FEDERAL COURT OF AUSTRALIA
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 The respondent, Mr Edward Kemp, was an employee for the purposes of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and sought compensation under s 24 of the SRC Act for a permanent impairment comprising binaural hearing loss.
2 This application is instituted under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and challenges a decision by the Administrative Appeals Tribunal (Tribunal) given on 10 September 2019. By that decision, the Tribunal set aside a decision of the respondent, Comcare, dated 16 January 2018 and remitted the matter to Comcare for reconsideration with a direction that the binaural hearing loss suffered by Mr Kemp is 6.2%. While termed an “appeal” by s 44 of the AAT Act, the application is in the nature of an application for judicial review. The Court has jurisdiction to grant relief only in the event that the applicant establishes that the Tribunal erred in law. Section 44 does not confer jurisdiction on the Court to determine the merits of the Tribunal’s decision, reflecting a “distribution of function [which] is critical to the correct operation of the administrative review process”: Repatriation Commission v Owens (1996) 70 ALJR 904 at 904 (the Court (refusing the application for special leave to appeal)), cited in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 (Haritos) at [133] (the Court).
3 The critical issue on the appeal is whether the Tribunal erred in holding that Mr Kemp’s claim was governed by s 24 of the SRC Act as amended by the Safety, Rehabilitation and Compensation Other Legislation Amendment Act 2001 (Cth) (the 2001 amending Act). Section 24 as amended in 2001 imposes liability on Comcare to pay compensation to an employee who has suffered an injury resulting in a permanent impairment that is a hearing loss but only where Comcare (or the Tribunal on review) determines that the binaural hearing loss exceeds 5%: see s 24(7A). For injuries suffered before 1 October 2001, it was necessary for the employee to establish that her or his binaural hearing loss exceeded 10%. No exception in other words was made for a permanent hearing loss from the 10% threshold generally applicable to injuries under the SRC Act before the 2001 amendment.
4 It follows that if, as the Tribunal found, the SRC Act as amended in 2001 applied, Comcare was liable for the impairment under s 24 of the SRC Act because the Tribunal was satisfied that Mr Kemp’s binaural hearing loss exceeded 5%. However, if the SRC Act as at 13 May 1999 applied (as Comcare submitted), no liability was imposed upon Comcare for the hearing impairment because the binaural hearing loss assessed by the Tribunal was less than 10%.
5 For the reasons set out below, the appeal is dismissed.
2.1 Relevant provisions of the SRC Act
6 The parties agreed that the SRC Act applied as at the date on which the injury was taken to be sustained under the Act. As a result and consistently with their submissions on the substantive issue, Comcare submitted that the SRC Act as at 13 May 1999 applied (SRC Act 1999) relying upon s 7(4)(b) of the SRC Act, while Mr Kemp submitted that that date was when he first sought medical treatment on 2 September 2013 (SRC Act 2013) relying upon s 7(4)(a). In this regard, it was not in issue that s 7(4) was in the same terms on both dates. Specifically, s 7(4) provided that:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
(emphasis added)
7 In this regard, I agree (and the contrary was not suggested on appeal) that s 7(4) is intended to exhaustively define the alternatives deemed to be the day on which an injury comprised of a disease is sustained. As Logan J held in Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; (2017) 156 ALD 584 (Katterns) at [42], “the words ‘shall be taken to have sustained … a disease’ … cover the field and in so doing dictate when an injury is, for the purposes of the SRC Act, deemed to have been sustained.”
8 The term “medical treatment” is defined in s 4 of the SRC Act to include “an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis”. It was common ground that Mr Kemp first sought medical treatment for his hearing loss on 2 September 2013.
9 Part II of the SRC Act (ss 14-33) deals with liability for, and the quantum of, compensation for injuries suffered by employees. At all relevant times, s 14 of the SRC Act provided that, subject to Part II, Comcare is liable to pay compensation in accordance with the Act “in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”. An “injury” under the SRC Act 1999 and 2013 included a “disease suffered by an employee” which in turn was defined to include “any ailment suffered by an employee”, albeit that in the case of the SRC Act 1999 the ailment had to be contributed to “in a material degree” by the employee’s Commonwealth employment as opposed to “a significant degree” under the SRC Act 2013: see the definitions of “injury” and “disease” in s 4(1), SRC Act 1999 and in ss 5A and 5B, SRC Act 2013. Finally, “impairment” was defined in the SRC Act 1999 and 2013 to mean “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function” (emphasis added).
10 It was not in issue before the Tribunal or on the appeal that Mr Kemp’s hearing loss constituted a “disease” and therefore an “injury”, and that that injury resulted in “impairment” for the purposes of the SRC Act because it resulted in the loss of part of a bodily system or function (Applicant’s Submissions (AS) at [38]).
11 Section 24 dealt with Comcare’s liability to pay compensation to an employee where an injury to the employee resulted in a permanent impairment. Again it was common ground before the Tribunal that Mr Kemp’s injury resulted in a permanent impairment for the purposes of s 24.
12 Section 24 of the SRC Act 1999 and the SRC Act 2013 required Comcare to assess the amount of compensation payable based upon its assessment of the degree of permanent impairment suffered by the employee expressed as a percentage, with the quantum of compensation payable being the same percentage of the statutory maximum amount of $80,000.00.
13 Relevantly, s 24 of the SRC Act 2013 provided that:
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(I note for completeness that there was no suggestion that s 25 had any application to this case.)
14 However, as earlier explained, the lower threshold of impairment for hearing loss was introduced only by an amendment in 2001. Prior to that time, under the SRC Act 1999, Comcare was liable to pay compensation for hearing loss only where it determined that the degree of permanent impairment was 10% or more in common with other injuries. In this regard, cl 56 of Schedule 2, Part 9 of the 2001 Amending Act provided that “[t]he amendments made by this Part have effect only in relation to claims for compensation in respect of permanent impairment resulting from an injury suffered by an employee after the day on which this Act receives the Royal Assent.” Royal Assent was received on 1 October 2001.
