DISMISSAL - abuse of process - whether respondent vexed a second time with the same matter - prior review of denial of liability for injury identified as 'adjustment disorder with depressed and irritable mood' but claimed as 'Mental Trauma, Post Traumatic Stress' - application withdrawn - further claim for 'PTSD' - liability denied and reconsidered - reviewable decision affirms denial of liability for 'PTSD' - whether substantially the same medical condition - whether same claim recast in second application - whether claim ought to have been recast in first application - whether re-litigation of same matter or of issues already decided.

COMPENSATION - two separate claims - both for psychological conditions - whether two mental conditions or one - whether two separate injuries or one single injury - whether aggravation of prior disorder - whether second injury of same diagnosis - whether injury in the primary sense or disease, being ailment or aggravation of ailment to which employment contributed to the relevant degree - date of onset of injury - test of liability to be applied.

Australian Federal Police Act 1979 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147

Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 101 ALD 245

Britton v Comcare [2023] AATA 3505

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

Comcare v Mooi (1996) 69 FCR 439

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589

Re Matusko and Australian Postal Corporation [1995] AATA 14; (1995) 21 AAR 9

Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101; (2013) 214 FCR 1

Sellick v Australian Postal Corporation [2009] FCAFC 146; (2009) 50 AAR 505

Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, text revision (DSM-5-TR), American Psychiatric Association, 2022

1. Mr Stephen Knight lodged an application for review of a decision with the former Administrative Appeals Tribunal ('AAT') on 31 January 2024 and the Tribunal designated the proceeding as number 2024/0674 ('the 2024 review').
2. The decision made by the Respondent, Comcare, dated 1 November 2023 rejected liability for 'PTSD' [Post-traumatic Stress Disorder] on the grounds that a significant contributing factor was an action or event that constituted reasonable administrative action within the meaning of that term used in subsection 5A(1) of the Safety Rehabilitation and Compensation Act 1988 ('SRC Act').[1] Mr Knight had lodged his claim for compensation with Comcare on or about 9 September 2023.
3. After the review was commenced, the Tribunal issued a notice to Comcare to lodge all documents relevant to the making of the decision being reviewed. Comcare did so and included documents which date back to 2021.
4. The Respondent notified the Tribunal that it sought to have the proceedings dismissed for an apparent abuse of process. There had been proceedings for review of an earlier decision of Comcare denying liability to pay compensation in respect of an earlier claim made on 26 March 2021 for compensation pursuant to the SRC Act in respect of Claim 'Mental Trauma, Post Traumatic Stress'. Comcare rejected liability for this claim in a reviewable decision made on 28 September 2021 and Mr Knight instructed his solicitors to commence review proceedings in the AAT which became application number 2021/7142 ('the 2021 review'). That proceeding was concluded on 1 February 2023 when Mr Knight lodged a Notice of Withdrawal or Discontinuance pursuant to section 42A(1A) of the Administrative Appeals Tribunal Act 1975 ('AAT Act'). By operation of subsection 42A(1B) of the AAT Act, the Tribunal is taken to have dismissed that application.
5. In the present proceeding, this Tribunal released the parties from their implied undertakings in respect of documents lodged in that dismissed proceeding that were obtained or shared by operation of the Tribunal's powers to compel production and exchange of documents between parties.
6. The respondent argues that the present proceedings are an impermissible re-litigation of matters raised in the earlier proceeding and that it ought not to be unfairly vexed twice about these matters. Hence, the Tribunal is now asked to dismiss the proceeding.
7. At issue in this application is whether the applicant, having litigated the denial of liability for 'Mental Trauma, Post Traumatic Stress' in the 2021 review, terminated by his voluntary withdrawal from those proceedings in 2023, is attempting to impermissibly relitigate that matter in the 2024 review in relation to Comcare's decision to deny liability to pay compensation for 'PTSD'.

The Tribunal has jurisdiction to review certain matters defined as reviewable decisions. Section 12 of the Administrative Review Tribunal Act 2024 ('ART Act') provides:

12 Reviewable decisions > > (1) A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.

There is power to dismiss an application pursuant to section 101 of the ART Act:

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.

A reviewable decision is one that is made pursuant to section 62(1) of the SRC Act.

62 Reconsideration of determinations > > (1) A determining authority may, on its own motion: > > (a) reconsider a determination made by it; or > > (b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination; > > whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination. > > (2) A request to a determining authority to reconsider a determination made by it may be made by: > > (a) the claimant; or > > (b) if the determination affects the Commonwealth - the Commonwealth; or > > (c) if the determination affects a Commonwealth authority - that Commonwealth authority.

The terms 'decision', 'determination' and 'reviewable decision' and 'determining authority' are defined in section 60(1) of the SRC Act as follows:

60 Interpretation > > (1) In this Part: > > "claimant" means a person in respect of whom a determination is made. > > "decision" has the same meaning as in the Administrative Review Tribunal Act 2024. > > "determination" means a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37, 39 or 57, under paragraph 114B(5)(a) or under Division 3 of Part X. > > "determining authority", in relation to a determination, means the person who made the determination. > > "reviewable decision" means a decision made under subsection 38(4) or section 62.

Where injury is suffered by an employee and results in death, incapacity for work or impairment, Comcare is liable to pay compensation in accordance with the section 14(1) of the SRC Act which provides:

14 Compensation for injuries > > (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

Compensation is not payable unless there is a claim for compensation made in accordance with subsections 54(1) and (2) of the SRC Act:

54 Claims for compensation > > (1) Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section. > > (2) A claim shall be made by giving the relevant authority: > > (a) a written claim in accordance with the form approved by Comcare for the purposes of this paragraph; and > > (b) except where the claim is for compensation under section 16 or 17 - a certificate by a legally qualified medical practitioner in accordance with the form approved by Comcare for the purposes of this paragraph.

