Pacific National Services Pty Ltd v Tsoumbris [2024] FCA 324

Federal Court of Australia

Pacific National Services Pty Ltd v Tsoumbris [2024] FCA 324 Appeal from: Tsoumbris v Pacific National Services Pty Ltd (unreported, Administrative Appeals Tribunal, Member A Ward, 10 October 2022)

File number: SAD 159 of 2022

Judgment of: CHARLESWORTH J

Date of judgment: 4 April 2024

Catchwords: WORKERS COMPENSATION – claim for compensation for permanent hearing loss under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – employer a licenced corporation – employer accepting liability for injury occurring in the licence period – term of employment falling partly outside and partly inside the period of the licence – no compensation payment where degree of impairment falls below statutory minimum – evidence of exposure to industrial noise before and within licence period, including when employee was engaged by other employers – s 7 of the Act supplying a deemed date for the occurrence of an injury being a disease – Administrative Appeals Tribunal applying s 7 without first making a finding that the employee suffered from an injury being a disease – Tribunal wrongly resorting to s 7 as a "remedy" to address a perceived deficiency in the evidence as to when the injury causing the impairment first occurred – whether Court on appeal from Tribunal's decision can and should make findings of fact at the invitation of either party – application for review of decision denying liability remitted to Tribunal for determination according to law

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44 Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 4AA, 5, 5A, 5B, 6, 7, 14, 24, 25, 27, 98, 98A, 103, 108 Workers Compensation Act 1951 (ACT)