Safety, Rehabilitation and Compensation Act 1988, s 57 (2)

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Australian Heritage Commission v Mount Isa Mines Ltd (1995) 39 ALD 262

Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24

Queensland v Wyvill [1989] FCA 485; (1989) 25 FCR 512

Tasmanian Conservation Trust v Minister for Resources [1995] FCA 1035; (1995) 127 ALR 580

Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388

Administrative Law - Judicial Review - jurisdiction under ADJR Act -

'without reasonable excuse' - whether section impliedly requires a relevant administrative decision - whether section self executing - construction of s57(2) SRC Act - ADJR Act review not available.

Safety, Rehabilitation and Compensation Act 1988, s 57 (2)

Australian Broadcasting Commission Staff Association v Bonner (1984) 54 ALR

Hutchins v Deputy Commissioner of Taxation, Full Court of the Federal Court, unreported, 27 March 1996

Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589

Statutory Construction - Parliamentary Intention - common law presumptions -

principles where common law rights affected - construction where statutory rights affected - construction of 'without reasonable excuse' section - whether recipient has a reasonable excuse is an objective fact for the court to determine.

Safety, Rehabilitation and Compensation Act 1988, s 57 (2)

Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589

Federal Court - Jurisdiction - whether court could grant declaration without

jurisdiction under ADJR Act - accrued jurisdiction - associated jurisdiction - cross vested jurisdiction - ADJR Act application not brought as matter of artificiality or subterfuge - jurisdiction found to grant declaration.

Federal Court of Australia Act, s 32

Jurisdiction of Courts (Cross-Vesting) Act 1987

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18

Kelson v Forward [1995] FCA 1584; (1996) 39 ALD 303

Langer v Australian Electoral Commission unreported 7 March 1996

New South Wales Aboriginal Land Council v Aboriginal and Torres Strait

Islander Commission (1995) 131 ALR 559

Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563

Solicitors for the applicant : Crossin Barker Gosling

Solicitors for the respondent : Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application for an order of review be dismissed.

2. The application be otherwise adjourned for further

hearing to a date to be fixed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FINN J The original application filed in this matter sought merely an order of review of a decision of the respondent, Comcare, under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). At my suggestion, and so as to ensure that the dispute between the parties was finally resolved in these proceedings, the application was amended without objection to include an alternative claim for a declaration of right under the Federal Court Act if, in the event, it should be found that the decision in question was not amenable to ADJR Act review: cf Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. Comcare being a statutory corporation, the option of proceeding under the Judiciary Act 1903 s39B was not a matter canvassed before me.

2. It is appropriate at the outset to consider the matters which led me to suggest that the amendment in fact made at the hearing might be a prudent one. The decision the subject of challenge in these proceedings was assumed by the applicant, and conceded by the respondent, to have been required of Comcare under the Safety, Rehabilitation and Compensation Act 1988, s57(2) ("the SRC Act"). It was that assumption and concession that I questioned.

3. The applicant, Mrs Buck, had until 13 July 1995 been in receipt of compensation payments under the SRC Act. On that date payments were suspended in consequence of a decision notified to her on 12 July 1995 by Comcare that her failure to attend a required medical examination on 13 March 1995 was "without reasonable excuse". That decision purported to be made under the SRC Act, s57(2). Comcare's power to require a medical examination is conferred by s57(1).

4. It is appropriate to set out the terms of both subsections so far as relevant here, noting that for present purposes Comcare is the "relevant authority" referred to therein.

"57. (1) Where:

...

(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.

(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. The matter which concerned me and to which I invited attention was whether it was the case at all that, on its proper construction, s57(2) impliedly required of Comcare that it decide whether the refusal or failure was "without reasonable excuse". Put shortly, was the existence of a reasonable excuse a question of "objective fact" or of Comcare's "subjective opinion": cf Australian Heritage Commission v Mount Isa Mines Ltd (1995) 39 ALD 262.

6. It is of course clear that decisions to which the ADJR Act applies must be ones "for which provision is made by or under a statute": Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 per Mason CJ. Equally it is clear that there may be such a decision "notwithstanding that the enactment concerned does not expressly require or authorise the decision in question but does so impliedly": Hutchins v Deputy Commissioner of Taxation, Full Court of the Federal Court, unreported, 27 March 1996 per Black CJ.

