Lennon v TNT Australia Pty Ltd [2013] NSWCA 77

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lennon v TNT Australia Pty Ltd [2013] NSWCA 77 Hearing dates: 8 April 2013 Decision date: 18 April 2013 Before: Basten JA at [1]; Macfarlan JA at [45]; Barrett JA at [46] Decision: (1) Grant the applicant leave to appeal. (2) Allow the appeal and set aside the answer to the question given by the President. (3) Answer the question identified for the Commission's determination as follows: Q: Whether by operation of s 17(1)(a)(i) of the Workers Compensation Act 1987 (the 1987 Act), the applicant's binaural hearing loss is deemed to have occurred on 30 June 2008 when the employer ceased to be insured under the New South Wales Workers Compensation Acts or on 24 March 2011 when the claim for compensation was made, at which time the employer was insured under the Safety, Rehabilitation and Compensation Act 1988 (Cth). A: (a) Under s 17(1) of the Workers Compensation Act 1987 (NSW), the applicant's binaural hearing loss was deemed to have happened on the last day before the employer's licence under the Safety, Rehabilitation and Compensation Act 1988 (Cth) came into force, namely 30 June 2008. (b) If, under the Safety, Rehabilitation and Compensation Act, the applicant's binaural hearing loss was taken to have occurred after the employer's licence under that Act came into force, that Act applied to the applicant's injury, but any liability or obligation of the respondent under the Workers Compensation Act in respect of the injury occurring before the licence came into force was, by virtue of s 108A(7) of the former Act, unaffected. (c) If, under the Safety, Rehabilitation and Compensation Act, the applicant's binaural hearing loss was taken to have occurred before the employer's licence under that Act came into force, neither that Act nor the licence applied to the applicant's injury. (4) Order the respondent to pay the applicant's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONSTITUTIONAL LAW - whether State Act inoperative because inconsistent with Commonwealth Act - application of Commonwealth Act to be determined in accordance with its terms - scope of operation of Commonwealth Act - construction of s 108A(7) - Constitution, s 109