15 Paragraph 7.1 of the approved Guide (to which the Tribunal was required to have regard under s 24(5) of the SRC Act) provided the method for calculating the degree of permanent impairment for hearing loss as follows:
Hearing defects are assessed in accordance with the current procedures from Australian Hearing. Once the binaural percentage loss has been calculated, it is then converted to a WPI rating.
The calculation for converting the percentage loss of hearing to a WPI rating is:
(Percentage Loss of Hearing)/2
16 Accordingly, as Comcare submitted:
… for hearing loss injuries sustained prior to 1 October 2001, for compensation to be payable for permanent impairment the employee must have suffered a 10% degree of permanent impairment, which applying the Table of the approved Guide, equates to a 20% binaural hearing loss. For injuries sustained on or after 1 October 2001, the threshold to qualify for compensation under s 24 is reduced to a 5% binaural hearing loss in order to qualify for compensation, equating to a 2.5% degree of impairment.
(AS at [24]).
17 It was not in issue that applying this formula, the amount in issue in this case was less than $5000.00 (T2/6/2020 at 30.42).
18 Mr Kemp initially worked for a Commonwealth instrumentality from 24 October 1973 until June 1984 at the Quarantine Station at North Head as a quarantine assistant. His duties were “general maintenance which mostly included mowing with a petrol lawnmower, a whipper snipper, edger and a diesel tractor and slasher. For the last few years at the Quarantine Station he was also a boiler attendant.” (Tribunal reasons at [3]). In 1984, he was transferred to Sydney airport at Mascot where he worked for periods on the tarmac. He continued in his position at the airport with the Commonwealth until his retirement on 13 May 1999, save for the period from June 1991 until 19 September 1995 where he was employed by the New South Wales government. Mr Kemp’s employment both at the Quarantine Station and at the airport involved “substantial noise” albeit with some noise protection in his airport position (Tribunal reasons at [3]-[4]).
19 Mr Kemp submitted to the Tribunal that:
(1) he suffered the hearing loss before the commencement of the SRC Act on 1 December 1988 and therefore his claim should be assessed under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) without regard to any threshold percentage ascribed to the degree of his permanent impairment (the first alternative); or
(2) he should be taken to have sustained the injury when he first sought medical treatment for the condition on 2 September 2013 under the deeming provision in s 7(4) of the SRC Act (the second alternative)
(Tribunal reasons at [8]-[9])
20 The Tribunal rejected Mr Kemp’s first alternative (Tribunal reasons at [43]-[45]). While this finding is not challenged on the appeal, the Tribunal’s reasons for dismissing Mr Kemp’s first alternative are relevant to understanding the context in which the Tribunal made its findings on the second alternative and because there was an overlap in the Tribunal’s consideration of both arguments.
21 In this regard, the Tribunal observed at [11] that Comcare sought to refute Mr Kemp’s first and second alternatives by relying upon a consent order made by the Tribunal on 16 August 2017 which was said to bind the Tribunal to find that the injury was sustained prior to the 2001 amendments. The consent order relevantly stated that Comcare was liable to pay compensation to Mr Kemp under s 14 of the SRC Act for his bilateral sensorineural hearing loss, “deemed to have been sustained on 13 May 1999”. The Tribunal explained that:
11. … That consent order involved a decision to set aside a reviewable decision relating to the applicant and decided in substitution that the respondent was liable to pay compensation under s 14 of the Act for his bilateral sensorineural hearing loss. The hearing loss was described as materially contributed to by his employment with the Commonwealth, deemed to have been sustained on 13 May 1999.
22 The Tribunal rejected the submission that it was bound by the consent order for the following reasons. First, the Tribunal found that:
21. The terms in which the decision of August 2017 is expressed may suggest that the reason for parties agreeing upon the selection of a date under s 7(4) was in order to make it clear that the test of materiality rather than the test of contribution to a significant degree applied, and therefore that the contribution made by the employment did not have to be substantially more than material. That is a fact which went to the determination of liability made in the decision. The evidence placed before me does not indicate how or why the parties came to agree upon the date specified as the date of injury.
22. Ultimately, in my opinion, it does not matter whether the Tribunal can adopt a date fixed by the parties and their agreement, because in any event I have decided to act on the evidence before me on this review rather than to rely upon the agreed date specified in the consent order, for reasons expressed below.
23 Secondly, the Tribunal found that by reason of s 62 of SRC Act and applying Commonwealth v Snell [2019] FCAFC 57; (2019) FCR 18 by analogy, the Tribunal may reconsider an earlier decision and substitute a different decision, finding that:
40. At the very least, there is a discretion by virtue of s 62 of the Safety, Rehabilitation and Compensation Act not to follow the earlier Tribunal decision made as a consent order under s 42C of the AAT Act, if it was within power.
24 Thirdly, that being so, the Tribunal considered that this was an appropriate case in which to exercise that “discretion”, finding that:
41. The date of injury noted in the consent order was evidently an agreed date. The basis of the agreement between the parties as to that date is not before me. It was presumably open to both parties to lead that evidence if they chose to do so. In those circumstances, I will give little weight to the date formally agreed between the parties, and will make findings based upon the evidence led before me by both parties. In choosing to follow that course, I reject the respondent’s submission that I ought to exercise my discretion to adopt the date agreed between the parties in 2017. I see no reason not to act on the probative evidence before me, especially when the formally agreed date appears to have no support in the evidence which I must consider. In those circumstances, I do not need to establish whether or not the Tribunal had power to make to order insofar as to agreed [sic] deemed date of injury was concerned. Assuming the exercise of a relevant power, my exercise of discretion would be no different.
(emphasis added)
25 There is no challenge to these aspects of the Tribunal’s decision, save insofar as Mr Kemp relies upon the Tribunal’s reasons at [41] to explain why, in his submission, the Tribunal did not consider that it was necessary to address Comcare’s submission based upon s 7(4)(b) of the SRC Act.
