DVFW and Comcare (Compensation) - [2024] AATA 3051

DVFW and Comcare (Compensation) [2024] AATA 3051 (24 July 2024)
GENERAL DIVISION
File Number(s): 2021/3339
2022/8594
2022/8738
2023/1130
2023/1131
2023/1132

Re:DVFW
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:24 July 2024
Place:Canberra

1. The amendments in Part 2, Schedule 3 of the Fair Work Legislative Amendment (Closing Loopholes) Act 2023 are not applicable.
2. As DVFW’s rights to compensation have been suspended under s 57(2) of the Safety, Rehabilitation and Compensation Act 1988, the proceedings in the Tribunal are stayed until the notice issued on 28 May 2024 under s 57(1) of that Act is complied with.
…[SGD]………………………………………
Mr S. Webb, Member
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – suspension of entitlements to compensation in respect of injury – notice of requirement to undergo medical examination – failure to undergo examination – reason for failure not found to be reasonable – suspension of compensation pending compliance – applicability of Fair Work Legislation Amendment (Closing Loopholes) Act 2023 – amendments not applicable – suspension decision not reviewable – Tribunal’s jurisdiction conditioned by reviewable decision – no reviewable decision – no authority to evaluate reasonableness of excuse – proceedings stayed until notice complied with
Legislation
Administrative Appeals Tribunal Act 1975, s 25
Fair Work Legislation Amendment (Closing Loopholes) Act 2023 s 2, Schedule 3
Safety, Rehabilitation and Compensation Act 1988, ss 16, 24, 36, 37, 57, 57A, 60, 61, 62, 64
Cases
Australian Postal Corporation v Nunez [2014] FCA 1095
Plaintiff M47-2012 v Director General of Security [2012] HCA 46
Telstra Corporation Ltd v Administrative Appeals Tribunal [2003] FCA 102

