Federal Court of Australia

Nimhurchu v QBE Insurance (Australia) Pty Ltd [2026] FCA 59

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 26.01 of the Federal Court Rules 2011 (Cth), judgment be given for the respondents against the applicant.

2.    The applicant to pay the respondents’ costs of the interlocutory application and of the proceedings, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NEEDHAM J:

1    These proceedings were commenced on 14 July 2025 by way of the applicant, Ms Doireann Nimhurchu, seeking declarations of right pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) relating to the validity and lawfulness of the determination made by the first respondent on 19 June 2025 that “the applicant’s rights to compensation and to … commence [or continue] proceedings under the [Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act)] were suspended”.

2    The declarations sought by the applicant are as follows:

a.     A declaration that the … applicant had a reasonable excuse pursuant to s57 of [the SRC Act] not to attend the appointment with Dr Frank T Varghese, (consultant psychiatrist) on the 10 June 2025 at 11 am.

b.     A declaration that the determination made by the first respondent made and communicated to the applicant on the 19 June 2025 that the applicant’s rights to compensation and to institute and commence proceedings under [the SRC Act] were suspended … until the examination by Dr Frank T Varghese took place was ultra vires the Act, void ab initio and unlawful.

(edited slightly for clarity)

3    The applicant further sought an order that the first respondent, QBE Insurance (Australia) Pty Ltd (QBE), “reinstate any rights to compensation that the applicant may have had prior to the suspension”, and an order that the respondents pay the costs of the adjournment in both the Administrative Review Tribunal (the Tribunal) and in this Court.

4    By an interlocutory application (the IA) filed on 15 August 2025 (and amended on 3 September 2025), QBE and the second respondent, Optus Administration Pty Ltd (Optus), seek summary judgment against the applicant. The respondents seek the following orders:

1.    The Applicant’s originating process dated 14 July 2025 be set aside.

2.    Judgment be given for the Respondents against the Applicant.

3.    This proceeding be stayed permanently or, alternatively, this proceeding be stayed until further order.

4.    The Applicant be restrained from taking any further steps or action in this proceeding or, alternatively, the Applicant be restrained from taking any steps or action in this proceeding until further order.

5.    Such further orders as the Court thinks fit.

6.    Costs.

5    Despite the fact that the first and second respondents are the applicants on the IA, to avoid confusion I will continue to refer to them together as the respondents.

6    At the hearing on 15 October 2025, counsel for the respondents requested that two amendments be made to paragraph 1 of the IA: that “process” be replaced with “application”, and “14 July 2025” be replaced with “27 August 2025”.

7    The basis of the grounds of the IA is, broadly speaking, that instead of pursuing her statutory review or appeal rights under the SRC Act and in the Tribunal, the applicant lodged an originating process in this Court seeking declarations and ancillary orders, and that the proceedings should not be permitted to continue.

8    For the reasons given below, I have determined that I should not make the sought declarations, and that judgment be given for the respondents against the applicant.

Ms Nimhurchu’s claim for workers compensation

9    Optus is a licensee under the SRC Act. The licence relevantly authorises Optus to accept liability to pay compensation and other amounts under the SRC Act in respect of all injuries, loss or damage suffered by employees of Optus where such injuries, loss, or damage occur within the licence period.

10    QBE is the claims manager for Optus and is authorised under the licence to manage, on behalf of Optus, claims under the SRC Act made by employees of Optus who are covered under the licence.

11    Ms Nimhurchu was employed by Optus from 27 February 2012 to 9 December 2022. On or about 19 December 2022, she submitted a claim for workers compensation (the claim for compensation). Ms Nimhurchu alleged, among other things, that she suffered from symptoms of anxiety and stress caused by incidents that occurred during her employment with Optus. She asserted that she first noticed she was unwell on 12 August 2022 and sought her first medical treatment on 8 November 2022. In connection with her claim, Ms Nimhurchu provided a medical certificate which asserted that she had no capacity to work from 11 December 2022 to 18 December 2022.

12    On 17 February 2023, QBE determined that Optus was not liable to pay compensation. On 31 March 2023, after Ms Nimhurchu was granted an extension of time from QBE, she requested that the determination of 17 February 2023 be reconsidered, and QBE subsequently reconsidered that determination. On 27 April 2023, QBE made a reviewable decision affirming its decision to deny compensation (the denial of compensation decision).

Ms Nimhurchu applies for a review of QBE’s determination of her claim

13    On 23 June 2023, Ms Nimhurchu applied to the Tribunal for a review of the denial of compensation decision, in the Perth Registry.

14    As part of her application for review, Ms Nimhurchu attended a number of medical appointments. These included:

(a)    On 15 June 2023, a medical examination via telehealth with psychiatrist, Dr Enrico Parmegiani. The appointment was arranged by Ms Nimhurchu’s solicitors from Neville Hourn and Borg Legal.

