Heley v Johnson - [2013] QDC 345

[2013] QDC 345

DISTRICT COURT OF QUEENSLAND
APPELLATE JURISDICTION
JUDGE REID
Appeal No 29 of 2013
DAVID ERROL HELEY Appellant
and
RAYMOND GARY JOHNSON Respondent
BRISBANE
2.34 PM, WEDNESDAY, 26 JUNE 2013
JUDGMENT

HIS HONOUR: The appellant appeals a decision of a learned Magistrate to strike out two complaints comprising, in all, 10 charges under sections 534 and 535 of the Workers’ Compensation and Rehabilitation Act. The Magistrate found the complaints were instituted out of time. The applicant contends that the Magistrate acted on a wrong interpretation of provisions of the Workers’ Compensation and Rehabilitation Act and, in particular, section 579(3)(b)(ii) thereof, and that he came to an erroneous conclusion about the facts of the case.

The respondent claimed to have been injured during the course of his employment, on the 4^th of February 2008. He alleged, in Supreme Court Proceedings, the trial of which began before Byrne J on the 4^th of October 2010, that he was a real estate agent and slipped on the stairs of a property owned by the defendant’s in that action. In his judgment, the learned Magistrate’s describes the Supreme Court action as a master servant action. It seems the action was in fact against the owners and occupiers of the property on which he claims to have been injured but nothing turns on this misunderstanding although it of course means that WorkCover would not have been an effective party to the action as it would be in a master servant action.

The matter settled on day 2 of the trial but only after the respondent in this matter had given sworn evidence and been cross-examined. As a consequence of hearing his evidence, Byrne J caused his associate to write a letter to WorkCover on the 4^th of November 2011. The letter was addressed to:

“Mr Tony Hawkins, Chief Executive Officer, WorkCover Queensland”

The letter was detailed and voluminous. It summarised relevant aspects of the respondent’s evidence, including an allegation that he was not able to work up to the 30^th of November 2008. An economic loss report had been prepared by his accountants on the basis of his inability to so work. The letter indicated, however, that “(t)he evidence may be thought to have indicated” a number of matters, including:
(1) that the respondent admitted returning to work in September 2008. Transcript references to that admission were given.
(2) That, during the time the respondent claimed to be unable to work, he performed at least part of his real estate duties. Some details of his engagement as a real estate agent in the period between May and September 2008 were provided, as was an admission to that effect given by the respondent in some proceedings related to his divorce.
(3) That a video showed him at an open house inspection on the 20^th of September 2008, said to be inconsistent with his stated case.

A folder containing the transcript from the trial, the respondent’s amended statement of claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Heley v Johnson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QDC 345
Decision Date: 26 JUNE 2013

CaseChat Overview and Summary

In Heley v Johnson, the appellant, David Errol Heley, appealed against the magistrate's decision to strike out two complaints comprising 10 charges under sections 534 and 535 of the Workers’ Compensation and Rehabilitation Act. The magistrate found the complaints were instituted out of time. The appellant contended that the magistrate erred in his interpretation of the relevant provisions of the Workers’ Compensation and Rehabilitation Act, particularly section 579(3)(b)(ii), and in his conclusion about the facts of the case. The respondent, Raymond Gary Johnson, claimed to have been injured during the course of his employment on 4 February 2008 and filed a compensation claim with WorkCover Queensland. He later pursued a common law action against the owners of the property where he sustained the injury. WorkCover Queensland investigated the matter and, based on evidence suggesting that the respondent had committed an offence against the Act, decided to proceed with the charges. The magistrate found that the proceedings were instituted out of time, but the District Court judge disagreed, finding that the magistrate had erroneously concluded that the knowledge of the complainant under section 579(3)(b)(ii) of the Act needed only to be constructive. The District Court judge held that the only relevant inquiry was to the state of knowledge of the complainant, and not other employees of WorkCover. The judge also found that the magistrate ignored the statements of principle in Thiele v Davis and Bulger v Woodham, and instead relied on Smith v Baldwin, which was not authority for the proposition that section 579 of the Act contemplated the application of the common law doctrine of constructive notice.

The court concluded that the magistrate's decision to strike out the complaints was erroneous and that the proceedings were instituted within the time allowed by section 579 of the Act. The matter was directed to be returned to the Industrial Magistrates Court for the matter to proceed according to law. The court did not consider the appellant's further arguments that the Industrial Magistrate erred in failing to properly consider the elements of an offence under section 535 of the Act, or that he failed to properly consider the complaint with respect to offences under section 534 of the Act, as the primary issue of time had been resolved in favour of the appellant.

Orders