.......................[sgd].................................................

Safety, Rehabilitation and Compensation Act 1988 (Cth) - determination under s 57 (1)-determination revoked on respondent's own motion-powers of Tribunal on review - scope of review - utility of application continuing-no utility in continuing with application-application dismissed under s 101(1) of the Administrative Review Tribunal Act 2024

Administrative Review Tribunal Act 2024

Safety, Rehabilitation and Compensation Act 1988

Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 260

1. Following a hearing by telephone conducted on 10 April 2025 for reasons given orally at the conclusion of such hearing the Tribunal dismissed this application for review pursuant to the provisions of s 101 of the Administrative Review Tribunal Act 2024 (the ART Act). Following the delivery of those reasons the applicant requested reasons in writing. These reasons are produced pursuant to that request.

1. It is appropriate to briefly outline some relevant facts in this matter.
2. The applicant made a claim against the respondent bank for compensation under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The respondent bank is a "licensed corporation" pursuant to the applicable provisions of the SRC Act.
3. Following receipt of the applicant's claim for compensation, on 8 August 2025 the respondent made a determination pursuant to s 57 (1) of the SRC Act (the 8 August 2025 determination).[1] In very clear and precise language that determination stated that the bank had arranged a specialist medical examination appointment with a psychiatrist Dr Kar. The date and time for such examination were specified in that determination.
4. The applicant, as he was entitled to do, by an email sent to the respondent on 21 August 2025 sought reconsideration of the 8 August 2025 determination.[2] As was observed by counsel for the respondent in submissions to the Tribunal, both the covering email and the attached document articulating the applicant's "Grounds for Reconsideration" readily acknowledged that the 8 August 2025 determination required his attendance for an examination with Dr Kar.
5. A reconsideration officer of the respondent made a determination on 18 September 2025 affirming the 8 August 2025 determination (the 18 September 2025 reconsideration determination). It is from this decision that the applicant 16 October 2025 made application to this Tribunal for review.
6. After this application had been made to this Tribunal, correspondence ensued between the applicant and the respondent concerning the obligation for the applicant to attend a medical examination with Dr Kar as required.[3] The contents of that correspondence need not be referred to for the purposes of these reasons.
7. Following this dialogue between the parties the respondent made a further determination on 28 January 2026 pursuant to s 57 (1) of the SRC Act.[4] That determination informed the applicant that the respondent had arranged a specialist medical examination appointment with Associate Professor Khalid. It also specified the precise date, time and mode of such appointment. Importantly, in the section of that determination entitled "Terms of Decision" it stated as follows:

"In accordance with the provision of section 57 (1) of the SRC Act, I determine that:

You are required to attend the scheduled independent medical examination to assist in determining your claim for compensation under section 14 of the SRC Act."

1. Subsequently, the respondent on 25 February 2026 conducted an own motion reconsideration of the 8 August 2025 determination under s 62 (1) of the SRC Act. In doing so the reconsideration officer of the respondent gave reasons for making the decision as she did. Amongst other things, the reconsideration officer stated that the applicant had given feedback to the respondent as to whether he should undergo the examination proposed with Dr Kar. She also stated that after consultation with the applicant the respondent informed him on 19 January 2026 that it was happy to arrange a medical examination of him by a medical practitioner other than Dr Kar. This led to the further determination on 28 January 2026 requiring the applicant to undergo an examination by Associate Professor Khalid, as previously noted. The reconsideration officer then stated that in the circumstances, she saw no reason for the 8 August 2025 determination to remain in place as the respondent no longer required the applicant to undergo a medical examination by Dr Kar. She also recorded in that determination that as there was a further, separate and/or different determination requiring the applicant to undergo a medical examination by another practitioner, the 8 August 2025 determination no longer served any purpose. It was, therefore, appropriate that she revoked that determination in accordance with the provisions of the SRC Act, which she did.

