Blackwood v Hinder
[2017] QDC 239
•29 September 2017
DISTRICT COURT OF QUEENSLAND
CITATION:
Blackwood v Hinder [2017] QDC 239
PARTIES:
SIMON BLACKWOOD
(appellant)v
COLIN HINDER
(respondent)FILE NO/S:
4881/15
DIVISION:
Criminal
PROCEEDING:
Appeal under s 222 of the Justices Act
ORIGINATING COURT:
Brisbane Industrial Magistrates Court
DELIVERED ON:
29 September 2017
DELIVERED AT:
Brisbane
HEARING DATE:
6 May 2016
JUDGE:
Horneman-Wren SC, DCJ
ORDER:
Appeal allowed. 1.
Set aside the orders of the Brisbane Industrial Magistrates Court made on 23 November 2015.2.
3. Remit the matter to the Brisbane Industrial Magistrates Court to be heard and determined according to law.
CATCHWORDS:
APPEAL – WORKERS COMPENSATION AND REHABILITATION – INDUSTRIAL MAGISTRATES COURT – whether the relevant knowledge of the Regulator or WorkCover bringing the proceeding is the correct construction to be applied under s579(b)(ii) of Workers’ Compensation and Rehabilitation Act 2003 – where the law to be applied is that which was in force at first instance – where the Magistrate erred in determining that the relevant knowledge of WorkCover extended to knowledge of any employee under s579(b)(ii) of Workers’ Compensation and Rehabilitation Act 2003 - where the Magistrate erred in determining a WorkCover employee had the requisite knowledge of the facts sufficient to establish the respondent’s contravention – where the Magistrate erred in awarding discretionary costs at a higher amount under s 158B(2) of the Justices Act 1886 – where appeal allowed
COUNSEL:
Ms PM Clohessy for the appellant
Mr AF Maher for the respondent
SOLICITORS:
Crown Law Queensland for the appellant
Carter Capner for the respondent
Introduction
By complaint made on 28 May 2015, the appellant, Simon Blackwood commenced a proceeding in the Industrial Magistrates Court against the respondent, Colin Hinder, in which he alleged that the respondent had committed three offences against the Workers’ Compensation and Rehabilitation Act 2003 (WCRA). One charge, brought pursuant to s 533 WCRA, was that the respondent had defrauded WorkCover Queensland. The other two charges, brought pursuant to s 534(2) WCRA, were that the respondent had stated false or misleading information knowing that information was false or misleading in a material particular.
The respondent applied to an industrial magistrate to have the proceeding struck out or permanently stayed on the ground that it had been commenced outside of the time allowed under s 579(3) WCRA. On 23 November 2015 an industrial magistrate found that the proceeding had been commenced out of time and struck it out. The magistrate also ordered the appellant to pay the respondent’s costs in the sum of $25,500.
The appellant appeals to this court on the grounds that the learned industrial magistrate erred in striking out the proceeding and in making the costs order.
For the reasons which follow, the appeal should be allowed and the orders set aside.
The statutory provisions relevant to the proceeding below
Section 579 WCRA[1] provides:
[1]The relevant version of the legislation is the reprint current as at 9 October 2015.
“579 Summary proceedings for offences other than against ch 8
(1) This section applies to a proceeding for an offence against this Act other than chapter 8.
(1A) A proceeding for an offence committed by an insurer against section 486B(2) is to be taken in a summary way under the Justices Act 1886 before an industrial magistrate on the complaint of—
(a) the Regulator; or
(b) a person authorised for the purpose by the Regulator; or
(c) the Attorney-General.
(2) A proceeding for an offence other than an offence against section 486B(2) is to be taken in a summary way under the Justices Act 1886 before an industrial magistrate on the complaint of—
(a) the Regulator or WorkCover; or
(b) a person authorised for the purpose by the Regulator or WorkCover; or
(c) the Attorney-General.
(3) A proceeding must start—
(a) within 1 year after the commission of the offence; or
(b) within 6 months after the commission of the offence comes to the knowledge of—
(i) for a proceeding mentioned in subsection (1A)—the Regulator; or
(ii) for a proceeding mentioned in subsection (2)—the Regulator WorkCover;
whichever is the later.
(4) All penalties recovered under a proceeding are to be paid—
(a) if a proceeding was brought by the Regulator—to the Regulator; or
(b) if a proceeding was brought by WorkCover—to WorkCover.
(5) A person aggrieved by a decision of the industrial magistrate in the proceeding may appeal against the decision to a District Court judge under the Justices Act 1886.”
Section 583 WCRA provides:
“583 Evidence
(1)The Regulator may issue certificates for subsection (2).
(2)A certificate stating the following matters is evidence of the matters in any proceeding about anything arising under this Act—
(a) that commission of an offence against this Act came to the knowledge of the Regulator or delegate issuing the certificate on a specified date;
(3) WorkCover’s chief executive officer may issue certificates for subsection (4).
(4) A certificate stating the following matters is evidence of the matters in any proceeding about anything arising under this Act—
…
(c) that commission of an offence against this Act came to the knowledge of WorkCover’s chief executive officer or delegate issuing the certificate on a specified date;
(5) A document purporting to be a certificate under this Act is admissible as the certificate it purports to be in any proceeding about anything arising under this Act.
(6) A statement in a complaint for an offence against this Act of any of the following is evidence of the matter stated—
(a) that the person making the complaint is authorised to do so;
(b) that the matter of the complaint came to the knowledge of the complainant or the Regulator or WorkCover’s chief executive officer on a specified day.
The Regulator referred to in those provisions is the Workers’ Compensation Regulator established under s 326(1) WCRA. By s 326(2) the Governor in Council may appoint a public service officer as the Regulator. The appellant is the Regulator. By s 326(4) the Regulator must act independently when making a decision under the Act. The functions of the Regulator include to conduct and defend proceedings under the WCRA before a court: s 327(1)(n).
The Regulator may delegate a function or power under the Act to, relevantly, an appropriately qualified authorised person: s 329. The Regulator may, by instrument, appoint certain persons as an authorised person for the Regulator: s 330(1). Inspectors appointed under either the Industrial Relations Act 1999[2] and the Work Health and Safety Act 2011 are taken to be authorised persons appointed by the Regulator: s 333(2). Functions of authorised persons include to investigate contraventions of the WCRA and to assist in the prosecution of offences against the Act.