REASONS FOR DECISION
Mr S. Webb, Member
24 July 2024

The Applicant, “DVFW”, successfully claimed compensation in respect of a work injury. Disputation arose over DVFW’s entitlements to compensation in respect of the injury. In a series of determinations and reconsideration decisions, Comcare refused DVFW’s claims for payment of compensation in respect of medical treatment under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and permanent impairment under s 24 of the SRC Act. DVFW applied for review of 6 reconsideration decisions by the Tribunal.
In the course of the proceedings, Comcare required DVFW to undergo an independent medical examination. DVFW did not undergo the examination. Comcare decided DVFW did not have a reasonable excuse for the failure to undergo the examination and consequently suspended DVFW’s compensation payments. DVFW does not agree with Comcare’s decision.
In these circumstances, the Tribunal’s jurisdiction to proceed must be determined.
Short facts
On 28 May 2024, Comcare gave written notice to DVFW which included the following:
Pursuant to section 57 of the SRC Act, Comcare requires you to undergo an examination by a legally qualified medical practitioner as follows:
Practitioner: Dr Patricia Jungfer, Psychiatrist
Time/Date: Monday, 3 June 2024 at 1:30pm
Mode: By video
The medical examination with Dr Jungfer on 3 June 2024 (the Examination) has been arranged in relation to your claim for compensation for the accepted condition generally and to address the issues that are before the Administrative Appeals Tribunal (Tribunal) in applications 2021/3339, 2022/8594, 2022/8738, 2023/1130, 2023/1131 and 2023/1132.
…
Should you not attend the Examination, or in any way obstruct the Examination, please provide Sparke Helmore or Comcare with any explanation or evidence you wish to present as your excuse by no later than 5pm on 10 June 2024. Comcare may proceed to make a decision under s 57(2) of the SRC Act on or after 11 June 2024 without reverting to you again, and based only on the information it has before it as at 5pm on 10 June 2024.
Please note that pursuant to s 57(5) of the SRC Act, where an employee’s right to compensation is suspended under s 57(2), compensation is not payable in respect of the period of the suspension.[1]
[1] Exhibit 1, item 1.1.
On 3 June 2024, DVFW did not attend the appointment with Dr Jungfer. I understand DVFW’s support person was not available, but there may have been other reasons for the failure to attend. The reasonableness of DVFW’s failure to undergo the examination is not the subject of this decision.
On 7 June 2024, Comcare informed DVFW of its preliminary view that “your apparent choice to not make arrangements for a support person at the Examination on 3 June 2024 may not constitute a reasonable excuse for non-attendance”.[2]
[2] Ibid, Item 1.2, page 4.
On 14 June 2024, the Tribunal listed a directions hearing on 21 June 2024.
On 20 June 2024, Comcare issued the following decision:
I conclude, in relation to the accepted condition, that:
(1) You made a claim for compensation under s 54 of the SRC Act.
(2) Comcare decided under s 57 of the SRC Act that you were required to undergo an examination by a legally qualified medical practitioner nominated by Comcare, being an examination with Dr Patricia Jungfer, psychiatrist (the s 57(1) Decision). The s 57(1) Decision was made on 28 May 2024 and was sent to you by email on 28 May 2024.
(3) The s 57(1) Decision creates an ongoing requirement for you to undergo an examination with Dr Patricia Jungfer, psychiatrist, unless the decision is revoked. The s 57(1) Decision has not been revoked.
(4) Arrangements were made for you to undergo the examination required by the s 57(1) Decision on 3 June 2024 at 1.30pm (Examination arranged for 3 June 2024).
(5) You failed, without reasonable excuse, to undergo an Examination arranged for 3 June 2024.
(6) The s 57(1) Decision continues to require you to attend the examination with Dr Jungfer.
(7) Under s 57(2) of the SRC Act your rights to compensation under the SRC Act, in relation to the accepted condition, and to institute or continue any proceedings under the SRC Act in relation to compensation, are suspended until the examination with Dr Jungfer takes place (the suspension).
(8) The suspension will operate from the calendar day after this letter is sent to you at your usual email address for correspondence which you have continued to use for electronic communications with Comcare and its representatives up to and including 12 June 2024, being: [XXX]
(9) I have authorised this letter to be sent to you by email on 20 June 2024. Your compensation payments will therefore continue until COB 20 June 2024 and thereafter be suspended.[3]
[3] Ibid, letter dated 20 June 2024.
The Tribunal rescheduled the directions hearing to 28 June 2024. The parties were directed to provide written submissions addressing the Tribunal’s jurisdiction to consider whether or not DVFW had a reasonable excuse for failing to undergo the medical examination on 3 June 2024.
Each party made written submissions and addressed the applicability of amendments to the SRC Act following passage of the Fair Work Legislative Amendment (Closing Loopholes) Act 2023 (FWLA Act). The question of applicability was heard during an interlocutory hearing before me on 8 July 2024.
Two issues arise for determination: a question of legislative construction, and the jurisdiction of the Tribunal.
Legislation
The Tribunal’s jurisdiction is conferred by legislation. Section 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides for applications to be made to the Tribunal:
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
The Tribunal’s jurisdiction under the SRC Act is conferred by s 64:
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a)the claimant; or
(b)if the decision affects the Commonwealth—the Commonwealth; or
(c)if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d)if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
(3) Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.
The term ‘reviewable decision’ is defined in s 60 of the SRC Act to mean ‘a decision made under subsection 38(4) or section 62’. Section 62 provides for the reconsideration of determinations and:
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
The present controversy arises under s 57 of the SRC Act. Prior to 14 June 2024, this section was in the following terms:
57 Power to require medical examination
(1) Where:
(a)a notice has been given to a relevant authority under section 53 in relation to an employee; or
(b)an employee has made a claim for compensation under section 54;
