Nimhurchu v QBE Insurance [2026] FCA 59 | Case summary

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.
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.
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.
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".
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.
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.

Nimhurchu v QBE Insurance [2026] FCA 59 | Case summary | Zoe

[18]

QBE responded to that objection on 15 May 2025. It set out the history of the ongoing tussles as to medical examination and concluded:
1. 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.
2. 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.
3. 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.
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.
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.
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:

[19]

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

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

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.

[48]

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.
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).
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.
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.
1. 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.
2. I was referred by Mr Besanko QC to dicta by Walsh J in Forster v Jododex Australia Pty Ltd and Anor [1972] HCA 61; (1972) 127 CLR 421, which is apposite (427):

[50]

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.
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] FCA 502; (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).
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.
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:

[53]

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".
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.
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".
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.
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.
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.
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.
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.

Nimhurchu v QBE Insurance

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