Parties who agree that a tribunal decision should be set aside cannot necessarily dictate the seniority of the members who hear the case again.
The Federal Court made that distinction on October 15 in Lye v Comcare, a challenge to an Administrative Review Tribunal decision. The parties agreed the decision involved legal error and proposed a rehearing before a senior member or deputy president.
Justice Snaden accepted that the decision should be set aside, but declined that part of their proposal. Complexity alone did not justify the requested restriction. Nor was he persuaded that the applicant’s need for participation adjustments could be accommodated only by a senior or presidential member.
The case must return to a differently constituted tribunal. Beyond that requirement, its composition remains a matter for the tribunal’s president.
The appeal was allowed, the July 1 decision set aside and each party left to bear its own costs. The order does not finally determine the compensation dispute.
Official judgment, Lye [2026] FCA 1517.
