The death of my father has resulted from the aggravation of a disease and as defined in 5A and 5B should be deemed to be its own injury as per the Act that commenced around 1987 when he first sought medical treatment.[5]

1. Stephen progressively provided more information in relation to various claims including, for example, a claim for the cost of a ride-on mower purchased by his father prior to his death.
2. It is clear from the correspondence, that the Comcare delegate with whom Stephen dealt, believed she was responding to claims rather than reconsidering any earlier decision. For example, she says in an email dated 4 August 2017:

I believe that you have provided sufficient circumstantial evidence (Case Law examples) to support your claim for compensation, and I understand your argument regarding legislative reasoning.[6]

1. The determination on 21 September 2017 responded to various matters raised through the correspondence following the claim. When each claim is dealt with, it is expressed as a determination not as a reconsideration.
2. When the material is examined as a whole, it supports only one conclusion - that claims were made by Stephen Gough in various capacities seeking compensation in a range of categories. The requirements in s 14 were considered in relation to the claims as a necessary gateway through which the claims needed to pass, and each of the heads of compensation claimed were considered and determined. In all cases Comcare's actions were responsive to a claim submitted by Stephen Gough either on his own behalf or as an authorised agent for others. Those claims were made when the claim form was lodged in June 2017 or in the course of correspondence that followed with the Comcare representative.
3. Stephen contests this latter conclusion and contends that no claim was submitted as required by s 54 of the SRC Act in relation to a number of the heads of compensation. I reject that submission. The delegate in making the September 2017 decision was responding to claims advanced by Stephen Gough. Comcare was entitled to treat the email requests for the consideration of claims as substantial compliance. Strict compliance with the requirements of s 54 is not required.[7] In dealing with the claims as made, Comcare was to be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities.[8] It was entitled to treat subsequent requests for consideration of heads of compensation as claims.
4. I am satisfied that the decision of 21 September 2017 was a determination as that term is defined in s 60 of the SRC Act. The determination responded to the claims submitted by Stephen Gough on and from 1 June 2017 and are properly characterised as first-tier decisions which could be the subject of a reviewable decision and for which there is no right to apply directly to the AAT or to this Tribunal.
5. That being the case, the September 2017 decision is not a decision that can be the subject of an application to the AAT or this Tribunal and it would be futile to reinstate the application. The Tribunal would inevitably lack jurisdiction to review the determinations. Senior Member Thomae was correct to find that the Tribunal lacked jurisdiction. Even if there were other discernible errors in the process by which he reached his conclusions (about which I make no findings), there would be no point in reinstating the application. It would have to be dismissed again.

1. Even if these factual conclusions were wrong, the applicant is no better off if it is assumed that the decision in September 2017 was an attempt at a reconsideration on own motion by Comcare of the adverse decision in relation to Mr Gough's claim made on 27 February 1981.
2. Section 129A relevantly provides as follows:

(1) Comcare may, on its own motion, reconsider under section 62 of this Act, a determination under the 1971 Act having effect immediately before the commencing day...and, for that purpose, section 62 of this Act applies as if:

(a) The person in respect of whom the determination was made were a claimant under this Act; and

(b) The determination were a determination by Comcare within the meaning of Part VI of this Act

(2) Part VI of this Act applies to a decision of Comcare on a reconsideration of a determination mentioned in subsection (1) as if the decision were a reviewable decision by Comcare within the meaning of that Part.

1. Treating the September 2017 decision as having been made under this provision does not assist the applicant. The decision still cannot be the subject of a valid application to the Tribunal for review. The difficulty arises as a result of the approach taken by the Full Federal Court in the recent decision of DSLB.
2. The case concerned the power of Comcare to undertake a reconsideration of own motion in relation to a decision that had been the subject of a reviewable decision which revoked the earlier decision pursuant to s 62(5) of the SRC Act. In the judgment of Horan J, with which the other two judges agreed, he stated that the correct conclusion was that s 62 of the SRC Act does not confer power to reconsider a decision that has been revoked and no longer has any operation or effect.[9]
3. Horan J also concluded that:[10]

...a decision on a reconsideration under s 62 can be a 'reviewable decision", and can also be or result in a 'determination' for the purposes of Pt VI of the SRC Act. This means that a decision that is made by a determining authority on a reconsideration under s 62 that Comcare is liable (or is not liable) to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee can be the subject of an "own motion" reconsideration by the determining authority under s 62(1), notwithstanding that the reviewable decision is itself amenable to review by the Tribunal.

1. Applying these principles to the present situation, which is analogous but not identical, the result is as follows.
2. Accepting the premise advanced by the applicant that the decision of September 2017 was a reconsideration on own motion by Comcare of the earlier negative determination in relation to his father's claim, the subsequent favourable September 2017 decision can function both as a favourable 'determination' of liability (which is susceptible to an application for internal review) or as a reconsideration on own motion that triggers a right to apply to the AAT and subsequently this Tribunal, for review of the reconsideration on own motion decision.
3. Stephen Gough elected to treat the decision as a determination and sought internal review pursuant to s 62 of the SRC Act. The decision in December 2017 revoked the decision of September 2017. DSLB is clear that the effect of a revocation is that the decision no longer has any operation or effect. It is a decision that has been annulled or cancelled by a subsequent exercise of administrative power and is not legally capable of being the subject of a reconsideration on own motion.[11] If a revoked decision is incapable of being the subject of a reconsideration on own motion, it logically follows that it is equally incapable of providing a proper foundation for an application to the AAT or this Tribunal.
4. Consequently, regardless of how the September 2017 decision is characterised, it is incapable of providing a foundation for an application for review.

