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 complex regional pain syndrome (CRPS) in both hands which, he said, had arisen from the accident on 20 December 2021.[1]
[1] T 39/163
By letter dated 29 March 2022, the respondent denied liability under the SRC Act for the claimed CRPS.[2]
[2] T 46/198
By separate letter also dated 29 March 2022, the respondent advised the applicant of its view that the Injury had resolved and therefore, as of that date, it was no longer liable to pay compensation to the applicant under s 16 and/or s 19 of the SRC Act.[3]
[3] T 47/201
By letter dated 14 May 2022, the applicant applied for reconsideration of the respondent’s denial of liability for the CRPS.[4] By separate letter of the same date, he applied for reconsideration of the respondent’s decision that it was no longer liable to pay compensation for the Injury.[5]
[4] T 54/212
[5] T 55/215
By separate letters both dated 9 June 2022, the respondent affirmed its decisions made on 29 March 2022 denying liability for the claimed CRPS[6] and its denial of liability to pay compensation for the Injury from 29 March 2022.[7]
[6] T 56/216
[7] T 57/222
By application filed on 10 August 2022, the applicant applied to the Administrative Appeals Tribunal (the AAT) for review of the respondent’s decision to deny liability for the CRPS.[8] That application became the subject of proceeding 2022/6384.
[8] T1/1
By separate application also filed on 10 August 2022, the applicant applied to the AAT for review of the respondent’s decision to deny liability to pay compensation for the Injury from 29 March 2022.[9] That application became the subject of proceeding 2022/6469.
[9] T2/6
For the purpose of responding to the applicant’s applications to the AAT, pursuant to s 57(1) of the SRC Act, the respondent was entitled to require the applicant to undergo an examination by a legally qualified medical practitioner nominated by it. In the event of a refusal or failure to undergo the examination, s 57(2) states:
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.
As detailed below, over many months stretching into years the respondent liaised with the applicant without success regarding his required attendance on a medical practitioner for an examination. Consequent on the applicant’s repeated refusal to attend an examination otherwise than on his own terms, the proceedings have been suspended since November 2023. On 3 July 2025 the respondent applied for both applications to be dismissed (the dismissal application) pursuant to s 100(a) of the Administrative Review Tribunal Act 2024 (the ART Act). Section 100(a) provides:
100 Tribunal may dismiss application if applicant fails to comply with order etc.
The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:
(a) proceed with the application;
For the reasons that follow, I am satisfied the dismissal application should be granted. I begin with a summary of the relevant facts.
On 6 October 2022, the respondent informed the applicant that it would be requiring him to attend an independent medical examination (IME) with Dr Mourad, an orthopaedic surgeon, on 6 December 2022. On 25 November 2022, the respondent sent the applicant a letter confirming the arranged examination and asked for confirmation the applicant would attend.
On 30 November 2022, the applicant replied that he was not available on 6 December 2022 at the allocated time but “may be available at 5PM between the 19-22 December 2022 but to be confirmed or early in Jan 2023 at 5 PM”. The applicant added that he would be happy to attend provided what he described as “the following reasonable and necessary requirements of health and safety are met”. These were the taking of a professional video recording if the examination was conducted in person, a copy of which was to be provided to him the same day; allowing the attendance of a support person; and allowing him or his support person to make video and audio recordings “using multiple devices”. The examination by Dr Mourad on 6 December 2022 did not proceed and an examination by Dr Mourad was not pursued.
On 19 January 2023, the applicant wrote to the AAT in an email, not copied to the respondent, contending the respondent’s request that he undertake another IME “appears irrelevant and unreasonable” because it was over one year since his injury occurred. He stated he “no longer [felt] comfortable proceeding with an IME” and requested the AAT to determine his case based on the information “at hand or which will be provided upon request if I deem the request to be suitable and reasonable”.
On 20 January 2023, the respondent informed the AAT and the applicant that it was seeking instructions about the applicant undergoing an examination by a different medical practitioner.
The respondent submitted, and I accept, that on 22 January 2023 the applicant sent a reply to the respondent noting it had not addressed his reasonable and necessary requirements to address his health and safety concerns; that he no longer felt comfortable proceeding with an IME; that he did not consider it a necessary or a reasonable request; that he could provide an update on his current medical condition from his own treating practitioner; and that he had requested the AAT to make a determination on his case based on the information it held.
The applicant’s requests to the AAT prompted a directions hearing on 31 January 2023 and a conference on 14 February 2023 at which time the respondent advised it had arranged for the applicant to attend an examination by a rheumatologist, Dr McGill, on 27 April 2023. This led the applicant to enquire whether Dr McGill would agree to provide an opinion based on documents sent to him or whether he would require an examination of the applicant in person; whether Dr McGill would agree to a support person attending the appointment; if so, whether the respondent would pay travel expenses for the applicant’s wife to attend the appointment; and whether Dr McGill would permit the applicant to record the appointment.