26 The Tribunal then explained that Mr Kemp sought to put his case in two ways, referring first to his claim that the 1971 Act applied and then to his second alternative, explaining that “he claims that he is entitled to a permanent impairment payment under the current Act, and on the basis that his deemed date of injury under s 7(4) of that Act is 2 September 2013, when he first sought treatment from National Hearing Care” (emphasis added).
27 The Tribunal identified two problems with the Mr Kemp’s first alternative. First, under s 29 of the 1971 Act (described as “the equivalent of s 7(4) of the current Act”), it was impossible to determine on the evidence what was “the date of the loss”; and s 29 did not direct attention to the last day of his employment before the commencement of the SRC Act, contrary to Mr Kemp’s submission (at [43]). Secondly, having regard to Dr Scoppa’s evidence, the Tribunal found that the means by which Mr Kemp sought to assess the last possible date under the 1971 Act was unreliable.
28 Having therefore rejected Mr Kemp’s first alternative, the Tribunal turned to consider the second alternative and found that:
46. The second alternative does not suffer from either of the difficulties to which I have referred. As to the date of injury, s 7(4) of the current Act enables the assessment to be conducted as at 2 September 2013.
29 As such, the Tribunal found that the SRC Act 2013 applied as a result of which Comcare was liable for the binaural hearing loss of 6.2% suffered by Mr Kemp.
30 In light of Comcare’s abandonment of question of law 5, those questions of law identified in the notice of appeal which remain in issue are:
1. Did the Tribunal ask the wrong question in determining the respondent’s date of injury for the purposes of s 7(4) of the [SRC Act]?
2. Did the Tribunal comply with the requirement to provide reasons for its decision as prescribed by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (AAT Act)?
3. Did the Tribunal fail to make findings of fact required of it in order to properly discharge its statutory review function?
4. Did the Tribunal fail to consider a submission squarely advanced and worthy of consideration?
31 The nature of the issues sought to be raised are illuminated further by the grounds relied upon by Comcare, namely:
1. The Tribunal failed to consider when the respondent first suffered an impairment for the purposes of s 7(4)(b) of the SRC Act.
2. The Tribunal failed to explain its reasons for concluding that:
a. the respondent did not suffer a hearing loss impairment prior to obtaining medical treatment for hearing loss for the purposes of s 7(4) of the SRC Act;…
3. In determining the respondents date of injury, the Tribunal made no findings as to:
a. The date the respondent first suffered an “impairment” being “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function” that occurred as a result of the relevant disease, so as to correctly apply s 7(4) in order to establish the respondent’s “date of injury;…
4. The Tribunal failed to consider a submission by Comcare, squarely advanced at hearing and worthy of consideration, that the relevant date of the respondent’s injury pursuant to s 7(4) of the SRC Act was not later than 13 May 1999.
32 In short, at the heart of Comcare’s case was the contention that the Tribunal was required, but failed, to address its contention that the date of injury for the purposes of the SRC Act was 13 May 1999 in reliance upon s 7(4)(b) of the SRC Act.
3.2 Characterisation of the alleged error by the Tribunal and relevant principles
33 As is evident from the grounds of appeal, Comcare sought to characterise the alleged error by the Tribunal in various ways, acknowledging correctly that the grounds of judicial review frequently overlap (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (Yusuf) at [82]).
34 First, Comcare submitted that the Tribunal failed to identify or apply the correct legal test being that posed by s 7(4) of the SRC Act, i.e., “if the employee suffered loss prior to obtaining medical treatment, it followed that the date of loss (being an ‘impairment’) was the ‘date of injury’ for the purposes of the SRC Act” (AS at [27]-[28]; notice of appeal ground 1 (the construction ground)). As Comcare submits, whether the Tribunal identified or applied the correct legal test raises a question of law. Such an error would be jurisdictional and jurisdictional errors are of their nature embraced within the concept of an error of law: Haritos at [62(7)] (the Court). As the High Court held in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 in an oft-quoted passage:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.
35 Secondly, Comcare submitted that the Tribunal failed to give reasons for rejecting Comcare’s contention that the injury occurred on 13 May 1999 based upon s 7(4)(b) and to consider the evidence in detail, including the opinions expressed by the medical experts (ground 2, notice of appeal) (the failure to give reasons ground). In Comcare’s submission, the Tribunal therefore failed to comply with s 43(2B) of the AAT Act as to the content of written reasons and thereby made an error of law which warranted the decision being set aside. Section 43(2B) provides that:
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
36 As to the importance of complying with s 43(2B) of the AAT Act, the Court explained in Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 (Central Aviation (FCAFC)) on which Comcare relied:
41. Where there is an inadequacy in the reasons provided – such that there has been non-compliance with s 43(2) – a party has been denied a fundamental and important right. The decision-maker has not applied to his or her decision-making task the discipline imposed by the legislature to make those findings on material questions of fact relevant to the decision to be made and then to explain that decision by reference to those facts. The winning party may not be the first to complain – that party has the desired result, albeit for reasons that cannot be discerned. However the losing party does not know why he or she has lost. The reviewing Court is in no better position. A reviewing Court cannot properly discharge its functions if the reasons for the decision under review are not set forth.
37 However, as the Court also held in Central Aviation (FCAFC) whether an inadequacy in the reasons warrants making an order under s 44 in the exercise of the Court’s discretion “will depend upon the facts and circumstances of each individual case” (at [55]). As their Honours further explained (after discussing differences of approach adopted by Brennan J in Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422 and the Full Court in Dornan v Riordan [1990] FCA 264; (1990) 24 FCR 564 not relevant to the present appeal):
50. Common to the conclusions expressed in O’Brien by Brennan J and by the Full Court in Dornan remains the prospect of setting aside a decision of the Tribunal in circumstances where the inadequacy in the reasons permits an inference that the decision-making power has not been exercised in accordance with law, or where the deficiency is such that it is impossible to ascertain whether there was any other error in the decision-making process. In such circumstances it may be doubted whether there is such a stark difference in result as may have been assumed between the approach of Brennan J in O’Brien and that of the Full Court in Dornan. The discretion conferred by ss 44(4) and (5) of the AAT Act may well permit an order setting aside a decision under appeal.