1. Mr Knight is a former sworn member of the Australian Federal Police ('AFP') who was retired on grounds of invalidity pursuant to s 32 of the Australian Federal Police Act 1979 with effect on 11 October 2023. The instrument of retirement acknowledges an Invalidity Retirement Certificate issued by the Commonwealth Superannuation Corporation ('CSS') dated 31 August 2023. At the time of his retirement, he was 49 years of age. He had not worked for more than two years since ceasing duties on 12 February 2021.
2. He joined the Victoria Police in 1999 and served in several capacities, initially general policing duties at Northcote Police Station and later in the Traffic Management Unit and between 2004 and 2006 in the Sex Offences and Child Abuse Unit.
3. It was in or about 2006 he transferred to the AFP starting at Melbourne Airport as a Special Constable. He has provided a detailed statement of a variety of other duties to which he was assigned including Bomb Appraisal.[2] Dr Kamal Sanghvi took a history for his report of 26 April 2021 noting a wide variety of duties performed by Mr Knight throughout his policing career including 'general duties, traffic, sexual offences and child abuse, airport uniform policing and international deployments to Solomon Islands between 2009 and 2011, East Timor 2012 and Papua New Guinea 2015 to 2017. In 2012, he was posted to East Timor as part of the UN Peacekeeping Force.'[3] Mr Knight's statement also included a two-week overseas posting in Wellington, New Zealand.
4. During his deployment to East Timor, on 25 April 2012, he underwent questioning by members of the AFP investigating claims of bullying and harassment of a member by colleagues. It was assumed that Mr Knight was either present or in some way involved in those events which led to his being questioned. That same day, he wrote to the Australian Federal Police Association detailing his concerns to the manner in which the questioning was done and alleged that he had been abducted and falsely imprisoned.[4] The facts and circumstances of this event were recalled by him years later when he made his first claim for compensation.
5. In 2021 Mr Knight was working as 'Project Manager' in 'SPC - Operations Preparedness Teams' located in AFP offices in the State of Victoria. On 12 February 2021, while not at work, Mr Knight received a telephone call from his superior, Acting Sergeant McColl, who told him that training videos he had been preparing were 'inappropriate and unprofessional'.[5] He reacted poorly to the rebuke from his superior and he did not subsequently return to duty. He referred to the events in February 2021 as the 'bubble burst' incident.
6. He was seen by Dr Melanie Tait of the St Helena Mediplex on 16 February 2021. In a subsequent medical report dated 13 April 2021, Dr Tait related:[6]

Mr Steven Knight has been my patient for the past 18 months. > > In my capacity as Steven's GP, I have observed signs and symptoms concurrent with anxiety and depression. Steven and l have discussed his symptoms and given their complexity l have referred him to a psychiatrist to further diagnose anxiety, depression and/or PTSD. > > In discussion with Steven, the causative event seems to have been his work with the UN in Timor in 2012 and his experiences there. I am not aware of any particular events and I believe that it will be discussed with his psychiatrist. > > My first discussion about Steven and his psychological symptoms was on 14/02/2020 whereby he described symptoms of snappy mood and anger. He was commenced on anti-depressants at this time. I am not aware of Steven having any of these symptoms before 2012.

7. On 26 March 2021, Mr Knight made a claim for compensation pursuant to the SRC Act in respect of a Claim for 'Mental Trauma, Post Traumatic Stress' first noticed 25 April 2012 'Performing the role of United Nations Peacekeeper in Timor (UNMIT)' and 'Kidnapped, falsely arrested and falsely imprisoned by AFP Professional Standards members'.[7] In a short explanation for the injury inserted into an attachment to the claim form he further stated:[8]

On 12th February 2021, after receiving an email from my Acting Supervisor calling a body of work I had put a lot of time effort and personal finaceces into "unprofessional" the bubble I had been containing since the 2012 incident finally popped. It has been a steady downhill decline since 2012 and after the bubble popped I realised just how bad I had become and I needed help. > > The 2012 incident happened on ANZAC day 2012 in Dili East Timor. I was seconded to the United Nations as a Peace Keeper in East Timor (UNMIT).

8. Comcare made a determination dated 10 May 2021 denying liability to pay compensation pursuant to section 14 of the SRC Act for the 'Claimed condition: post traumatic stress disorder'. The decision maker stated that the 'Bubble Burst Incident' of 12 February 2021, immediately prior to the cessation of work was a form of counselling and hence, 'reasonable administrative action taken in a reasonable manner with respect of the employee's employment' as provided for in the definition of 'injury' in s 5A(1) of the SRC Act and hence excluded from entitlement to compensation. Further, the decision maker considered that the 25 April 2012 incident in Dili was an employment related investigation which 'was conducted reasonably in line with AFP Policy and Procedure' and also covered by the exclusionary provision in subsection 5A(1) of the SRC Act.[9]
9. Mr Knight requested reconsideration of the determination pursuant to section 62 of the SRC Act and was assisted by David Healey, Solicitors, of Napier Close, Deakin in the Australian Capital Territory.
10. By reviewable decision dated 28 September 2021, Comcare affirmed the denial of liability for the claim but in doing so found that Mr Knight had suffered 'a condition, namely an adjustment disorder with depressed and irritable mood.'[10] The decision referred to the diagnosis made by Dr Kamal Sanghvi, a psychiatrist to whom his treating general practitioner, Dr Melanie Tait, had referred the applicant. However, the decision noted that Dr Sanghvi had not provided any comment or opinion regarding what had led to the disorder he had diagnosed. The review officer did not consider the general practitioner's opinion that the events of 2012 in Dili had any relevance to the causation and then concluded, in relation to the 2012 'bubble burst' incident, 'had this event of 12 February 2021 not occurred, you would not have developed your adjustment disorder.' And to when the injury arose, the review officer commented 'While Dr Tait has stated that you were first seen on 14 February 2020, in her report of April 2021, I consider this to be a typographical error, with all other evidence supporting you were first seen in February 2021, not February 2020.' However, in the clinical notes summonsed, Dr Tait did see the Applicant on 14 February 2020, and he was commenced on Zoloft, a widely used anti-depressant medication. The remainder of the decision concluded that the action taken conformed to the exclusionary proviso in subsection 5A(1) concerning reasonable administrative action.
11. Mr Knight instructed his solicitors to commence review proceedings in the former AAT which became the 2021 review.
12. On 1 February 2023, Mr Knight lodged a Notice of Withdrawal or Discontinuance pursuant to section 42A(1A) of the Administrative Appeals Tribunal Act 1975 ('AAT Act'). By operation of subsection 42A(1B) of the AAT Act, the Tribunal is taken to have dismissed the application.[11]
13. Within about six to seven months of the dismissal of that proceeding, Mr Knight made two new claims for compensation:

(a) On 24 August 2023, Mr Knight made a claim (identified by Comcare as 1014398/7) for 'Psychological Trauma / Distress possible PTSD'.[12] In attempting to answer the question as to what happened to cause the injury he stated: 'See attached statement - the injury date is based on the medical certificate but this is also a nature and conditions claim and the nature of this form does not permit an explanation of how possible injury of PTSD has arisen over many years as a police officer. This form is disingenuous in that regard and does not appropriately assist in identifying a number of potential dates of injury'. In response to the question as to whether he ever experienced a similar injury, he replied: 'adjustment disorder with Comcare 2021'. This claim was apparently withdrawn on 30 August 2023 in an email to a Comcare officer who had been enquiring about 'reports from other doctors that mentioned the traumatic events you mentioned in your statement'.[13] > > (b) On 9 September 2023, he claimed as his injury 'PTSD' which was the 'culmination of PTSD over 24 years as a police officer' ('the 2023 claim').[14] He again referred to an 'attached statement' but, again, it is unclear whether there was such a statement or whether it was not included in the Tribunal documents. He noted that his treater was Dr Joe Black, a psychiatrist, practising in Geelong. In response to the question whether he had experienced a similar condition he stated: 'No, I have not experienced a similar symptom, injury or illness.'

14. The Tribunal documents associate the earlier reports of Dr Melanie Tate dated 13 April 2021[15] and Dr Kamal Sanghvi dated 26 April 2021[16] with the 2023 claims. There was, at this stage, no report from Dr Joe Black, the nominated treating psychiatrist at the time of the 2023 claim.
15. Mr Knight first consulted Dr Black on 1 September 2023, after the August and before the September 2023 claims were made. A report by Dr Black has been given to the Tribunal dated 9 September 2024, by which time he had been consulted on 20 occasions. That report referred to many of the incidents Mr Knight was exposed to in the course of his whole policing career.
16. On 22 September 2023, Comcare made a determination denying liability for post-traumatic stress disorder pursuant to section 14 of the SRC Act. While that determination referred to a claim dated 9 September 2021, I accept the advice of Applicant's counsel in submissions that this was a typographical error, and the primary decision maker was actually referring to the claim dated 9 September 2023.[17] The decision maker rejected liability on the grounds that a significant contributing factor was an action or event that constituted reasonable administrative action within the meaning of that term used in subsection 5A(1) of the SRC Act. The decision maker again referred to the statement saying:[18]

While you have omitted multiple factors from your statement relevant to the development of your condition and the determination of claim 1014398/5, I consider that the circumstances leading to the development of your condition are largely unchanged. I therefore find your condition developed as the result of reasonable administrative action which was taken in a reasonable manner in relation to your employment and the exclusionary provision operates to exclude your claim. Again, this is detailed within the determination for claim numbered 1014398/5.[19]

17. A request for reconsideration was made on 25 September 2023, three days following the determination. The pro forma request noted that Mr Knight was assisted by Julie Ogier, a mental health nurse practitioner.[20]
18. The Tribunal documents attach to the request for reconsideration an undated statement by Mr Knight referring to events from the start of his policing career with the Victoria Police. In this statement, he noted that he started at the Police Academy in July 1999 and graduated in December 1999, being then stationed at Northcote Police Station and then various other unit assignments with Victoria Police before moving, in 2006, to the AFP. Where he commenced as a Special Constable at the Melbourne Airport at Tullamarine and then went on to deal with his experiences in other units as well as overseas assignments. The statement is detailed, running to some 16 pages. In that statement he details events that may be characterised as confronting or traumatic in both of his roles with the Victoria Police and the AFP. In dealing with his experiences in East Timor, his statement does not repeat the events surrounding the interrogation on Anzac Day 2012.[21] From the nature of the material, I accept that this was the statement attached to the claim made on 9 September 2023.[22]
19. Also attached to the request for reconsideration is a document from Phoenix Australia for the prevention and treatment of 'Acute Stress Disorder, Posttraumatic Stress Disorder and Complex PTSD', three highly related psychiatric disorders and referring to emergency services personnel as a class of specific population and trauma types.[23]
20. The reviewable decision of 1 November 2023 affirmed the determination of 22 September 2023 with the review officer adding, for clarity, 'and decline liability for PTSD'.[24]
21. In doing so, the review officer noted the history of the claim, but without mentioning the terms of the reviewable decision of 28 September 2021 addressing itself to the diagnosis of 'adjustment disorder with depressed and irritable mood' and stated:[25]