By email sent on 5 April 2023, the respondent provided the applicant with a notice requiring him to attend an appointment with Dr McGill on 27 April 2023 in Sydney and informed him that if he refused or failed to undergo the examination without reasonable excuse his rights to compensation or to continue the proceedings under the SRC Act would be suspended until the examination takes place.
In the same email, the respondent informed the applicant it would arrange flights for him to and from Sydney or reimburse him for reasonable expenses if he preferred to drive; that Dr McGill was happy for the applicant’s wife to attend as his support person; that if he drove it would reimburse him for reasonable fuel and meal expenses for him and his wife; and that Dr McGill agreed to the appointment being recorded by audio but not by video.
On 9 April 2023, the applicant corresponded with the respondent but not about the proposed appointment.
On 20 April 2023, the respondent emailed the applicant seeking confirmation of whether he would be attending the appointment on 27 April 2023 but did not receive a response.
The applicant did not attend the appointment with Dr McGill and did not provide any notice of his intention not to attend.
On 30 April 2023, the applicant emailed the respondent stating he would be happy to attend an IME provided his “reasonable and necessary requirements of my health and safety concerns” are met, which repeated the requirements stated in his email of 30 November 2022 noted above, and added three further requirements, namely that it be “a local IME Specialist in Canberra”, “not anyone from MLCOA[10] or Dr Mourad” and he be compensated for reasonable loss of income incurred whilst attending the IME.
[10] MLCOA is a large Australia-wide organisation that organises independent medical assessments
On 2 May 2023, the respondent sought an explanation from the applicant as to why he did not attend the appointment with Dr McGill on 27 April 2023.
On 6 May 2023, the applicant replied by stating he did not attend because the respondent had not addressed “all my health and safety concerns raised on the 22 January 2023”.
The applicant’s reason, in my view, was not a reasonable excuse. As best I can ascertain, the respondent and Dr McGill had agreed to all the applicant’s concerns save for a recording of the appointment being made by audio but not video. I see no proper basis, nor was anything put forward, for why it was unreasonable for Dr McGill not to agree to a video recording of the examination. Even if a video might have improved the openness and transparency of the examination, as the applicant claimed, that does not make it unreasonable for Dr McGill not to agree: medical examinations are routinely conducted without a contemporaneous recording of any kind being made.
Also, if the applicant remained unwilling to attend the appointment by reason of the recording being by audio only, he could and should have said so. Instead, he said nothing.
That the applicant did not feel comfortable about a further IME was not a reasonable excuse not to attend. In NRJT v Australian Offshore Solutions Pty Ltd [2015] AATA 588 (NRJT), the AAT per DP Kendall said:
66. As noted in Re Twaddell and Comcare (2001) 65 ALD 794 “the context of a medico-legal examination organised by the opposing party is almost always going to be an uncomfortable and potentially unpleasant experience for an applicant.”
67. This does not mean, however, that non-attendance is reasonable. There is no evidence to suggest that, had the Applicant requested that a friend or doctor attend with him at the offices of Dr Terace on 15 July 2014, Offshore Solutions would have refused such a request.
That the applicant thought the AAT could decide his case with the medical evidence he had provided, without receiving medical evidence the respondent might wish to provide, was not a reasonable excuse for not attending the IME. The respondent had a statutory right to require the applicant to undergo an IME to obtain medical evidence it might wish to provide.
On 17 May 2023, the respondent informed the applicant it had rescheduled an examination with Dr McGill to occur on 23 August 2023 and attached a notice issued under s 57(1) of the SRC Act requiring his attendance and again informing him that if he refused or failed to undergo the examination without reasonable excuse, his right to continue these proceedings would be suspended.
On 29 May 2023, the applicant stated he would be happy to attend an IME provided his “reasonable and necessary requirements of [his] health, safety, and well-being concerns”, as stated in his response sent on 30 April 2023, were met. The applicant then added two further requirements, namely the respondent provide him with the proposed practitioner’s curriculum vitae and a “University Degree Certificate” and the practitioner “be qualified as an orthopaedic specialist and who specialises in CRPS”. The applicant objected to attending an IME with Dr McGill who is a rheumatologist, not an orthopaedic surgeon.
On 5 June 2023, the respondent informed the applicant it did not consider his requirements in his email of 30 April 2023 to be reasonable and asked the applicant to confirm within 14 days whether he would be attending the rescheduled appointment on 23 August 2023.