(emphasis added)
38 Furthermore, s 43(2B) has been held to require that “the Tribunal do no more [than] to state the findings which it has actually made. It does not require the Tribunal to make the findings which it ought to have made”: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 253 ALR 263 at [29] (Perram J) (reversed on appeal in Central Aviation (FCAFC) but on a different issue); see also Wonson v Comcare [2020] FCAFC 76 (Wonson) at [89] (the Court). On the other hand, as Flick J observed in Taivei v Minister for Home Affairs [2018] FCA 1129 (Taivei):
24. … where a common sense reading of the reasons provided does expose a readily discernible error, a reviewing Court should not hesitate to intervene: cf. Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], (2012) 207 FCR 277 at 295 to 296 per Marshall, North and Flick JJ.
39 In any case, in determining whether the Tribunal’s reasons expose legal error, it is important to emphasise that such reasons are to be read fairly and not with an eye attuned to the detection of legal error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
40 Thirdly, Comcare submitted that the Tribunal had erred in failing to make findings of fact which in the circumstances were required to be made (ground 3) (the material findings of fact ground). In this regard, Comcare submitted that:
It is well accepted that, depending upon the circumstances, including the evidence before the Tribunal, the matters in contest between the parties and the statutory requirements of the relevant enactment, a failure to make findings of fact required to be made may constitute an error of law (see, for example, Minister for Immigrtaion and Multicultural Affairs v Yusuf (2001) 206 CLR 323).
(AS at [33])
41 Finally, Comcare contended that the Tribunal had acted in breach of procedural fairness in failing to consider a submission squarely advanced and worthy of consideration, namely that Mr Kemp’s injury should be taken to have occurred on 13 May 1999 by virtue of s 7(4)(b) of the SRC Act. While not every submission advanced before the Tribunal need be resolved, an inference may be drawn that a submission was inadvertently overlooked where it was “seriously advanced” and “worthy of serious consideration”: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 244; (1988) 79 ALR 269 at [21] (Jenkinson J (with whose reasons Woodward and Foster JJ agreed)). This proposition has been affirmed on many occasions as Flick J explained in Rand v Comcare [2014] FCA 584; 140 ALD 666 (Rand) at [30].
42 In support of its characterisation of the alleged error as a breach of procedural fairness, Comcare (at AS [35]) relied upon the following observations by Flick J in Taivei:
39. A decision based upon a process of reasoning or sequential factual findings in respect to which there are significant “missing” elements can also be regarded as:
• a denial of procedural fairness. An opportunity to be heard and an opportunity to advance submissions may well fall short of affording procedural fairness if a centrally relevant submission is not genuinely “heard” and considered. It is a denial of procedural fairness to fail to take into account submissions that have been made: cf. MZAFS v Minister for Immigration and Border Protection [2016] FCA 75 at [7], (2016) 237 FCR 347 at 348 to 349 per Edelman J. An opportunity to be heard is of little meaning to a visa claimant if the decision-maker does not listen to what is being said and thereby does not “hear” and consider what is being advanced. An opportunity to be heard goes beyond the mere allocation of time in which to make oral submissions or an opportunity to provide written submissions; it includes the requirement to thereafter consider what is being put forward for consideration: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [389], (2013) 210 FCR 505 at 577 to 578 per Flick J.
3.3 Has Comcare established that the Tribunal fell into error?
3.3.1 Did Comcare make a substantial submission to the Tribunal as to the date of the loss relying on s 7(4)(b), SRC Act?
43 The first question concerns the nature of the case put to the Tribunal by Comcare for resolution. As Flick J explained in Rand at [7], “[w]hen addressing an argument that the Tribunal has failed to resolve a submission which has been previously advanced by a party it is necessary to identify at the outset the submissions in fact advanced and to thereafter identify from the reasons given by the Tribunal the submissions in fact resolved.”
44 I accept that Comcare made a substantial, clearly articulated submission to the Tribunal that Mr Kemp first experienced the hearing impairment on approximately 13 May 1999 for the purpose of s 7(4)(b), in addition to relying on the consent orders. Indeed, counsel for Mr Kemp, Mr McManamey, specifically acknowledged the existence of the s 7(4)(b) issue in his opening in stating that:
Well the interesting legal question is this; that [Comcare’s] position is that the correct date is May 1999 on the basis, as I apprehend it, … that applying section 7(4) as at May 1999 there is an impairment of the worker. If one looks at 7(4)(b), yes.
(AB10)
45 However, the nature of Comcare’s case in the Tribunal changed by the time of final submissions. Initially, in its statement of facts, issues and contentions (SFIC), Comcare contended that the SRC Act as opposed to the 1971 Act applied on the ground that:
22. … the applicant suffered a defect in his hearing on or around 13 May 1999, at around the time he ceased being employed by the Commonwealth. There is no evidence to support that the applicant suffered hearing loss prior to that time. Accordingly, any impairment(s) the applicant suffered as a result of the hearing loss could only have occurred after that date, and after the [SRC] Act commenced, i.e. on 1 December 1988.
(AB49)
46 Comcare further submitted in its SFIC that it was the SRC Act prior to the 2001 amendments that applied on the basis that:
29. The respondent contends that, in the applicant’s case, the date of injury is 13 May 1999. That is approximately when the applicant, by his account, first experienced his hearing loss impairment: see reports by Dr Scoppa and Dr Dowe, and s 7(4) of the Act. …
(emphasis added; AB50-51)
47 However, in its post-hearing closing submissions, Comcare accepted that the loss suffered by Mr Kemp occurred incrementally and that he had suffered immediate and specific harm among other things from his work at the Quarantine Station in the boiler room (which occurred in the early 1980’s). As such, while Comcare continued to rely upon s 7(4)(b), its final position differed from that in its SFIC. It submitted in closing that the Tribunal should find that Mr Kemp sustained the hearing loss on 13 May 1999 for the purposes of s 7(4)(b) of the SRC Act because this was the date on which his employment with the Commonwealth ended and was therefore the “last noisy date”: see further below. It is apparent from the Tribunal’s reasons at [43] (quoted below at [59]) that the Tribunal appreciated that this was part of the way in which Comcare ultimately put its case at least in the context of the 1971 Act.