You have a declined claim, with claim number 1014398/5. You submitted claim 1014398/5 on 26 March 2021, for 'Mental trauma, post-traumatic stress' which you report was sustained as a result of being 'kidnapped, falsely arrested and falsely imprisoned by AFP Professional Standards members' on 25 April 2012. > > On 10 May 2021, Comcare issued a determination which accepted that you sustained a condition but declined liability for your condition on the basis that your condition was sustained as a result of reasonable administrative action undertaken in a reasonable manner. This was affirmed by the reviewable decision of 28 September 2021. You lodged an application to appeal the decision with the AAT but later elected to withdraw from the proceedings, with the AAT subsequently dismissing the matter. > > The issues you now seek to claim for were addressed and determined within the scope of claim 1014398/5. While you have framed your present claim to encompass your 24-year policing career, as opposed to the events of 25 April 2012 as you did in your earlier claim, your undated statement supporting your present claim focuses on, among other things, your work in 2012.

1. The Respondent contends that there is a clear identity between the injury in each of the 2021 and the 2023 claims. Further, the circumstances of the 2023 withdrawal from the 2021 review reflect Mr Knight's concerns for the cost of pursuing his application to a full hearing, and the brighter prospects of an alternative claim for insurance benefits on the total and permanent disability policy, and reflect a degree of calculation in discontinuing that review. The Respondent contends that the nature and scope of the second claim is for the exact same psychiatric condition and the sole distinction is that now, Mr Knight seeks to attribute his condition to a number of further events in addition to the events that occurred on 25 April 2012 in Timor. Nonetheless, interactions with supervisors that are amenable to the consideration of the exclusionary proviso for reasonable administrative action remains an important element of the disputed 2023 claim as in the 2021 claim.[26]
2. I was referred to various authorities by the Respondent, but in relation to the characterisation of the withdrawal from the 2021 review, I was taken to the decision of Senior Member (now Deputy President) O'Donovan in Britton v Comcare [2023] AATA 3505 dealing with a fresh claim in respect of an injury the subject of earlier proceedings, a claim which was found to be one that the Applicant in that case 'had chosen to leave unexplored' by accepting an offer from the compensation payer in circumstances where she was attempting to 'revisit the foundations of that agreement' and was thereby an abuse of process. Emphasis was placed on the passage in the decision:[27]

98. By making a fresh claim, providing evidence and contending for different factual findings an applicant is not always engaging in an abuse of process. More is required. The critical point which shifts this case from one where the applicant is merely advancing a different claim based on new evidence, to a claim which is an abuse of process, is her knowledge when she agreed to the settlement which led to the earlier Tribunal decision.

3. The Respondent further contended that Mr Knight had not merely withdrawn due to the financial burden of proceeding to a hearing with representation but calculated his options in abandoning his claim in the light of the progress of negotiations and the potential avenue of pursuing a claim for invalidity or disability entitlements against an insurance policy.
4. The Respondent contends that Mr Knight, in his 2023 review application, is relying on evidence that was known to him and open to be utilised in the 2021 review. That is, all the events that Dr Black identified as potentially causative of PTSD was known to Mr Knight (albeit, not advanced at that time). The medical reports available to Mr Knight in 2021 included that of Dr Sangvhi who alluded to PTSD in the report of 26 April 2021, identifying a history 'consistent with a diagnosis of adjustment disorder with depressed and angry mood and there are some features of a post-traumatic stress disorder' as well as Dt Tait, the general practitioner whose report of 13 April 2021 considered Mr Knight's symptoms were 'congruent with my limited knowledge of PTSD'.[28]
5. The Respondent submitted that 'the factual basis and the medical evidence of both claims are not only similar, but the material said to be the basis of the said second application, was both known and available to the Applicant at the time of his conduct of the first Application for Review'.[29] Taken in all, the Respondent relates the two claims as so overlapping that to defend against both would be an abuse of process.
6. The Applicant in response sought to draw a distinction between the two claims by contending that the 2021 claim was for an injury suffered on 25 April 2012 (the East Timor incident) while the second claim was suffered in February 2020, when Mr Knight first saw Dr Tait and commenced medication. The Applicant further contends that the 2023 claim is for an injury resulting from 'numerous traumatic events during the course of the applicant's career with the AFP between about 2006 and 2020.' Nonetheless, the Applicant points to the two different diagnosed conditions of adjustment disorder and post-traumatic stress disorder and contends that the second claim is very different from the first claim.[30]
7. In summary, Mr Knight contends that it cannot be an abuse of process by relitigating of an earlier claim which is different to the second claim.