7. It is the case as a practical matter that, for a suspension of compensation payments to be put into effect pursuant to s57(2), a decision must needs be taken by Comcare that a failure or refusal has occurred without reasonable excuse. Both the respondent and the applicant submitted that what was the practical reality also reflected the parliamentary intendment. And so it is said that the presence or absence of a reasonable excuse was not a matter of objective fact (was not a state of affairs) which this Court or a court of competent jurisdiction could, if necessary, be called upon to determine in proceedings brought by an employee to vindicate his or her right to continue to be paid compensation. Rather that matter was one given Comcare to determine in the exercise of its judgment.

8. I am, in effect, being asked to construe s57(2) as if it were worded:

"Where, in the opinion of Comcare, an employee refuses or

fails, without reasonable excuse, to undergo ... "

Cf the like implication sought in Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 at 601.

9. The formula "without reasonable excuse" occurs commonly enough as a ground of exculpation in penal provisions of statutes: see e.g. Australian Securities Commission Act 1989, s63 and Australian Securities Commission v Ampolex Ltd (1995) 18 ACSR 735; see also Broadbent v Fairbairn, unreported 10 July 1995 per Drummond J. In these instances the presence or absence of such an excuse is, properly, a matter for judicial determination. In contrast, though, there are instances of its use in legislation in circumstances where the determination required is given to an administrative agency or tribunal with the consequence that judicial supervision of that determination is a matter of judicial review: see e.g. Health Insurance Act 1973 s23DZG(c), s124FF(2) and Reddy v Medicare Participation and Review Committee, an unreported decision of Davies J of this Court, 30 September 1994.

10. Though acknowledging that it could only do so by implication, both parties here contend that s57(2) exemplifies the latter of the two usages noted. The respondent, which provided the more detailed argument on the point, sought to support this construction and its associated implication on a number of bases.

11. The first involved an appeal to authority. It was submitted that the decision of the Full Court of this Court in Australian Broadcasting Commission Staff Association v Bonner [1984] FCA 220; (1984) 54 ALR 653 would justify - if not in fact require - that I imply that the "without reasonable excuse" decision was being entrusted to Comcare.

12. It is not necessary to set out the circumstances of that case in any detail. Suffice it to say that all three members of the Full Court accepted that the legislative provisions in question actually required a "decision" to be made: see ALR at 654 per Keeley J, at 658 per Morling J and at 666 per Kirby J. The legislation, though, did not indicate expressly who was to make that decision. The issue thus posed for determination was whether, as a matter of construction, there was an "hiatus" which rendered the statutory provisions ineffectual for want of an authorised decision maker, or whether it could be presumed that an identifiable person was intended by Parliament to make the decision: see esp 658-659 per Morling J. In the result, the latter of these alternatives was favoured by the Court.

13. Though binding on me, I do not consider that Bonner's case assists in resolving the issue I have to determine. The legislative scheme in that case requiring a decision of an administrative character to be made, the resultant question was, simply, whether the identity of the decision maker could be implied from the available legislative materials. The issue in the present case is the anterior one of whether such a decision is required at all.

14. The second of the bases relied upon related more closely to the scheme of the legislation and to the place of s57(2) in it. It involved three somewhat interrelated submissions.

1. Counsel for Comcare acknowledged that if the subsection was concerned merely with objective facts then it would be open to a court to determine on the evidence available whether an employee in fact had a reasonable excuse. However, it was suggested that where Parliament wanted only the correct decision to be arrived at in determinations made under the SRC Act it designated these "reviewable decisions": see SRC Act, ss60 and 62. Such were then made amenable to merits review by the Administrative Appeals Tribunal: see SRC Act, s64. Decisions other than "reviewable decisions" were, in contrast, only examinable by way of judicial review.

Noting that the SRC Act did not designate s57(2) as giving rise to a reviewable decision, counsel submitted that it would be surprising for Parliament to have intended that courts, nonetheless, were to determine on the merits whether a reasonable excuse existed whenever Comcare, for its purposes, determined that an employee's rights had been suspended.