3.3.2 What inferences should be drawn from the absence of any reference to the s 7(4)(b) issue by the Tribunal?
48 The second question as identified above, concerns the proper construction of the Tribunal’s reasons and, in particular, whether, it is to be inferred from the Tribunal’s failure expressly to refer to and resolve the s 7(4)(b) issue, that the Tribunal overlooked the issue.
3.3.3 Principles governing the drawing of inferences
49 The question of what inferences should be drawn from the Tribunal’s written reasons falls to be considered having regard to the statutory context in which they were produced. As earlier explained, s 43(2B) of the AAT Act imposes an obligation upon the Tribunal where it provides written reasons to include its findings on “material questions of fact” and to refer to the evidence or other material on which those findings were based (see above at [35]).
50 In this regard, Gleeson CJ explained in Yusuf with respect to the preparation of written reasons under s 430 of the Migration Act 1958 (Cth) (which is relevantly the same as s 43(2B) of the AAT Act) that:
5. When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that in turn, may indicate that the Tribunal did not consider the matter to be material.
(emphasis added; see also Yusuf at [69] (McHugh, Gummow and Hayne JJ))
51 Conversely Gleeson CJ held at [10] that“[b]y setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review.” It follows that the mere failure to make a finding on a particular issue does not necessarily mean that the Tribunal overlooked the issue or misunderstood the nature of the task which it was required to undertake.
52 Secondly, the inference that the Tribunal has not mentioned a matter because it did not regard it as material may be displaced by other considerations. As Perram J explained in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 (in a passage approved by the Full Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 at [44]):
19. The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.
53 Thirdly, reasons must be read understanding that they record the decision-maker’s subjective reasoning processes and therefore what the decision-maker considered to be material i.e. relevant. As the five member Full Court held in Minister for Home Affairs v Ogawa [2019] FCAFC 98; 369 ALR 553 by analogy:
103. … the making of a decision involves a mental process, while the reasons provide evidence of the mental process engaged in by the decision-maker… It is not necessary for reasons to refer to every piece of evidence advanced, as, for example, some evidence may be irrelevant, or its consideration may be subsumed into findings of greater generality… It may also be observed that the Minister’s obligation under s 501G(1) is limited to setting out findings on those questions of fact which he or she subjectively considers to be material: cf Yusuf at [68]. However, where the reasons do not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker’s mental process: Applicant WAEE at [47]. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court said at [76]:
76. The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that [has] not been considered or taken into account. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole.
(citations omitted)
3.3.4 What inferences should be drawn from the Tribunal’s reasons?
54 In support of its submission that the Tribunal had failed to address its argument based upon s 7(4)(b) of the SRC Act, Comcare relied upon the following considerations.
(1) The Tribunal’s reasons did not address Comcare’s claim that the date of injury was determined by s 7(4)(b) or indeed even mention s 7(4)(b), despite the date of injury being “critical to the disposition” of the matter and the fact that s 7(4) requires the Tribunal to compare the dates derived by applying s 7(4)(a) and (b) to determine which occurred first (AS at [37] and [40]).
(2) The Tribunal at [8] of its reasons purported to paraphrase the terms of s 7(4) but described only the effect of s 7(4)(a).
(3) The Tribunal described Comcare’s case at [11] of its reasons in an incomplete manner, i.e., it referred only to Comcare’s submission that the Tribunal was bound to find that the injury had occurred on 13 May 1999 on the basis of the consent order, and not to Comcare’s reliance in the alternative on s 7(4)(b) of the SRC Act.
(4) The Court may more confidently infer from the omission of any reference to s 7(4)(b) that the Tribunal failed to consider the issue given “the content of the brief finding that the Tribunal later made, at [46], in arriving at the deemed date of injury” once the Tribunal found that the date was not determined by the consent order (AS at [39]).
55 Notwithstanding the careful, well-considered submissions by Ms Dowsett for Comcare, in my view this is not a case where it should be inferred that the Tribunal overlooked the issue. Rather, it may be inferred that the Tribunal considered that the issue was not material in light of its findings in dealing with the predecessor provision to s 7(4) in the 1971 Act as I explain below. In reaching this conclusion, I agree with, and have borne in mind, the important observations by Flick J in Rand that:
36. … Other than in the clearest of cases, caution should be exercised before invoking findings of fact which have been made for one purpose in support of a conclusion on an “issue” otherwise not expressly addressed.
56 First at [6] and [7] of its reasons, the Tribunal correctly identified the critical issue in the case, referring to the change in the legislation in 2001 and finding that “if the date of the applicant’s hearing loss was before 1 October 2001, he had to satisfy one regime. If it was after 1 October 2001, he had to satisfy the current regime.”
57 Secondly, while it could have been better expressed, the first sentence at [8] of the Tribunal’s reasons explaining only the effect of s 7(4)(a) should be read in light of the second sentence which explained that one of the ways in which Mr Kemp put his case was based upon s 7(4)(a). Fairly read, therefore, as a whole, it is at least equally open to read paragraph [8] as concerned only with describing Mr Kemp’s case, as it is to read that paragraph as evidence of an erroneous understanding of s 7(4) as Comcare suggests.
58 Thirdly, the Tribunal decided not to exercise its discretion to adopt the agreed date in the earlier consent order not only because there was no evidence before it as to the basis of the parties’ agreement, but significantly also because the Tribunal saw no reason not to act on the evidence before it and the agreed date appeared to have no support in the evidence (Tribunal at [41]). As the agreed date was the same date as the “last noisy exposure date” submitted by Comcare, i.e. 13 May 1999, this finding necessarily disposed of the argument by Comcare that the “last noisy exposure date” was the correct date.