1. It is not the present task of the Tribunal to find whether the Applicant in fact suffers from a psychological condition related to his employment for which he is entitled to compensation by reason of that condition resulting in incapacity for work or impairment or whether it is excluded from the field of compensation by reason of some reasonable administrative action. The task is to determine whether Comcare is being unfairly put to the burden of defending it decision to deny liability on two separate occasions when the 2023 denial is essentially a repeat of the first denial.
2. The answer to that question depends upon identifying what is being litigated in the 2024 review. Once that is identified, there can be a proper comparison with the 2021 review to determine whether the substance of that review is now being relitigated.
3. The subject matter of the reviewable decision made by Comcare on 31 January 2024 was the denial of liability for an injury identified as 'PTSD' (post-traumatic stress disorder). The first thing to notice about the 2021 review was that it was concerned with the reviewable decision made by Comcare to deny liability for 'adjustment disorder with depressed and irritable mood'.
4. It is Mr Knight's contention that PTSD is a different injury to an adjustment disorder.
5. Firstly, without reviewing the medical opinions offered in the present case, it ought to be acknowledged that there is a difference between the two conditions. The American Medical Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, text revision (DSM-5-TR), produced by the American Psychiatric Association points to two quite different disorders.
6. Post traumatic stress disorder in individuals older than 6 years places emphasis on the nature of causative exposure to 'actual or threatened death, serious injury, or sexual violence' in a number of ways including direct experience of trauma, witnessing the events occurring to others, learning of the traumatic events to a close family member or friend or experiencing repeated of extreme exposure to aversive details of traumatic events, 'e.g., first respondents collecting human remains; police officers repeatedly exposed to details of child abuse'.[31]
7. Adjustment disorder on the other hand is characterised as the 'development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s)'. The distress is regarded as out of proportion to the severity or intensity of the stressor and it is marked by significant impairment in social, occupational or other important areas of functioning. It is important to note that 'once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months, when it might be characterised as a persistent or chronic adjustment disorder but usually involving a persistent or chronic stressor.[32]
8. The medical evidence points to two different diagnosable conditions - adjustment disorder and post-traumatic stress disorder. On the basis of the evidence to be submitted in the review, the medical expert psychiatrists treat these as separate conditions. When Dr Sangvhi spoke of features of post-traumatic stress disorder being present in 2021, he was recognising that though he diagnosed an adjustment disorder, he was pointing to features of a different condition.
9. Dr Black is quite clear that he is treating post-traumatic stress disorder and not an adjustment disorder. His report deals with traumatising events going well back into Mr Knight's policing career and not to the events of 2021. On any fair reading of the report, he is not describing an adjustment disorder.
10. Mr Knight bases his present case for the 2024 review based on the expert opinion from Dr Joe Black. It is important to note that Dr Black's report, if received into evidence by the former AAT in the 2021 review would have favoured the affirmation of the decision of Comcare to deny liability for 'adjustment disorder with depressed and irritable mood'.
11. A further consideration weighing in favour of rejecting the characterisation of 're-litigation' of this injury is that at no time in the 2021 review was such an expert opinion available to the parties. The first consultation with Dr Black only occurred at the time in or about the date of the 2023 reviewable decision following referral from Ms Ogier, a mental health nurse practitioner, who Mr Knight had been seeing for treatment in 2023. His report only became available in September 2024.
12. The Respondent contended however that the relevant facts were known at the time when the 2021 review was on foot as to the facts and circumstances of various traumatic events that now go to the foundation of the PTSD diagnosis and the 2021 claim was made in respect of 'mental trauma, post-traumatic stress'.
13. There needs to be some caution in defining what counts as knowledge in this area. Mr Knight, in making his 2021 claim, referred to events in 2012 in East Timor and to the 'bubble burst' incident in 2021. He did not, at that time, make any reference to the range of traumatic events to which Dr Black has found causative of the diagnosed PTSD condition. Secondly, the medical opinions available in the 2021 review that do refer to post-traumatic stress in some way, do so in a very tentative way.
14. Dr Tait, the treating general practitioner, reported on 13 April 2021,that she 'observed-signs and symptoms concurrent with anxiety and depression', noting the complexity of the symptoms and referral 'to a psychiatrist to further diagnose anxiety, depression and/or PTSD.'[33] That psychiatrist, Dr Sanghvi diagnosed 'adjustment disorder with depressed and angry mood' in the report dated 26 April 2021 which he based on a history that acknowledged in a single line, of the report the 'general duties, traffic, sexual offences and child abuse, airport uniform policing and international deployments to Solomon Islands between 2009 and 2011, East Timor 2012 and Papua New Guinea 2015 to 2017. In 2012, he was posted to East Timor as part of the UN Peacekeeping Force'. No specific trauma was referred to. The remainder of the history focusses in greater detail in the 2012 East Timor interrogation.[34]
15. In the course of the 2021 review, Mr Knight was examined by Dr Joey Q Le, a psychiatrist, at the request of his solicitors. The report dated 3 November 2022 details the history of the 2012 East Timor incident and the 2021 'bubble burst' incident and concluded 'there is no evidence to support a diagnosis of posttraumatic stress disorder, and the trauma related symptoms described by Mr Knight would best be classified within the adjustment disorder diagnosis.' That report stated the 'specific incidents related to his experience of being interviewed whilst being deployed to East Timor in 2012 and reactivated after being given feedback in 2021 that the videos he produced for a training project were unprofessional'.[35]
16. It is quite apparent from this review of the state of the evidence, that Mr Knight had not associated the witnessing of traumatic situations and events listed in the report of Dr Joe Black, with his psychological condition. It is not that unusual in the circumstances. As was noted in Comcare Australia v Porter [1996] FCA 562; (1996) 70 FCR 139 that the 'existence of a disease' was 'a subject notoriously liable to human misapprehension' in a case involving the aggravation of a physical injury.[36] In relation to a psychological injury, the misapprehension is liable to be accentuated since the diagnosis is based almost exclusively on symptoms and behaviours exhibited and a patient suffering from psychological ill-health is not apt to be particularly insightful when providing a history of circumstances as to causation.
17. It was submitted on behalf of Comcare that once the threshold for distinguishing a psychological injury from mere emotional upset or distress, the specific diagnosis is not relevant to determine the existence of injury. It was further submitted that in the course of the 2021 review, Mr Knight could have clarified or 'recast his claim' to show that he was seeking compensation for PTSD and not adjustment disorder.
18. I was referred to the decision in Comcare v Mooi (1996) 69 FCR 439 in support of the proposition. In that case, it was again noted that in 'the medicolegal context, the concept of mental illness is a notoriously difficult one to define or describe.'[37] However, the Court held that, at a minimum, mental injury is determined by the finding of 'a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition'.[38]
19. However, what is presented for consideration here is how to distinguish between two separate mental injuries, both of which meet the minimal threshold for finding of 'injury'. Where one or more diagnosed conditions exist, their compensability will depend on their nature and the relevant causative factors. As can be seen from the DSM-5-TR definitions, post-traumatic stress disorder and adjustment disorder will have quite different causative factors.
20. It is also relevant to note that a person may suffer from both disorders at the same time. In Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101; (2013) 214 FCR 1 the Full Court of the Federal Court dealt with an appeal from a member of the Defence Force who suffered post-traumatic stress disorder from service in Rwanda as well as major depressive disorder arising from a parachuting accident some years later. He had made claims for impairment in respect of both diagnosed disorders. The respondent contended that the psyche, or the brain, was affected by both conditions and that was the single impairment. The Tribunal on review favoured the respondent's approach. The Full Court held that approach to be erroneous in law, requiring the Tribunal to determine the degree of impairment flowing from each injury as against the functioning and capacities of a normal healthy person. The Court noted that the two conditions 'may overlap' but 'they are not co-extensive clinically'. There was medical evidence available to assist the Tribunal in that task and it was the duty of the Tribunal to separately assess the injuries.
21. As for the submission that Mr Knight could have, or was even obliged to, 'recast his claim' to clarify that the adjustment disorder that was denied by the 2021 reviewable decision was properly to be considered 'PTSD' some consideration needs to be given to the limits of such an approach. If it was open to do so, then the Tribunal should be seen to have had jurisdiction to consider the injury to be PTSD and not adjustment disorder.
22. In Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 the Federal Court dealt on appeal from the former Administrative Appeals Tribunal (AAT) which had dismissed an application for review of a claim for carpal tunnel syndrome as vexatious. On the evidence available in that review, it was abundantly clear that the Applicant did not suffer from the claimed condition of right carpal tunnel syndrome. So much was admitted by his counsel during the Tribunal review. The applicant's evidence tended to show that he was suffering from some form of physical injury or genuine psychosomatic pain arising from an earlier physical injury. He sought to advance his claim on review on the broader basis and that his wrist pain was not due to carpal tunnel syndrome but part of a broader set of difficulties to the whole of the right upper limb, shoulder and neck and even headaches. In making such a submission at the Tribunal hearing it was thought that the applicant was recasting his claim, albeit informally. The Tribunal took the view that to proceed to review the claim as recast in such a manner would defeat the orderly process of administration and that there was no jurisdiction to review such a claim. The Court analysed the statutory claims notification and claim making procedure as well as the powers available to decision makers relevant to the exercise of discretion in determining claims for compensation. Much of the dispute concerned what injury was the subject of written notice, which is a pre-condition to an acceptance of any claim. Among the legal propositions, relevant to the present issue, held to be correct were:[39]

