Comcare v Kemp [2020] FCA 865

Comcare v Kemp [2020] FCA 865

The Tribunal did not err in law in applying s 7(4) of the SRC Act as it found the date when Mr Kemp first sought medical treatment (2 September 2013) was the relevant date of injury, since the evidence did not permit the Tribunal to fix an earlier date of impairment under s 7(4)(b). The Tribunal's reasons sufficiently addressed the competing arguments, and the Tribunal was correct not to infer a date by reference to cessation of employment since s 7(4) does not support such a reading. Therefore, the 2001 amendment (lower threshold for hearing loss) applied and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
19 June 2020
Procedural Posture
Appeal / Federal Court of Australia Decision on Application for Judicial Review Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth)
Outcome
Appeal dismissed
Legal Topics
['compensation for Permanent Hearing Loss' 'statutory Interpretation' 'judicial Review of Administrative Appeals Tribunal Decisions' 'deeming Provisions Under Safety Rehabilitation Legislation']
['administrative Law'] ['compensation for Permanent Hearing Loss' 'statutory Interpretation' 'judicial Review of Administrative Appeals Tribunal Decisions' 'deeming Provisions Under Safety Rehabilitation Legislation']

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Procedural Posture

Appeal / Federal Court of Australia Decision on Application for Judicial Review Under S 44 of the Administrative Appeals Tribunal Act 1975 (cth)

Legal Issues

  1. 1 ["Whether the AAT erred in finding that the 2001 amendments to the Safety Rehabilitation and Compensation Act 1988 (Cth) applied to Kemp's claim" 'Whether the Tribunal failed to consider or give reasons regarding s 7(4)(b) of the SRC Act' 'Whether the Tribunal failed to comply with its obligation to state findings on material facts under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth)' "Whether the Tribunal's interpretation of s 7(4) of the SRC Act was correct"]

Ratio Decidendi

The Tribunal did not err in law in applying s 7(4) of the SRC Act as it found the date when Mr Kemp first sought medical treatment (2 September 2013) was the relevant date of injury, since the evidence did not permit the Tribunal to fix an earlier date of impairment under s 7(4)(b). The Tribunal's reasons sufficiently addressed the competing arguments, and the Tribunal was correct not to infer a date by reference to cessation of employment since s 7(4) does not support such a reading. Therefore, the 2001 amendment (lower threshold for hearing loss) applied and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['The application be dismissed.' "The applicant (Comcare) pay the respondent's (Kemp's) costs as agreed or assessed."]