Naylor and Comcare (Compensation)

This matter concerned an application before the Administrative Appeals Tribunal (AAT) where the applicant, Naylor, objected to a notice issued by Comcare requiring an independent medical examination under section 57 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Comcare argued that no reasons were required for the request, as it was necessary for the thorough investigation of the applicant's compensation claim and to ensure appropriate expenditure of funds, aligning with its duty to assist the Tribunal under section 33(1AA) of the *Administrative Appeals Tribunal Act 1975* (Cth).

The central legal issue before the Tribunal was whether it possessed the jurisdiction to review Comcare's decision to issue a section 57 notice for an independent medical examination. The Tribunal considered the impact of amendments to section 57 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), specifically the insertion of section 57(6), which permits examinations at intervals specified by the Minister. While a previous legislative instrument under this section was no longer operative, the Tribunal concluded that section 57(6) clarified that multiple notices could be issued under section 57(1), and that the reference to "one legally qualified medical practitioner" did not preclude examination by different practitioners.

The Tribunal determined that it lacked jurisdiction to review decisions made under section 57(1) or 57(2) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). It reasoned that the AAT is a creature of statute and its jurisdiction is conferred by specific enactments. A "reviewable decision" under section 60 of the Act, which the AAT can review under section 64, is defined as a decision made under section 36(2) or section 62 of the Act. Decisions made under section 57, however, are not included within this definition. The Tribunal noted, by reference to *Hutchinson v Comcare* [2018] FCA 1235, that decisions under section 57(2) are amenable to review under the *Administrative Decisions (Judicial Review) Act 1977* (Cth).

The Tribunal ordered that the application be held in abeyance to allow the parties to consider their positions. It directed Comcare to advise in writing if the applicant attended any further medical examination. The Tribunal also expressed concern that Comcare had not provided a copy of the suspension notice, highlighting Comcare's ongoing obligation under section 38AA of the *Administrative Appeals Tribunal Act 1975* (Cth) to lodge material documents promptly, particularly given that the suspension notice impacted the applicant's right to continue proceedings before the Tribunal.