Moore-McQuillan v WorkCover No. Scgrg-98-749 Judgment No. S6782
[1998] SASC 6782
•8 July 1998
MOORE-McQUILLAN v WORKCOVER
Magistrates Appeal
Debelle J
The notice of appeal in this matter suggests that the appellant appeals against orders of a magistrate refusing an application for further time to pay the sum of $7,500 to the respondent WorkCover Corporation (“WorkCover”) and ordering that he pay $400 costs to WorkCover on the application which has failed.
Shortly stated, the events leading to this matter are as follows:
The appellant was originally charged with 20 counts of obtaining payment for benefits by dishonest means contrary to s120(1)(a) of the Workers Rehabilitation & Compensation Act, 1986 (“the Act”) and one count of hindering or obstructing an authorised officer of WorkCover contrary to s110(9)(a) of the Act.
On 13 March 1996 the appellant was convicted of six counts of obtaining payment by dishonest means. He was convicted on each count by Mr Deegan SM.
On 13 March 1996 Mr Deegan SM made a number of orders. For present purposes, the only relevant orders were
(a) That the appellant repay compensation dishonestly obtained in the sum of
$3,091.
(b) That the appellant pay the costs of the prosecution in the sum of $2,226.
(c) That the appellant pay investigation costs in the sum of $8,000. The
authority for such an order is s120(3) of the Act.
Thus, the appellant was ordered to pay a total sum of $13,317.
Mr Deegan SM further ordered the appellant to pay the sum of $7,500 within 14 days. The appellant had not long before received a substantial lump sum payment from WorkCover in excess of $65,000. Mr Deegan SM ordered the appellant to pay the balance at the rate of $200 per week.
On 27 March 1996 the appellant appealed against these convictions to this Court. On 2 August 1996 Perry J dismissed the appeal.
On 4 April 1997 the appellant sought an extension of time within which to seek leave to appeal against the order of Perry J. On 23 May 1997 Perry J dismissed the application.
The appellant then applied to the Full Court of this Court for leave to appeal against the order of Perry J. The application was refused by the Full Court on 20 July 1997.
On 18 September 1997 the appellant served on WorkCover an application for special leave to appeal to the High Court of Australia against the judgment of the Full Court. The application has not yet been heard and determined.
The appellant has from time to time obtained orders varying the amount of the weekly payments and staying the operation of the order requiring him to pay the lump sum of $7,500.
The appellant has been making weekly payments of the sum of $125.
A stay of the operation of the orders requiring the payment of the lump sum expired on 10 August 1997.
On 8 August 1997 the appellant applied for further time in which to pay the lump sum of $7,500. The grounds of the application were that he was awaiting the outcome of proceedings to provide sufficient funds to pay that sum. The application has been adjourned from time to time.
In the meantime, the appellant had instituted proceedings in the Workers Compensation Tribunal seeking payment of workers compensation. On 19 January 1998 the Tribunal awarded the appellant compensation in the total sum of $11,832.77.
The appellant’s application to postpone the payment of the lump sum came on for hearing before Mr Gurry SM on 6 April 1998. Mr Gurry SM heard argument and granted leave to each party to file written submissions pending his decision on 24 April 1998.
The financial position as between the parties on 6 April 1998 was as follows:
(a) WorkCover had been ordered to pay compensation to the appellant in the
sum of $11,832.77.
(b) The payments made by the appellant had reduced his overall
indebtedness to WorkCover by reason of the order of 13 March 1996
to the sum of $6,767.
(c) The appellant claims $1,832.77 as interest on the sum of $11,832.77.
(d) WorkCover claims $1,314.46 as interest on the sum of $3,091
compensation due to it.
WorkCover has proferred the sum of $5,065.77 to the appellant. There is a dispute whether, on 9 March 1998, WorkCover sent to the appellant the sum of $5,065.77 by registered letter; and whether the appellant received two reminders from Australia Post that the letter was available for collection. The appellant did not collect the cheque. The cheque has been returned to WorkCover. WorkCover holds itself available to pay that sum to the appellant.
WorkCover is holding the sum of $6,767 against the appellant’s liability to WorkCover for costs.