On 12 June 2023, the applicant replied by stating he did not appreciate being asked for a response within 14 days; contended that for reasons of “due process and procedural fairness” he should have “at least 28 days” to respond; queried the purpose of the respondent’s letter dated 5 June 2023 where he had already stated his position; and queried the purpose or relevance of an IME to be conducted about 18 months after the Injury occurred.
The applicant did not state whether he would attend the rescheduled appointment, which led to the respondent again asking on 14 June 2023 to confirm whether he would attend the appointment. The respondent added that a purpose of its notice issued under s 57(1) of the SRC Act requiring the applicant to attend was to:
Put you squarely on notice that Telstra may suspend your rights to compensation and to continue with these proceedings if you refuse or fail to attend the appointment without providing an excuse that is considered to be reasonable.
The applicant replied on 18 June 2023, contending the respondent must tell him in writing why he must attend another IME 18 months after the Injury and asserted a “right” of procedural fairness that he had at least 28 days to respond. The basis for this alleged right was not explained, nor am I aware of any basis for it. How long a person should have to respond is a question of fact according to the circumstances of the request. In my view, 14 days was ample time for the applicant to answer the question.
The applicant also stated that after receiving advice as to why he needed to attend an IME 18 months after the Injury occurred he would “review” and make a decision whether to attend.
On 6 July 2023, the respondent stated it did not need to provide any justification for why it required him to attend an IME and that he was required to do so under s 57 of the SRC Act. The respondent stated that at the AAT conference on 5 October 2022, at the directions hearing on 31 January 2023 and at the second conference on 16 February 2023, the AAT “confirmed” to him that his attendance at the arranged IME was “appropriate and reasonable”. The respondent did not agree the applicant should have 28 days in which to respond where the respondent had been discussing the issue with him for the previous 9 months. It asked the applicant to confirm by 21 July 2023 whether he intended to attend the appointment with Dr McGill on 23 August 2023.
The applicant did not advise his intentions either way. Instead, on 26 July 2023, the applicant responded by saying the respondent had “avoided and failed” to provide written answers to his questions set out in his email of 18 June 2023 and repeated the content of that email.
In early August 2023 Dr McGill advised he was no longer available to conduct the scheduled examination, but that had no bearing on the applicant’s position. He was still to advise whether he would attend the appointment and was still seeking answers in writing to his questions about why he should attend the IME, following receipt of which he would “review” whether he would attend.
On 14 September 2023, the respondent advised the applicant it had arranged an IME with yet another medical practitioner, this time with Dr Reiter, a rheumatologist in Canberra, on 10 October 2023. It asked the applicant to confirm whether he would attend.
The applicant did not reply and so on 21 September 2023, the respondent sent the applicant a notice under s 57(1) of the SRC Act requiring him to attend the appointment with Dr Reiter on 10 October 2023 and asked him to confirm by 29 September 2023 whether he would attend.
The respondent also attached a letter dated 20 September 2023 to the applicant in which it explained the purpose of the IME, namely the AAT needed to determine whether the applicant continued to suffer the effects of a compensable condition, “among other things”, and required “current medical evidence” to assist it in doing so.
On 22 September 2023, the applicant sent an email asking the respondent to address “all his concerns” as set out in his email of 18 June 2023. He stated that on receipt he would “review”, but did not state whether he would attend the appointment with Dr Reiter.
On 24 September 2023, the respondent referred to its letter of 20 September 2023 as to why the IME was necessary and again asked him to confirm whether he would attend.
On 27 September 2023, the applicant wrote to the respondent contending it already held all his medical records under summons; that if the AAT needed “current medical evidence”, it can request it from him; the respondent was not being open and transparent by not telling him what the “among other things” are for why the IME was necessary; and requested the respondent to cancel the IME appointment scheduled for 10 October 2023 “until further notice”.
The applicant did not attend the IME scheduled for 10 October 2023.
The respondent made yet another attempt to arrange an IME with the applicant by rescheduling the examination by Dr Reiter to occur on 7 November 2023. On 2 November 2023, it issued yet another notice under s 57(1) of the SRC Act and directed him to attend the appointment on 7 November 2023.

By letter dated 6 November 2023, the applicant contended the respondent had failed to provide him with “due process and procedural fairness” by not giving him 28 days to respond; repeated his claim that the AAT already held all his medical records; repeated his claim that if the AAT wanted “current medical evidence” it can request it from him; repeated his claim about lack of transparency because the respondent was not telling him what the “among other things” are for why the IME was necessary; and concluded by asking the respondent to cancel the IME appointment on 7 November 2023 “until further notice”.
The applicant did not attend the IME scheduled for 7 November 2023.