(c) A 'broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice'. > > (d) The original decision maker might have regard to 'informal notice as having been given in amplification of a notice formally given'. > > (e) The powers of the decision maker 'further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given'.

23. In the result, there was abundant medical evidence available in that case to support the review of the liability for the more broadly cast claim compared to the narrowly cast carpal tunnel syndrome claim and it was open to the Tribunal to entertain that informal application to amend the notice of injury and it was not so devoid of merit to be able to consider the claim vexatious.
24. The difficulty in such a recasting of Mr Knight's claim was the absence of any psychiatric opinion available to Mr Knight that confirmed a diagnosis of post-traumatic stress disorder until well after the commencement of the second claim and no report until the commencement of the second review in January 2024. He had only seen Dr Black once before making the 9 September 2023 claim for PTSD. On the state of evidence available prior to the withdrawal from the 2021 review in early 2023, the evidence for PTSD could not be characterised as 'abundant'.
25. Secondly, there must be a distinction to be made between recasting the notice of injury and claim based on later medical evidence concerning the nature of one particular injury and recasting a claim for one injury into a quite different injury. There is a limit to what might be recast and there is the added problem of the nature of the jurisdiction of the ART to review decisions. In Australian Postal Corporation v Sellick [2008] FCA 236; (2008) 101 ALD 245 the Federal court allowed the Respondent licensee's appeal from a decision by the AAT to allow an injured worker to recast his accepted claim for compensation for 'pain in the right shoulder' to include degenerative spinal pain and a strain of the interspinous ligament. The original injury was sustained in late 2002 and liability to pay compensation was accepted. Sometime later, Australia Post ceased making payments of compensation on the ground that the effect of the injury had by then ceased. The Tribunal found on the evidence the employee had pain in the right shoulder and/or mid-upper back caused by three different conditions identified as a soft tissue injury to his shoulder, a degenerative condition in his spine and a sprained interspinous ligament. On the evidence, the Tribunal concluded that the soft tissue injury to the right shoulder pain had resolved. There remained the upper back pain due to degeneration of the spine and/or a chronic strained interspinous ligament that were contributed to by his employment. In its decision, the Tribunal, relying on the decision in Abrahams concluded that it could recast the claim as an 'injury which caused pain in the upper back, which included, but was not limited to, pain in the area of the right scapula' and then considered the award of compensation for the continuing effects of the degenerative condition in the spine.
26. The Court acknowledged that the Tribunal has authority to decide whether there is a liability for a particular injury, or an aggravation of a disease and it is not bound by the relevant authority's assessment of what constitutes the injury.[40] However, on the facts of the case, it was not possible to 'recast the claim' in the manner adopted by the Tribunal:

[60] There is no explanation given by the tribunal for the conclusion that the injury of October 2002, described as pain in the right shoulder, caused the additional conditions. Even if the claim were for injury to another part of the body that resulted in right shoulder pain, the tribunal accepted that the effects of that injury had resolved. Unlike Abrahams where the applicant for review described a wrist injury but did not state the correct diagnosis, the injury to Mr Sellick's shoulder had resolved and different injuries were accepted as a basis for liability. The injuries may have arisen out of Mr Sellick's employment with Australia Post (as accepted at [60]), but the tribunal has not explained how they arose out of the claimed injury in 2002. It is noteworthy that the medical reports of 2002 summarised by the tribunal were not the ones referred to as supporting the tribunal's conclusions.