[2]Which was still in force at the relevant time. It has since been repealed by the Industrial Relations Act 2016.
WorkCover is established under the WCRA as a body corporate which may sue or be sued in its corporate name: ss 380 and 381. WorkCover’s functions include to perform functions conferred on it by the WCRA: s 383(1)(b).
WorkCover is to have a chief executive officer: s 442(1). It is the duty of WorkCover’s chief executive officer, under the board of WorkCover, to manage WorkCover: s 443.
Anything done in the name of, or for, WorkCover by its chief executive officer is taken to have been done by WorkCover: s 444. The chief executive officer’s powers may be delegated by the chief executive officer to an appropriately qualified WorkCover employee: s 445.
The requirement for WorkCover to have a chief executive officer, the duty of the chief executive officer to manage WorkCover, the deeming of things done by the chief executive officer in the name of, or for, WorkCover as things having been done by WorkCover and the powers of delegation to an appropriately qualified WorkCover employee, were matters also established under the former WorkCover Queensland Act 1996: ss 399(1), 400, 401 and 402.
Section 42(1) of the Justices Act 1886 provides:
“42 Commencement of proceedings
(1)Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.”
The subsequent amendment
Four months after the hearing of the appeal, when the decision was reserved, the appellant filed a supplementary outline of submissions drawing the court’s attention to amendments to the WCRA made by the Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016[3] and which commenced upon receiving assent on 8 September 2016. The amendments had been made subsequent to the hearing of the appeal and the reservation of the court’s judgment.
[3]Act No.44 of 2016.
Section 579 WCRA was amended so as to include offences against Ch 12, Pt 2 of the Act within a definition of “prescribed offence”. Each of the charges which were brought against the respondent alleged offences against Ch 12, Pt 2. By an amendment to s 579(1A) a proceeding for a prescribed offence is to be taken under the Justices Act 1886 on the complaint of the Regulator, a person authorised for the purpose by the Regulator, or the Attorney-General. By those amendments, the capacity for WorkCover to commence proceeding by complaint for offences of fraud was removed.
The explanatory note to the provision in the amending Bill said:
“Clause 45 amends section 579(1A) to provide that proceedings for an offence committed under section 486B(2) and chapter 12, part 2 (fraud and false and misleading statements) are taken in a summary way before an industrial magistrate on the complaint of either the Workers’ Compensation Regulator, a person authorised for the purpose of the Workers’ Compensation Regulator, or the Attorney-General.
This change aligns with the requirement under section 536 of the Act for insurers to refer matters of suspected fraud and false and misleading statements to the Workers’ Compensation Regulator for investigation and potentially to commence a complaint.
The change is also in response to the Industrial Magistrates Court decision of Simon Blackwood v Colin Hinder and provides that where certain prosecutions for offences against the Act are to be, or have been, commenced by the Workers’ Compensation Regulator, only the knowledge of the Workers’ Compensation Regulator is relevant to the timeframe for commencing a fraud proceeding.”
The amending Act also introduced a transitional provision for the amendment of s 579 into the WCRA. The new section, s 726, provides:
“(1) New sections 578 and 579 apply to a proceeding for an offence committed before the commencement if a proceeding for the offence has not been finally dealt with before the commencement.
(2) If a proceeding for the offence has started, but has not been finally dealt with, before the commencement, the proceeding may be continued if it was started—
(a) by a person who may start the proceeding under new section 578 or 579; and
(b) within the period within which the person may bring a proceeding for the offence under new section 578 or 579.”
The appellant submits that because this appeal had not been determined prior to the commencement of those amendments, they apply to this matter.
The respondent filed submissions in response in which it took no issue with the appellant having filed submissions. Rather, the respondent addressed the substance of the appellant’s supplementary submissions.
The respondent did not concede that the explanatory notes to the Bill were relevant, because s 597(3) as it was worded at the relevant time, and as it had submitted in his primary submission, was clear in its meaning. The respondent submitted that “no extrinsic explanation was needed to ascertain the plain meaning of the section.” That submission, in asserting that the ordinary meaning of s 597(3) was clear, puts to one side any contrary contention that the provision was ambiguous or obscure. It also does not recognise that even if the provision is not ambiguous or obscure, and its ordinary meaning does not lead to a result that is manifestly absurd or unreasonable, consideration still may be given to the explanatory notes to confirm the interpretation conferred by the ordinary meaning.[4]
[4]Section 14B(1)(c) Acts Interpretation Act 1954.
Notwithstanding that he did not concede the relevance of the explanatory notes, the respondent went on to address them. In his submission, the reference to the Magistrates Court decision in this matter as the “catalyst” for amending the legislation is confirmation that the interpretation for which he contended at first instance and on the appeal is correct.
He submits that the transitional provision has no application because the “proceeding” referred to in the amended s 579 is the prosecution at first instance and that proceeding was dealt with on 23 November 2015 by the learned industrial magistrate. There was no relevant proceeding on foot as at the date of the amendment. He submits that the appeal is not such a proceeding. He refers to the absence of reference to appeals in general in the new provisions and to the absence of any reference to this particular appeal, presumably in the explanatory notes. He contends that such omission of any reference to appeals must be regarded as deliberate.
The respondent referred to s 20C(2) of the Acts Interpretation Act 1954 which provides that if an Act makes an act or omission an offence, the act or omission is only an offence if committed after the Act commences. The respondent submits that “The effect of the amending Act is to create three prescribed offences in the WRCA s 579. By doing so, that section falls within the restrictions imposed by s 20C(2) of the AIA”.
That submission is incorrect. The effect of the amendments to s 579 is not to create three prescribed offences. The effect is that various offences, already existing within the Act, are prescribed for the purposes of s 579. The amendments to s 579 create no offences at all. Section 579 in its previous and amended forms creates no offences. It is a procedural provision dealing with how proceedings for various offences otherwise created by the Act may be brought. Section 20C(2) of the AIA has no application.
The respondent also refers to s 21 of the AIA in support of his submissions. Section 21 provides:
“(1) If an Act repeals some or all of the provisions of an Act and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.”
The respondent submits that s 21 “means that the former provisions relating to time in s 579 remain in force in the disposition of the matter at first instance”.
