Kemp and Comcare (Compensation)

This matter concerned an appeal by Kemp against a decision of the Administrative Appeals Tribunal (AAT) regarding a claim for compensation for bilateral sensorineural hearing loss. The core dispute revolved around whether the applicant suffered from a permanent impairment and, consequently, was entitled to compensation, specifically whether the calculated hearing loss exceeded the 5% binaural hearing loss threshold criteria.

The legal issues before the court were whether the AAT had erred in its determination and, in particular, whether the Tribunal was bound by a previous consent decision made under section 42C of the Administrative Appeals Tribunal Act. The court was required to consider the interplay between the AAT Act and section 78 of the Seafarers Rehabilitation and Compensation Act 1992, which allows for the reconsideration of determinations.

The court reasoned that section 78 of the Seafarers Rehabilitation and Compensation Act 1992 empowered a decision-maker, and by extension the Tribunal standing in that position, to reconsider an earlier determination of compensation entitlement. This statutory provision was held to prevail over any principle of issue estoppel that might otherwise apply in the Tribunal. The court noted that while repeated applications on the same subject matter could amount to an abuse of process, no such submission was made in this instance. The Tribunal had rejected evidence tendered by the respondent, which was assumed to be persuasive, significant, and relevant for the purposes of the appeal.

The decision under review was set aside and remitted for reconsideration.