(b)    On 22 November 2023, a medical examination via telehealth with psychiatrist, Associate Professor George Mendelson. The appointment was arranged by the respondents.

(c)    On 10 September 2024, a second medical examination via telehealth with Dr Parmegiani.

(d)    On 5 November 2024, a medical examination by psychiatrist, Dr Prabal Kar. This appointment was arranged by the respondents.

QBE determines that Ms Nimhurchu be medically examined

15    On 28 January 2025, QBE requested that Ms Nimhurchu be examined in person with a new psychiatrist, Dr Lawrence Terace, stating:

We have now received a report of Dr Kar which is attached …

As there is considerable variation in the psychiatric opinions expressed, we have arranged for your client to be examined in person by Dr Lawrence Terace, consultant psychiatrist, on 12 February 2025 …

(emphasis in original.)

16    On 3 February 2025, the applicant’s solicitors sent an email to the respondents’ solicitors advising that the applicant would not be attending the examination by Dr Terace. The email stated that Ms Nimhurchu had been previously examined by Dr Kar and there was “no utility in engaging a further [psychiatrist]”.

17    On 4 March 2025, QBE sent a letter to Ms Nimhurchu advising of its intention to issue a determination under s 57 of the SRC Act, requiring that she attend an examination:

As you would be aware, the medical opinions received in the proceeding differ considerably and raise numerous inconsistencies. I am aware that to date there has not been an ‘in person’ examination of you by an independent psychiatrist at the request of Optus. I am also aware that the legal representative of Optus in the proceeding had arranged for you to be examined in person by Dr Lawrence Terace, consultant psychiatrist, on 12 February 2025. However, the request that you attend that examination was declined on your behalf by your legal representative.

In all the circumstances of your case, I consider that it would be reasonable for Optus to arrange an ‘in person’ examination of you by an independent psychiatrist noting the inconsistencies in the psychiatric opinions provided regarding your claimed condition. Accordingly, I am intending to issue a determination under section 57 of [the SRC Act] requiring you to attend an examination by a legally qualified medical practitioner nominated by Optus.

18    In the letter, QBE also requested that Ms Nimhurchu express her views as to:

1.    the selection of a psychiatrist who is to conduct the examination; and

2.    whether [she required] a support person to accompany [her] during … the examination.

19    On 5 March 2025, Ms Nimhurchu advised QBE that she would not be attending the examination. In an email, the applicant’s solicitors stated:

We are of the view [that] the defendant’s have had ample opportunity to organise medicolegal examinations. Our client has attended assessments with the Defendant’s independent expert previously. To obtain a further report from another Consultant Psychiatrist is not required and may amount to an unfair delay to the resolution of the Applicant’s claim.

(as written)

20    On 27 March 2025, a determination was made by QBE under s 57 of the SRC Act that Ms Nimhurchu undergo an in-person examination by a psychiatrist, Dr Victor Cheng, scheduled on 14 July 2025 at Next Health in Western Australia.

21    On 3 April 2025, the applicant’s solicitors advised the respondents by email that Ms Nimhurchu had relocated to Brisbane in late 2024, and that any in-person examination must take place in Brisbane. The email included a request for updated details of the medical examination.

22    On 9 April 2025, the matter was set down for a four-day hearing commencing on 1 July 2025 in the Tribunal.

23    On 5 May 2025, the applicant’s solicitors sent an email to the respondents’ solicitors, stating:

We also note we requested an update on the s57 IME arrangements organised by your client. Noting the final hearing is listed for 1-4 July 2025, can you kindly provide those appointment details (with a location in QLD) as a matter of urgency.

24    On 6 May 2025, the respondents’ solicitors advised Ms Nimhurchu of an examination by telehealth scheduled with Dr Mendelson on 20 May 2025 and an in-person examination scheduled with clinical psychologist, Professor Richard Mattick, in Sydney on 6 June 2025.

25    On 13 May 2025, Ms Nimhurchu’s solicitors sent an email to the respondents’ solicitors, objecting to her attendance at the scheduled examinations:

We refer to the above and your request for our client to attend further medical examinations, specifically an assessment by a psychologist, in addition to the psychiatric re-assessment by Dr Mendelson.

We consider these additional assessments to be excessive, unjustified, and an abuse of process, and as such, we object to both.

Scheduling such appointments so close to the final hearing places our client at a significant disadvantage. You have had ample time over to arrange any assessments you considered necessary. To now impose multiple assessments within weeks of the final hearing is both unreasonable and oppressive.

Additionally, the requirement for our client to travel at this late stage, in the context of her ongoing mental health difficulties is unduly burdensome and poses a risk to her wellbeing.