2. By way of allied submission, it was suggested that the legislative scheme of the SRC Act was not one in which Parliament would have been likely to intend that courts were to have a significant role at all in making determinations involving the entitlements of employees under the Act. In this regard reference was made (i) to the number of instances where rights were, or could be, suspended if any employee refused or failed to do a prescribed act or thing "without reasonable excuse": SRC Act, ss 36(4), 37(7), 57(2), 58(3) and 118(4); (ii) to the general character of the legislation as one involving an administrative scheme in which expeditious decision-making by Comcare was clearly expected; and (iii) to the consequences for that scheme if the courts were able to determine as a matter of objective fact whether a reasonable excuse existed whenever the question was raised under any one of the subsections referred to above.

3. Distinctly, it was said that Parliament, in making Comcare an administering authority of the SRC Act's provisions, gave it powers to require an employee to do acts etc which would enable the purposes of the Act to be put into effect. It was consistent with this that Parliament would also have intended that Comcare was, in effect, to be armed with a coercive power to have those acts, etc done by leaving to Comcare the power to decide whether an employee's failure or refusal to do as required in a given case was without reasonable excuse.

15. Before passing on these submissions I should note that counsel for the applicant, while in effect adopting Comcare's submissions on s57(2) as his primary submission, nonetheless acknowledged the need to address the amendment made to the application to cater for the contingency that the subsection might be found not to require a decision amenable to ADJR Act review. In the alternative counsel submitted without further elaboration that the subsection was merely a self-executing provision subject to a threshold condition, that condition being the fact of not having a reasonable excuse: see Transcript pp 119, 120.

16. If I am to have jurisdiction to entertain the grant of relief under the ADJR Act, I must be satisfied that there is here a decision which can be reviewed under that Act. It is not open to the parties by consent to confer that jurisdiction on me. For this reason, despite the lack of any sustained submission that the ADJR Act had no application to the circumstances of s57(2) - and I have made plain to the parties that this was a live issue for me - I must, nonetheless, satisfy myself on this matter.

17. I have reached the conclusion, albeit with some hesitation, that s57(2) does not, relevantly, authorise or require a decision of an administrative character to be taken by Comcare. To use the language of Lockhart J in Minister of Immigration and Ethnic Affairs v Naumovska, above, at 601, "(t)he sub-paragraph means what it says". It stipulates the circumstances in which an employee's rights will be suspended - and suspended by force of the subsection. As and when those circumstances occur, so also does the suspension of rights. Again to use the language of Lockhart J (at 601): "No decision by anybody is required to bring about this change."

18. The consequences of this are, first, that I do not have jurisdiction under the ADJR Act to pass on the lawfulness or otherwise of the suspension of Mrs Buck's entitlement to compensation payments; but, secondly, that the question whether Mrs Buck in fact had a reasonable excuse is one which a court of competent jurisdiction can itself decide in proceedings before it which properly raise that issue.

19. If, contrary to what is the case, the SRC Act provisions were such that (i) distinct subsequent decisions involving an employee could be taken by Comcare once the requirements of s57(2) had been satisfied and Comcare had indicated that in its view it was so satisfied and hence could take a consequential decision - cf Minister of Immigration and Ethnic Affairs v Naumovska, above; Director-General of Social Services v Hales (1983) 47 ALR 281; Nolan v Minister for Immigration and Ethnic Affairs [1992] FCA 259; (1992) 27 ALD 755; or (ii) the suspension of rights was not automatic but depended on a decision by Comcare consequent on a finding of a refusal without reasonable excuse - cf SRC s58(3) - I would be constrained to hold that the subjective opinion of Comcare in either case would be sufficiently a "decision" (or, in the case of (i), at least "conduct") for ADJR Act purposes. The statutory scheme here does not raise either of these contingencies. But even if it did, it would remain the case that the question whether an employee had a reasonable excuse would, in relation to (i) above, be one still for the court to determine because that question would be as to the existence of an objective fact: see Minister for Immigration and Ethnic Affairs v Naumovska, above, at 601-602; and, in relation to (ii) above, be examinable by the court on the basis that it involved a "jurisdictional fact": cf Queensland v Wyvill [1989] FCA 485; (1989) 25 FCR 512. There is no need here to further consider these two possibilities, the former of which in particular is not without its difficulties.