Section 21 of the AIA also has no role to play in this matter. It simply preserves the operation of the former s 579 until the commencement of the amended s 579. However, if upon its commencement the amended s 579, upon its proper construction, has retrospective effect on an existing proceeding, s 21 AIA does not prevent that.
The real issue is whether the amended s 579 has any application to this appeal. In my view, the respondent is correct in his contention that it does not.
Section 579(5) WCRA provides that a person aggrieved by a decision of an industrial magistrate in the proceeding may appeal to this court under the Justices Act. Such an appeal is brought pursuant to s 222 of the Justices Act. Such an appeal is by way of rehearing: s 223.
On an appeal by rehearing, the court must decide the rights of the parties in accordance with the law as it exists at the time of hearing the appeal.[5] This was not a case in which there had been an amendment to the law between the date of the magistrate’s decision and the date of rehearing. The amendment occurred after the hearing when the court was reserved. In those circumstances, the law to be applied is, in my opinion, that which applied prior to the subsequent amendments.
[5]CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ; Allesch v Maunz (2000) 203 CLR 172 at [20] per Gaudron, McHugh, Gummow and Hayne JJ; Coal and Allied Operations Pty Limited v AIRC (2000) 203 CLR 194 at [14] per Gleeson CJ, Gaudron and Hayne JJ; Western Australia vWard (2002) 213 CLR 1 at [70] per Gleeson, Gaudron, Gummow and Hayne JJ, The Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73 at 107-108 per Dixon J; Edwards v Noble (1971) 125 CLR 296 at 304.
If I am wrong about that issue, I am of the opinion that the amendments do not apply in any event. As the respondent correctly submits, a “proceeding” referred to in s 726 WCRA is a proceeding for an offence before the Industrial Magistrates Court. Section 726(1) refers to “a proceeding for the offence (which) has not been finally dealt with before the commencement”. The relevant proceeding for an offence in respect of these matters was the proceeding before the Industrial Magistrate. That proceeding was finally dealt with by the learned magistrate’s order striking out the proceeding. That occurred on 23 November 2015; before the commencement of the amended provisions.
Section 726(2) refers to “a proceeding for the offence which has been started, but has not been finally dealt with, before the commencement”. Again, there is no such proceeding here.
This appeal proceeding is only brought, and could only be brought, because the Industrial Magistrate had finally dealt with the proceeding commenced in that court.
The fact that the amended s 579 may, by operation of s 726, apply to the proceeding if the order striking it out is set aside is not to the point. What is to the point is that there is presently no proceeding to which either s 579 or 726 can apply. This appeal is not a proceeding for an offence able to be commenced under s 579 either in its pre-amendment or post-amendment form. Neither s 579 nor s 726 have any work to do in respect of this appeal proceeding.
For these reasons, the law to be applied is that which was considered by the learned industrial magistrate in the proceeding at first instant.
The relevant facts
On 15 August 2013 the respondent made an application for compensation under the WCRA. He claimed to have injured his back in the course of his employment on 6 July 2013.
On 21 August 2013 the respondent’s employer emailed Mr Ben Leonard, a claim representative with WorkCover, requesting an investigation into the respondent’s claim for compensation because although the respondent was on the relevant project “no work related injury occurred to Colin”.
On 5 September 2013 a work colleague of the respondent, Arthur Jones, provided a statement in which he said that on 8 July 2013 he was asked to escort the respondent to a medical centre. In what Mr Jones described as a brief conversation he recalled the respondent having informed him “that it may be his sciatica playing up”. Mr Jones suggested sitting on tennis balls. The respondent is said to have said that he had used a golf ball previously. Mr Jones collected the respondent from the medical centre. He recalled the respondent having told him that the medical centre had told the respondent that he could return to work, and that he would be OK and that it was not work related.
On 9 October 2013 Dr Michael Weidmann, a neurosurgeon, examined the respondent. That had occurred at the request of Ms Tracy Duffy, a customer adviser within WorkCover. Dr Weidmann provided WorkCover with a report the same day in which he stated “Mr Hinder is otherwise in good general health and he denies any back injuries or symptoms in the past”.
On 21 October 2013 Dr Peter Grant, a general practitioner, wrote to Tracy (apparently Tracy Duffy) of WorkCover enclosing copies of what were said to be all relevant imaging reports held on his electronic health records. These were provided in response to a telephone request, apparently made by Ms Duffy. Dr Grant noted several of the images were undertaken before the respondent’s report of the onset of low back pain as outlined in the workers’ compensation certificates, copies of which Dr Grant attached. Dr Grant observed that Ms Duffy would appreciate that those documents “are pivotal in deciding if liability exists and if the currently claimed impairment is temporary or permanent”. He suggested “any specialists obtained in relation to his present claim be read after considering these report [sic]”.
The imaging reports provided by Dr Grant included one of an x-ray of the lumbosacral spine dated 29 March 2011 which recorded “past back injury when working with Toll Dnata when crushed between aircraft pallets”. There was no indication as to when that injury may have been suffered.
Those records also included a referral letter from Dr Grant to Princess Alexandra Hospital Neurology and Neurosurgery dated 29 March 2011 in which he said that he had “referred Colin for early assessment of the L5-S1 disc prolapse causing bilateral thigh and knee pains worse on the left as well as left toe numbness. The pain has been present for four months whilst the toe has been numb for six weeks”.
On 31 March 2014 Ms Duffy again referred the respondent to Dr Wiedmann. Dr Wiedmann examined and interviewed the respondent on 1 April 2014 and provided a report of that date. In it he referred to Ms Duffy having provided records from Dr Grant including the x-ray report of the lumbar spine dated 29 March 2011 and a CT scan of the lumbar spine dated 28 March 2011 which showed a left central disc protrusion at L5-S1. He noted that comparison with an MRI of the lumbar spine taken on 20 August 2013 showed no progression. He also referred to Dr Grant’s referral of the respondent to the Princess Alexandra Hospital and the reasons for that.
Dr Wiedmann said:
“This new information indicates Mr Hinder’s pathology was all pre-existing and had been previously symptomatic. I asked him about this and he said he couldn’t remember.
On relooking at the incident work on 6 July 2013, the injury itself was of a very minor nature and there was no immediate back pain. His back pain began the following morning when he awoke. On reviewing the new information, it becomes highly likely that the incident at work may have been a very minor aggravating factor that may have caused a short term exacerbation of his symptoms. However he would not fulfil the definition of a significant aggravating factor. The progression of his symptoms was far more likely due to the underlying and ongoing degenerative condition. This is the usual natural history of this condition. His surgery was therefore undertaken for a pre-existing condition. Assessing his condition has been difficult because of his dishonesty.”
