Moore-McQuillan v Millikan No. Scgrg-98-848 Judgment No. S6837

[1998] SASC 6837

MCQUILLAN v MILLIKAN
[1998] SASC 6837

Magistrates Appeal
Bleby J

1. This is an appeal against dismissal by a magistrate of a complaint, brought by the appellant, alleging that Malcolm Lloyd Millikan had breached the Worker’s Compensation and Rehabilitation Act 1986 (“the Act”) in a number of ways.  The appellant had, in fact, brought complaints against a number of people, all of which were dismissed at the same time by the same magistrate.  However, the only appeal properly before me, is against the dismissal of the complaint made against Mr Millikan.

2. The complaint against Mr Millikan made a number of allegations.  The first one was that, in or about December 1994, at 100 Waymouth Street, Adelaide, Mr Millikan contravened or failed to comply with the provisions of the Act, contrary to s122 of the Act.  The particulars of the allegation were that, while he was a senior investigator with the WorkCover Corporation in their fraud department, Mr Millikan dishonestly withheld employees wage details of Mr Moore‑McQuillan, knowing that he was being underpaid by WorkCover.  It was not specified in the complaint which section of the Act the respondent was said to have breached.  Nor was it said how he breached it, or from whom he is said to have dishonestly withheld wage details.

3. The second complaint was that, in or about April 1995, at 100 Waymouth Street, Adelaide, Mr Millikan contravened or failed to comply with a provision of the Act, contrary to s122 of the Act.  The particulars of that allegation were that, while Mr Millikan was a senior investigator in the WorkCover fraud department, he did not comply with s35(1)(b)(ii) of the Act, when, on 28 April 1995 he charged Mr Moore‑McQuillan with obtaining by dishonest means payment or benefits contrary to s121(a) of the Act.  Section 35(1)(b)(ii) of the Act reads, so far as it is material, as follows:

   “35(1) Subject to this Act, where a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in respect of that disability in accordance with the following principles:

   ...

   (b) if the period of incapacity of work exceeds one year, the worker is entitled to weekly payments determined in accordance with paragraph (a) for the first year of the period of incapacity and thereafter -

   ...

   (ii) the worker is, if partially incapacitated for work, entitled for the period of incapacity to weekly payments equal to 80 per cent of the difference between the worker’s notional weekly earnings and the weekly earnings that the worker is earning, or could earn in suitable employment if the worker has a reasonable prospect of obtaining.”

4. It is difficult to see how Mr Millikan could personally be in breach of that section.  But, in the circumstances, I do not need to consider that problem.  It is not alleged precisely what the failure to comply was.

5. The third complaint was that, in or about March and August of 1996, at 100 Waymouth Street, Adelaide, Mr Millikan contravened, or failed to comply with a provision of the Act, contrary to s122 of the Act, the particulars of that allegation being that, while Mr Millikan was a senior investigator in the WorkCover fraud department, he did not comply with s110 of the Act when ordering Kingswood Loss Assessors SA, on 13.3.96 and 16.8.96, to access the Insurance Reference Service Limited records.

6. Section 110 of the Act is a long section.  It deals with access of authorized persons to employers’ work places, inspections of records, powers of seizure and other allied topics.  It is not alleged precisely what the failure to comply in this case was.

7. The subject matter of the complaint and summons came before the Magistrates Court sitting at Christies Beach, on 21 April 1998.  On that day, the appellant’s complaints against Mr Millikan, and in relation to a number of other defendants, were dismissed.  The magistrate relied on an affidavit sworn by the respondent which relevantly deposed to the fact that he was, at all material times, employed by WorkCover Corporation as a chief inspector, and that the actions he took in relation to the appellant were related to the administration and enforcement of the Act.

8. The receipt by the magistrate of the affidavit, insofar as it deposed to those facts, was not objected to by the appellant, although he did object to certain other statements contained in the affidavit.

9. The magistrate dismissed the complaint, without hearing evidence from the appellant, relying on s122(4) of the Act.  Section 122 of the Act relevantly reads as follows:

   “122(1) A person who contravenes or fails to comply with a provision of this Act is guilty of an offence.”

It was that sub‑section which Mr Millikan was said to have contravened.  Sub‑section (4) reads:

“(4) Sub‑section (1) does not render the Corporation, a member of the staff of the Corporation, or any person acting on behalf of the Corporation, liable to prosecution for any act or omission related to the administration or enforcement of this Act.”

1. It was pursuant to that sub-section that the magistrate dismissed the complaint against Mr Millikan, on the court being satisfied that he was a member of the staff of the Corporation and that any acts or omissions alleged in the summons, related to the administration or enforcement of the Act. 

2. The magistrate also found, in relation to count 1 on the summons, that it did not comply with s122(3a) and was out of time.  That sub-section reads:

   “(3a) The prosecution, for an offence against this Act must be commenced within three years after the date on which the offence is alleged to have been committed.”

The complaint was laid on 24 February 1998.  Count 1, as alleged in the offence, was said to have occurred in or about December 1994.  It was, therefore, on its face, out of time.  No such finding was made, of course, in relation to counts 2 and 3, which alleged breaches of the Act at other and later times. 

1. The grounds on which this appeal is now brought are as follows:

1...... That Her Honour, the special magistrate, stated that WorkCover are immune from conviction because of the s122(4) of the Act.

1. No-one can break the law and be free from prosecution.  

1. WorkCover must comply with the laws of South Australia and not be immune.

1. In my opinion, the grounds of appeal have no substance.  Whether or not an employee of the WorkCover Corporation has complied with all of the requirements of the Workers Rehabilitation and Compensation Act in carrying out his or her duties may or may not, according to the circumstances, affect whether a valid decision has been made by the Corporation, and may affect a person’s civil liability or entitlement under the Act.  However, that was not in question in the proceedings before the magistrate. 

2. What s122(4) does is to render any such actions immune from prosecution under s122(1), and for that reason the magistrate correctly dismissed the complaint.   In doing so, she was not passing any judgment on the correctness or otherwise of the procedures adopted, or of any action taken by the respondent in the discharge of his duties, if, indeed, there were any breaches by him of the Act.  Nor was the magistrate passing judgment on the correctness, or otherwise, of the decisions of the WorkCover Corporation.  If there have been breaches of the requirements of the Act by staff of the Corporation, or even by the Corporation itself, then, of course, there are other remedies provided in the Act available for challenge of those decisions.  But prosecution for a breach of the Act resulting in a possible conviction and fine of an officer of the Corporation is not available.  The appeal is, therefore, dismissed.