction have become more serious. The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and of withdrawal from reality that the sufferer has, the degree of his divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community. It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think be answered, whoever has to answer it.

The next question then is, was there in December 1960 "an aggravation, acceleration, exacerbation or deterioration" of the disease? The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.

5. The evidence offered for aggravation in Ms Jablonka's case focussed on the worsening of her symptoms and the different nature of the diagnosis of delusional disorder. The evidence may be summarised:

(a) After she suffered increased symptoms in July 2009, she took time off work but returned to duty but then ceased work on 13 August 2009 and consulted Dr Jane. > > (b) For some days after 14 August 2009, Ms Jablonka composed a complaint against her former Director, Mr Seneviratne, about his 'threatening behaviour' which was lodged on 18 August 2009.[12] The alleged threatening behaviour is a reference to the meeting with Mr Seneviratne of 10 July 2009 which lasted between 20 to 30 minutes. > > (c) Ms Jablonka points to worsening K10 scores, recorded after 14 August 2009 by her treater, Dr Jane. The K10 is a reference to the Kessler Psychological Distress Scale, a ten-item questionnaire designed to elicit responses from a patient to yield a global measure of distress. The lowest score is 10 since the responses are pre-defined and weighted 1-5. Scores under 20 mean the patient is well, a score over 30 indicates a severe mental disorder. Ms Jablonka submitted that her scores went from 27 on 14 August 2009 to a score of 34 on 24 August 2009. > > (d) Finally, Ms Jablonka identified the new diagnosis of 'delusional disorder' which she stated was qualitatively different from the 'aggravation of major depressive disorder, recurrent episode,' found by the former AAT to be the disorder in the /04 claim. Her submission repeatedly refers to the alleged aggravation as 'delusional features and sequela major depression' or 'delusional disorder and its sequela condition'.

6. I referred above to the decision of Windeyer J in Semlitch who identified aggravation as when the ailment has 'been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.' Accepting this evidence does indicate that Ms Jablonka's symptoms were more grave or grievous or more serious in effect upon her, that of itself is not sufficient to demonstrate a relevant aggravation for the purposes of the definition of injury and disease in sections 5A and 5B of the SRC Act.
7. This was made clearer in a later High Court case of Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537 (Lucas). Once again, the NSW compensation statute and the application of the word 'aggravation' was considered. Mrs Lucas had been awarded lump sum compensation for the death of her husband pursuant to the NSW compensation statute. The injury for which the deceased was entitled to compensation was sustained on 18 February 1965 and resulted in incapacity for work that continued until his death. The injury was a heart attack, a sudden physiological change to his underlying coronary artery disease, while engaged in an activity that was relevantly related to employment. The death occurred on 7 July 1965, while the deceased was in hospital after his condition became worse and he developed pulmonary oedema that was the proximate cause of death. The Supreme Court of NSW found that the development of pulmonary oedema was an aggravation of the 18 February 1965 heart attack injury. The Supreme Court held that to be a separate injury by aggravation that allowed Ms Lucas to take advantage of a higher rate of compensation for death resulting from injury. The NSW Parliament had passed amending legislation that almost doubled the rate of lump sum compensation for a death benefit, effective from 1 July 1965. The employer appealed to the High Court arguing that the rate of compensation ought to be determined by reference to the date of injury, not death. Ms Lucas defended on the basis that the NSW Supreme Court was correct. The High Court allowed recovery of the higher rate of compensation but not on the basis that there has been an aggravation as determined in the NSW Supreme Court. While there was a worsening of the condition, including the development of a new feature, pulmonary oedema, that only showed a worsening of the condition, not a relevant aggravation for the purposes of the definition of the 'aggravation' in the NSW statute. Windeyer J said:[13]