20. In reaching my conclusion on the construction of s57(2) I have derived particular assistance from the judgment of Lockhart J in Naumovska's case to which passing reference has been made. I should acknowledge, though, that the particular policy concerns which there "gave added and powerful weight" to the construction his honour adopted of a provision in the Migration Act 1958 (Cth) - those concerns related to protecting the liberty of the individual - are not present here. Nonetheless it can and should be said that, in a case such as this, s57(2) operates on a significant, albeit statutory, right of an employee in Mrs Buck's position. That right does not fall into the category of "common law" rights which traditionally have been safeguarded from legislative interference etc in the absence of clear and unambiguous statutory language: cf JJ Doyle QC, "Common Law Rights and Democratic Rights", PD Finn (ed.), Essays on Law and Government, Vol 1, 158 ff. Yet it is a right of sufficient significance to the individual in my view, that, where there may be doubt as to Parliament's intention, the courts should favour an interpretation which safeguards the individual. To confine our interpretative safeguards to the protection of "fundamental common law rights" is to ignore that we live in an age of statutes and that it is statute which, more often than not, provides the rights necessary to secure the basic amenities of life in modern society.

21. Notwithstanding the submissions made by Mr Howe for Comcare, I do not consider that the scheme of the SRC Act points to a construction different from that at which I have arrived. The failure of the Act, for example, to designate s57(2) as giving rise to a reviewable decision does not in any way determine the question whether the subsection in fact authorises or requires Comcare to make a decision of an administrative character. Indeed this supposed failure is equally consistent with Parliament's recognition that there is no decision there at all let alone one that might warrant inclusion amongst the "reviewable decisions".

22. Likewise I do not consider the number of instances in the legislation in which rights are suspended absent reasonable excuse, as providing in their aggregate any indication of parliamentary intent as to their proper construction. Indeed one of the instances relied upon - s58(3) - seems to tell against the construction proposed generally by the parties in that it seems in its particular setting to make the lack of reasonable excuse a jurisdictional fact upon which a discretionary power of Comcare is premised. As I understood Mr Howe's submission he seemed to concede as much. I would have to say it is not at all apparent to me why the review of s58(3) decisions should in consequence, and for jurisdictional fact reasons, be more stringent on the question of reasonable excuse than review of those other provisions where the consequence of lack of reasonable excuse is not a discretion in Comcare but rather an automatic suspension of rights. One would have thought that the need for the more stringent safeguard existed in the latter case.

23. I should add that I do not consider the construction I have placed on s57(2) results in effect in the courts being made usurpers of the statutory function the Act envisages for Comcare in determining employee entitlements to compensation. Nor do I consider the question of reasonable excuse as being of a kind which it is inappropriate for a court to determine in the circumstances for reasons of inconvenience: cf Australian Heritage Commission v Mount Isa Mines, above, at 270-271; Tasmanian Conservation Trust v Minister for Resources [1995] FCA 1035; (1995) 127 ALR 580 at 600-601.

24. Finally, in relation to the submission that Parliament intended to confer a coercive power on Comcare, I would merely say that if it wished so to arm Comcare in its dealings with the individual it could have done so expressly. For my part its failure so to do should properly be interpreted as manifesting that it had no such intention. The courts should, in my view, be slow to find that Parliament has placed the individual in the power of any agency of government when it could, without difficulty, have made that intent plain and did not do so.

25. As I have noted, I have concluded that I do not have jurisdiction to consider the grant of relief under the ADJR Act. The burden of the applicant's claim falls, in consequence, upon the amendment seeking a declaration. Before turning to that matter I consider it appropriate nonetheless to provide short reasons dealing with the ADJR Act grounds of review agitated by the applicant. I do this in the event that I am later found to be incorrect in the construction I have given to s57(2) and bearing in mind that I was addressed at length by both parties on those grounds.

26. It is the actual grounds of the ADJR Act application which give rise to the greatest surprise. The order of review, as I have already noted, is sought of the decision of Comcare made on or before 12 July 1995 that Mrs Buck's failure to attend a medical examination on 13 March 1995 was without reasonable excuse. Two grounds have been assigned for the application. They are:

"1. That the decision was not authorized by the enactment

in pursuance of which it was purported to be made.

2. That the making of the decision was an improper

exercise of the power conferred by the enactment in

pursuance of which it was purported to be made."