The WorkCover Queensland Communications Report records a telephone conversation between Ms Duffy and the respondent on 3 April 2014 in which she advised the respondent of having received Dr Weidmann’s report. She records asking the respondent if he had ever been referred to the Princess Alexandra Hospital Neurology and Neurosurgery back in 2011 to which he is recorded as having replied that he could not remember. He was asked if he could remember having scans at that time and he is recorded as having responded that he may have had a scan. Ms Duffy records telling him that she had copies of the scan saying that he had disc prolapse at L5-S1 level impinging on his left S1 nerve root. She records asking him whether he recovered from this and that he advised that he must have.
On 4 April 2014 Ms Duffy emailed Dr Peter Lucas. In the email Ms Duffy referred to the respondent having denied any back injuries in the past when first reviewed by Dr Weidmann on 9 October 2013. She said:
“In Dr Weidmann’s report dated 1 April 2014 in light of the new information[6] he advised that the surgery was undertaken for a pre-existing condition and that Colin’s treatment to date has been adequate and that no further treatment or therapy is required. Any further treatment for his lumbar spine condition is because of the degenerative condition and is not the work related sustain [sic] on the 6 July 2013.”
[6]Of which Ms Duffy had also advised Dr Lucas in her email.
Ms Duffy attached for Dr Lucas’ perusal the reports of Dr Weidmann, Dr Grant’s referral of the respondent to the Princess Alexandra Hospital and the x-ray and CT reports from 2011. The email then set out a series of questions and provided space for Dr Lucas to make his responses.
Dr Lucas responded that he was not aware of the respondent’s extensive pre-existing condition which necessitated a referral to the Princess Alexandra Hospital in 2011. He was then asked:
“Given your previous report date [sic] 10th October 2013 and your opinion that the treatment/surgery was all for the work related injury does the provided information change your opinion in respect of the extent of his work related injury?”
Dr Lucas responded:
“Yes. I tend to agree with Dr Weidmann’s thoughts.”
On 22 April 2014 Ms Duffy telephoned the respondent to discuss Dr Lucas’ report.[7] The Verbal and Unsuccessful Communications Log records:
“Rang to discuss report from Dr Lucas.
Dr Lucas has agreed with Dr Weidmann’s comments that any ongoing issue now related to his pre-existing back condition.
Advised that based on this information his claim will now close as of the 25-04-14. Advised Colin of his right of review.”
[7]Exhibit BML-13 to the affidavit of Bartholomew Michael Lee.
On 23 April 2014 Ms Duffy wrote to the respondent confirming the cessation of his claim.[8] In it she said:
“As discussed with you on 22 April 2014, WorkCover Queensland has decided to stop your claim for the aggravation of your pre-existing condition, as you are no longer incapacitated for work or suffering the effects of this aggravation.”
[8]Exhibit BML-16 to Mr Lee’s affidavit.
The Reason for Decision included the following:
“Based on the medical opinion of your treating specialist Dr Peter Lucas, an opinion of independent medical examiner Dr Michael Weidmann:
I am now satisfied that any further treatment would now be treat the underlying pre-existing degenerative condition and not the aggravation sustained on 6 July 2013 and any ongoing incapacity is now due to your underlying degenerative condition.”
On 24 April 2014 a “fraud report” form was submitted from the WorkCover Queensland website reporting an alleged fraud by the respondent. In it the following was said:
“Colin and Toni Hinder have submitted a compensation claim for Colin’s back injuries and have managed to get so far with this complaint. As a relative of Colin I would like to stay anonymous. But I can tell you that this injury has not occurred from Colin’s recent occupation in the mining industry.
This injury occurred many years ago as a personal injury. Myself and other family members have sat and listened to them speak about how this so-called payout is to fund a new project. They realised they wasted dad’s money and now want more.”
On 27 May 2014 Ms Fiona Toppenberg, a senior prosecution consultant with WorkCover, wrote to the respondent’s GP, Dr Peter Grant, informing him that “WorkCover Queensland is in the process of investigating this claim to ensure the claimant’s compliance with their [sic] obligations under the Workers Compensation and Rehabilitation Act 2003”. She sought a full copy of Dr Grant’s file relating to the respondent to assist in that process. Dr Grant provided those records. They were apparently printed on 1 July 2014.
On 1 September 2014 Ms Toppenberg wrote to Ms Melissa Obirst, a legal and policy officer with the Regulator in the following terms:
“Please find attached copy of the following for your consideration to prosecute:
·Overview and chronology (by 2).
·Statutory file S13AW086908.
·Communications report.
Should you require any further information please do not hesitate to contact me.”
On 13 February 2015 Ms Obirst wrote to Dr Lucas informing him that the Regulator was investigating the respondent for alleged offences against the WCRA. She referred to the surgery performed by Dr Lucas under the claim on 11 November 2013. She asked Dr Lucas to assist with the Regulator’s investigation by answering certain questions; informing him that it was an offence not to provide information requested without a reasonable excuse.
In the first of the questions asked of Dr Lucas it was said that WorkCover had provided him with a copy of Dr Grant’s records by facsimile on 4 April 2014. A copy of those records was attached to the 3 February 2015 letter “for ease of reference”. The letter went on to identify the following particular matters which were contained in Dr Grant’s records:
“(a)on 4 July 2008, Dr Grant noted in this records the worker had ‘six months back pain’ and ‘tender lumbar paravertebral muscles down to centre of lumbar spine’;
(b)on 12 February 2009, 2 March 2009 and 11 March 2009, Dr Jeffrey Ong issued a workers’ compensation medical certificate to the worker for ‘strained right knee and strained lumbar back’. The stated cause of injury was ‘pushing a four tonne pallet on a roller’ (the worker lodged a workers’ compensation claim for this injury);
(c)on 27 February 2009 Dr Grant noted in his records ‘Colin says he injured his left lumbar spine and knee two weeks ago at work at the airport for Toll Dnata with aggravation on Sunday and Monday’. Dr Grant further noted ‘tender over sacroiliac joint and right knee’;
(d)on March 2009, Dr Grant noted in his records the worker attended for ‘low back pain’;
(e)on 13 March 2009, Dr Grant noted in his records the worker stated his ‘back is still painful’;
(f)on 17 March 2009, Dr Grant issued a workers’ compensation medical certificate for ‘lumbar spine and right knee pain’;
(g)on 28 March 2011, Dr Grant noted in his records ‘recent CT shows L5-S1 disc prolapse, longstanding history of lower back pain and bilateral knee pains as well as numbness in L5 dermatome for years; past back injury when working with Toll Dnata when crushed between aircraft pallets’;
(h)on 28 March 2011, a CT cervical spine and lumbar spine by Dr Richard Budge shows ‘left central disc protrusion L5/S1 impinging on S1 nerve root’;
(i)on 29 March 2011, Dr Grant noted in his records the worker attended for a consultation. Dr Grant noted ‘letter written to Princess Alexandra Hospital re left L5-S1 prolapse’;
(j)an x-ray report by Dr Gregory Amos dated 29 March 2011 notes ‘early arthropathy seen at L4-L5 and L5-S1’.”