It is unclear why a second opinion is being sought at this late stage, particularly from psychologist when Dr Mendelson, psychiatrist [has] already provided a comprehensive assessment.

26    QBE responded to that objection on 15 May 2025. It set out the history of the ongoing tussles as to medical examination and concluded:

6.    In the circumstances, the respondent (rather than the applicant) is disadvantaged regarding the absence of an independent in-person examination of the applicant and indeed by the lack of recent history. The absence of the opportunity to have the applicant further examined creates a situation in which the respondent will proceed to hearing with no knowledge of her recent/current condition or circumstances. We consider that circumstance to be prejudicial and unfair to the respondent. Further, a re-examination by an expert who has not examined the applicant since 2023 is not oppressive; it is usual and appropriate. It will ensure that the expert provides an up-to-date report that both parties and the Tribunal have access to prior to hearing, and which can be put to the applicant’s expert witnesses in advance of the hearing.

7.    We are of the view that an up-to-date specialist assessment would be of assistance not only to the parties but also to the Tribunal. The experts being called in this matter should be aware of, and have had the opportunity to consider, the applicant’s course of treatment, the impact of that treatment, her progress and current status, prior to hearing. If that is not the case, the Tribunal would be considering expert evidence that has been prepared without the benefit of an up-to-date history and clinical examination of the applicant.

8.    In the circumstances, we ask that the applicant reconsider her refusal to attend the independent medical examinations that we have arranged, and confirm that she will at least attend the re-examination with A/Professor Mendelson on 20 May 2025.

27    On 16 May 2025, the respondents sought an adjournment at the directions hearing. Senior Member George set the matter down for an interlocutory hearing to consider the respondents’ request that the final hearing be adjourned.

28    On the same day, Ms Nimhurchu consented to attending the medical examination by Dr Mendelson, which was subsequently agreed to take place on 10 June 2025. On 21 May 2025, the applicant’s solicitors confirmed that she would attend the examination by Dr Mendelson on 10 June 2025.

29    On 23 May 2025, QBE made a determination under s 57 of the SRC Act requiring Ms Nimhurchu to attend an in-person medical examination by Dr Frank Varghese on 10 June 2025 (the medical examination determination). QBE then gave notice of the determination to Ms Nimhurchu, stating the following:

I refer to your claim for compensation dated 19 December 2022 in respect of ‘symptoms of anxiety and stress’ reported to have been sustained on 12 August 2022.

On 27 March 2025 QBE on behalf of Optus determined that you were required to undergo an in-person examination in Perth with Dr Victor Cheng, Consultant Psychiatrist. In response to that determination your legal representative advised that you had relocated to Brisbane in late 2024 and that any in-person independent medical examination must take place in Brisbane.

Subsequently, your legal representatives have sought ‘updated IME details’ regarding the in-person examination arranged. On the afternoon of 20 May 2025, an in-person examination in Brisbane was able to be secured. Details of this appointment are included in the determination. I understand that this appointment clashes with a telehealth examination arranged by lawyers representing your former employer, Optus Administration Pty Ltd. However, that re-examination will be rearranged as it is preferable to proceed with an in-person examination in the circumstances.

I have determined that you are required to attend an ‘in person’ medical examination as outlined in the attached determination made pursuant to Section 57 of the SRC Act.

Attached are the terms of the determination, including the statement of reasons.

…

Notice of Rights

If you are dissatisfied with the determination in respect of your claim for compensation, you may, subject to certain conditions, request QBE Self Insurance Services to have the determination reconsidered by another Senior Case Manager.

Conditions

1.    A request for reconsideration shall be in writing and shall include your reasons for the request.

2.    The request for reconsideration of a determination shall be given to QBE Self Insurance Services within 30 days of the determination first coming to your notice.

In addition to the conditions set out above, you are advised that failure to provide a request for reconsideration within the 30 days allowed may result in you losing your right to request a reconsideration.

An application to the …Tribunal … is dependent upon QBE Self Insurance Services having undertaken a reconsideration of the determination with which you are dissatisfied.

You do not have a right of application to the … Tribunal until a reconsideration of the determination has been completed.

30    On 26 May 2025, the applicant’s solicitors sent an email to QBE. They wrote, among other things, that Ms Nimhurchu “give[s] notice of [her] intention to submit a request for reconsideration” of the medical examination determination, and is preparing written submissions in support of the request, which would be provided to QBE “well within the 30-day timeframe”.

31    On 28 May 2025, the respondents’ solicitors emailed the applicant’s solicitors referring to the medical examination determination, and enquiring whether Ms Nimhurchu would reconsider her position to attend the in-person examination with Dr Varghese.