the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.
(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
(3) The relevant authority shall pay the cost of conducting any examination required under this section and is liable to pay to the employee an amount equal to the amount of the expenditure reasonably incurred by the employee in making a necessary journey in connection with the examination or remaining, for the purpose of the examination, at a place to which the employee has made a journey for that purpose.
(4) The matters to which the relevant authority is to have regard in deciding questions arising under subsection (3) include:
(a)the means of transport available to the employee for the journey;
(b)the route or routes by which the employee could have travelled; and
(c)the accommodation available to the employee.
(5) Where an employee’s right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.
(6) An employee shall not be required to undergo an examination under this section at more frequent intervals than are specified by the Minister by legislative instrument.
As can be seen, the section confers power on Comcare to require a claimant to undergo a medical examination and it operates to suspend the person’s rights to compensation under the SRC Act in certain circumstances until the person undergoes the examination. Prior to 14 June 2024, a decision under s 57 was not included in the definition of ‘determination’ in s 60(1). This means a decision to require a claimant to undergo an examination under s 57(1) and any related suspension under s 57(2) are not matters capable of reconsideration under s 62 and, consequently, review by the Tribunal.
The Tribunal’s jurisdiction in such cases is very narrow, and much narrower than cases involving suspension of rights in the context of a rehabilitation program under s 37(7) of the SRC Act, where such a decision is a ‘determination’ under the review provisions in Part VI of the SRC Act.
When dealing with matters arising under s 57 prior to 14 June 2024 in the context of review proceedings under the SRC Act, subject to the applicability of amendments introduced by the FWLA Act, the Tribunal is confined to satisfying itself of the factual circumstances under s 57 and determining that it has jurisdiction to proceed. The relevant facts are:
(a)the employee has been required to undergo a medical examination; and
(b)the employee has failed or refused to undergo, or obstructed, the examination; and
(c)the employee’s right to compensation has been suspended for want of a reasonable excuse for the failure, refusal or obstruction.
Section 57 was amended by Part 2, Schedule 3 of the FWLA Act. The amendments repealed subsection 57(6), and inserted new subsection 57(1A) and new section 57A:
(1A) In deciding whether to require an examination under subsection (1), the relevant authority must comply with the approved Rehabilitation Assessments and Examinations Guide.
Note: The Guide is prepared by Comcare under section 57A.
57A Guide for Arranging Rehabilitation Assessments and Requiring Examinations
(1) Comcare must, in consultation with the Commission, prepare a written document to be called the “Guide for Arranging Rehabilitation Assessments and Requiring Examinations” (the Guide).
(2) The object of the Guide is to support ethical, transparent and accountable decision‑making in relation to arranging a rehabilitation assessment of an employee under subsection 36(1), or requiring an employee to undergo an examination under subsection 36(3) or 57(1), including appropriate consideration of the employee’s personal circumstances.
(3) The Guide must:
(a)provide that, for the purposes of a rehabilitation assessment or examination of an employee:
(i)information in relation to the employee should be sought from the employee’s treating practitioner; and
(ii)the employee’s treating practitioner and the information (if any) provided by the treating practitioner should be relied on as much as possible before a referral is made to an independent medical practitioner, or other qualified person, in relation to the employee; and
(b)specify the circumstances in which it is appropriate to require an employee to undergo a rehabilitation assessment or examination; and
(c)specify limitations on the frequency and number of rehabilitation assessments or examinations that an employee may be required to undergo; and
(d)specify the qualifications of the person or, if required under section 36, the panel of persons who may conduct a rehabilitation assessment or an examination of an employee; and
(e)require the rehabilitation authority or the relevant authority (as the case requires) to seek, and take into account, the views of an employee, who is required to undergo a rehabilitation assessment or examination, about the selection of the person or, if required under section 36, the panel of persons who are to conduct the rehabilitation assessment or examination; and
(f)require that an employee who is required to undergo a rehabilitation assessment or examination be given a notice of the employee’s rights relating to the rehabilitation assessment or examination.
Note 1: For the purposes of paragraph (a), an employee’s treating medical practitioner may be nominated to conduct a rehabilitation assessment or examination of the employee.
Note 2: For the purposes of paragraphs (d) and (e), if a relevant authority requires an employee to undergo an examination under subsection 57(1), the examination must be conducted by one legally qualified medical practitioner nominated by the relevant authority.
(4) The Guide may provide for any other relevant matter.
(5) Comcare may, in consultation with the Commission, prepare a written document varying or revoking the approved Guide.
(6) A Guide prepared under subsection (1), and a document prepared under subsection (5), must be approved by the Minister.
(7) A Guide prepared under subsection (1) is a legislative instrument made by the Minister on the day on which the Guide is approved by the Minister.
(8) A document prepared under subsection (5) is a legislative instrument made by the Minister on the day on which the document is approved by the Minister.
Importantly, the FWLA Act also amended the definition of ‘determination’ in s 60(1) to include decisions made under s 57 of the SRC Act. Consequently, following commencement of the amendments, a ‘determination, decision or requirement’ made under s 57 is a ‘reviewable decision’ which may be reconsidered under s 62 of the SRC Act.
The commencement date for the amendments in Part 2, Schedule 3 of the FWLA is set out in item 26A of s 2(1) of the FWLA Act:

26A. Schedule 3, Part 2 The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. 14 June 2024

As can be seen, the amendments to s 57 and s 60 commenced on 14 June 2024.
Construction
The present controversy hinges on the construction of item 10, Part 2, Schedule 3 of the FWLA Act in respect of the application of the amendments:
The amendments made by this Part apply in relation to:
(a) a rehabilitation assessment of an employee that is arranged under subsection 36(1) of the Safety, Rehabilitation and Compensation Act 1988, if the assessment is conducted after the commencement of this Part (regardless of when the employee sustained the relevant injury, or when the assessment was arranged); and
(b) an examination that an employee is required to undergo under subsection 36(3) or 57(1) of the Safety, Rehabilitation and Compensation Act 1988, if the examination is conducted after the commencement of this Part (regardless of when the employee sustained the relevant injury, or when the requirement to undergo the examination was made).
In DVFW’s submission, item 10(b) must be construed to apply to a decision under s 57(2) where the person has failed or refused to undergo an examination after the commencement day, on 14 June 2024. Any other construction, DVFW argues, would be illogical and it would make a nonsense of the amendment as it would exclude a decision to suspend a claimant’s rights to compensation under s 57(2).
DVFW contends, if item 10(b) is construed to apply only where an examination is conducted after the commencement date, the amendments could never apply to decision-making under s 57(2). DVFW argues a decision under s 57(2) has a direct effect on a claimant’s rights to compensation, and it is for this important reason item 10(b) should not be construed to carve out such a decision from the application of the amendments in Part 2, Schedule 3 of the FWLA Act.
In DVFW’s submissions, where a decision is made under s 57(2) after the commencement day, the decision is a ‘determination’ which is subject to reconsideration and review under Part VI of the SRC Act. DVFW argues the clear intention of the Parliament is to include such a decision in the defined meaning of ‘determination’, such that an application for reconsideration or review can then be made. DVFW draws support from the draft Guide for Arranging Rehabilitation Assessments and Requiring Examinations.
DVFW asserts the amendments apply to Comcare’s suspension decision on 20 June 2024, such that this decision is a ‘determination’ under s 60(1).
Comcare does not agree. Comcare asserts the construction advanced by DVFW does not align with the plain language of item 10(b). Comcare contends DVFW’s preferred construction requires the phrase ‘the examination is conducted after the commencement’ to be read as ‘the examination is to be conducted after the commencement’. Comcare argues it is not appropriate to insert words into the legislative text and there is no justification to do so.
In Comcare’s submission, on a plain reading of item 10, there is no ambiguity in the language and the terms used. The text, context and purposes of the amendments guide construction. Comcare construes the language of item 10(b) to mean the application provision only applies where a requirement to undergo an examination under s 57(1) of the SRC Act is extant on commencement and the requirement is met thereafter. Approached in this way, Comcare submits the amended meaning of ‘determination’ under s 60(1) applies to s 57 as a whole. Comcare cavils with the proposition the amendments should be construed to apply to the decision under s 57(2) in DVFW’s case where they do not apply to the preceding decision under s 57(1). A construction of this kind, Comcare argues, is not consistent with the plain language of item 10(b) and it would subvert the clear purposes of item 10.