By this stage, the respondent had made five attempts to arrange an IME with three different doctors without success. By letter dated 24 November 2023, it advised the applicant that his rights to compensation under the SRC Act and to continue with these proceedings were suspended. The letter informed the applicant that “the suspension will cease once you attend an independent medical examination, as detailed below” and then told him an appointment with Dr Reiter had been rescheduled for 5 December 2023 at 12.30pm.
Notwithstanding the suspension, the applicant did not change his position. By letter dated 2 December 2023, he repeated the position stated in his letter dated 6 November 2023 and asked the respondent to cancel the IME scheduled for 5 December 2023 “until further notice”. He did not attend the scheduled appointment.
At the same time he was refusing to attend an IME, the applicant was asking the AAT to list his applications for hearing, per his emails sent on 20 November and 2 December 2023. By email sent on 4 December 2023, the AAT informed the applicant that whilst the proceedings were suspended “the Tribunal cannot consider your request for a substantial hearing”. Still the applicant would not agree to attend an IME.
On 19 December 2023, the respondent wrote to the applicant stating the proceedings would remain suspended until he attended an examination by a legally qualified medical practitioner nominated by it and advised a further appointment will be arranged in January or February 2024. It asked if he would attend, but the applicant did not respond to the question despite a further email on 28 January 2024 asking for a response.
Instead, by emails sent on 8 and 14 December 2023, the applicant asked the respondent on what authority the proceedings were suspended. Why he was asking was unclear. In several pieces of earlier correspondence to the applicant, for example its letter dated 20 September 2023, the respondent had repeatedly stated that under s 57(2) of the SRC Act, where an employee refuses or fails without reasonable excuse to undergo an examination, their rights to compensation or to continue proceedings in the AAT are suspended until the examination takes place.
The applicant made the same enquiry of the AAT, for example his emails sent on 19 February and 30 September 2024, and received the same answer, for example the AAT’s emails to the applicant sent on 20 February and 4 October 2024 stating the effect of s 57(2) of the SRC Act.
On 14 October 2024, the respondent again asked the applicant if he would attend a medical examination if one were scheduled “so that the proceedings will be able to continue”, but (the respondent said) the applicant did not respond.
On 14 October 2024 the Administrative Appeals Tribunal Act 1975 (the AAT Act) was repealed and, consequently, the AAT ceased to exist. The ART Act, which established this Tribunal, commenced on the same day. Pursuant to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, this Tribunal took over the AAT’s role and functions in relation to these proceedings.
On 25 November 2024, the applicant sent an email to the Tribunal and to the respondent in which he contended the respondent was not providing him with the “real Reasons” it wanted him to attend an IME; that the real reasons were provided at the conference on 15 September 2022 (although it was not stated what those reasons were or are); and criticised the Tribunal for not proceeding with his applications. With respect, the Tribunal was unable to do so. As the Tribunal twice explained to the applicant, it could not proceed with his applications because they were suspended pursuant to s 57(2) of the SRC Act.
On 17 April 2025, the respondent wrote to the applicant, noting it was yet to receive any response to whether he would attend an IME and informed him that if he did not intend to attend a further IME or to engage with the respondent about the matter it may request the Tribunal to dismiss his applications, noting the proceedings had been suspended by that stage for approximately 18 months.
Still the applicant would not agree to attend an IME. On 19 June 2025, the respondent applied for the applicant’s applications to be dismissed under s 100(a) of the ART Act. The Tribunal heard the respondent’s application for dismissal on 4 August 2025.
The respondent’s submissions
The respondent filed and served written submissions on 3 July 2025. It noted the events set out above in support of its dismissal application. It noted that the Tribunal has an obligation under s 9 of the ART Act to progress matters in a timely manner. The respondent noted it had scheduled appointments with three different proposed legally qualified medical practitioners on 6 December 2022, 27 April 2023, 23 August 2023, 10 October 2023, 7 November 2023, and 5 December 2023 all without success. It noted its continuing offer to arrange an examination and the applicant’s continuing refusal to attend.
The respondent submitted that if the applications were not dismissed, the proceedings would invariably revert to their present state and remain suspended indefinitely.
The respondent referred to the AAT’s Guide to the Workers Compensation Jurisdiction dated September 2013 and updated in July 2015, both of which at paragraph 6.5 provided that where a proceeding has been suspended under s 57(2) of the SRC Act and the AAT has not been advised within three months that the applicant in the proceeding has undergone the required medical examination, the AAT will consider whether or not to dismiss the application under s 42A(5) of the AAT Act. Section 42A(5) stated:
If an applicant for a review of a decision fails to do either of the following within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
The respondent noted that s 42A(5)(a) is materially identical to s 100(a) of the ART Act.