27. In responding to a request made by the Australian Government Solicitor for further and better particulars of these grounds, the answer given on the applicant's behalf in relation to ground 1 was that:

"1. The decision was not authorised by the Act because

such a decision was only authorised in circumstances in

which the failure to attend a medical examination was

without reasonable excuse. The applicant having reasonable

excuse for non-attendance, the decision to terminate or

suspend payment of compensation was without the authority of

the Act."

In relation to ground 2 the only basis upon which it was said that there was an improper exercise of the power conferred on Comcare was that Comcare "failed to take into account the opinions of the applicant's treating doctors" and to that extent reliance was placed upon the ADJR Act, s5(2)(b). I note specifically that the applicant expressly denied reliance upon any other matter referred to in s5(2).

28. At the hearing before me it was conceded by counsel for the applicant that it appeared from the reasons for decision of the decision maker authorised by Comcare to make s57(2) determinations (Mr Pugsley), that regard was had to the reports of Mrs Buck's treating doctors. In consequence counsel retreated to the proposition that Comcare failed to have "sufficient regard" to the opinions of those doctors. I was not addressed on this nor could it have been done with profit: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40-41 per Mason J and note that the applicant had disavowed any reliance upon the ADJR Act s5(2)(g) when furnishing further and better particulars of the grounds of her application.

29. In the event I was left with but one ground of attack. It can only be described as perplexing in the circumstances given that the applicant's primary submission supported rather than opposed the proposition that s57(2) required Comcare to make the "without reasonable excuse" determination. It is, simply, this: Mrs Buck had a reasonable excuse; if Comcare was to act in conformity with the legislation it had to accept that excuse; by not so doing, it made a decision not authorised by the Act.

30. Put bluntly, as counsel for the applicant accepted, the only decision Comcare can make is the right one. The consequence of this is, seemingly, that it is for this Court to determine whether the decision in fact reached is the right one.

31. Given that this is the issue I was asked to determine I do not consider it necessary to provide a particularly detailed account of the factual background to this application. The following suffices.

32. From 12 July 1990 Comcare accepted liability to pay Mrs Buck compensation in respect of a work-related injury which resulted in what has been termed a "stress condition". Later in that year she was referred by her general practitioner to a psychiatrist, Dr Riley, whom she had seen some years earlier. Dr Riley periodically has certified her to be unfit for work. In late 1990 and early 1991 Mrs Buck underwent medical examinations with the Commonwealth Medical Officer and with a consultant psychiatrist arranged by the Commonwealth Medical Officer. Thereafter she has refused to attend rehabilitation assessments and medical examinations required variously by her then "employer" (the House of Representatives) and by Comcare. In the case of Comcare, the medical examinations were an appointment with a psychiatrist in April 1993 and the appointment of March 1995 which gave rise to these proceedings.

33. The reasons for her refusals related to medical advice received from Dr Riley. To illustrate this I refer to a letter written by Dr Riley to Mrs Buck's solicitors on 24 January 1995 which was in turn passed on to Comcare on 6 March 1995. Dr Riley wrote (inter alia):

"I have made reports to you dated 19th December, 1991 and

15th April, 1993 in which I gave my psychiatric opinion in

both reports that further medical examinations and

assessments of Mrs. Buck by psychiatrists and other medical

practitioners would cause a considerable aggravation of her

ongoing adverse psychiatric health and worsen her symptoms

of tension state, anxiety and depressive reaction.

...

I continue of the opinion that her above symptoms continue

unabated into the present time and arose as a result of her

employment with the Australian Government. Also, I still

hold the opinion that further psychiatric assessments as now

proposed by Comcare are quite likely to aggravate her

ongoing psychiatric condition."

34. It is appropriate in turn to note the terms of the letter of Mrs Buck's solicitors to Comcare. It explains the reason for her refusal to attend the March examination:

"We enclose a copy of Dr. Riley's report on Mrs. Buck's

medical condition, which report is dated the 24th January,

Having regard to Dr. Riley's opinion (expressed in this

report and in earlier reports) Mrs. Buck believes she has

reasonable excuse for declining to attend the medical

examination appointed with Dr. W. Glaser for Monday next,

the 13th instant, and will, therefore, not keep that

appointment."

35. To interpolate at this point, it is Mrs Buck's case that the excuse noted in the letter is the one that should have been accepted by Comcare for s57(2) purposes.