1. The Tribunal must have regard to the limits of its powers. Counsel for the respondent in submissions, quite correctly, referred to a passage from the frequently cited decision of Lees v Comcare.[5] A decision of the Full Court of the Federal Court of Australia, it addressed the powers of the Tribunal when reviewing decisions made under the SRC Act. As is apparent from an examination and construction of the relevant sections of that act, the Tribunal only has jurisdiction to review second tier or reconsideration decisions made under s 62 of the SRC Act. Further, the Full Court in that decision observed that the powers of the Tribunal are powers for the purpose of reviewing the reviewable decision and are not powers that may be exercised at large.
2. A passage from another decision of Frugtniet v Australian Securities and Investments Commission was referred to by counsel for the respondent which is also illustrative of how one assesses the jurisdiction of the Tribunal in circumstances such as this.[6] The High Court in that case observed that the primary decision, and the statutory question it answers, marks the boundaries of the Tribunal's review. The court also held, quite correctly, that the Tribunal must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the Tribunal in conducting such review.
3. Given these considerations, what is apparent is that the scope of any review in this application to be undertaken by the Tribunal is limited to the 18 September 2025 determination.[7] It should be repeated that such decision related to one extremely discrete matter, namely the requirement of the applicant to attend an independent medical examination with Dr Kar, nothing else. That issue alone marks the boundaries of the Tribunal's review in this application.
4. The 18 September 2025 determination has been revoked. In these circumstances there is much force at the contention of the respondent that the applicant has therefore been successful in overcoming the requirement to undergo examination by Dr Kar. Therefore, there is nothing else that the applicant can achieve in this application. It is quite correct, as also contended for by the respondent, that this application no longer has any utility. To that extent the Tribunal may be satisfied that the applicant's application has become "vexatious" because it has no serious purpose or value following the circumstances that occurred, specifically the revocation of the 18 September 2025 determination, which occurred after he had made his application to this Tribunal for review of that decision. Put another way, there is simply nothing left for the Tribunal to review.
5. Therefore, in these circumstances the discretion contained in s 101 (1) (a) of the ART Act is enlivened. Having reached the conclusions it has that there is nothing left for the Tribunal to review and therefore no utility in continuing, consistent with its objectives enshrined in s 9 of the ART Act, it is appropriate to dismiss the application.
6. By way of completion brief reference should be made to submissions by the applicant concerning the scope of this review. He endeavoured to argue that the respondent's approach was an unduly narrow characterisation of the decision under review. Further, he contended that the 18 September 2025 determination concerned in a broader sense the exercise of the statutory power under s 57 of the SRC Act requiring him to attend for any independent medical examination. The Tribunal cannot accept this contention as the very specific language of the determination itself makes it apparent that the sole question for determination was the requirement that the applicant attend for a medical examination with Dr Kar at a specified date and time. If one were to accept the applicant's contention it would be an exercise of a power at large which is just not permissible.
7. Additionally on this question, given that the 18 September 2025 determination has been revoked, if the applicant considers that the subsequent determination requiring him to attend for a medical examination to be conducted by Associate Professor Khalid made on 28 January 2026 was in some way an improper exercise of the powers contained in s 57 of the SRC Act by the respondent, it is open to him to seek reconsideration of that decision, and if he remains dissatisfied with such reconsideration decision to of course further apply to this Tribunal for review of such decision. In his submissions the applicant contended that the requirement to attend for examination by Associate Professor Khalid was based on what he classified as the same rationale and therefore this application would not be devoid of practical utility. He contended that the only practical change between the determinations was the nominated examiner and appointment arrangements. He observed the operative requirement imposed on him remained entirely identical, namely, to attend on a medical practitioner selected by the respondent for an independent examination. Therefore, the Tribunal had a sufficient platform, or foundation to conduct the review in the terms he contended. The Tribunal is unable to accept this contention as it relates to a separate determination to be examined by another medical practitioner. It is also an example of seeking to have the Tribunal exercise its powers of review under the relevant provisions of the ART Act at large, which as was explained by the Full Court of the Federal Court of Australia in Lees is impermissible.
8. For these reasons the Tribunal made the orders dismissing this application under s 101 (1) (a) of the ART Act.

[1] T 13 (document lodged under s 23 of the ART Act numbering 241 pages).

[3] ST 1 to ST 4 (supplementary s 23 document numbering 48 pages).

[5] [1999] FCA 753; (1999) 56 ALD 84 at [39].

[7] In his submissions counsel for the applicant in the section entitled "Scope of review" (paragraphs 34 to 42) accurately explained how this arises. The Tribunal accepts these contentions in their entirety.