Ms Obirst’s statement that Dr Lucas had been provided with Dr Grant’s records on 4 April 2014 was not correct. The email from Ms Duffy to Dr Lucas, as has already been observed, referred to having attached Dr Weidmann’s reports, Dr Grant’s referral of the respondent to the Princess Alexandra Hospital, the CT scan of 28 March 2011 and the x-ray of 29 March 2011. Ms Duffy made no reference to having attached Dr Grant’s records.
Furthermore, the complete records of Dr Grant had not been provided to WorkCover prior to WorkCover emailing Dr Lucas on 4 April 2014. Dr Grant had provided some limited records under cover of a letter dated 21 October 2013. Those documents, or some of them, were exhibited to the affidavit of Bartholomew Michael Lee filed 30 September 2015.[9]
[9]Exhibit BML16a.
Dr Grant’s letter and its attachments appear to have been sent by facsimile at 09:52 on 21 October 2013. The facsimile refers to there being 13 pages of which only 7 appear exhibited to Mr Lee’s affidavit. However, what can reasonably be inferred is that the clinical notes of Dr Grant, which themselves comprised 17 pages by October 2013, had not been provided. Dr Grant’s letter of 21 October 2013 referred to having attached “a copy of all relevant imaging reports” and the workers’ compensation certificates. The documents exhibited to Mr Lee’s affidavit appear to be the imaging reports and the referral to the Princess Alexandra Hospital, but not the workers’ compensation certificates. The workers’ compensation certificates to which Dr Grant was referring, and which he attached, would appear to be those which he issued in respect of the respondent’s more recent claim to which the investigation related. This is evident from Dr Grant referring to the imaging reports including “several undertaken before Colin reports onset of low back pain as outlined in the workers’ compensation certificates (copies attached)”.
The full medical records held by Dr Grant had not been provided to WorkCover until 1 July 2014. Those records were provided in response to the request from Ms Toppenberg dated 27 May 2014.
From that, it can be deduced that the matters referred to in paragraphs (a) to (g), inclusive, as set out in the Regulator’s letter to Dr Lucas of 3 February 2016 would not have been previously provided to him on 4 April 2014. For reasons which will be developed later, that fact is of some relevance to the factual conclusions drawn by the learned magistrate.
The charges
Charge 1 on the complaint is that between 14 August 2013 and 26 April 2014 the respondent defrauded WorkCover. This charge relates to the obtaining of benefits by the respondent under his claim for compensation. The claim for compensation included a statement that he had not suffered any previous similar injuries or conditions.
On 5 September the respondent had told a claims representative, Mr Ben Leonard, words to the effect that he “has had no previous back injuries”. The respondent had also denied to Dr Weidmann on 9 October 2013 that he had any back injuries or symptoms in the past.
It is alleged that as a result of the respondent knowingly making dishonest representations to WorkCover and Dr Weedman, a detriment was caused to WorkCover by depriving it of the opportunity to make a properly informed decision based on all of the relevant information about whether to accept the claim and/or to continue to pay the respondent compensation. The respondent is alleged to have obtained a benefit by way of the compensation paid that he was not entitled to receive.
Charge 2 is one under s 534(2) of stating false and misleading information. It relates to the statement made to Mr Leonard on 5 September 2013.
Charge 3 is also one under s 534(2). It relates to the statement made to Dr Weidmann on 9 October 2013.
The contentions below
Before the Industrial Magistrates Court the respondent, Mr Hinder, (who was the applicant below) had contended that on a proper construction of s 579(3) a proceeding for a relevant offence must be commenced within one year after the commission of the offence (which is not the case here) or within six months after the commission of the offence comes to the knowledge of either the Regulator or WorkCover. Once either the Regulator or WorkCover have that knowledge the proceeding must be commenced within six months; whether commenced by the Regulator or by WorkCover.
Mr Hinder contended that the commission of the offence came to the knowledge of WorkCover, through Ms Duffy, in April 2014, and that the commencement of the proceeding on 28 May 2015 was outside the prescribed time.
The Regulator had contended that s 579(3) required the proceeding to be commenced by either the Regulator or WorkCover within six months of the commission of the offence coming to their respective knowledge. That is, the proceeding could be commenced by the Regulator within six months of the commission of the offence coming to his knowledge, or by WorkCover within six months of the commission of the offence coming to its knowledge. The Regulator submitted that to construe the provision otherwise would lead to an absurdity because the time for bringing a complaint where the insurer was WorkCover would be shorter than where an employer was a self- insurer.
In the alternative, the Regulator submitted that the words “whichever is the later” that appear at the end of s 579 apply to the knowledge of the Regulator and WorkCover, not as between s 579(3)(a) and (b). He contended that if knowledge of the commission of the offence was acquired by WorkCover, it was nonetheless acquired by the Regulator later; on 28 May 2015.
The Regulator further submitted that the further evidence contained in Dr Lucas’ report received in April 2015 was required in order to be satisfied that there was knowledge of facts sufficient to establish a contravention of the WCRA.
It was further submitted for the Regulator that in respect of the knowledge of WorkCover, it was the knowledge of the Chief Executive Officer of WorkCover, not of any other employee, which was relevant.
