Comcare v Kemp [2020] FCA 865

FEDERAL COURT OF AUSTRALIA

Comcare v Kemp [2020] FCA 865 Appeal from: Kemp and Comcare (Compensation) [2019] AATA 3552

File number(s): NSD 1643 of 2019

Judge(s): PERRY J

Date of judgment: 19 June 2020

Catchwords: ADMINISTRATIVE LAW – where respondent suffered permanent hearing loss of 6.2% incrementally during Commonwealth employment between 1973 and 1999 - whether Administrative Appeals Tribunal (AAT) erred in finding that the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) as amended in 2001 applied with the result that Comcare was liable to pay compensation – where the applicable version of the SRC Act turned upon when the applicant was taken to have sustained the loss by virtue of s 7(4), SRC Act – where Comcare submitted that the applicant first suffered loss for the purposes of s 7(4)(b) when his Commonwealth employment ceased, being the last noisy date – whether Tribunal overlooked Comcare's submission – consideration of principles governing drawing of inferences where Tribunal did not expressly consider Comcare's submission – whether Tribunal failed to comply with the obligation to give reasons under s 43(2B), Administrative Appeals Tribunal Act – whether Tribunal proceeded on a misconstruction of s 7(4), SRC Act – application dismissed

Legislation: Acts Interpretation Act 1901 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Compensation (Commonwealth Government Employees) Act 1971 (Cth) Safety Rehabilitation and Compensation Act 1988 (Cth) Safety, Rehabilitation and Compensation Other Legislation Amendment Act 2001 (Cth)

Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 253 ALR 263 Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 Comcare Australia v McGuire [1996] FCA 1681; (1996) 68 FCR 329 Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 Commonwealth v Snell [2019] FCAFC 57; (2019) FCR 18 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 244; (1988) 79 ALR 269 Dornan v Riordan [1990] FCA 264; (1990) 24 FCR 564 Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; (2017) 156 ALD 584 Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 Minister for Home Affairs v Ogawa [2019] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Rand v Comcare [2014] FCA 584; 140 ALD 666 Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 Repatriation Commission v Owens (1996) 70 ALJR 904 Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; (2013) 138 ALD 600 SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 Taivei v Minister for Home Affairs [2018] FCA 1129 Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Wonson v Comcare [2020] FCAFC 76 Zdziarski v Telstra Corporation Limited [2015] FCA 207; 146 ALD 354