36. The original determination accepting liability to pay compensation to Mrs Buck has for various reasons been the subject of ongoing consideration since 1990. From that time Comcare has been attempting to obtain additional information concerning Mrs Buck's medical condition. One more recent reason for the ongoing consideration related to an investigation being made by Comcare in 1994 that Mrs Buck had failed to disclose a pre-existing injury when obtaining her original employment. It was the need to investigate that claim which led ultimately to the request for the March 1995 examination. But that request was a last resort.

37. On 10 October 1994 Comcare wrote to Mrs Buck's solicitors:

"Comcare believes that the issue of a wilful and false

representation is one that may require an independent

medical review. However, at this stage, in view of Dr

Riley's comments about the impact such an examination would

have on your client, Comcare will hold such an examination

in abeyance for the present time.

However, Comcare now requests copies of all Dr Riley's

clinical notes concerning your client since October 1985

pursuant to section 58 of the Safety, Rehabilitation and

Compensation Act 1988 (the Act).

In this regard, a formal section 58 request is attached.

Please note Section 58 of the Act gives Comcare the power

to request the provision of information."

38. On 20 December 1994 the solicitors communicated to Comcare Dr Riley's refusal to provide his notes. In Dr Riley's view they were his private notes and he would not release them.

39. It was on 17 January 1995 that Comcare notified Mrs Buck's solicitors that it was requiring a s57(1) medical examination. It was to be held with a nominated consultant psychiatrist on 13 March 1995. As I have already indicated Mrs Buck's refusal to attend and her reasons for so doing were communicated to Comcare on 6 March 1995.

40. By letter of 12 July 1995 Mrs Buck was informed that Comcare had determined that her failure to undergo the examination was without reasonable excuse.

41. This can be mentioned briefly. The reasons for the decision are contained in paragraphs 12 and 13 of the affidavit of Mr Robert Pugsley of 14 November 1995. Mr Pugsley was the officer authorised by Comcare to require s57(1) examinations and to make s57(2) determinations. Paragraph 12 of the reasons (I here merely precis) (i) provided a selective chronology of the matter; (ii) referred to the information needs of Comcare in the circumstances; (iii) noted that Mrs Buck had examinations in late 1990 and early 1991 and also that she had not taken any objection to the suitability of the psychiatrist nominated to examine her on 13 March; (iv) referred to Dr Riley's reports and questioned his seeming view that Mrs Buck could only be examined by her treating doctors; and (v) affirmed the reasonableness of the requirement that Mrs Buck attend the examination.

"For the reasons outlined in the above paragraph 12 I

informed the Applicant by letter dated 12 July 1995, care

of her solicitors, that I had formed the view that her

failure to undergo the examination was without reasonable

excuse within the meaning of sub-section 57(2) of the SRC

Act."

43. I should add that I have considered it unnecessary to provide a more detailed exposition of the decision given the very narrow and particular attack made on it.

44. Whether or not the decision would survive scrutiny on other grounds is not for me to say. I wish to emphasise this. At the beginning of his oral submissions I requested counsel for the applicant to identify the precise grounds of his application; during his submissions I raised the issue of Wednesbury unreasonableness but no amendment to the application was sought (cf ADJR Act, s5(2)(g)); and at the beginning of his reply I again asked if he had any grounds of challenge other than the two raised. It is not surprising then that Mr Howe in his submissions on behalf of Comcare stressed that he was not addressing me on Wednesbury unreasonableness, on taking into account irrelevant considerations, or on any of the other grounds of review.

45. I have rejected already the challenge based on Comcare's alleged giving of insufficient weight to the applicant's doctors' reports in reaching its decision.

46. The ground pressed is that Comcare's decision was not authorised by s57(2) because Mrs Buck in fact had a reasonable excuse. In other words, the only decision Comcare was authorised to make was the right one: an erroneous decision is an unauthorised one.

47. To sustain the somewhat surprising proposition that I was here required to "substitute (my own) decision for that of the decision maker" (cf Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388 at 391 per Toohey J), counsel for the applicant submitted that the question of reasonable excuse was a "jurisdictional fact" such that I must determine for myself whether there was in fact a reasonable excuse: cf Queensland v Wyvill (1989) [1989] FCA 485; 25 FCR 512.