The respondent submitted that whilst an equivalent Guide has not been issued by the ART, the principles stated in paragraph 6.5 still provide a useful frame of reference as to when the power to dismiss should be considered, noting in this case the applications have been suspended for more than 18 months. In support, it drew on the Tribunal’s decision in DVFW and Comcare [2025] ARTA 117 (DVFW) at [118] where the Tribunal accepted that submission.
The applicant’s submissions
The applicant provided a written submission dated 27 July 2025. He noted s 57(2) of the SRC Act applies only when a person fails or refuses to attend an appointment “without reasonable excuse”. He submitted the proceedings were not, should not be or have not been suspended because he had a “reasonable excuse” for not attending the “employer-nominated IME appointments”.
In response to the proposed examination by Dr Mourad, the applicant contended an examination by Dr Mourad that he attended in February 2022 was “clearly incompetent” and then detailed his criticisms of Dr Mourad’s examination and report. He described it as “insult to injury” that Dr Mourad would not permit the applicant’s wife to attend the examination to support him.
In relation to the proposed examination by Dr McGill, the applicant relied on three claimed reasonable excuses. First he submitted it was not reasonable to require him to attend because Dr McGill is a rheumatologist which the applicant described as “an unrelated specialty”. He submitted the examination should be conducted by an orthopaedic surgeon who specialised in CRPS. Second, he relied on the respondent’s failure to meet his claimed health and safety requirements. Third, he relied on adverse comments about Dr McGill that he had found on the Internet.[11]
[11] Applicant's submissions dated 27 July 2025 at Appendix 4
In relation to the proposed examination by Dr Reiter, the applicant described it is unreasonable because, he said, Dr Reiter worked in Dr Mourad’s medical practice which, he said, demonstrated “a clear professional conflict-of-interest”. He relied also on her specialty as a rheumatologist that, he said, was not a suitable specialty.
The applicant described the amount of time the respondent, and more recently the Tribunal, have allowed to pass is “now so egregious” that any doctor conducting a further IME “could not properly fully and accurately evaluate the early severity of my symptoms”. He contended the early evidence from specialists that he had arranged are “the best and only credible insights” into the early state of his condition and, on that basis, asked the Tribunal to direct the respondent to accept that evidence and to process his claim.
At hearing on 4 August 2025, the applicant said he would “be happy to consider” attending an examination by someone qualified in CRPS on stated conditions:
(a)the respondent must not write a “coaching letter”, as he described it, setting out what it wanted the examining doctor to answer;
(b)the respondent must not have any discussion with the examining doctor to eliminate any risk the respondent would ‘coach’ the doctor; and
(c)no one from the respondent, including the respondent’s solicitor, could communicate with the examining doctor.
At hearing, the applicant confirmed his view that the questions asked of previous specialists arranged to examine the applicant were unacceptable.
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]
On the evidence, the applicant’s refusal to attend any of the scheduled IME’s is clear. The question is whether he had a reasonable excuse for not attending. In NRJT, the AAT discussed the meaning of “reasonable excuse”, albeit in the context of section 66(2) of the Seafarers Rehabilitation and Compensation Act 1991, but that section is materially identical to section 57(2) of the SRC Act.
In NRJT, DP Kendall said:
THE MEANING OF “REASONABLE EXCUSE”
“Reasonable excuse” is not defined in the Act. There is, however, considerable authority on this issue. As always, the meaning and effect of the phrase is fact specific.
In Fazlic v Milinginbi Community Inc 38 ALR 424 the High Court considered whether an applicant’s refusal to have a recommended operation to his injured back should have resulted in his losing his entitlement to further compensation payments as had been held by the Supreme Court of the Northern Territory and the Federal Court. The High Court allowed the applicant’s appeal on the basis that the reasonableness of the applicant’s refusal, judged in the light of his knowledge at the time, is the criterion to determine whether that refusal was reasonable. The court held that the applicant had been given minimum information and in the light of that minimum information about the operation his refusal to undergo the operation was a reasonable refusal.
In Taikato v The Queen [1996] HCA 28; (1996) 186, the High Court held the question of whether there is a “reasonable excuse” depends upon the circumstances of the individual case and also upon the purpose of the provision which has a defence of reasonable excuse:
[18] A reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person. It is different from a lawful excuse but, as has already been noted, it is difficult to conceive of an unlawful purpose which would constitute a reasonable excuse. Reasonableness provides a test which is well-known in both criminal and civil law and, though it may involve a judgment of degree, has a ready application in widely differing circumstances. The fact that the test of reasonableness frequently involves a question of degree so that minds may differ upon the answer does not relieve a tribunal of the duty to apply the test where that is the test laid down and does not justify confining its scope for the sake of greater precision or certainty.