59 Fourthly, at [43] of its reasons the Tribunal rejected Mr Kemp’s first alternative claim that he was entitled to a permanent impairment payment under the 1971 Act on the grounds that the date of the loss for the purposes of s29(g) was the date on which the impairment was first sustained and it was impossible on the evidence to discern when that occurred. It is convenient to set out the Tribunal’s reasoning on that issue below:
43. … The first is that under the 1971 Act, the equivalent of s 7(4) of the current Act was s 29, and s 29(g) provided that unless the contrary appeared the date of a loss to the employee of a kind referred to in ss 39 or 40 was the date of death, the date of the loss, the date of disfigurement, the date of the commencement of the incapacity or the date on which medical treatment was first obtained, whichever is the earlier. Section 39 dealt with a claim for partial loss of hearing. The relevant one of the dates mentioned in s 29(g) is the date of the loss, which appears to be the date on which the applicant first suffered a hearing impairment. That date is impossible to determine on the evidence before the Tribunal. The applicant selects the last day on which he was employed prior to the commencement of the 1988 Act, but section 29 does not direct attention to that date. Normally, in a claim for permanent impairment, the applicant would submit himself to a medical assessment, and seek to identify the date of the loss by reference to that assessment. That did not occur, and no particular date is now able to be identified as the date of the loss.
44. In the second place, even if the last possible date under the 1971 Act were able to be identified in some way, the means by which the applicant tries to assess it is in my view not a reliable method. Dr Scoppa said that, in effect, a reasonable method of assessing the extent of impairment at a date when no audiogram was conducted is to assume a linear progression of the impairment from the date of the first noisy employment. That may be the best one can do, but it seems to me that it is no more than a rough and ready calculation, with uncertain assumptions to justify it.
(emphasis added)
60 It is true, as Comcare submitted, that this conclusion was reached in the context of determining whether liability existed under the 1971 Act. However, s 29(g) of the 1971 Act was the equivalent of s 7(4) of the SRC Act as the Tribunal observed at [43], and the issue was relevantly the same. Thus, s 29 of the 1971 Act applied where the employee contracted a disease and any employment with the Commonwealth was a contributing factor to the contraction or aggravation of the disease (s 29(1), 1971 Act). Specifically, under s 29(2)(b), where a loss to the employee of a kind referred to in s 39 (i.e. partial loss of hearing (s 39(9)) resulted from the disease, then for the purposes of that Act:
(g) … the date of the loss … or the date on which the medical treatment was first obtained, whichever is the earlier, shall be deemed to be the date of the injury.
61 Given the Tribunal’s express recognition at [43] that s 29 of the 1971 Act was the equivalent of s 7(4) of the SRC Act, it seems highly unlikely that the Tribunal would have overlooked the fact that s 7(4) of the SRC Act directed attention to exactly the same question, namely, what was the date on which the loss was sustained.
62 Furthermore, the issue being relevantly the same under both provisions, the Tribunal’s finding that that date “is impossible to determine on the evidence” necessarily disposed of the equivalent question under s 7(4)(b) raised by Comcare. That being so, the better view is that the Tribunal did not make specific findings with respect to Comcare’s s 7(4)(b) argument for this reason rather than that it inadvertently missed the issue.
3.3.5 Did the Tribunal fail to comply with its obligation to give reasons under s 43(2B) of the AAT Act?
63 Even if the Court should find that the Tribunal implicitly considered and rejected the s 7(4)(b) argument at [43] of its reasons , Comcare submitted that the Tribunal’s reasons for concluding that it was impossible to determine the date of the loss were unclear and it failed to make findings in compliance with the obligation under s 43(2B) of the AAT Act. Specifically Comcare submitted that “[t]here was no explicit analysis of the content of the expert evidence, nor was it clear what conclusions the Tribunal formed upon the basis of it, nor its implications for the matters in issue” (AS at [43]). As such, the alleged failure to provide reasons focused upon the failure to deal with the expert evidence and its implications.
64 While it is true that the Tribunal did not expand upon its reasons by reference to the evidence for finding that the date of loss could not be determined, the Tribunal’s failure to do so needs to be understood in the context of the issues between the parties. As, for example, Jagot J observed in Sullivan v Civil Aviation Safety Authority [2013] FCA 1362; (2013) 138 ALD 600 at [42], “[t]he duty to give adequate reasons, even in the context of the limits on the duty of the Tribunal under s 43(2B) of the Administrative Appeals Tribunal Act, is shaped by the contentions which the parties put” (quoted with approval in Wonson at [111] (the Court)). Thus, as the Full Court explained in Wonson, while “…conclusions on primary facts not in dispute are unlikely to require explanation, since a person aggrieved by the decision would readily understand how they were reached”, the position is different with respect to conclusions on significant facts in dispute (at [111]).
65 In this regard Comcare accepted on appeal (as did Mr Kemp) that “there was no real issue between the parties upon the medical evidence, which it can only be inferred the Tribunal accepted uncritically, as [sic] least as to issues of causation and damage” (AS at [44]). Furthermore, as Comcare submitted (and Mr Kemp agreed):
It is plain from the undisputed evidence of those expert witnesses called by the parties, both of whom gave evidence together and in essentially identical terms, that (whether or not then assessed, or susceptible of assessment by audiometric testing) the exposure of the respondent to particularly loud forms of noise in certain identified Commonwealth employment, such as in the boiler room in the Quarantine Station, had to be accepted to have resulted in immediate and specific harm, via such symptoms as hearing loss, sensorineural damage to the inner ear, and the occurrence of tinnitus which did not resolve, each necessarily involving the occurrence before 13 May 1999 of impairment.
(AS at [45]) (emphasis added)
66 It is therefore apparent that both parties accepted before the Tribunal that Mr Kemp’s hearing loss developed incrementally due to the noisy environments in which he was repeatedly exposed during his employment with the Commonwealth and that that loss occurred well before the SRC Act commenced in 1988, let alone the 2001 amendments. Thus, in his post-hearing submissions to the Tribunal dated 26 March 2019, Mr Kemp submitted that the evidence makes it apparent that applying the terms of s7(4), 13 May 1999 cannot be the deemed date of injury because:
The evidence of Dr Scoppa with whom Dr Dowe agreed was that industrial deafness is incremental in every day as the loss becomes apparent as the weeks, days and months go by. Hearing loss happens with the incretion of noisy exposure day by day that’s deemed to be enough to cause loss.