32    On 29 May 2025, the applicant’s solicitors replied to the respondents’ solicitors via email stating that they “intend to proceed with [their] request for reconsideration” unless they were provided with “a cogent reason giving rise for the need for [Ms Nimhurchu] to be examined by a third independent psychiatrist”.

33    The respondents’ solicitors sent an email to the applicant’s solicitors on 2 June 2025 stating:

There are cogent reasons for the requirement that your client attend an examination with Dr Varghese in the statement of reasons accompanying the [medical examination] determination that our client made under section 57 of the SRC Act. Further, and as you would appreciate, our client has not had an opportunity to have the applicant examined in-person. Our client wishes to have that reasonable opportunity in performing its functions under the SRC Act and in assisting the Tribunal to make the correct or preferable decision in this case.

34    On 5 June 2025, the applicant’s solicitors sent an email to the respondents’ solicitors confirming Ms Nimhurchu’s intention to submit a request for reconsideration and advising that she would be providing her written submissions to QBE “shortly”.

35    On 12 June 2025, QBE sent a letter to Ms Nimhurchu indicating that it had formed a preliminary view that she had refused or failed to undergo the examination by Dr Varghese, without a reasonable excuse, and requested that Ms Nimhurchu provide reasons for her non-attendance by 19 June 2025. Ms Nimhurchu’s solicitors responded noting that the 30-day period for a request for reconsideration (see Condition 2 to the medical examination determination) was yet to expire and restating that they intended to request a reconsideration before the expiry of that period.

QBE makes a suspension determination

36    On 19 June 2025, QBE determined under s 57(2) of the SRC Act that Ms Nimhurchu’s rights to compensation, and to institute or continue any proceedings in relation to compensation under the SRC Act, were suspended until the medical examination by Dr Varghese took place (the suspension determination).

37    The suspension determination included a notice of rights, setting out Ms Nimhurchu’s right to request a reconsideration of the determination, and an observation that the suspension would be “lifted” if she attended the examination by Dr Varghese, which had been rescheduled for 11 September 2025.

38    On 19 June 2025, QBE emailed Senior Member George attaching its submissions, a letter from Dr Varghese, and the suspension determination. The applicant’s solicitors responded to QBE on the same day, stating that the suspension was premature.

39    On 20 June 2025, Ms Nimhurchu’s solicitors provided QBE with her submissions in support of her request for reconsideration of the medical examination and suspension determinations.

40    On 23 June 2025, the Tribunal vacated the hearing date on the basis that Ms Nimhurchu’s right to prosecute the proceedings was suspended.

QBE makes a reviewable decision affirming the medical examination and suspension determinations

41    On 2 July 2025, QBE made a reviewable decision on behalf of Optus under the SRC Act affirming the medical examination and suspension determinations (the reviewable decision). The reviewable decision included reasons for the decision and a notice of rights. The notice of rights informed Ms Nimhurchu of her right to apply for a review of the reviewable decision by the Tribunal and described how to do so. The reviewable decision stated that the suspension of Ms Nimhurchu’s rights would be “lifted” if she attended the medical examination rescheduled with Dr Varghese on 11 September 2025.

42    On 11 August 2025, QBE sent a letter to Ms Nimhurchu, care of her solicitors, advising that QBE had not received any application for review which the applicant might have lodged in the Tribunal, and that her suspension would be “lifted” if she underwent an examination by Dr Varghese.

43    On 1 September 2025, QBE sent a further letter to Ms Nimhurchu, care of her solicitors, which, among other things, advised her to attend the examination by Dr Varghese and restated that if she underwent that examination, and did so without obstructing it, the suspension of her rights would be lifted.

44    Later that same day, the applicant’s solicitors responded to QBE’s letter, advising that Ms Nimhurchu “will not be attending the appointment on 11 September 2025” (emphasis in original). No reasons were provided for the refusal to attend.

Ms Nimhurchu commences proceedings in this Court

45    On 14 July 2025, almost two weeks after the reviewable decision, Ms Nimhurchu commenced these proceedings by way of “Originating Process (Rule 2.2); Federal Court Corporations Rules 2000 Form 2”. The applicant noted that she sought declarations and ancillary relief pursuant to s 21 of the FCA Act.

46    On 15 August 2025, the respondents filed the IA seeking the setting aside of the originating process, judgment for the respondents, a permanent stay, or an order restraining the applicant from taking any further steps in the proceedings.

47    On 27 August 2025, I made orders for preparing the matter for trial, and directed that the applicant correct the form of originating application. The respondents amended the IA accordingly on 3 September 2025. Both the originating application and the IA were set down for hearing before me on 15 October 2025.