27. The Tribunal's finding of liability for additional conditions could not be made given the absence of necessary preconditions for the entitlement to compensation, including notice of injury, claim for compensation, determination and reviewable decision.[41]
28. The decision in Sellick was revisited the following year after the AAT had dealt with the matter on remittal from the Federal Court. On the second review, the AAT concluded, following the court's decision, that it could not deal with the two additional claims for degeneration of the spine and strain of the interspinous ligament because it lacked jurisdiction. The Full Court dismissed the employee's appeal from the second AAT decision in Sellick v Australian Postal Corporation [2009] FCAFC 146; (2009) 50 AAR 505 stating that the AAT's adoption of the restrictions on the extension of its jurisdiction to deal with claims that were not made, and subject to a reviewable decision, was correct.
29. In the present review, the absence of a reviewable decision relating to post traumatic stress disorder was only remedied by Comcare's second reviewable decision in January 2024 in response to the 9 September 2023 claim. It is only with the present review of that 2023 claim that there is clearly a jurisdiction to hear and determine the existence of a relevant post-traumatic stress disorder injury and its relationship to Commonwealth employment.
30. The metaphor of 'recasting a claim' used in Abrahams is better understood not as an amendment of the notice of injury or claim made pursuant to sections 53 and 54 of the SRC Act but the exercise of the Tribunal's undoubted jurisdiction to determine the nature and scope of the injury under review. In Abrahams, it was a finding of fact that there was one injury which could be identified despite the particular diagnostic label. The Court famously observed, 'Nothing is more common than that medical diagnoses change and evolve, or are or become various.'[42] But that was an observation of multiple diagnoses of a single identifiable injury. In the present case we are dealing with two disorders.
31. Much of the argument concerning the ability, perhaps the obligation, upon the Applicant to recast his claim based on the decision in Abrahams seems to hark back to principles applicable in ordinary civil litigation. The concepts of abuse of process were developed in these courts and while applicable to tribunals, they are not applicable in precisely the same way.
32. In civil litigation before Courts, the parties initiate and define the relevant issues by means of formal pleadings (statement of claim, defence, reply (if any) to such defence) and the amendment of those pleadings. Re-litigation by an unsuccessful plaintiff can more easily be determined be examining those pleadings to see if the same matter is being agitated. Further in ordinary courts, there is a doctrine of estoppel that prevents matters being raised in subsequent proceedings that ought to have been raised between the parties at the time of the earlier proceedings because the parties are required to bring forward their whole case. The High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (Anshun) adopted the 1843 statement of Vice-Chancellor Wigram in Henderson v Henderson to the effect that 'where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.'[43] The principle presently goes by the name, Anshun estoppel. The effect of these circumstances and doctrines is to bar a party from being vexed twice on the issue already joined in earlier proceedings, or ought to have been joined in such earlier proceedings.
33. In Tribunal review, jurisdiction of the Tribunal is not determined by the pleadings of the parties but by reference only to the reviewable decision made by the relevant decision maker following internal review. Further, the Tribunal cannot enlarge its jurisdiction at the request of one of the parties to suit its convenience so as to determine other issues in the absence of an identifiable reviewable decision. In Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84 the Full Court of the Federal Court dealt with an appeal from a decision of a Tribunal which had, in the course of reviewing a reviewable decision concerning compensation certain taxi expenses for medical treatment, went on to deal with the same claimant's entitlement to lump sum compensation for permanent impairment though Comcare had not been presented with a claim for such compensation nor had it made any decision in respect of such an entitlement. The Full Court upheld a decision of the Court at first instance finding that the Tribunal lacked jurisdiction to do so. In so ruling, the Full court stated:[44]

[39] In considering the extent of the power of the AAT when reviewing decisions under the Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions - that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination: s 61(1). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.