On 24 April 1998 Mr Gurry SM made an order refusing the appellant’s application for further time to pay the lump sum due to WorkCover. He further ordered that the appellant pay WorkCover the sum of $400 costs.
The appellant appeals against the orders of Mr Gurry SM made on 24 April 1998. It should be added that the appellant has subsequently accepted the sum of $5,065.77 paid to him on 8 May 1998 by WorkCover. He received that payment without prejudice to his rights, that is to say, the appellant expressly preserved all rights available to him. He took that view for the reasons which I will mention in a moment. The effect of the payment was that WorkCover had offset against a judgment in favour of the appellant in the sum of $11,832.77 the amount of $6,767 which was due to it by the appellant pursuant to orders of Mr Deegan SM made on 13 March 1996. Having appealed to the High Court, the appellant wishes to be able to recover that sum should his application for leave to appeal to the High Court and any subsequent appeal succeed.
The appellant refers to s59A of the Criminal Law (Sentencing) Act, 1980 and says that the offset by WorkCover does not accord with the terms of that provision. Section 59A reads:
“Subject to any order of a court or direction of an appropriate officer to the contrary, a pecuniary sum, or any instalment of a pecuniary sum, is payable to a court despite the fact that the order for the pecuniary sum is in favour of some person.”
The orders made on 13 March 1996 were in favour of WorkCover. Nevertheless, in accordance with the terms of s.59A, any payment made by the appellant, pursuant to the orders made on 13 March 1996, had to be paid to the Adelaide Magistrates Court.
The appellant has now recognised the convenience of the offsetting arrangement and recognises that that arrangement avoids the incurring of further costs which might be occasioned by proceeding in strict accordance with all relevant statutory provisions and any rules of court. In any event I have the powers of the court appealed from and may make an appropriate order on this appeal. Given the present attitude of the appellant and his acknowledgment that the offset is convenient, I am prepared to make an order dispensing with the requirements of s.59A and permitting the offset. The effect of that is that the appellant has now discharged his obligation to pay the monies ordered on 13 March 1996. If he should succeed in his application for leave to appeal to the High Court, he will be entitled to recover that sum from WorkCover.
Thus the only issue of substance which now remains is the question whether this court should interfere with the order for costs which was made.
Before dealing with that, there are two matters I should put to one side. First, the claim by the appellant for interest on the sum of $11,832.77 ordered to be paid to him by the Workers Compensation Tribunal is not relevant to the issues which I must determine. If the appellant seeks to prosecute that claim, he must do so in the Workers Compensation Tribunal. That aspect of the matter must, therefore, be put to one side in this appeal. Secondly, Mr McRae, who appears for the respondent, informs me that WorkCover does not press its claim for interest in the sum of $1,314.46.
Thus, the only issue remaining is the question of the costs ordered by Mr Gurry SM in respect of the application by the appellant made on 8 August 1997 for further time in which to pay the sum of $7,500 owed to WorkCover. It is apparent from the file and from the reasons of Mr Gurry SM that the application was pursued vigorously before him. It is unnecessary to go into the details of the matter. At that stage, as the reasons of Mr Gurry indicate, WorkCover had twice proffered a cheque for the sum of $5,065.77 to Mr Moore-McQuillan but he did not accept that payment. He was concerned to oppose any set-off which WorkCover was purporting to effect by that payment.
The appellant has failed in his application before Mr Gurry SM. WorkCover incurred costs in resisting the application. Mr Gurry SM did no more than apply the usual rules that costs follow the event and had regard to the rule that the unsuccessful party usually pays the costs of the successful party. He has awarded the sum of $400 for more than one attendance and written submissions which have been filed on behalf of WorkCover. An award of $400 costs is a very modest award. Others might have awarded a higher sum by way of costs. In my view, there is no basis for interfering with the order as to costs. Indeed, having regard to the issues, the appearances involved and the written submissions, the claim for costs is very modest.
For these reasons I dismiss the appeal. The orders will be:
Appeal dismissed.
No order as to costs.
Order dispensing with s59A of the Criminal Law (Sentencing) Act in respect of the payment of the costs in the sum of $6,767.
The time for payment of the costs ordered by Mr Gurry SM of six months will commence as of this date.
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