The decision below
In finding in favour of Mr Hinder on his application and striking out the complaint, the learned magistrate said:
“The self-insurer, for example, can inform WorkCover or the regulator, and the Act is clear, and has been amended so that a particular office holder is not named. WorkCover is a corporation and the employees, servants or agents are – actions can be attributed to WorkCover. Therefore, – my view is I find that communication to an employee of WorkCover such as Ms Duffy is the proper communication and can start – and a proper communication of knowledge, even if it is to an employee of WorkCover.
Most importantly, I do not accept the major submission that it is the knowledge of the entity which starts the proceedings which is contemplated by the legislation. If it needs to be said, the ordinary meaning of the legislation is that a proceeding must start either one year after the commission of the offence or an extended period of time, but limited to six months after the commission of the offence comes to the knowledge of the Regulator or WorkCover, whichever period is the later. That is, either the one year or the – an extended period if the – for example, if the knowledge – required knowledge – comes within the year, the proceeding can still be started within one year. It is not necessarily extended, but usually it would be.
I specifically find that the report of Dr Lucas in 2015 added nothing to the knowledge of WorkCover or to the body of knowledge about the behaviour of the respondent to the complaint. Section 579 of the Act provides, in subsection 2, for the – a number of entities or persons which can start proceedings. It can be any number of – any of the number of persons, including the Regulator and WorkCover, but also including a person authorised for the purpose by the Regulator or WorkCover, or the Attorney-General.
Section 579(3) clearly provides when the proceedings must start. Section 579(3)(b) speaks of a time limitation after knowledge is received, as a starting point. It does not refer to the knowledge received by entities in s 579, sub-paragraph (2) – entities who may start proceedings. It simply says when proceedings start. Clearly the meaning is that any of the entities mentioned in 579(2) can start a proceeding with – one year or within six months after the commission of the offence comes to the knowledge of either WorkCover or to the regulator. This is a precise definition. It is a machinery provision – provides a limited starting and end point, and for very good reasons.
Once there are reasonable grounds for believing an offence has been committed, it must then move forward in a manner – within a legislative framework – to be determined by the court, which will find whether or not, beyond reasonable doubt, there are or are not grounds. It does not mean that any entity who is allowed to start the proceedings has six months after coming into possession of knowledge to start a proceeding. It means, quite clearly, that proceedings must start once either WorkCover, through its servants or agents to whom the proper grounds are properly – knowledge that proper – of reasonable grounds are communicated to WorkCover – or to the regulator.
The consequences of the interpretation offered by the respondent to this applicant are not sensible. There could be delays where WorkCover fails to start a proceeding, or perhaps ask for a lot of reports once reasonable grounds are within its knowledge and fails to move forward. It may fail to inform the regulator, and a person may then, far too late, have to face a proceeding – a prosecution – because the entity has only recent knowledge. Another consequence is that, hypothetically, the Regulator or WorkCover may authorise another person to start a proceeding, and could be started, hypothetically, within six months of the authorised person coming into knowledge of the commission of the offence, whenever that may be.The meaning of s 579, sub-paragraph (3), is plain. The proceeding must start within a year or within six months of a certain event. That is, knowledge by WorkCover or knowledge by regulator. In this matter, the chronology indicates that prior to 28 November 2014 WorkCover was in possession of sufficient facts to establish a contravention of the Act. An exposition of the facts are in Dr Weidmann’s reports, which refer to dishonesty, and Dr Lucas’ report which, referred to his agreement with Dr Weidmann’s. The ordinary meaning of s 573 is that the time for starting a prosecution is the time – of six month – limited to six months after WorkCover – by its servants agents employees – has reasonable grounds for believing an offence has been committed, or the Regulator has that knowledge.
In this matter, WorkCover had the knowledge earlier than the regulator, and once that knowledge was within its possession, it – a prosecution could be started by any person authorised under s 579(2), but it had to be started within six months. In this case, therefore, the prosecution was started in April – in May 2015. It has not complied, as I have found, with s 579(3), and is out of time, and must be struck out.”
The grounds of appeal
By his Notice of Appeal, the Regulator raised the following grounds:
“1. The Magistrate erred in striking out the complaint in that:
(i) her Honour’s finding regarding the ordinary meaning of the section was an error;
(ii) her Honour’s finding that the requisite level of knowledge of the commission of an offence was obtained prior to November 2014 was an error;
(iii) her Honour’s finding that the meaning of ‘WorkCover’ in s 579 of the Workers Compensation Rehabilitation Act 2003 (WCRA) included every employee of WorkCover was an error;
(iv) her Honour failed to take the context of s 579 of WCRA into account and did not properly apply the authority of Heley v Johnson [2013] QDC 345.
2.The Magistrate erred in awarding costs pursuant to s 158 of the Justices Act 1886 in that it was not proper for an order for costs to be made in this case taking into account all of the relevant circumstances.
3.The Magistrate erred in the exercise of her discretion to award costs in an amount higher than the scale allowed for in accordance with s 158B(2) of the Justices Act 1886 in that:
(i) her Honour erred in the reasoning and conclusion that the matter was one of ‘special difficulty, complexity or importance’, pursuant to s 158B(2) of the Justices Act 1886;
(ii) her Honour took irrelevant matters into account in finding that the case fell into that category;
(iii) her Honour could not have been satisfied on the evidence that the amount of $25,500 was just and reasonable.”
The parties’ contentions on the appeal
The submissions advanced by each of the Regulator and Mr Hinder on the appeal were, essentially, those which they respectively advanced at first instance. One exception, however, was that the Regulator did not maintain the contention made below that the words “whichever is the later” at the end of s 579(3) refer to sub-paragraphs 579(3)(b)(i) and (ii), not s 579(3)(a) and (b). No written submission was made in the appeal to that effect, and on the hearing of the appeal counsel for the Regulator conceded that it “seems clear” that “whichever is the later” necessarily relates to s 579(3)(a) and (b).[10] The concession was properly made. Those words must relate to the times limited by either S 579(3)(a) and s579(3)(b).
[10]Transcript, p 1-18, ll 30-37.
The Regulator maintained his contention that the ordinary meaning of s 579(3)(b)(ii), taken in its proper context, is that the knowledge of WorkCover is relevant only when it is the entity bringing the complaint, and that it is the Regulator’s knowledge that is relevant when it is the Regulator who brings the complaint. The Regulator maintained also his contention that the construction of s 579(3)(b) found by the learned Magistrate led to absurd and unintended results where self-insurers would be placed in a more advantageous position for their prosecutions than a fraud committed on WorkCover.