48    At that hearing, I made orders that the respondents serve a copy of the transcript of the interlocutory hearing in the Tribunal on 23 June 2025 in the proceedings entitled Nimhurchu v Optus Administration Pty Ltd (2023/4437), and that the parties file further short submissions in relation to the transcript. My judgment was reserved on receipt of the last tranche of submissions, which occurred on 30 October 2025.

The Interlocutory Application

49    It is convenient first to deal with the respondents’ application for dismissal or other summary relief.

50    The respondents ground their IA on the basis that the applicant’s rights of statutory review or appeal rights in respect of the suspension determination should have been pursued in the Tribunal: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 427 (Walsh J). The Tribunal is, the respondents say, a specialist tribunal which is equipped to provide a complete remedy for the applicant. The respondents contend that this Court is a “clearly inappropriate forum” for the determination of the dispute, and that this Court’s jurisdiction has not been properly invoked.

Is the Federal Court the appropriate venue?

Jurisdiction and forum non conveniens

51    The Federal Court has such original jurisdiction as is vested in it by the laws made by the Parliament: FCA Act, s 19(1). The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed: FCA Act, s 21(1). The applicant relies on accrued jurisdiction to seek her ancillary orders. However, that is dependent upon the Court having original jurisdiction. As stated by Black CJ and Hill J in Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 128 FCR 507; [2003] FCAFC 83 at 511–12 [18]:

… where the federal part of the controversy is such that the Court lacks jurisdiction to hear it, then there can be no accrued jurisdiction. Accrued jurisdiction can only arise where the single controversy which is the “matter” is one which is within the jurisdiction conferred upon the Court.  If no federal jurisdiction is properly invoked then there can be no accrued jurisdiction: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 598 per French J.

52    The applicant’s appropriate forum argument is based on the submission that the applicant had no other remedy and therefore the appropriate course was to seek declaratory relief in this Court. The respondents, however, relied on the following statement by Walsh J in Forster at 427:

… when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.

Submissions

53    In support of their IA, the respondents submitted that whilst the proceedings are not open to objection on the ground only that a declaratory order has been sought (see s 21(2) of the FCA Act), the applicant does not rely on any laws made by Parliament in respect of which the Court has original jurisdiction. They submitted that the originating application instead entirely bypasses the question of original jurisdiction and relevantly only seeks declaratory and ancillary relief.

54    The respondents further contended that the Court is an inappropriate forum for the determination of the dispute between the parties and that, given the processes available in the Tribunal, this Court should not intervene. As an alternative, they submitted that the applicant should be refused relief in the exercise of discretion.

55    The applicant’s contention was that because QBE made a suspension determination prior to the expiry of the period for review of the medical examination determination, she has been left without a remedy. This is encapsulated in the applicant’s submission to the Tribunal (which was the subject of the post-hearing submissions ordered, as there was an issue about what was said at the Tribunal and the transcript was not yet available). The applicant’s counsel stated the following at the Tribunal, setting out the position taken there and in this Court:

… on 19 June the applicant received a notice of suspension under section 57(2) of the SRC Act for failing to attend a medical examination. We take issue with that, but we can’t take issue with that in the Administrative Review Tribunal. We have to go and seek a declaration [of] right in the Federal Court, and we have instructions to do so.

56    The applicant submitted that she had a lawful excuse for refusing to attend the medical examination based on cl 12(1) of the Safety, Rehabilitation and Compensation Act 1988 – Guide for Arranging Rehabilitation Assessments and Requiring Examinations 2024 (Cth) (the Guide), which prohibits employees from undergoing more than one medical examination within 6-month intervals.

57    The applicant relied, on the question of jurisdiction, on the judgment in Buck v Comcare (1996) 66 FCR 359. That decision of Finn J considered that there was jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to grant relief in the Federal Court only if there is “a decision which can be reviewed under that Act”: at p 363. Under the version of s 57 of the SRC Act at the time of that decision, sub-s (2) did not “relevantly, authorise or require a decision of an administrative character to be taken by Comcare”: at p 363. The applicant relied on Finn J’s analysis that his Honour had “accrued” or “associated” jurisdiction to make declarations where “the declaration sought arises out of the same subject matter as the order to review, ie the circumstances in which compensation payments were suspended under s 57(2)”: at p 370.

58    Section 57 of the SRC Act provides:

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.

(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.

(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.

…

(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.

59    Section 62 provides:

62 Reconsideration of determinations

(1)    A determining authority may, on its own motion:

(a)     reconsider a determination made by it; or

(b)    cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;

whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.

(2)    A request to a determining authority to reconsider a determination made by it may be made by:

(a)    the claimant; or

(b)    if the determination affects the Commonwealth--the Commonwealth; or

(c)    if the determination affects a Commonwealth authority--that Commonwealth authority.

…

(3)    A request for reconsideration of a determination shall:

(a)    set out the reasons for the request; and

(b)    be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.

