Craber v Workcover Queensland

[2010] QDC 217

[2010] QDC 217

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE HARRISON
No 93 of 2010

SCOTT THOMAS CRABER	Applicant (Appellant)
and
WORKCOVER QUEENSLAND	Respondent
CAIRNS ..DATE 21/05/2010

JUDGMENT
HIS HONOUR: Mr Craber, I'm now going to give my decision now.
This is an application for extension of time pursuant to the
provisions of section 224 of the Justices Act. The appellant, Mr Craber, was convicted in the Magistrates Court at Cairns on the 11th of February 2009 of an offence under the provisions
of section 535 of the Workers Compensation and Rehabilitation
Act 2003. Sorry?

MR FALVEY: I think the conviction, your Honour, was under section 533-----

HIS HONOUR: Oh, sorry; 533 put instead of 535.

The Magistrate handed down written reasons for his decision on the 11th of February 2009 and I have read those reasons. The charge arises from two essential factual matters: firstly, that Mr Craber was in receipt of workers compensation benefits for a claim under the Act for the period the subject of the charge, namely the 9th of June 2007 to the 19th of August 2007; secondly, it was alleged and accepted that he did do some work for an employer throughout that time.

The effect of the legislation, having regard to section 136 of
the Act, is that there is a deeming provision, namely section
535 of the Act, "if a worker in those circumstances does not
give notice within 10 business days of the worker's either
return to work or engagement in calling". In this case there
is no dispute that Mr Craber was in receipt of workers
compensation benefits throughout the relevant period and there
is no dispute that he actually did some work.

2   JUDGMENT

The dispute before the Magistrate really centred around
whether or not any notice was given under section 136(1) of
the Act. Mr Craber gave evidence before the Magistrate that
he did provide that information to Mr Montaldi from WorkCover
on the 23rd of June 2007. Mr Montaldi denied that in the
witness box, and the Magistrate, in his decision, accepted the
evidence of Mr Montaldi in that regard over that of the

appellant.

APPELLANT: May I ask a question?

HIS HONOUR: Well, I'm giving my reasons for the decision at the moment, so let me do that.

Under section 222 of the Justices Act, appeals are required to be lodged within one month after date of the order. In Mr Craber's case, the notice of appeal was not filed until the 20th of April 2010 which is 14 months after the order was made. There is no documentary evidence to explain what happened, but with the consent of the solicitor for the respondent I explored this matter at some length with Mr Craber here in the courtroom today.

He explained to me that initially he did not take any action because he was told that he had no grounds or that he did not have any fresh evidence. He explained to me that in late May he left Australia and was married in the Philippines and did not come back until November. He also explained that he obtained what he referred to as new evidence some time after that, and that it was this that led him to lodge his application at that stage.

He explained to me that he found out from a representative of the person who he worked for at the relevant time to the effect that some information about a driver's licence was different to the evidence that was led before Court and, to this end, he attached also a medical certificate from a Dr Khan dated the 14th of June 2007 to his notice of appeal. This confirmed that he was fit to drive a manual vehicle. He said that the evidence in Court related only to the fact that he could drive an automatic vehicle. 3 JUDGMENT

He also said that he was hopeful of getting some further evidence from a Dr Todd who in August of 2007 had, in his presence, rung Mr Montaldi and told Mr Montaldi about the fact that he was working. I do note that there was some reference to Dr Todd in the Magistrate's decision when the Magistrate says, on page 3 of the decision from line 30 onwards, that Dr Todd had reported on the 17th of August 2007 to Mr Montaldi from WorkCover that the appellant was working in a part-time casual job as a courtesy driver. This, however, is at the very end of the period complained of.

I fail to see how any of the material that the appellant deliberately went into these matters in considerable detail with the applicant to see whether or not he did have any prospects on appeal. The power under section 224 of the Justices Act to extend time is a discretionary one and I believe that, on a consideration of the relevant matters here, it would be impossible to exercise my discretion to allow the extension of time. 4 JUDGMENT

relies upon as new evidence would assist him in relation to
any appeal against the decision of the Magistrate. This is
one of those cases where the Magistrate was confronted with
two totally conflicting accounts of what did or did not happen
in a conversation alleged on the 23rd of June 2007. It is
well accepted that Appeal Courts will very lightly interfere
in findings of credit, unless it can be shown that the
Magistrate was in error.

Firstly, I must have regard to the period of time that elapsed, and 14 months is a very lengthy period. Secondly, the application is based around new evidence, but I have analysed that evidence in my reasons and it seems to me that there is nothing in the material which it is proposed to put which could justify a Court interfering in the Magistrate's finding on credit.

There is also an issue of prejudice which has been raised on
behalf of the respondent, and this is something I must also
take into account. The witness for the complainant, Mr
Montaldi, was clearly ill at the time of the trial and I
understand is now at a stage where he is no longer working.
There would be very severe prejudice to the respondent if,
after all this time, it would be necessary for these matters
to have to be relitigated and that is very relevant to the
exercise of my discretion on the application to extend.

APPELLANT: Your Honour, if you're worried about a period of time, why don't you let me bring in Jenny Snaibor, my ex- manager from Bohemia Resort, and she can tell you - verify the time and the dates.

HIS HONOUR: Let me finish and then I'll talk to you. set out in the submissions put forward on behalf of the respondent about the principles that apply in matters such as this. I accept that, in the genuine cases of fresh evidence, it may well be that the time does not have as much significance. But, as I have indicated, this is essentially a matter involving a finding of credit in a one-on-one situation where none of this proposed evidence, in my opinion, would have any real impact on the determination of the matter. 5 JUDGMENT

In all the circumstances, I refuse leave to extend time for the filing of the notice of appeal under section 224.

Mr Craber, I've dealt with the matter. I've given you my reasons. I know you don't like it. I know you feel you've been genuinely done by, but I can tell you that in law I had no option but to do what I've done this afternoon.

APPELLANT: Totally understood.
HIS HONOUR: That's no disrespect to you-----
APPELLANT: Totally understood.
HIS HONOUR: -----and I don't doubt for one minute that you feel you were badly done by. But what I'm saying to you is, if I did give you the extension today, it would have been in the very real situation that your hopes would have been needlessly buoyed and you'd have been let down considerably later on, because it would have been just about impossible for any Court to interfere with a finding of credit in a one-on- one case like this, and the Courts of Appeal say that over and over again.
APPELLANT: What do you think I've been going through since this has been brought down here? Do you think I've been having great smiling days since this has been brought down?
HIS HONOUR: I'm not suggesting it would have been in any way good for you, but unfortunately I've done what I believe I have to do.
APPELLANT: Understood, your Honour.

HIS HONOUR: I have to do what I----- to bring that in. Jenny Snaibor, my ex-manager, can clear me, can verify that I actually did declare. 6 JUDGMENT

HIS HONOUR: Sorry, Mr Craber, but I can't take it any further.

APPELLANT: Understood.

MATTER INTERPOSED

HIS HONOUR: Yes, thank you, both.
MR FALVEY: Thank you, your Honour.
APPELLANT: I just have to take it to a higher Court, that's all, and I will. I will take it to a higher Court because I am innocent and I will prove it, your Worship - your Honour, with respect.
HIS HONOUR: Very well. I've got something else to do now.

Can I get on with that. It's been a busy day as you can see.

APPELLANT: Yes; me too. A busy year.

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7   JUDGMENT