The question then becomes, Was the pulmonary oedema an 'injury' within the meaning of the Act; and if so did the death result from, or was it materially contributed to by this 'injury'? All that we have to go on is what appears in the 'statement of agreed facts', where it is stated that: 'Death resulted from the aggravated and accelerated coronary artery disease, the aggravated and accelerated myocardial degeneration and the coronary occlusions and myocardial infarctions and pulmonary oedema and each of them taken separately ... '. This is an unhappily indefinite way of stating cause and consequence. Doubtless the philosopher, the physician, and the lawyer look at and speak of cause and consequence in very different ways. But, allowing for that, I find great difficulty in arriving at any conclusion satisfying to my mind from language such as this; and it was what the Board had before it. I can only say that the statement of facts read as a whole, and that sentence in particular, lead me to the conclusion that the worker suffered from a pathological condition of the heart, which got progressively worse, that its worsening was in the ordinary course of the disease, for him, that he did not recover but died from the disease, that the pathological condition which was a product of the progress of the disease and the immediate cause of death was a pulmonary oedema.

"Aggravation" means, I think, that an existing disease has been made worse, not that it has simply become worse. ... But I do not think that the facts as stated can support a finding that the oedema which occurred on 7th July was the consequence of an acceleration then occurring and to which the employment was then a contributing factor. The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in its progress. It is the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury. In the present case the disease was running its course when the worker entered hospital. [Emphasis added]

9. Looking to the present case, the worsening symptoms judged by the changed K10 scores or even the development of distinct symptoms of delusional disorder, represent only the existing disease 'becoming worse' and not being 'made worse' by relevant employment contribution. There is nothing in the making of a complaint after she ceased work on or about 13 August 2009 that marks a relevant employment contribution to making the existing injury worse. The alleged date of the aggravation, being 6 October 2009, is the date of the first attendance upon her treating psychiatrist, Dr Susan Graham. Dr Graham provided a report dated 14 March 2011 which was considered in the 2012 AAT hearing in which she stated:[15]

In reviewing my original report, I do consider it is more accurate to describe the main factor(s) leading to her ceasing working were firstly the interview with her director in which Mrs. Jablonka interpreted the director's remarks as a form of veiled threat should she decide to pursue financial compensation through the courts. In the context of her growing concerns about a coverup by her employer and with the perceived threats by her director, Mrs. Jablonka's feelings of fear and vulnerability progressively increased. Despite sending an email to her team leader indicating that she wanted the matter resolved internally, her fears continued to intensify, and she became convinced that the coverup by her employer was a reality. She then developed the delusional beliefs that her employer would take covert steps to have her dismissed if she returned to work, by planting some form of incriminating evidence on her desk, and she believed that she had been placed under surveillance by her employer. Although these persecutory delusions did gradually settle over time, they were associated with and led to a dramatic worsening of her depression which occurred at this point in time and which resulted in her inability to continue working.

10. Dr Graham did not diagnose Ms Jablonka with 'delusional disorder and its sequela condition'. The diagnosis given in the primary report of 29 January 2010 was 'major depressive disorder with mood incongruent psychotic features', which referred to the persecutory delusions. The report identified the diagnostic criteria for Major Depressive Episode, stating that episode was severe but that the 'depressive symptoms have improved during the time she has been attending my practice. Her depression has not fully resolved, but her psychotic symptoms have subsided spontaneously with the improvement of her mood'.[16]
11. Dr Graham did not alter the diagnosis in the report dated 14 March 2011 referred to above. It must be taken that Dr Graham included the delusional, psychotic features, to be a part of the one disorder, and not a separate disorder.
12. In any event, the August 2009 complaint directed against the Director, Mr Seneviratne, was about the perceived threat experience in the meeting that occurred on 10 July 2010, the very employment event found to be contributory to the disorder and also a reasonable administrative action. Ms Jablonka's submissions frankly admit her disturbance from revisiting, in her own mind, the meeting of 10 July 2009. She wrote that on, '18 of August 2009, I lodged Complaint because of my Director's, Johann Seneviratne threatening behaviour. This revisit of the situation took me out of my mental balance a lot.'[17]
13. That is not a new employment contribution to make the ailment worse but only recalling the employment contribution that excluded the /04 claim from liability pursuant to the SRC Act. That issue was raised and dealt with by the former AAT in its decision of 2012.