Whether the refusal or failure to attend a medical examination may be excused because the refusal or failure was reasonable is to be assessed on an objective basis. In McKinnon v Commonwealth [1999] FCA 717 the Federal Court stated:
There is nothing in the judgment, nor would I expect there to be, which would support a proposition that a plaintiff could succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would necessarily follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process. If the risk is such that it is so very slight as not to constitute a real risk, an applicant's fears about the suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit. However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever.
In Pascoe v Australian Postal Corporation (2004) 77 ALD 464, the Full Court reaffirmed what the Full Court had said in an earlier decision (Australian Postal Corporation v Forgie (2003) 130 FCR 279); i.e, that the Act “requires that the person at least consider the circumstances surrounding the employee’s failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances”.[13]
[13] [2015] AATA 588 at [56] – [60]
I begin with the applicant’s refusal to attend an IME with Dr Mourad. As I understood it, three factors constituted the applicant’s claimed reasonable excuse for not attending the scheduled IME on 6 December 2022. First, he was not available - although why he was not available was not stated. Second, the applicant said Dr Mourad’s earlier IME and report conducted and provided in February 2022 were unsatisfactory. He relied on his opinion as a reasonable excuse for refusing to attend Dr Mourad for another IME. Third, at least implicitly, the applicant relied on requirements he required the respondent to meet in the context of him attending an IME which the respondent had not agreed to meet.
I did not need to consider whether the applicant had a reasonable excuse for not attending the examination with Dr Mourad because in January 2023 the respondent chose to arrange an IME with an alternative medical practitioner.
The applicant failed to attend the examination with Dr McGill scheduled for 27 April 2023. Whilst the applicant chose not to answer whether he would attend the rescheduled appointment on 27 August 2023, it was apparent by his conduct that he was refusing to do so for several reasons. In my view, none of those reasons constituted a reasonable excuse for not attending.
In relation to the applicant’s objection on the grounds that Dr McGill is a rheumatologist, not an orthopaedic surgeon specialising in CRPS as he thought the examining practitioner should be, section 57(1) entitles the respondent to require the applicant to undergo an examination by a practitioner “nominated by the relevant authority”. As the AAT pointed out in Guerriero and Comcare [2017] AATA 2984, the fact that a different practitioner could have been nominated or that an employee would prefer to be examined by a different practitioner does not give the employee a reasonable excuse for not attending an examination by a practitioner nominated by the authority.[14]
[14] [2017] AATA 2984 at [29]
As I stated to the applicant at hearing, perceived lack of suitable expertise might be a basis for him later submitting at hearing (successfully or otherwise) that a report prepared by a nominated practitioner is of no or limited value, but it is not a reasonable excuse for refusing to attend the examination at all. Pursuant to s 57(1), it is the prerogative of “the relevant authority”, and in this case the respondent, to nominate the “legally qualified medical practitioner” who will conduct the examination. In any event, where a rheumatologist specialises in ailments of the joints or muscles and CRPS is an ailment of that kind, I do not agree that Dr McGill was not a suitable practitioner to conduct the examination even if an orthopaedic surgeon might also have been suitable.

In relation to the applicant’s so-called health and safety requirements, I do not agree that the respondent and/or a practitioner must accede to the requirements of the examinee as a matter of course. It is a question of balance and degree, having regard to the facts and circumstances in each case.
For example, a practitioner might reasonably object to the attendance of a support person in some cases but not in others, or to a proposed support person but not to another. In this case, Dr McGill agreed to the applicant’s wish for his wife to attend as his support person and so the question of whether that requirement was reasonable did not arise.
As it happened, Dr McGill agreed to all the applicant’s requirements regarding conduct of the initial scheduled examination, save for it being recorded by video. In my view, Dr McGill’s unwillingness to have the examination recorded by video was reasonable and, accordingly, that unwillingness was not a reasonable excuse for the applicant not to attend.
In this respect, I refer to a decision of the Supreme Court of Western Australia in Longbottom v Nullis Nominees (Australia) Ltd[15] in which the Court considered a circumstance where a plaintiff was willing to undergo a medical examination but wished to make an audio recording of it. The examining doctor, “in the exercise of her professional judgement”,[16] opposed the plaintiff doing so. The examining doctor made clear that if the plaintiff attempted to record the examination, she would terminate the assessment. The effect would be to prevent the defendant from obtaining the examining doctor’s opinion.
