Le and Telstra Corporation Limited (Compensation) - [2025] ARTA 1906

Le and Telstra Corporation Limited (Compensation) [2025] ARTA 1906 (11 September 2025)
Applicant:Phuc Le
Respondent: Telstra Corporation Limited
Tribunal Number: 2022/6384; 2022/6469

Tribunal:Senior Member G McCarthy
Place:Canberra
Date:11 September 2025

Decision:The applicant’s applications in proceedings 2022/6384 and 2022/6469 are dismissed.

………[SGD]………….
Senior Member G. McCarthy
Catchwords
COMPENSATION – application to dismiss applicant’s applications for review of decisions declining compensation consequent on applicant’s failure to proceed with the applications within a reasonable time - applications suspended on 24 November 2023, consequent on applicant’s refusal without reasonable excuse to undergo an examination by a legally qualified medical practitioner nominated by the respondent – applicant offered examination on multiple occasions with three different practitioners over 12 month period but all arrangements refused – applicant repeatedly told his applications for review could proceed if he attended an examination, but applicant maintained refusal on basis his requirements for the examination not met – consideration of reasonableness of his requirements and whether not meeting his requirements constituted reasonable excuse for not undergoing examination – requirements not met were not reasonable, and accordingly no reasonable excuse for refusing examination – no prospect of future compliance with notice requiring applicant to undergo examination and so no prospect of the applications proceeding - no purpose served in the applications remaining on foot - applications dismissed
Legislation
Administrative Appeals Tribunal Act 1975 s 42A
Administrative Review Tribunal Act 2024 ss 9, 100
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Safety, Rehabilitation and Compensation Act 1988 s 57
Cases
Charara v Commissioner of Taxation [2016] FCA 451
DFVW and Comcare [2025] ARTA 117
Guerriero and Comcare [2017] AATA 2984
Longbottom v Nulis Nominees (Australia) Ltd [2020] WASC 21
NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588
Secondary Materials
Administrative Appeals Tribunal, Guide to the Workers Compensation Jurisdiction
Statement of Reasons

As can be seen by their matter numbers, the applicant’s initiating applications in these proceedings have been on foot for several years. They arose from a work injury suffered by the applicant on 20 December 2021 when he was pushing a trolley loaded with IT equipment up a ramp. The equipment on the top shelf of the trolley slid backwards and struck the applicant on both hands.
On 21 December 2021, the respondent accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for an injury described as ‘superficial cuts to both index fingers at the dorsal aspect’. On 14 January 2022, the respondent amended the description of the injury to add ‘mild joint effusion to the left wrist and sprain of the scapholunate ligament’ (the Injury).
The applicant received compensation for the cost of medical treatment in relation to the Injury under s 16 of the SRC Act and compensation for incapacity for work as a result of the Injury under s 19 of the SRC Act.
By email sent on 15 March 2022, the applicant made a claim for the development of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 1906
Decision Date: 11 September 2025

CaseChat Overview and Summary

Le brought an application to the Administrative Appeals Tribunal (AAT) against Telstra Corporation Limited in relation to a dispute regarding workers' compensation. The central issue was whether the AAT should dismiss Le's applications for review of decisions declining compensation due to his failure to proceed with the applications within a reasonable time. This failure stemmed from Le's refusal to undergo a legally qualified medical practitioner's examination, which was a prerequisite for the continuation of his applications. Despite multiple opportunities and offers to undergo the examination over a 12-month period, Le consistently refused on the basis that his requirements for the examination were not met. The AAT was tasked with determining whether Le's refusal to meet the requirements for the examination constituted a reasonable excuse and whether his refusal was justified.

The primary legal issue before the AAT was whether the applicant's refusal to undergo the required medical examination, despite repeated offers and accommodations, constituted a reasonable excuse for not proceeding with his applications within a reasonable time. The AAT also had to consider whether there was any prospect of future compliance with the notice requiring Le to undergo the examination and whether the applications should remain on foot. This involved examining the reasonableness of Le's requirements for the examination and the impact of his refusal on the progression of his applications. The AAT’s power to dismiss the application was discretionary and hinged on the totality of the circumstances, including the applicant's reasons for refusing the examination.

In its decision, the AAT found that Le's requirements for the examination were not reasonable and, therefore, did not constitute a reasonable excuse for his refusal to undergo the examination. The Tribunal concluded that there was no prospect of Le complying with the notice requiring him to undergo the examination in the future, and thus, no prospect of the applications proceeding. Given the passage of time and the lack of any reasonable excuse for Le's refusal, the AAT determined that the applications should be dismissed. The Tribunal held that there was no purpose served in allowing the applications to remain on foot, and therefore, it was appropriate to dismiss them.

The AAT dismissed Le's applications for review, suspending them on 24 November 2023 due to Le's refusal without reasonable excuse to undergo the required medical examination. The Tribunal found that Le's requirements for the examination were not reasonable, and his refusal constituted an unreasonable excuse. Given the circumstances, the AAT concluded that there was no prospect of the applications proceeding, and thus, the dismissal of the applications was justified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant asked the Tribunal to “disregard” the respondent’s request to close his case; to issue orders to ensure his claim is “unsuspended”; to direct the respondent to resolve his case “fairly, transparently, and efficiently”; to direct the respondent to accept the diagnoses and assessments of his treating surgeon specialists; to direct the respondent to acknowledge Dr Mourad’s findings were flawed; and to assess whether the respondent’s conduct breached “their good faith obligations” under the workers compensation scheme.Consideration The power under section 100(a) of the ART Act is exercisable if the applicant has failed to proceed with his applications “within a reasonable time”. The first question, therefore, is what constitutes a reasonable time. Whilst the Guide is no longer applicable, it being a document issued by the AAT which no longer exists, it still provides a useful frame of reference because section 100 of the ART Act is materially the same as section 42A(5) of the AAT Act. In particular, referring to paragraph 6.5, the Tribunal “will consider whether or not to dismiss the application” if the Tribunal is not advised “within a period of 3 months” following suspension of their compensation rights that the person has undergone the examination. In this case, 18 months have passed and I am satisfied there is no prospect of the applicant attending an IME otherwise in accordance with his repeatedly stated requirements and, it would seem, the further requirements he stated at hearing. Whilst the passage of time is a relevant consideration when determining whether to dismiss for failure to proceed, it is not the only consideration. By reason of the word “may”, the power to dismiss is discretionary. In my view, all relevant considerations need to be taken into account. In particular, for the purpose of determining whether the applicant’s applications should be dismissed, I considered the reasons for his refusal to attend an IME that led to the suspension of these proceedings. As mentioned in DVFW at [118], the Tribunal does not have jurisdiction to review the merits of the decision to suspend but it can (and in my view should) consider the facts and circumstances that led to the suspension for the purpose of determining the dismissal application. In particular, the Tribunal can consider whether the applicant had a reasonable excuse for not attending any of the scheduled and intended examinations for the purpose of determining the dismissal application. I draw support for that view from the following observations of the AAT in Von Stieglitz and Comcare [2012] AATA 2012:If Ms von Stieglitz refuses or fails to undergo the examination and seeks to advance her review proceedings, it will then be necessary for the Tribunal to determine whether or not it has jurisdiction to proceed with her application. In that context, and for that purpose, alone, it will be necessary for the Tribunal to determine the jurisdictional facts, namely whether Ms von Stieglitz refused or failed to undergo a medical examination required under s 57(1), and if so, whether she had a reasonable excuse for refusing or failing to do so in the particular circumstances, having regard to the “text, context and purpose” of the section.[12][12] [2012] AATA 2012 at [29]