(See also Mr Kemp’s submissions in reply before Tribunal at [10].)
67 Comcare did not make oral submissions in closing before the Tribunal. However, it accepted the incremental nature of the disease suffered by Mr Kemp in its post-hearing written submissions, contending that:
…the impairment must pre-date the amending provision introducing a 5% threshold because, upon the medical evidence, the loss, the loss of the use, or the damage or malfunction to the relevant bodily system or function occurs, incrementally, when the exposure occurs and not after that.
(Respondent’s submissions dated 18 April 2019 at [21] (AB56) (emphasis added))
68 The parties’ acceptance in closing of the incremental nature of the loss and the impossibility of pinning down a precise date accorded with the evidence of the two medical experts, Dr Scoppa and Dr Dowe. Thus Dr Scoppa explained in his evidence before the Tribunal that hearing loss described as ‘industrial deafness’ occurred “where you don’t get the loss in any one day, but it’s incremental and every day adds to the loss that becomes apparent as the weeks and days and months go by” (AB96; see also at Dr Scoppa at AB100-101; and the evidence of Dr Dowe at AB109). Mr Kemp’s evidence was to similar effect, explaining that he started experiencing the tinnitus sometime at the quarantine station but it would ease off overnight and that he would hear ringing in his ears all the time when he worked at the airport (AB112-113).
69 Importantly, in its post-hearing submissions in closing, Comcare did not put any argument to the effect that a specific date could be discerned from the medical evidence as to when the loss in fact occurred. Rather, Comcare’s argument that 13 May 1999 was the deemed date was based on the proposition that:
That [hearing] loss did not progress or increase in severity after the last noisy exposure in employment … The last noisy exposure was when the Applicant ceased Commonwealth employment on 13 May 1999.
(Applicant’s Tribunal Submissions at [73] (AB68)
70 The date of the last noisy exposure when Mr Kemp left the Commonwealth’s employ was common ground, although its significance was not. Nor for the reasons I have explained did the different positions advanced by Comcare and Mr Kemp on the s 7(4)(b) issue fall to be determined by reference to an analysis of the medical evidence. The parties were in agreement as to the tenor of the medical evidence. Their acceptance in line with the medical evidence that the disease occurred incrementally over time necessarily precluded the possibility that a date could be set by reference to the medical evidence as the Tribunal found at [43]. As such, contrary to Comcare’s submission, it cannot be said that the Tribunal’s reasons were deficient by reason of any failure to analyse the medical evidence in order to determine the date on which Mr Kemp’s hearing loss was sustained for the purposes of s 7(4)(b). That submission, with respect, does not take into account the context in which the s 7(4)(b) issue fell to be decided by the Tribunal.
3.3.6 Did the Tribunal proceed on a misconstruction of s 7(4) of the SRC Act?
71 Ultimately, therefore, the s 7(4)(b) issue reduced to a difference as to the manner in which s 7(4) was to be construed and, in particular, whether (as Comcare submitted) the Tribunal ought to have found that the date of “the last noisy exposure” constituted “the day when … the disease …. resulted in … impairment of the employee” for the purposes of s 7(4)(b).
72 Under established principles of statutory construction, “[t]he language which has actually been employed in the text of legislation is the surest guide to legislative intention”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). This approach does not, however, exclude a “consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”: Alcan at 47 [47]; see also Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 at 539-540 [47] (the Court). These principles do not exclude the possibility that a purposive construction may permit reading a provision as if it contained additional words, or omitted words, with the effect of expanding or contracting its field of operation, as French CJ, Crennan and Bell JJ explained in Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 (Taylor) at [37]. However, as their Honours also held in Taylor at [38]:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
(citations omitted)
73 The starting point here is therefore the language of s 7(4)(b) which relevantly requires the identification of “the day when” an identifiable event occurred, i.e., when the disease “resulted in … impairment” of the employee. There is, with respect, no foothold in those words or otherwise in the language of the section for suggesting that either the last day on which a person was exposed to the harm in her or his employment which had incrementally caused the disease, or the day on which the employee’s employment in the course of which the harm was sustained was terminated, are criteria under s 7(4)(b). The suggested construction would involve reading into the section words which do not appear. It would, of course, have been open to the Parliament to include either of these days as alternatives. The difficulty however is that the Parliament did not do so and to read those words into the provision would be “too much at variance” with the words actually used.
74 Similarly, in Katterns, Logan J held that the Tribunal had erred in applying the SRC Act prior to amendments in 2007 because this was “fair” in circumstances where all of Mr Kattern’s reserve service occurred before those amendments. Logan J held that the Tribunal was entitled to apply the earlier version of the Act only if s 7(4) permitted reliance upon that test. However, his Honour held that s 7(4) did not because “[n]either limb of s 7(4) focussed upon when a claimant’s service in the Reserve Forces had occurred” (at [45]). Equally, contrary to Comcare’s submission, neither limb focusses upon when Mr Kemp’s employment with the Commonwealth occurred. Similarly, in Comcare Australia v McGuire [1996] FCA 1681; (1996) 68 FCR 329 (McGuire) Carr J found that the Tribunal had erred (albeit not in a material respect) in finding only that the employee had suffered an injury during his six year period of his employment in the army, as opposed to making a finding about when the employee had first sought medical treatment for the purposes of s 7(4)(a) (at 340-341).