The Regulator submitted that the learned Magistrate erred in finding that WorkCover had the requisite knowledge at a time six months prior to the complaint being brought. He contends, as he did at first instance, that the further evidence obtained “from Dr Lucas in April 2015 was required in order to be satisfied that there was ‘knowledge of the facts sufficient to establish Mr Hinder’s contravention of the WCRA’”. That test as to the requisite state of knowledge is taken from the judgment of the Court of Appeal in Cross Country Realty Pty Ltd & Ors v Peebles.[11] The parties are in agreement that this is the relevant test. WorkCover never had that report. It was only obtained by the Regulator.
[11][2007] 2 Qd R 254 at [10]; see also Woods v Beattie; ex-parte Woods [1995] 1 Qd R 343.
The Regulator next submits that the learned Magistrate erred in finding that “WorkCover” as referred to in s 579(3)(b)(ii) is to be interpreted to mean any servant, agent or employee of WorkCover, rather than a particular class of person authorised to bring complaints. He submits that her Honour erred in her application of the judgment in Heley v Johnson.[12]
[12][2013] QDC 345.
For Mr Hinder it is submitted that on a proper construction of s 579(3)(b)(ii) the six month time limit ran from the time at which the commission of offence came to the knowledge of either the Regulator or WorkCover. If WorkCover’s knowledge was gained prior to the Regulator having the requisite knowledge, the time limited for bringing the proceeding nonetheless ran from that earlier time at which WorkCover had the requisite knowledge.
He contends that a contrary construction would lead to absurd results because a matter in which WorkCover gained the requisite knowledge could simply be ignored for years only to begin at a later time, but within six months of the Regulator gaining the requisite knowledge.
Mr Maher, counsel for Mr Hinder, submits that the WCRA does not state that the relevant knowledge is that of a particular entity bringing the complaint. The time limit is imposed on the proceeding, not an entity. Reading the words “whichever is bringing the complaint” into s 579(3)(b)(ii) would alter and strain the plain meaning of the words which do appear.
On that basis, it is submitted for Mr Hinder that in this matter the knowledge or otherwise of the Regulator is irrelevant because WorkCover had the requisite knowledge more than six months prior to the commencement of the proceeding.
In examining the knowledge of WorkCover, Mr Hinder identifies that s 579(3) does not refer to the knowledge of the complainant. He submits that this is a critical difference between the language of s 579 and other provisions, such as s 589 of the Property Agents and Motor Dealers Act 2000 considered in Peebles. He further submits, citing a passage from the judgment of Campbell J in Smith v Baldwin; ex-parte Smith,[13] that even where the statute refers to the knowledge of the complainant or a particular person, such as the chief executive officer, “knowledge by other officers is not ignored”. He submits that the “clear focus of s 579 is on the knowledge of WorkCover, by its servants or agents”.
[13][1979] Qd R 380 at 386.
The submissions for Mr Hinder seek to distinguish Heley v Johnson on the basis that the wording in s 579 was different and, it is said, critically so. In that case, he submits, the enquiry was confined to the knowledge of the chief executive officer of WorkCover and his delegate, whereas “the enquiry in the present case is broader and includes relevant WorkCover employees”. The submissions do not identify which employees would be “relevant”.
It was submitted for Mr Hinder that the unqualified reference to “WorkCover” could not be read down to mean a particular officer. It was further submitted that even if it could be, there was actual, demonstrable knowledge on the part of WorkCover which was said to rebut the presumption. It was contended that there was overwhelming evidence that WorkCover had reasonable grounds for believing that an offence had been committed well prior to 28 November 2014 (being the date six months prior to the commencement of the proceeding). It was said that “this submission does not depend upon constructive knowledge, but on actual knowledge confirmed by the evidence of Ben Leonard and Dr Weidmann, whose knowledge was particularised by the complainant in the complaint”.
In respect of that last submission it should be observed that the complainant does not particularise any knowledge of either Ben Leonard or Dr Weidmann in the complaint. The complainant particularises statements made by Mr Hinder to each of Mr Leonard and Dr Weidmann. It is also particularised that Dr Weidmann provided a report dated 1 April 2014 which “did not conclude that his injury of 6 July 2013 was an ‘injury’ covered by the WCRA”. That is not a particularisation of any knowledge of Dr Weidmann as to the commission of an offence by Mr Hinder.
The respondent the refers to WorkCover’s establishment as a body corporate by s 381 WCRA and the power of WorkCover’s chief executive officer to delegate under s 445.
The respondent also referred to sections 392(3)(b)(ii) and (vi) of the WCRA submitting that those provisions “provide that WorkCover employees have the authority to exercise their powers and functions”. However, that is not what s 392 provides. That section provides certain protections for persons who deal with WorkCover. One of those protections is that a person who has dealings with WorkCover is entitled to make certain assumptions: s 392(1)(a). Those assumptions include that a person who is held out by WorkCover to be a WorkCover officer or agent of WorkCover has authority to exercise the powers and perform the functions customarily exercised or performed by an officer or agent of the kind concerned: s 392(3)(b)(ii). A WorkCover officer includes a WorkCover employee: s 392(6). Those provisions have no relevance to the issues for determination in these proceedings. There is nobody having dealings with WorkCover to be afforded the protection of that assumption.
It is submitted for the respondent that “it is trite law that the ‘state of mind’ of an entity is coextensive with the state of mind of its employees”. Section769B(3) of the Corporations Act 2001 (Cth) is cited as authority for that submission on the basis that it provides that “to establish the state of mind of the body corporate, it is sufficient to show that an employee of the body corporate had that state of mind”.
Section 769B(3) is not a provision of general application to all matters concerning corporations. It applies to a proceeding brought under Chapter 7 of the Corporations Act in respect of particular conduct engaged in by a body corporate. Chapter 7 deals with financial services and markets. It applies when it is necessary to establish the state of mind of the body. The proceeding before the Industrial Magistrate was not one under ch 7 of the Corporations Act in respect of conduct engaged in by WorkCover. Section 769B(3) is a provision entirely irrelevant to these matters. It is of no assistance to the respondent’s submissions. Its only relevance, perhaps, is to demonstrate that if a body corporate is to be fixed with the state of mind of its employees, a specific statutory provision to that effect may be required. There is no such provision in the WCRA.