[15] [2020] WASC 21
[16] [2020] WASC 21 at [9]
The Court considered the question to be whether it was in the interests of justice to permit the plaintiff to make the recording. Notwithstanding its recognition of the evidentiary benefits of a recording, the Court found the professional view of the doctor to be “decisive”.[17] In other words, the Court recognised that if the plaintiff insisted on recording the examination the examination would not proceed and the defendant’s ability to obtain an expert report as it was entitled to do would be denied. Where that outcome would defeat the defendant’s right to have the plaintiff examined, the doctor’s opinion was “decisive”.
[17] [2020] WASC 21 at [9]
In this case, Dr McGill agreed to the applicant making an audio recording, but not a video recording. The applicant did not advance any basis for why a video recording was necessary, save for a broad assertion that it was to protect his health and safety, and I was unable to see why that was so. Examinations are routinely conducted without recordings of any kind, and I do not accept that Dr McGill’s unwillingness to allow a video recording constitutes a reasonable excuse for the applicant not attending the examination.
The applicant’s subsequent additional requirement that the respondent “source a local IME Specialist in Canberra”, meaning implicitly a refusal to attend an examination by Dr McGill in Sydney, was not reasonable in circumstances where the respondent had offered to pay all the applicant’s travel costs and the applicant did not advance any reason why he could not attend the appointment. Accordingly, Dr McGill being in Sydney was not a reasonable excuse for the applicant’s refusal to attend.
The applicant’s reliance on adverse comment about Dr McGill that the applicant found on the Internet was not a reasonable excuse for him refusing to attend. The comments were brief, manifestly scandalous, anonymous and stated without context. Also, as mentioned, the applicant could later submit Dr McGill’s report should not be given evidential weight for whatever reason he wished to advance, but such a reason is not a reasonable excuse for not attending the examination at all.
I make the same observation about the applicant’s reliance on the passage of time. The applicant could later submit (successfully or otherwise) that less weight or no weight should be given to a medical report arising from an examination conducted 12 or 18 months after the Injury occurred, but that would be a question for the Tribunal to decide have regard to what respondent might say and the content of the report. I do not accept that the applicant’s opinion that an examination would be of no value, implicitly contrary to the opinion of the respondent, is a reasonable excuse for him not attending an examination at all.
I am satisfied on the evidence that the applicant failed and refused to undergo an examination by Dr McGill, and had no reasonable excuse for doing so.
The respondent’s arrangement for an examination instead by Dr Reiter did not make any difference. The applicant gave notice he would not be attending the appointments scheduled for 10 October, 7 November and 5 December 2023, and asked for the appointments to be cancelled “until further notice”. He relied on his requirements and the respondent’s failure to meet them for why he would not attend the appointments. In my view, for the reasons given, these requirements were not reasonable and accordingly he did not have a reasonable excuse for not attending.
The applicant’s further requirements to be met, after which he would review whether he would agree to an examination, also were not reasonable. For example, the applicant’s requirement that the respondent provide him with a CV of the practitioner who would conduct the examination and a copy of their University qualifications was not reasonable where there was no suggestion Dr Reiter was not a legally qualified medical practitioner.
Further enquiries by the respondent during 2024 about whether the applicant would attend an IME received the same response. Even when faced with an application for his applications to be dismissed, still the applicant would not agree to attend an IME.
At hearing, the applicant maintained that he should not have to attend another IME and submitted the Tribunal should proceed to hear his applications based on the evidence of Dr Policinski and Dr Speldewinde on which he relied without the respondent having an opportunity to gain medical evidence on which it might rely.
The applicant’s approach misunderstood the statutory scheme on many levels.
The applicant’s applications entailed a review of the respondent’s decisions not to pay him compensation under the SRC Act. The applications were not about provision of treatment or who should provide it. This misconception seemed to underpin the applicant’s objection to Dr McGill and then Dr Reiter, who the applicant thought did not have appropriate skills to treat his claimed CRPS. At hearing, I tried to explain to the applicant that Dr Reiter would not be his treating doctor: her role was to conduct an examination and then provide an independent report on medical questions relevant to the respondent’s liability to pay compensation. It was to no avail. The applicant’s position did not change.
The applicant’s position that he should not have to undergo an IME and that the Tribunal should proceed on the medical evidence it held, as provided by him, was misconceived. Pursuant to s 57 of the SRC Act, in the context of his claim for compensation, the respondent was entitled to require him to undergo an examination by a medical practitioner nominated by it. The scheduled examinations were to enable the respondent to obtain professional opinion from a medical practitioner nominated by it about the applicant’s claim. If the applicant refuses or fails to undergo the examination without reasonable excuse, pursuant to s 57 (2), his claims and his right to continue these proceedings “are suspended” until he does so. That arrangement operates by law, not by order of the Tribunal, meaning the Tribunal had no power to proceed unless and until he underwent the examination.