1. In these circumstances, there is no utility in reinstating the application for review. The September 2017 decision is incapable of forming a sound legal basis for this Tribunal's jurisdiction.
2. On what I am satisfied is the correct view of the facts, it is merely a determination (or more accurately a series of determinations). Only the decision of December 2017 amounts to a reviewable decision that is capable of supporting an application for review to this Tribunal.
3. Even if that were not the case and the facts were as the applicant asserts, that the September 2017 decision constitutes a reconsideration on own motion, DSLB makes clear that decisions of that kind can be the subject of either an application for review in the Tribunal or a request for internal review. Stephen Gough elected to have the decision reviewed internally and the review conducted in December 2017 resulted in the revocation of the September 2017 decision. The consequence is that the September 2017 decision has been annulled by the subsequent exercise of administrative power and is now incapable of being the subject of review - either internally or in this Tribunal.
4. In these circumstances it is unnecessary to consider the arguments advanced contending that the dismissal decision should be set aside applying the principles in Bhardwaj[12]. Even if a jurisdictional error could be identified, it would be inappropriate to reinstate the application in circumstances where the Tribunal has no jurisdiction to proceed with any review.

1. Turning then to application 2024/0578. My initial view was that Member Benjamin had only dismissed an application for an extension of time to bring an application, but at the hearing it was pointed out that the terms of the order were:

1. The applicant seeks reinstatement pursuant to section 102(5) of the ART Act on the basis that the substantive application was dismissed, and it was dismissed in error.
2. Member Benjamin dismissed the application on two bases. First, that the Tribunal was functus officio and lacked power to review a decision that had already been reviewed by the AAT. Further, even if he was wrong about the AAT being functus officio and the AAT had jurisdiction to review the application, he would not grant the necessary extension of time to file the application because:

(a) There was a delay of more than 5 years in filing the review and extension application; > > (b) There was no reasonable explanation for the delay in lodging the application; > > (c) Any substantive review appeared to have poor prospects of success.

3. I am satisfied that the Tribunal is functus officio and regardless of whether Member Benjamin's decision is attended by any error, it would not be appropriate to reinstate the application. Doing so can have no utility.
4. The Tribunal is functus officio as a consequence of the decision made by Senior Member Clauson on 23 November 2020 affirming the decision of December 2017.
5. The doctrine of functus officio was neatly summarised by Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 311 as follows:

...it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform...

1. This means that as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, recognises that it has made an error within jurisdiction, or because there has been a change of circumstances.[13]
2. The High Court's decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ('Bhardwaj') however recognised that in some cases it is possible for a tribunal upon becoming aware that 'it had not given effect to its own intention, and that it had failed to conduct a review of the delegate's decision, to give the respondent the opportunity which the statute required' to do again what it was required by law to do in the first place, could revisit the decision and make a fresh one.
3. The Bhardwaj principle however does not displace the general doctrine of functus officio and the favouring of the finality of proceedings that the principle encapsulates.
4. In this case, it would involve a misunderstanding of the scope of the Bhardwaj principle for the Tribunal to treat as a nullity a decision that was made five years ago following a full review in which both parties were represented, and which resulted in a decision underpinned by extensive reasons. The Bhardwaj principle is not available to allow the Tribunal to conduct judicial review of its own decisions, it is available for the correction of obvious error where the Tribunal has failed to perform its statutory function. It sits as a rare exception to the general principle of functus officio. The remedy for error in Tribunal decisions is in most circumstances a statutory appeal to the Federal Court.
5. I am satisfied that the Tribunal is functus officio and does not have jurisdiction to deal with a further application for review of the December 2017 decision. In those circumstances there is no utility in reinstating the application.

1. The applicant provided further submissions on 11 July 2025 resisting the proposition that reinstatement of his applications would be futile. They are for the most part addressed by the reasons provided above, but out of an abundance of caution I not the following.
2. Those submissions reveal more clearly the applicant's misapprehension at a factual level about what has taken place.
3. The submission contends that 'Comcare purported to conduct a further reconsideration of the 1981 determination on 15/12/17 after it had been revoked'. That proposition is untenable. It is clear on its face that the decision of December 2017 is a reconsideration of the September 2017 decision. On its face the December 2017 decision revokes the September 2017 decision.[14]
4. In the same submission the applicant rightly contends that 'conducting a further reconsideration of a revoked determination is beyond Comcare's authority'. That statement is true. That is why it is impossible for the Tribunal to revisit the September 2017 determination. It was lawfully revoked when it was reconsidered in December 2017.
5. The applicant notes repeatedly the findings of Member Benjamin and the concessions made by the respondent in submissions before SM Thomae as a basis for finding that the Tribunal has jurisdiction. Neither of those matters impact upon the need for the Tribunal to be satisfied of its jurisdiction before issuing a decision to affirm, set aside or vary the decision under review. If the decision the subject of the application is not a reviewable decision, the Tribunal must dismiss under s 97 of the ART Act. An earlier misapprehension on the part of the Tribunal in an interlocutory process or a misplaced concession by a respondent cannot relieve the Tribunal of its obligation under s 97 or convert a decision which is not at law a reviewable decision into one that is.
6. The applicant also contends that the December 2017 decision was unlawful and involved a denial of natural justice. That may be true, and I make no finding in relation to the claim, but even defective administrative decisions are capable of grounding valid applications to the Tribunal. The subsequent Tribunal decision then replaced the December 2017 decision as the operative decision.
7. Having considered all of the extensive submissions made by the applicant I am satisfied that there would be no utility in reinstating either application.

1. The applications for re-instatement are dismissed.

Solicitor for the Respondent Sparke Helmore Lawyers.

[3] Comcare v DSLB [2025] FCAFC 13 at [117]

[9] See [28], [105],[118] and [140]

[12] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11.