…

60    The applicant submitted that cl 9 of Sch 3 of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) added s 57 to the definition of “determination” in s 60(1) of the SRC Act but that it was “not 57(2), just 57” and it was added “because of 57(1), not because of 57(2)”: citing Buck at 365. The applicant initially submitted that the suspension determination cannot be made under s 57(2) of the SRC Act within the period in which a request for reconsideration of a determination under s 57(1) may be made. The applicant now accepts that s 57(2) does not contain any such restriction. The applicant substituted her submission to that effect with the below submissions.

61    The applicant submitted that unlike s 57(1) of the SRC Act, s 57(2) does not enable or empower “the relevant authority”, in this case QBE, to make any decision or determination. The applicant pointed to the fact that the effect of s 57(2) of the SRC Act was considered by the Administrative Appeals Tribunal in Melis v Australian Postal Corporation (2014) 139 ALD 362; [2014] AATA 58. The applicant submitted that the ratio of that decision was dependent upon the wording of s 62 of the SRC Act, and that the purported s 57(2) determination was found not to be a “determination” as defined in s 60(1) of the SRC Act within the meaning of s 62, as it was then worded. The applicant said that subsequently, and relevant to Melis, s 60 has been amended to include a “determination, decision or requirement” made under s 57 of the SRC Act. The applicant submitted that whilst that may negate the ratio decidendi of Melis, the case supports the argument advanced by the applicant to the effect that her statutory review of appeal rights in respect of the suspension determination, either:

(a)    do not exist; or

(b)    if they do exist, are of such a character that they do not prohibit her right to the declaration of right sought.

62    The applicant further submitted that the purported suspension made by QBE under s 57(2) of the SRC Act is not a “determination, decision or requirement” made under s 57, unlike a requirement for a medical examination made under s 57(1), which specifically empowers a licensing authority to do something, such as make a request for the applicant to attend a medical examination, which QBE did on 27 April 2025 (being the denial of compensation decision). In relation to forum non conveniens, the applicant submitted that in the present circumstances, the suspension determination is not an administrative decision that affects the applicant as the suspension does not alter her rights or entitlements under the SRC Act.

63    The applicant submitted that any error or intention to exercise a purported power could not be said to affect an administrative decision where in the present circumstances, the source of the legislation (relevantly) does not provide for a decision at all. In other words, the applicant’s complaint could not be raised before the Tribunal, and “[t]hen the Tribunal, perceiving the injustice done by the excess of power, would be constrained to send the applicant away without remedy”: Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167 at 178 (Brennan J).

64    The respondents contend that each of the medical examination determination and the suspension determination was made under s 57, and in each case the applicant was given a notice of rights setting out her right to a review. They say that the present dispute descends to a merits review of those determinations, and such a review should not occur in this Court. They further submitted that in this case, the originating application may be said to amount to the kind of “artificiality or subterfuge” to which reference was made in Buck at 370–1. The respondents submitted that if federal jurisdiction were not properly invoked, there could be no accrued jurisdiction in this Court.

65    Further, or in the alternative, the respondents submitted that the appropriateness (or otherwise) of a declaration was considered in an indistinguishable statutory context in South Australian Meat Corporation v Mundie [1996] SASC 5463. In giving summary judgment in favour of the defendant worker in Mundie, Perry J reasoned as follows.

41.    As to the first category of declaration sought, that is to say, as to the necessity for and efficacy of a notice in writing to discontinue weekly payments, clearly, this is a matter which should be left to the review and appeal authorities established by the Act.

42.    I was referred by Mr Besanko QC to dicta by Walsh J in Forster v Jododex Australia Pty Ltd and Anor (1972) 127 CLR 421, which is apposite (427):

(and here follows the quote from Forster set out at [52] above)

43.    Here there is no reason to think that the respective rights of the parties with respect to the issues which arise in connection with the notice provisions to be found in s 36 of the Act cannot properly and effectively be determined by the processes of review (s 95), appeal to the Tribunal (s 97), case stated (s 99), and ultimately by an appeal to this Court on a question of law under s 100. In those circumstances, it would clearly be inappropriate for this Court to entertain applications for declaratory relief of the kind sought.

(emphasis added.)

66    The respondents submitted that the provisions of the (now ceased) Workers Rehabilitation and Compensation Act 1986 (SA), as mentioned in Mundie, were substantially the same as, or relevantly comparable with, the determination, reconsideration, review and appeal rights bestowed by the SRC Act and the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). The procedure afforded to Ms Nimhurchu in the Tribunal may be described as one in which she would have been given an effective appeal, free of technicalities, against the suspension determination (as affirmed by the reviewable decision) on a question of fact and law.