Comcare contends the threshold in item 10(b) applies in respect of s 57 processes which straddle the commencement of the amendments in Part 2, Schedule 3 of the FWLA Act. Comcare argues the amendments do not apply where the requirement for a claimant to undergo an examination is imposed under s 57(1) before commencement and the claimant refuses or fails to undergo the examination, and the (pre-commencement) requirement to do so remains unmet after the commencement date. Where the requirement to undergo an examination is determined after commencement, Comcare accepts a subsequent decision under s 57(2) would be a ‘determination’ susceptible to reconsideration and review.
Comcare contends this construction is consistent with the unambiguous language and the evident purposes of the amendments in respect of s 57 decision-making processes which began before commencement, namely to effectively quarantine cases where an existing requirement to undergo an examination was not met on and after commencement. In such circumstances, Comcare asserts the review regime which applied when the s 57(1) decision was made (before commencement) will continue to apply until the examination is conducted. In Comcare’s submission, the clear intention of the Parliament is to draw a straightforward distinction between decision-making processes under s 57 which began prior to commencement, where the requirement to undergo an examination remains unmet and no examination has been conducted, from s 57 decision-making processes which commenced after commencement or where the pre-commencement requirement to undergo an examination has been met after the commencement date.
Comcare argues the alternative construction contended for by DVFW would lead to inconsistency of application and unintended mischief in the operation of review provisions. Under the construction preferred by DVFW, Comcare asserts any claimant whose right to compensation was suspended under s 57(2) before the commencement date without right of merit review under s 62 of the SRC Act would be able to obtain merit review thereafter, even though the notice requirements under s 61 and the time limit in s 62(3)(b) would not previously have applied. This, Comcare argues, exemplifies the mischief which attends the construction pressed by DVFW.
To resolve these matters, the text of the amending provisions in Part 2, Schedule 3 of the FWLA Act must be read together with the provisions they affect in the SRC Act.[4] When read in this context, the natural meaning of the text and the purposes of item 10 can readily be understood.
[4] Plaintiff M47-2012 v Director General of Security [2012] HCA 46, per Hayne J at [162], citing Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320.
The text in respect of a rehabilitation assessment in item 10(a) and an examination in item 10(b) follows a consistent conceptual formulation. These provisions are contiguous. On commencement of Part 2, the amendments apply where there is an arrangement for an assessment or a requirement to undergo an examination, if the assessment or the examination is conducted thereafter.
In relation to an examination, the plain language of the text in item 10(b) sets out two preconditions for the amendments to apply:
(a)on commencement of Part 2, the employee is required to undergo an examination under s 36(3) or 57(1) of the SRC Act, and
(b)the examination is conducted after commencement of Part 2.
The word ‘is’ in this context imports currency to the subject action. The employee ‘is required’ to undergo an examination at the time of commencement of Part 2; the examination ‘is conducted’ after the commencement. In other words, the power to require an employee to undergo an examination under s 57(1) of the SRC Act has been exercised prior to the commencement of Part 2, and the resulting requirement is extant on the commencement day and of continuing effect until the examination is conducted thereafter. The conduct of the examination satisfies the requirement imposed under s 57(1). On a plain reading, the amendments apply where these preconditions are met.
This construction is reinforced by the statutory context. The amendments in items 4, 5, 6 and 8 of Part 2 make provision for an ‘approved Rehabilitation Assessments and Examinations Guide’ which a rehabilitation authority or a relevant authority must comply with when exercising the power under s 36(3) or s 57(1) of the SRC Act to require an employee to undergo an examination. There is no provision for the retrospective application of such a Guide where the power under s 57(1) was exercised prior to the commencement day.