48. When pressed as to what was the decision which was pre-conditioned by this alleged jurisdictional fact, counsel for the applicant conceded that there may possibly be no decision to be made at all other than as to the jurisdictional fact. Whatever might be said of this submission if Comcare was in fact given a discretion whether or not to suspend compensation payments (cf SRC Act, s58(3)), it clearly is an impossible one to sustain in relation to s57(2). The alleged jurisdictional fact is the decision to be made.

49. The respondent in contrast has submitted that Comcare has made the very determination required of it by s57(2) and for this reason the decision arrived at, even if in fact erroneous, cannot be said to be unauthorised by the Act. It may nonetheless be open to review on other grounds but no such challenge has been made here.

50. I can only say that I agree entirely with the respondent's submission. Whatever else may be said of Comcare's decision - and I again emphasise that I express no opinion on whether it would be impeachable on other grounds - it was (on the assumption I have been making) the decision the sub-section authorised Comcare to make.

51. If, then, I had concluded that s57(2) gave rise to a decision amenable to ADJR Act review, I would nonetheless have dismissed the application made for an order of review of it.

52. The actual declaration sought by the applicant in the amendment made to her application underwent a number of mutations in the course of the hearing before me. In its final form what was asked for was:

"A Declaration that the Applicant had reasonable excuse for

refusing to undergo a medical examination arranged by the

Respondent with Dr Glaser, psychiatrist of Deakin in the

Australian Capital Territory on 13 March 1995."

"A Declaration that the Applicant's entitlement to

compensation was not lawfully suspended pursuant to the

Safety Rehabilitation and Compensation Act 1988, s57(2), on

12 July 1995."

Given the course that I intend taking in relation to the declaration, it is not necessary for me to consider the adequacy or otherwise of the form of the declaration sought.

53. Counsel for Comcare, Mr Howe, did not attempt to place obstacles in the path of the applicant in making amendments to the application. Mr Howe strongly contested my jurisdiction to make a declaration of right if, as has proved to be the case, I were to find that I had no jurisdiction to consider the grant of relief under the ADJR Act. But he did not have a fair and reasonable opportunity to consider, let alone to address on, the substance of the declaration itself.

54. In these circumstances I propose here only to decide the question as to my jurisdiction to make a declaration in the circumstances. I will adjourn for further hearing the question of whether and if so in what form a declaration of right should be made.

55. I would note at the outset that no submissions were made on the possible significance, if any, of the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987, s4(2) to the issue before me: see Kelson v Forward [1995] FCA 1584; (1996) 39 ALD 303 at 321. Whether or not I have jurisdiction to make a declaration was agitated solely in relation to what are described as the "accrued" and "associated" jurisdictions.

56. I mean no disrespect to the submissions made by Mr Howe - and I would commend the assistance he has provided throughout this matter - when I say that the issues he has raised as to both the accrued and associated (i.e. Federal Court of Australia Act, s32) jurisdictions are not ones that I should or can entertain given the weight and direction of authority in this Court on these matters.

57. It manifestly is the case that the ADJR Act application was not one brought as a matter of artificiality or subterfuge. Both parties submitted that I had jurisdiction under that Act. It equally is the case that the declaration sought arises out of the same subject matter as the order to review, i.e. the circumstances in which compensation payments were suspended under s57(2). Given the conjunction of these two factors, it is appropriate that I follow the course indicated by Davies J in Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 (where those factors were relied upon), and accept jurisdiction to entertain the application for a declaration of right in light of the construction I have placed on s57(2). Whatever doubts they may have entertained, other judges of this Court have taken this same course: see e.g. New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 131 ALR 559; see also Lee Aitkin, "The Swan Hill Tramp" (1996) 70 ALJ 383. It cannot be said that Davies J was clearly in error.

58. I would add that while it is possible to distinguish the decisions of the Full Court in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 and Langer v Australian Electoral Commission unreported 7 March 1996, on the basis that both concerned claims to accrued jurisdiction in circumstances where there was no want of jurisdiction in relation to the primary federal issue, I remain doubtful whether the law as stated by the Court in both cases on the accrued jurisdiction should be taken to be so limited in consequence.

59. Having accepted that I have jurisdiction in the circumstances to entertain an application for a declaration of right, I adjourn further hearing of that application to a date to be fixed.

60. As I have previously indicated, I dismiss the application for an order of review.