67    The respondents submitted that the SRC Act provides an “elaborate and highly detailed code governing the right of employees … to compensation and the obligation of the Commonwealth or its authorities to pay it”: Behan v Australian Telecommunications Corporation (1990) 26 FCR 337 at 346 (Lockhart J). Those rights and liabilities are submitted to be within the four corners of the SRC Act. I was taken to provisions such as s 37(7) (which is in similar terms to s 57(2), but in relation to a failure to undertake a rehabilitation program the subject of a direction).

68    In relation to the orders sought as to the costs of the adjournment, the respondents further submitted that the provisions of s 67 of the SRC Act “constitute a code in the area of costs” before the Tribunal, along with other provisions in the SRC Act: Perry v Comcare (2006) 150 FCR 319; [2006] FCA 33 at 338 [65] (Greenwood J), citing Riley v Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees (1994) 48 FCR 449 at 451 (Beaumont J). They submitted that Parliament has not given the Federal Court jurisdiction in respect of that code.

69    The respondents submitted that s 57 (and s 37(7)) manifested “a clear intention on the part of Parliament … that it is … important for employees to undergo medical examinations as required by a relevant authority”, and that a failure or refusal to do so will result in the loss of their right to continue with a proceeding in the Tribunal – on a temporary or ongoing basis. They cited Pascoe v Australian Postal Corporation (2004) 77 ALD 464; [2004] FCAFC 4 at 467, [14] where the Full Court (Hill, Marshall, and Finkelstein JJ) said, in relation to s 37(7), that:

The appropriate way to challenge a particular [rehabilitation] program is to seek its reconsideration under s 38(2) … Unless the employee has sought a reconsideration, when considering whether an employee has a reasonable excuse for failing to undertake a rehabilitation program, the program in question is to be taken to be appropriate for the employee.

70    The respondents drew on the above statement from Pascoe to submit that the reference to an examination in s 57(2) is one in respect of which a determination under s 57(1) has been made, and the way to challenge that examination is to seek its reconsideration under s 62. The applicant did not seek judicial review of the s 57(1) determination (ie the suspension determination), or the reviewable decision of 2 July 2025 affirming it, and instead sought declarations as to the reasonableness of her excuse, and whether it contravened the Guide specified in s 57(1A).

71    The respondents submitted that Buck ought to be distinguished. They submitted that Buck was decided before the SRC Act was amended to include s 57 as one of the provisions under which a determination can be made (see (Closing Loopholes) Act, s 2 and Sch 3 Part 2 cl 9), and before the judgment in Australian Postal Corporation v Forgie (2003) 130 FCR 279; [2003] FCAFC 223 in which it was held that the equivalent suspension provision in s 37(7) requires a determination within the meaning of s 60(1) of the SRC Act: Forgie at 285–97 [25]–[90] (Black CJ, Merkel and Stone JJ). As such, the respondents submitted that no “principles” in Buck appear to be presently relevant, and that the amended legislation clearly provides a complete answer to the applicant’s submission on Buck and the line of authority based on that decision.

72    The respondents submitted that relief should be refused because both the SRC Act and the ART Act provide an alternative remedy in the specialist tribunal which the applicant should have pursued: see Forster. In that respect, any missed opportunity to apply within time for review of the reviewable decision appears to have been due to the applicant’s own conduct: see NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 784; [2004] FCAFC 124 at [44] (Beaumont, Conti and Crennan JJ).

Consideration

73    The compelling conclusion is that now that the (Closing Loopholes) Act has specifically included s 57 as a section under which a determination may be made pursuant to s 60(1), the distinction drawn by the Full Court in Forgie no longer provides any practical difference in the effect of the two sections. In Forgie, the Full Court found that the Tribunal had jurisdiction to review “reviewable decisions” under s 37(7) of the SRC Act, if the employee had requested a reconsideration under s 60(1). Mr Long, the applicant in Forgie, did so; so did the applicant in this case. Accordingly, once QBE made the reviewable decision, the Tribunal had jurisdiction to hear Ms Nimhurchu’s claim. The analysis in Melis must also be read in light of that particular “closed loophole”.

74    I do not accept the applicant’s submission that “this is a court of competent jurisdiction for [the applicant] to come to and say that [she] had [a] reasonable excuse”. That is a matter which is properly arguable at the Tribunal. Nor can I accept that the applicant has been left without a remedy in the interim prior to the expiry of the 30 days from the determinations – either to attend the medical appointment or to seek a review of the reviewable decision. The approach taken in the Buck line of authority has been superseded, so to speak, by the inclusion of s 57 in the list of determinations under s 60 by reason of its inclusion in the Schedules to the (Closing Loopholes) Act.