By amending the definition of ‘determination’ in s 60(1), the amendment in item 9 includes decision-making under s 57 within Part VI of the SRC Act, which provides for reconsideration and review of decisions. Clearly enough, a decision under s 57 prior to the commencement day cannot have been made with reference to an ‘approved Rehabilitation Assessments and Examinations Guide’ determined after commencement. A construction which allows for a decision made under s 57 prior to commencement to be reviewed under amendments with effect from the commencement day is not preferred as it would serve to defeat the purposes of Item 10.
Clearly enough, item 10(b) is applicable to cases which straddle the commencement of the amendments in Part 2, where there is an ongoing requirement for an employee to undergo an examination at the date of commencement. The purpose of the item is to distinguish cases in which the amendments apply from those in which the amendments do not apply. In cases where there is an extant requirement to undergo an examination which has not been met at the time of commencement, the word ‘if’ conditions applicability of the amendments to those cases where an examination ‘is conducted’ after commencement of Part 2. The dividing line is drawn to exclude cases where the employee is subject to an extant requirement to undergo an examination at the time Part 2 commences but no examination has been conducted after the commencement.
This construction is reinforced by the purpose of item 10. As the headline of the item clearly expresses, item 10 is for the purposes of ‘Application of Amendments’. On commencement, the item applies, in terms, to the amendments in Part 2.
I do not accept DVFW’s argument if item 10(b) is construed in this way, it must follow that the amendments cannot apply after commencement in circumstances where an employee who is required to undergo an examination refuses or fails to do so, or obstructs the examination. This misconstrues the purpose of item 10(b), which is to specify the circumstances in which the amendments in Part 2 apply on commencement. Item 10(b) is conditioned by a requirement (to undergo an examination) which is extant at the time of commencement but it excludes a cohort of cases where the requirement is unmet after commencement, until such time that the examination is conducted. It preserves the regime which applied when the obligation to undergo an examination arose until the obligation is met.
Comcare is correct to cavil with the alternative construction DVFW prefers, which would require the insertion of words allowing the amendments to apply where an examination is ‘to be’ conducted, rather than actually conducted. Were this construction adopted, it would follow that in any case, however old, where an employee refused or failed to undergo an examination in the past and the requirement was ongoing at and after the date of commencement of Part 2, without an examination being conducted, the amendments in Part 2 would apply. This is directly contra to the plain language of item 10.
Furthermore, under the construction for which DVFW contends, difficulties would arise in the application of amendments in items 4, 5, 6 and 8 in respect of the ‘approved Rehabilitation Assessments and Examinations Guide’, and the amendment in item 9 in respect of the amendment of ‘determination’ and the application of the related reconsideration and review provisions in Division VI.
I do not accept there is ambiguity in the language of Part 2, and item 10 in particular, such that, on a plain reading, it would lead to illogical or unintended consequences. While it is unfortunately common for the language used in legislative drafting to be less clear than one might hope, no such difficulty arises in this instance. Meaning in this instance does not turn on ambiguity, rather it turns on understanding the plain language used in the legislative text in the context of Part 2 while maintaining a steady eye on the purposes of item 10.
Finally, Comcare’s acceptance that a decision under s 57(2) of the SRC Act after the commencement day would be a ‘determination’, and therefore within the scheme set out in Part VI of the SRC Act for reconsideration and review, is correct only where the requirement to undergo the examination is determined after the commencement of Part 2, or it is determined before the commencement day and the examination is conducted thereafter. In such a case, evaluation of the reasonableness of the employee’s excuse or reason for failing or refusing to undergo the examination, or for obstructing it, would be the focus of any reconsideration or subsequent review by the Tribunal. On this point it is not necessary to go further than to note an excuse under s 57(2) is one that is personal to the employee, and it cannot be provided by a decision-maker charged with evaluating the reasonableness of the employee’s excuse. [5]