75 Nor can it be said that Comcare’s construction would “best” promote the purposes of s 7(4)(b) of the SRC Act and therefore must be preferred under s 15AA of the Acts Interpretation Act 1901 (Cth): see also Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ). The policy underlying the provision is clear: as in the case of industrial deafness, a disease may develop incrementally without the person being aware of its development and it may prove difficult, if not impossible, later to determine a day on which the disease was first “sustained”. Section 7(4) is intended to address that difficulty by positing a number of possible alternative events by reference to which an employee “shall be taken to have sustained an injury, being a disease, or aggravation of a disease” for the purposes of the Act. It then deems the injury to have been sustained “on the day’ when the first of those events happens, even if in reality the day so selected bears no relationship to the unknown and perhaps unknowable date on which the injury was in fact sustained.
76 Futhermore, in a given case, the evidence may establish a date which meets the criterion in subs (a) and another date which meets the criterion in subs (b). Where that is the case, s 7(4) mandates that the earlier date will constitute the date on which the employee is taken to have sustained the injury. However where the evidence can establish only a date under (a) or (b), the intention was plainly that that date would be taken to be the date of injury, consistently with the purpose of s 7(4). As Mr McManamey submitted for Mr Kemp, if only one of the dates referred to in s 7(4) is established, then there is no other known date for the purposes of the section which could be earlier. Thus, insofar as Comcare suggested in submissions that it was necessary in every case to undertake a comparison between the dates in (a) or (b), that proposition is incorrect.
77 In a post-hearing note filed on 5 June 2020 pursuant to leave, Comcare drew the Court’s attention to three authorities on the question of the proper construction of s 7(4), namely, Wonson at [26(2)], [28] and [62]; Katterns at [42] to [45] and [65]; and McGuire at 340F to 341A, 341G to 342A, and 343C to 343D. While leave was granted to the respondent to do likewise, no note was filed by the respondent. Nor did the parties seek leave to re-open to make any further submissions with respect to these authorities, despite orders made at the hearing providing that there was liberty to apply on or before 5 June 2020 in the event that either party wished to seek leave to re-open the matter and file any further submissions arising from any authorities identified dealing with the construction of s 7(4).
78 I have earlier discussed the decisions in Katterns and McGuire which are consistent with the construction which I favour. In my view, the Full Court’s decision in Wonson is distinguishable. In that case, Ms Wonson relevantly argued that the Tribunal erred in failing to decide whether she was suffering from a psychological disorder which was significantly contributed to by her employment before disqualifying reasonable administrative action for the purposes of s 5A of the SRC Act took place against her in late September 2015 (at [55]). The Full Court rejected that contention on the ground that:
59. … Since the Tribunal determined that Ms Wonson would not have suffered the ailment but for the Department’s refusal to reclassify her leave and that decision was “reasonable administrative action taken in a reasonable manner in respect of [her] employment”, the date that ailment occurred was immaterial. It was not an injury within the meaning of the Act. Accordingly, the Tribunal was not required to make a finding, as the relevant inquiry ended there.
(emphasis added)
79 By contrast in the present case, the Tribunal found that an injury within the meaning of the SRC Act had been sustained and therefore the Tribunal was required to address the question posed by s 7(4).
80 In Wonson at [62] to which Comcare in particular drew the Court’s attention, the Full Court expressed the view in obiter that:
62. In any event, the effect of the Tribunal’s finding that the adjustment disorder was suffered as a result of the administrative action taken with respect to Ms Wonson’s request for the reclassification of her leave is that the ailment did not arise until 18 September 2015 at the earliest. As counsel for Comcare put it in oral argument, if Ms Wonson would not have suffered the ailment which she did if that action had not been taken, she cannot have suffered it before the time the action was taken. In other words, it is abundantly clear from the Tribunal’s reasons that the Tribunal found that the ailment occurred between 18 September 2015 and 11 November 2015. Provided that it satisfied its obligations under s 43(2) of the AAT Act, a question to which we will come in due course, the Tribunal did not need to go further.
(emphasis added)
81 In other words, because the Tribunal found that the ailment was suffered as a result of the disqualifying administrative action, the Full Court held that on no view could the ailment have been suffered before that action was taken. That is a simple matter of logic. Contrary however to the position in Wonson, there is no suggestion in this case that s 7(4) could operate to deem the disease to have occurred before logically it could have occurred. Rather, in this case s 7(4) was applied so as to deem a disease to have been sustained long after it was in fact sustained on an unknown day. But that will be the result in many cases to which s 7(4) applies and is part of its intended operation, given the nature of the mischief to which the provision is directed.
3.3.7 Conclusions on the alleged errors
82 It follows for these reasons that, while it would have been preferable for the Tribunal to have specifically addressed the s 7(4)(b) issue, the better view is that the Tribunal did not overlook the issue. Rather the Tribunal considered that the issue had been effectively disposed of by the earlier findings as to the impossibility of determining a date on which Mr Kemp first sustained the hearing impairment. Further and in any event, even if the Tribunal overlooked the issue, relief should be refused in the exercise of discretion on the ground that it would serve no useful purpose as the result would inevitably be the same. In contrast to the decision of Perram J in Zdziarski v Telstra Corporation Limited [2015] FCA 207; 146 ALD 354 at [26]-[27], this is not a case where Comcare’s case under s 7(4)(b) might be accepted if the matter were remitted to the Tribunal. Comcare’s selection of the “last noisy exposure date” as the date when the disease resulted in impairment is, with respect, premised upon a misconstruction of s 7(4) of the SRC Act.
83 At the hearing, while it did not accept that the appeal was a test case, Comcare indicated that it would not seek an order for costs against Mr Kemp in the event that it was successful: T31.23-25. That concession was appropriately and fairly made, given that Comcare’s legal costs no doubt exceeded the amount in issue which was less than $5000.00. Furthermore, at the hearing of the appeal, Comcare accepted that, even if it were successful on the appeal, Mr Kemp should have his costs thrown away by reason of its late abandonment of Question of Law 5 and grounds 2(b), 3(b), 3(c) and 5 of its notice of appeal.
84 However, as Mr Kemp has successfully defended the proceeding, the ordinary rule as to costs should apply with the consequence that Comcare is liable to pay Mr Kemp’s costs of the appeal in any event.
85 It follows for these reasons that the appeal must be dismissed with costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