75    Accordingly, the process which the applicant should have followed is to have sought a reconsideration of that determination pursuant to s 62, after which she would have obtained reasons (s 63) and then could have made an application for review to the Tribunal (s 64). The applicant’s contention that she was without a remedy except for a declaration of right pursuant to s 21 of the FCA Act is incorrect. The applicant has, as submitted by the respondents, “the full suite of remedy, so to speak, in the tribunal which conducts merits review, but also that provides a review on the law as well”.

76    Section 21 of the FCA Act provides that the Court may make binding declarations of right “in relation to a matter in which it has original jurisdiction”. In relation to proceedings challenging administrative actions, such as those pursuant to the ADJR Act, it is well established that the Court’s power is confined to a review of the exercise of judicial power, since it cannot conduct a merits review – see Foster v Minister for Customs and Justice (1999) 164 ALR 357; [1999] FCA 687 at [7] (Drummond J). Here, the first declaration sought – that the applicant had a reasonable excuse not to attend the appointment – squarely falls into the area of merits review rather than a declaration. Even were I to find that the applicant’s matter was properly brought in this Court, I would not find that the Court had jurisdiction in this matter to determine such questions of fact.

77    The second declaration appears, at odds with the position taken by the applicant on this hearing, to accept that the suspension declaration was indeed a “determination” by QBE. Leaving that aside, while the Court does have jurisdiction to make a declaration as to whether a proper decision-making process has been undertaken (see Foster), the applicant relied on the contentions set out above that QBE should not have made the suspension determination prior to the lapse of the 30 days, taking into account the Guide (s 57(1A)). This is again a dive into the factual basis of the administrative actions undertaken by QBE, and the applicant should have, but did not, taken the actions open to her to have those decisions reviewed in the Tribunal. Had she done so, she would not, as she submitted, been “[sent] away without remedy” in the sense of the Tribunal having no jurisdiction: see Re Brian Lawlor at 178.

78    I am bolstered in this view by the Full Court’s remarks in Pascoe at [14] in relation to s 37(7) of the SRC Act, which I have quoted earlier in these reasons (at [69] above). I am of the view that this Court does not have jurisdiction to make the declarations sought, given the lack of a properly articulated basis of original jurisdiction attracting the operation of s 21 of the FCA Act. If I am wrong in that, I consider, given that the applicant has sat on her hands and not taken the required actions to bring her review before the Tribunal, that I should regard this Court as forum non conveniens for the making of the declarations sought. Section 172(1) of the ART Act provides that a party to a proceeding in the Tribunal may appeal to the Federal Court, “on a question of law”. Much of what I am asked to do in this case is to make factual determinations, as to reasonableness or fairness, and those are matters which would not have arisen on any appeal pursuant to s 172. That is a further basis for not determining this matter in this Court.

79    In relation to the third and fourth declarations – the reinstatement of her rights, and costs of the hearing before the Tribunal – these too are not matters in which this Court has original jurisdiction. I accept the respondents’ submission that the Tribunal provides a code for the making of costs orders (see s 67 of the SRC Act), and that this Court should not intervene. It is not appropriate for this Court to make orders requiring the respondents to reinstate compensation rights when there is no original jurisdiction relied upon to do so.

80    Finally, I would exercise my discretion not to make the declarations. This Court should not be used as a venue for determining rights to workers’ compensation claims where a statutory tribunal, appointed with specialist tribunal members, has been given the power to deal with those applications. It is not for this Court to consider the reasonableness or otherwise of the applicant’s excuse not to attend a medical appointment, or pre-emptively to make a costs order in relation to an adjournment of hearing dates in the Tribunal.

Determination

81    As set out above, the IA seeks that the “originating process be set aside” and that “judgment be given for the respondents against the applicant”, followed by two formulations of permanent stay or injunction. No specific power of the Court was identified, although no point was taken as to this by the applicant. Rule 13.01(1)(c) of the Federal Court Rules 2011 (Cth) (FC Rules) provides for originating applications to be set aside for defects in service, and r 16.21(1)(e) provides for striking out of a pleading on the basis that it “fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading”. This matter was amended to have been commenced by an Originating Application, which is not technically a pleading.

82    It seems to me that the proper basis for me to exercise the power to terminate these proceedings is that in r 26.01(1)(d) of the FC Rules; that is, an order for judgment against the applicant on the basis that “the proceeding is an abuse of the process of the Court”.

83    I am satisfied that, given that the proceedings should not have been commenced in this Court, that the Originating Application is an abuse of process. Accordingly, the respondents have succeeded on their IA, and judgment should be given against the applicant.

84    Once I have reached the view that these proceedings are an abuse of process, I do not need to continue to consider the balance of the arguments of the respondents, nor the substance of the applicant’s claims.

85    Costs should follow the event, of both the IA and the Originating Application, as agreed or taxed.

Associate:

Dated:    6 February 2026