In this case, for the reasons given, I was satisfied the applicant did not have a reasonable excuse for not undergoing an examination by Dr McGill or, subsequently, Dr Reiter. At hearing, the impasse was not resolved. Rather, it was compounded by the applicant stating still more requirements that he required be met before he would attend an examination. Those requirements also were unreasonable.
For example, a letter from the respondent’s solicitor to the examining doctor stating the questions it wishes to be answered arising from the examination is not ‘coaching’ if the questions are open (non-leading) and relevant to whether the respondent is liable to pay compensation. There was no evidence that the questions were (or would be) inappropriate. To require the respondent not to communicate at all with the practitioner it had nominated to conduct the examination is unreasonable and impractical.
I accept that suspension of the applicant’s right to continue these proceedings did not necessarily mean the applications should be dismissed. As the respondent repeatedly stated to the applicant, his attendance at an IME would cause the suspension to be lifted and enabled the proceedings to continue. The problem was that the applicant steadfastly refused to attend and, it seems, nothing would or was going to persuade him otherwise.
The consequence was that by the time of the hearing of the dismissal application on 4 August 2025 these proceedings had not progressed since December 2022 and had been suspended since 24 November 2023.
There was nothing to suggest any change on the horizon. As mentioned, the Tribunal has no power to continue the proceedings whilst they remain suspended and, as the respondent submitted, if the applications were not dismissed more than likely they would remain suspended without any prospect of resolution one way or another.
To leave the applications in a seemingly permanent state of suspension, would be contrary to s 9 of the ART Act which, among other things, requires the Tribunal to ensure applications are resolved as quickly, and with his little formality and expense, as a proper consideration of the matters before the Tribunal permits.
In Charara v Commissioner of Taxation [2016] FCA 451, the Federal Court set out two principles relevant to the exercise of the discretion under s 42A(5) of the AAT Act, now section 100 of the ART Act, as follows:
[79] The discretion must only be exercised sparingly and as a matter of “last resort”: Guse v Comcare [1997] FCA 140; (1997) 49 ALD 288 at 291. That is because it involves denying an Applicant a hearing of the merits of the application. Because dismissal under s 42A(5) is a matter of last resort, the Tribunal must consider whether dismissal is the proper remedy, or whether it would be more appropriate to take some other course, such as adjourning the proceeding or making some other order to secure compliance: Guse v Comcare at 291. Again, a failure to do so would most likely constitute a misapplication of s 42A(5).
[80] In exercising the discretion, the Tribunal must also afford the Applicant procedural fairness (emphasis added): Guse v Comcare at 291. Procedural fairness would ordinarily require the Tribunal to give the Applicant the opportunity to make submissions as to why the discretion should not be exercised. That would include giving the Applicant an opportunity to put forward submissions concerning whether there had been a failure to comply with a direction and, if so, whether a reasonable time had elapsed since that failure. It would also ordinarily extend to giving the Applicant an opportunity to explain or justify any failure, or to advance any reasons why, despite the failure, the application should not be dismissed. Depending on the particular circumstances, it might also extend to giving the Applicant a further opportunity to comply or to remedy the default.
Referring to the first principle, I am satisfied dismissal is appropriate notwithstanding it being a matter of last resort. The applicant has repeatedly and steadfastly refused to attend examinations with three different medical practitioners unless requirements that I regard as unreasonable were met. Even if they were met, he reserved the “right” to “review” whether he would attend in circumstances where he had no such right. The proceedings have been suspended for more than 18 months with no indication of the applicant changing his position, I saw no purpose in giving the applicant still further time to comply.
Referring to the second principle stated in Charara, I am satisfied the applicant has been afforded procedural fairness. He received notice of the respondent’s dismissal application on 19 June 2025. It had been foreshadowed for months if he did not comply. He had the respondent’s submissions as to why his application should be dismissed from 3 July 2025, four weeks prior to the hearing. Opportunity to remedy the suspension by undergoing an examination, so the proceedings could continue, was repeatedly given but not taken.
For these reasons, the applications in these proceedings will be dismissed.
I certify that the preceding 117 paragraphs are a true copy of the reasons for the decision herein of Senior Member McCarthy.
.....................[SGD].......................
Tribunal Officer
Date: 11 September 2025

Date of hearing 4 August 2025

Solicitor for Applicant:
Self-represented

Counsel for Respondent: Ms S. Leembruggen

Solicitor for Respondent: Sparke Helmore

Date of hearing	4 August 2025
Solicitor for Applicant:	Self-represented
Counsel for Respondent:	Ms S. Leembruggen
Solicitor for Respondent:	Sparke Helmore