The application is an abuse of process by attempting to re-litigate the same issue determined in the 2012 AAT decision.

1. Section 101 of the Administrative Review Tribunal Act 2024 (ART Act) provides:

101 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.

(2) If the Tribunal dismisses an application (the substantive application) under subsection (1), the Tribunal may, on application by a party to the proceeding in relation to the substantive application or on its own initiative, order that the applicant for the substantive application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a specified kind or kinds.

(3) The order has effect despite any other provision of this Act or any other Act.

1. The use of the term 'vexatious' is apt to describe not only those proceedings that are commenced only to harass the other party but also where there is a re-litigation of issues such that the opposing party is vexed a second time about the same cause previously dealt with conclusively.
2. The framing of the new /05 claim for aggravation is on the basis of the material available to the Tribunal, an attempt to re-litigate the same issue dealt with in 2012 when the former AAT affirmed the denial of liability to pay compensation on the ground that the events of July 2010, particularly the interview with Mr Seneviratne, was contributory to the ailment to a significant degree but constituted reasonable administrative action such that the ailment could not be accepted as a compensable injury.
3. The former AAT had repeatedly accepted that re-litigation of the same issue in later Tribunal proceedings constituted an abuse of process (see Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 and Re Grimsley and Telstra Corporation Ltd [2010] AATA 106; (2010) 51 AAR 401). The fact that a further claim is made does not mean that if such a claim is made that it cannot be an abuse of process, especially if there is no new evidence to warrant a further decision. In Novosel v Comcare [2017] FCA 722; (2017) 72 AAR 269, it was noted:[18]

... abuse of process is not merely concerned with prejudice to a respondent but also with matters of broader public policy. Thus, principles of res judicata, issue estoppel and the like in judicial proceedings, are underpinned by broader issues of public policy, namely, that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court not only because "a person ought not to be vexed twice for one and the same cause", but also because it is in the interests of the State that there be an end to litigation: see eg Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 (Wong) at [36]- [37]. The same policy considerations may equally inform the Tribunal's approach to issues of abuse of process as they would plainly promote the objective which the Tribunal is to pursue by virtue of s 2A of the AAT Act, namely, to provide a mechanism of review that is fair, just, economical, informal and quick. ... It may be an abuse of process not only to re-litigate the same issue twice, but also to seek to litigate an issue that properly belonged to the earlier litigation: Wong at [37] (by analogy).

4. The former AAT in its decision of 2012 conclusively dealt with the contribution made by the meeting with Mr Seneviratne on 10 July 2010 in aggravating Ms Jablonka's anxiety and depression, finding that it was also a reasonable administrative action taken in a reasonable manner in respect of her employment such that the aggravation could not be considered compensable. The steady deterioration of that same ailment does not, without some new and distinct contribution from employment, constitute a further aggravation. Ms Jablonka has only focussed on the worsening without demonstrating a new injury to which a different set of employment circumstances have contributed.
5. I am satisfied that in fashioning the new /05 claim Ms Jablonka is re-litigating her former /04 claim and this is vexatious and otherwise an abuse of process.
6. Accordingly, the review proceeding in matter number 2025/3365 is dismissed pursuant to section 101 of the ART Act.

[1] T18, 118-131. References commencing with the letter 'T' are references to Tribunal documents that are lodged with the Tribunal pursuant to a Notice to the respondent pursuant to s 23 of the Administrative Review Tribunal Act 2024 (ART Act), requiring a decision-maker to give to the Tribunal all documents within its control relevant to the review. They are generally known as 'T-Documents', sequentially numbered, with subsequent page references.

[4] [2012] AATA 627 [1].

[7] This is a reference to the meeting that took place on 10 July 2009. Ms Jablonka did not allege a meeting on the later date.

[9] T16, 99-100. Again, the reference to 14 July was actually a reference to the meeting on 10 July 2010.

[10] [1964] HCA 34; 110 CLR 626, 637

[13] [1967] HCA 30; (1967) 116 CLR 537, 591-592

[18] [2017] FCA 722; (2017) 72 AAR 269, 298 [112] per Perry J.