Federal Court of Australia

Lye v Comcare [2026] FCA 1517

ORDERS

THE COURT NOTES THAT:

1.    At [40] of the reasons of the Administrative Review Tribunal (“Tribunal”) in Jacob Francis Lye v Comcare (Administrative Review Tribunal, R Cameron, 1 July 2026), the Tribunal equated the applicant’s capacity to work full-time usual hours performing administrative duties with an ability to earn an amount that is equivalent to his normal weekly earnings (“NWE”), such that his entitlement to compensation is reduced to zero.

2.    However, that is not what s 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) requires, as it relates to determining an employee’s ability to earn.

3.    In determining an entitlement to weekly compensation under s 19(2) of the SRC Act, the Tribunal is required to address:

(a)    whether the employee was incapacitated for work as a result of an ‘injury’ (as that term is defined by the SRC Act) (“the first question”);

(b)    whether, during the relevant week, the employee had an incapacity for work that prevented the employee working his or her normal weekly hours (“the second question”);

(c)    whether the amount per week (if any) that the employee earned from any employment that was undertaken by the employee during that week was less than the employee’s NWE (“the third question”);

(d)    what amount per week (if any) the employee was able to earn in suitable employment (“the fourth question”);

(e)    which of the amounts assessed as part of the third and fourth questions is greater and thereby determines the “AE” (as that term is defined by s 19(2) of the SRC Act) of the employee for that week (“the fifth question”); and

(f)    the amount of the respondent’s liability to pay compensation to the applicant calculated using the formula contained at s 19(2) (“the sixth question”).

4.    In its reasons at [40], the Tribunal failed to address the amount per week (if any) that the applicant was able to earn in suitable employment during the relevant periods (i.e., the fourth question).

5.    As a result of the above failure, the Tribunal failed properly to address the amount (if any) by which the applicant’s NWE should be reduced in order to determine the amount of compensation that he is entitled to receive (i.e., the sixth question).

6.    In doing so, the Tribunal:

(a)    misapplied, or failed to apply, s 19(2) of the SRC Act;

(b)    failed to determine the amount that the applicant is able to earn in suitable employment (cf Martin v Australian Postal Corporation (2000) 32 AAR 199, 204-5 [34]-[39] (Wilcox J); Slater v Telstra Corporation Ltd (2001) 115 FCR 34, 39-40 [18]-[19] (Tamberlin, Mansfield and Emmett JJ)); and

(c)    failed to provide reasons to the standard required by law, including by its failure to make findings of sufficient particularity as to the amount of weekly earnings that the applicant was able to earn in suitable employment, with the consequence that the Tribunal failed to make findings of sufficient particularity as to the amount of compensation the Applicant is entitled to receive.

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision made by the Administrative Review Tribunal on 1 July 2026 in proceeding 2025/7073 be set aside.

3.    The matter be remitted to the Administrative Review Tribunal, differently constituted, for redetermination.

4.    The parties bear their own costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    By an originating application dated 12 July 2026, the applicant, Mr Lye, moves for relief directed to a decision made by the Administrative Review Tribunal (the “Tribunal”) on 1 July 2026 (hereafter, the “ART Decision”). That relief is sought in the context of what the applicable legislation styles as an “appeal”—at issue is whether the ART Decision was a product of legal error and, if it was, what relief this court might grant in the service of correcting it.

2    On 30 September 2026, the parties to the present application reached an accord as to its disposition, one consequence of which is that they agree that this court should set aside the ART Decision and require that the Tribunal redetermine according to law the application that was its subject. They have proposed some orders by consent to give effect to that agreement.

3    In VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 49, 50 [3]-[4], Colvin J observed (in the analogous but not identical context of applications for judicial review):

3    Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error. As explained by French J in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; (1999) 100 FCR 323 at [12], there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed.

4    Further, in cases where the proposed orders will result in the matter being remitted, it is necessary for sufficient guidance to be provided whether by way of note to the orders (where that will be sufficient) or by publication of reasons to enable a further exercise of power according to law as determined by the Court. It is always a significant step for a court to exercise its jurisdiction to supervise the actions of the repositories of executive power and it is appropriate that due respect be afforded to a Tribunal, decision-maker or other repository by communicating the reasons for the grant of public law relief.

4    In Wardman v Macquarie Bank Ltd (No 2) (2023) 300 FCR 159 (Bromberg, Wheelahan and Snaden JJ), I wondered (at 167 [36])—at least in the appellate context that was there in focus—whether mandatory terms like “must” and “necessary” were “more definitive” than might always be required. Nonetheless, the point is well understood: the proper exercise of the court’s discretion to give effect to an agreement struck between parties to an “appeal” from a decision of the Tribunal is, at least when that agreement envisages remittal, informed by its acceptance that the decision is at least arguably a product of error.

5    Presently, I accept that the ART Decision is properly so described. In the note accompanying the orders that they jointly propose—and consistently with the court’s Consent Orders Involving a Federal Tribunal Practice Note (gpn-trib)—the parties identify the error by which they agree that the ART Decision is arguably attended. It is unnecessary that I should add to what is there identified. I agree with the analysis and will substantially replicate it in the orders that I will make.

6    There is one issue, however, that requires some discussion in these reasons. Jointly, the parties propose that the remittal of the underlying matter back to the Tribunal should proceed such that it is heard by a “Senior Member or Deputy President”. I am not minded to make an order in that form and I should indicate why.

7    The parties’ joint note as to why the ART Decision is arguably a product of error says nothing about how the Tribunal might be constituted in the event of remittal. Upon receipt of the proposed orders, my chambers enquired of them as to why an order concerning the constitution of the Tribunal on remitter was warranted and whether, in the absence of any apparent justification, they would be content to excise that proposed order from what the court might endorse.

8    The parties then made helpful submissions on both fronts. Both explained that the matter that was the subject of the ART Decision was one of some complexity. Mr Lye sought to explain that his personal circumstances are such as to require “…reasonable adjustments to enable effective participation in Tribunal proceedings”. He suggested that “[t]he earlier proceedings involved substantial difficulties concerning the identification, consideration and implementation of those adjustments”.

9    No meat was added to those proverbial bones. Although I should not wish to doubt what was submitted, I am not persuaded that Mr Lye’s situation is one that only a senior or presidential member of the Tribunal can accommodate.

10    Both parties indicated that they were content for this question (concerning the constitution of the Tribunal upon remittal of the underlying matter) to be determined by the court as it sees fit. It is appropriate to require that the Tribunal be constituted otherwise than as it was for the purposes of the ART Decision; but I am otherwise of the view that its constitution for the purposes of the remitter is and should remain a matter for its President.

11    I shall make orders in the form proposed jointly by the parties, amended in the light of the observations above.

Associate:

Dated:    15 October 2026