“Abuse of process” in neck injury claim

Britton and Comcare [2023] AATA 3505

This was an interlocutory decision of the Tribunal to dismiss the applicant’s application as an abuse of process.

The applicant made a claim for workers’ compensation in 2018 for a neck injury allegedly sustained during a large filing task undertaken in the course of her employment with the AFP. 

During the course of those proceedings, it became apparent that the applicant had a former claim for compensation in relation to a fall in 2001 while employed by a different employer. Following legal advice, the applicant settled her 2018 proceedings with Comcare, which agreed to waive a debt owed to it as part of the settlement. 

The applicant then sought to ‘reopen’ her 2001 claim alleging that her ongoing neck issues were due to the fall. After the matter had been part heard, the applicant also sought to expand her claim before the Tribunal to encompass the 2018 claimed injury. 

Comcare advised the Tribunal and the applicant’s (new) solicitors that it considered the application an abuse of process very early on in the proceedings. The Tribunal was not prepared to entertain the application at the initial hearing in April 2023, but did so in September. The Tribunal found: 

(a) The 2020 consent decision involved an acceptance by the applicant that the cause of her ongoing cervical spine symptoms was degenerative change in her spine. In exchange for that acceptance, Comcare waived a debt; 

(b) The critical point in this case was the applicant’s knowledge when she agreed to the settlement which led to the earlier Tribunal decision; 

(c) When the applicant gave the earlier instructions, she knew there was a basis for believing that her fall in 2001 was implicated in the cervical symptoms she suffered in 2018. She consciously gave up the possibility of finding out whether there was such a link and in doing so ‘extracted from Comcare a specific advantage for herself – the waiver of a debt which had the potential to arise if she continued with the proceedings and was unsuccessful’; and 

(d) By bringing a fresh claim, seeking to raise an argument that was available and known to the applicant at the point of settlement, having secured that advantage, is an abuse of process.