34. Since the scope of the review is determined by the nature of the reviewable decision and not the action of parties to confer jurisdiction upon it, the doctrine of Anshun estoppel is not easily applicable to Tribunal proceedings. Its application has been doubted in various cases (see Jebb and Repatriation Commission [2005] AATA 450; (2005) 86 ALD 182; Re Repatriation Commission v Kowalski [2009] AATA 6; (2009) 49 AAR 326).
35. In any event, given that the 2021 decision dealt with 'adjustment disorder' and not 'PTSD' and where there is a fresh 2023 decision dealing directly with 'PTSD' alone, there is common matter between the two applications and no risk of re-litigation which would attract the Anshun estoppel. In effect, Comcare's 2023 reviewable decision is a valid decision going to the compensability of the alleged PTSD and opens the path to a review of the decision to deny liability for that condition in a way that was not open to the applicant previously.
36. Insofar as Mr Knight suffers from an adjustment disorder resulting from the events of 2012 and 2021, he has resiled from that claim. He is barred from re-litigating the adjustment disorder by reason of his voluntary withdrawal pursuant to section 42A(1A) of the Administrative Appeals Tribunal Act 1975. The act of withdrawal by written notice means that application is taken to have been dismissed. By operation of subsection 103(8) of the ART Act, there is no prospect of reinstatement of that application. His present claim is based on a different disorder with differing causal elements. It should be understood that had the 2021 review proceeded to review and the decision to deny the 'adjustment disorder' injury affirmed, that would not bar him from seeking compensation for PTSD as a different injury by bringing a new claim.
37. During oral submissions, reference was made to the High Court's decision in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535, in particular, that part of the decision that observed that in the SRC Act, 'the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body.'[45] In the context of the submissions the expression is apt to distinguish the restriction of consideration to only the causal aspects such as various events, 'incidents' or 'accidents' and to focus on the resultant effect on the body (or psyche). A submission was advanced by the Applicant that in the 2023 review, he advances many more events in employment as causative of the post-traumatic stress disorder compared to the 2021 claim which was limited to the 2012 East Timor event and the 2021 'Bubble Bursting Incident'. However, any or all of the newly identified events or incidents might have been raised in the 2021 review. It may have impressed on medical experts that these events still contributed to an adjustment disorder. Compensation is paid only in respect of injury, not incident.
38. The Respondent, in further written submission, emphasises that its decision in 2021 did indeed look to the resultant effect on the body and argues: '.... Comcare did consider the Application for Compensation from the perspective of a PTSD condition. Comcare may not have accepted that precise diagnosis, but it did accept that the Applicant was suffering "a mental injury" albeit with a different label or diagnosis.'[46]
39. For the reasons expressed above, the matter goes beyond a 'different label or diagnosis' but to a different injury. The quite remarkable distinctions between an adjustment disorder and a post-traumatic stress disorder show that one cannot easily be recast into another and make it imperative that the claim in respect of the latter is properly determined and the subject of a reviewable decision. That condition was only satisfied by the reviewable decision of January 2024.
40. The fact that the January 2024 decision is different from the 2021 reviewable decision, dealing with an entirely different injury is highly relevant. In Re Matusko and Australian Postal Corporation [1995] AATA 14; (1995) 21 AAR 9 the Tribunal dealt with a claimant who made a claim for compensation for chest pain and stroke suffered in November 1987 but suffered as a result of an anxiety state due to work stress. The claim was refused, and that rejection was affirmed on review by the Tribunal. The claimant advanced another claim for a stress condition suffered after November 1987. In response to the relevant authority's application to dismiss the application as an abuse of process characterising the second claim as frivolous and vexatious. The Tribunal noted that in the earlier proceeding, there was an absence of evidence upon which it could make a finding of employment related stress or anxiety and noted that the issue had not been pre-judged. While the Tribunal agreed that it should not generally allow the re-litigation of issues already decided it could do so where, amongst other things, there was a different decision, or where there was a change in circumstances or fresh evidence, particularly if justice to the parties required a departure from the rule.
41. The new reviewable decision in January 2024 specifically dealing with post-traumatic stress disorder coupled with the new evidence, in the form of Dr Black's report of September 2024 going to the nature and causation of that injury as distinct from adjustment disorder, and the absence of any real consideration of such evidence prior to the current review compels the decision to allow this review to proceed to adjudication and rejection of the application to dismiss the review on the ground that it is otherwise an abuse of process.

1. Comcare's application to dismiss the proceedings on the grounds that it is otherwise an abuse of process is denied.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of General Member M. Carey

..............................[SGD]...................................

Counsel for Applicant: Andrew Schofield, instructed by Elringtons Lawyers

Counsel for Respondent: Charles Clark, instructed by HBA Legal

[1] T17, 81 References to 'T-Documents' are references to documents lodged with the Tribunal pursuant to a Notice to the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), in operation when the application commenced. They are generally known as 'Tribunal documents', sequentially numbered, with subsequent page references. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

[11] Under the present Administrative Review Tribunal Act 2024 (ART Act) a proceeding dismissed upon the withdrawal of an applicant from review pursuant to section 95 of the ART Act, the applicant has no right to apply for reinstatement the dismissed proceeding (see subsection 102(8) of the ART Act).

[19] Claim number 1014398/5 refers to the claim subject of the proceedings in AAT matter number 2021/7142. See 2021/7142 T8, 74.

[22] The reviewable decision of 1 November 2023 referred to the attachment to the claim as 'an undated statement which details events over your 24-year career as a police officer with both Victoria Police and the Australian Federal Police (AFP).' T17, 78.

[26] Respondent's written submissions of 10 February 2025, [37].

[27] [2023] AATA 3505 [96]-[103].

[28] Respondent's written submissions of 10 February 2025, [59].

[30] Applicant's written submissions of 7 March 2025, [12]-[13].

[35] Book of documents from 2021 review: A5, 35.

[36] [1996] FCA 562; (1996) 70 FCR 139, 150, Jenkinson J.

[37] (1996) 69 FCR 439, 443.

[38] Comcare v Mooi (1996) 69 FCR 439, 444, Drummond J.

[39] [2006] FCA 1829; (2006) 93 ALD 147, 152 [18] Madgwick J.

[40] [2008] FCA 236; (2008) 101 ALD 245, 255 [50] Bennet J citing Hannaford v Telstra Corp Ltd (2005) 88 ALD 702; [2005] FCA 1298.

[41] [2008] FCA 236; (2008) 101 ALD 245, 260 [71] Bennet J citing Lang v Comcare (2007) 44

AAR 370] at [41]-[43]; Lees v Comcare [1999] FCA 753; (1999) 29 AAR 350] at [35].

[42] [2006] FCA 1829; (2006) 93 ALD 147, 153 [21], Madgwick J.

[43] (1843) 67 ER 319 referred to at [1981] HCA 45; (1981) 147 CLR 589, 598, Gibbs CJ, Mason and Aickin JJ.

[44] [1999] FCA 753; (1999) 56 ALD 84, 93 [39] Wilcox, Branson, Tamberlin JJ.

[45] [2006] HCA 47; (2006) 226 CLR 535, 540 [10].

[46] Respondent Further Submissions 28 March 2025 [6]-[7].