[5] Telstra Corporation Ltd v Administrative Appeals Tribunal [2003] FCA 102 (Telstra v AAT) at [11]; Australian Postal Corporation v Nunez [2014] FCA 1095 at [65]-[66].
Jurisdiction in this case
The Tribunal’s jurisdiction in this case hinges on whether:
(a)under item 10, Part 2, Schedule 3 of the FWLA Act, the decision to suspect DVFW’s rights to compensation under s 57(2) is reviewable by the Tribunal; and if not
(b)the Tribunal has jurisdiction to review any part of the decision-making under s 57, including whether DVFW has a reasonable excuse for failing to undergo the examination on 3 June 2024.
As the requirement for DVFW to undergo an examination arose on 28 May 2024, and the requirement was extant on 14 June 2024, the amendments in Part 2, Schedule 3 of the FWLA Act apply ‘if’ an examination is conducted thereafter. The amendments will not apply until such time as DVFW meets the requirement and an examination is conducted. It is immaterial that the suspension decision was made on 20 June 2024, after commencement of Part 2, Schedule 3 of the FWLA Act.
Thus, presently, the amendments to the SRC Act which commenced on 14 June 2024 are not applicable in the particular circumstances of DVFW’s case. The 20 June 2024 decision under s 57(2) is not a ‘determination’.
I note in passing, even if the amendments were applicable (and they are not), the Tribunal would lack jurisdiction to review the suspension decision without a reconsideration decision being made under s 62 of the SRC Act. No such reconsideration decision has been made and, therefore, there is no ‘reviewable decision’.
The factual question of the suspension of DVFW’s rights to compensation under s 57(2) of the SRC Act on 20 June 2024 and the effect of the suspension on these proceedings are the sole matters which remain to be considered. This does not extend to evaluation of the reasonableness of DVFW’s excuse for failing to undergo the examination required by the notice issued under s 57(1) of the SRC Act on 28 May 2024. A review of that kind would only be possible on reconsideration or review of a ‘determination’ under s 57(2), as occurs in respect of a parallel determination under s 37(7) of the SRC Act.
I am satisfied the following relevant facts are established by the materials in Exhibit 1.
(a)On 28 May 2024, by notice under s 57(1), DVFW was required to undergo an examination by Dr Jungfer on 3 June 2024.
(b)The notice was issued in respect of claims DVFW made for medical treatment in relation to the ‘injury’ for which Comcare is liable under s 14 of the SRC Act. The claims are the subject of the applications presently proceeding in the Tribunal.
(c)On 3 June 2024, DVFW failed undergo the examination.
(d)DVFW provided Comcare with reasons for failing to undergo the examination, including the unavailability of a support person and medical opinion suggesting the examination was not appropriate or reasonable.
(e)On 20 June 2024, Comcare decided DVFW’s reasons for failing to attend the examination were not reasonable, whereupon by operation of s 57(2) DVFW’s rights to compensation were suspended.
The suspension affects DVFW’s rights to compensation, including their right to continue any proceedings under the SRC Act. As the Tribunal proceedings are in respect of DVFW’s entitlements to compensation under the SRC Act and the Tribunal’s jurisdiction is conferred by s 64 of the SRC Act, the suspension affects the proceedings.
Consequently, while the suspension is extant, the Tribunal proceedings cannot continue.
In these circumstances, following the form of order Kiefel J adopted in Telstra v AAT, by operation of s 57(2) of the SRC Act, the proceedings in the Tribunal are stayed until the notice issued on 28 May 2024 under s 57(1) of the SRC Act is complied with.

1. I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

...[SGD].......................................................
Associate
Dated: 24 July 2024

Date of interlocutory hearing:

Date final submissions received:

8 July 2024

5 July 2024

Applicant:

Counsel for the Respondent:

By MS Teams

Ms Sarah Wright