To any extent that the law is “trite” in respect of fixing a corporation with the knowledge of any person, it is that the corporation will not be fixed with the knowledge of such a person unless the person is the directing mind and will of the company. The corporation will be fixed with the person’s state of mind if the person is acting as the company, but not where the person is acting for the company. As Lord Reid explained in Tesco Supermarkets Ltd v Nattrass:[14]
“I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company.”
[14][1972] AC153 at 170; applied by the High Court in Hamilton v Whitehead (1988) 166 CLR 121 at 127.
In Brambles Holdings Ltd v Carey[15] Bright J said:
“Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company.”
[15][1976] 15 SASR 270 at 279; cited with approval in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582-583.
Section 444 WCRA can be seen as a statutory expression of that common law position in respect of anything done by the chief executive officer. The common law and the WCRA are both against the state of the law which the respondent’s submissions describe as “trite”.
The respondent identifies a number of documents extracted from the files of WorkCover which he submits demonstrate WorkCover, through its employees, had the requisite knowledge of facts sufficient to establish contravention of the WCRA by, at the latest, 23 April 2014 when Ms Duffy and a Ms Janna Stephen signed the letter terminating his WorkCover payments. He then submits that, at the latest, the documents and statements relied on by the complainant were all within WorkCover’s actual knowledge, by its employees, by 1 July 2014. That date must be a reference to the provision of the full medical records of Dr Grant which were printed on 1 July 2014. He further submits that by the time of Dr Weidmann’s supplementary report on 1 April 2014, the facts relied on in the particulars of the complaint were within WorkCover’s actual knowledge.
The nature of the appeal
The nature of an appeal under s 222 of the Justices Act, being an appeal of rehearing, is that the appellate powers of the court are to be exercised for correction of the error.[16] The court is required to conduct a real review of the trial and the learned Magistrate’s reasons.[17] In doing so, the court must give due deference to and attach a good deal of weight of the views of the learned Magistrate,[18] but it remains for this court to draw its own conclusion on the evidence.
[16]Coal and Allied Operations Pty Limited v AIRC (2000) 203 CLR 194 at 203 to 204 [14]; Allesch v Maunz (2000) 203 CLR 172 at 180 [23]; CDJ v VAJ (1998) 197 CLR 172 at 201-202.
[17]Fox v Percy (2003) 214 CLR 188 at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ.
[18]Stevenson v Yass [2006] 2 Qld R 150 at 162 [36] per McMurdo P.
In Fox v Percy [27] Gleeson CJ and Gummow and Kirby JJ observed:
If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
Further on, at [29] their Honours said:
“But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.”
Is the relevant knowledge that of whichever of the Regulator or WorkCover brings the proceeding?
In my opinion, the Regulator’s contention that the relevant knowledge for the purposes of s 579(3)(b)(ii) is that of whichever of the Regulator or WorkCover brings the proceeding, should be rejected.
The ordinary meaning of s 579(3)(b) WCRA is that a proceeding must be started within six months of the commission of the offence coming to the knowledge of either WorkCover or the Regulator. Each of the Regulator and WorkCover are conferred with the power to take such proceedings by making a complaint. Having conferred power on each of the Regulator and WorkCover to take the proceeding, the Act then requires such a proceeding to be commenced within six months of either having the requisite knowledge as to the commission of the offence to which the proceeding relates.
Had the legislature intended the construction for which the Regulator contends, it could easily have achieved that by requiring the proceeding to be commenced within six months after the commission of the offence having come to the knowledge of “the complainant”. Having conferred power on each to be a complainant, then prescribing the date of the complainant gaining the requisite knowledge would have clearly established that it was the knowledge of whichever of the Regulator or WorkCover was exercising the power to commence the proceeding which was relevant. But that is not what was prescribed in s 579(3). Limiting the time for bringing a proceeding by reference to the time at which the commission of the offence comes to the knowledge of the complainant is the mechanism used in s 578 WCRA in respect of offences against ch 8 of the Act. That such a mechanism is not used in s 579(3), but is used in an adjacent provision, is further reason for concluding that a construction of the provision which would have that effect is not what was intended and is not to be preferred.
I am also of the view that the Regulator’s submission that a construction which requires the proceeding to be commenced within six months of the commission of the offence coming to the knowledge of either WorkCover or the Regulator would lead to absurd results because the period during which a proceeding could be commenced would start run later in matters where the insurer was an employer who was a self-insurer as opposed to WorkCover, should be rejected.
The legislature has conferred power upon three entities, the Regulator, WorkCover and the Attorney-General, to bring proceedings for offences committed against the Act. It has not conferred such power upon a self-insurer. The legislature has chosen to limit the time for bringing proceedings for an offence by reference to the time at which one or other of two of those entities, the Regulator or WorkCover, come to know of the commission of the offence. There is no absurdity in the legislature having provided that proceedings for offences under the WCRA to be governed in this way.
Her Honour accepted that the preparation of the matter was complex even if its ultimate resolution was not. As these reasons on the appeal reflect, the matter is not without complexity. However, I am not of the view that it is of such complexity as to place it within a special category of cases in which costs at a higher amount ought be awarded.
Her Honour’s suggestion that the interpretation adopted by the appellant was not done so in good faith is, with respect, misplaced. There is nothing in the evidence to establish, or even suggest, that the interpretation advanced by the appellant not was genuinely held, even if incorrect.
So too the fact that fraud is alleged does not make the case, of itself, complex as her Honour appears to have found. Nor would I find that the application was important in the sense that her Honour found in that it has some impact on the public generally, or indeed on employees of WorkCover in the discharge of their duty. Of course, in this latter respect, the basis for her Honour’s view that the decision had some general effect on the employees of WorkCover has been removed by the decision on the appeal.
For those reasons, I am of the view that her Honour erred in awarding costs in favour of the respondent and also in ordering those costs in an amount higher than that allowable under the scale.
Disposition
The orders on the appeal are:
1. Appeal allowed.
2. Set aside the orders of the Brisbane Industrial Magistrates Court made on 23 November 2015.
3. Remit the matter to the Brisbane Industrial Magistrates Court to be determined according to law.
Blackwood v Hinder [2017] QDC 239
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