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Maloney v Workers' Compensation Regulator[2023] QCA 95

Maloney v Workers' Compensation Regulator[2023] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:

Maloney v Workers' Compensation Regulator [2023] QCA 95

PARTIES:

MALONEY, Tamara Elizabeth

(applicant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

CA No 234 of 2022

DC No 16 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns – [2022] QDC 216 (Morzone KC DCJ)

DELIVERED ON:

Date of Order: 14 April 2023

Date of Publication of Reasons: 9 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2023

JUDGES:

Mullins P and Bond and Dalton JJA

ORDER:

Date of Order: 14 April 2023

  1. Application for leave to appeal refused.

Date of Order: 9 May 2023

  1. The applicant pay the respondent’s costs of the application.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF TRIAL JUDGE – where the applicant pleaded guilty and was convicted in the Magistrates Court of six breaches of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where the magistrate said in the course of sentencing that he regarded the applicant’s conduct as a “careless aberration” due to her mental health issues rather than “calculated and brazen”– where the applicant appealed to the District Court arguing that the learned magistrate erred in not rejecting the appellant’s pleas of guilty – where there was no evidence before the magistrate which showed that the applicant could not have been convicted of the offences – where there had been an unsuccessful appeal to the District Court – whether the applicant’s plea of guilty ought to have been set aside

CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the applicant is impecunious and mentally ill – whether costs should follow the event

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 136, s 533, s 534, s 535

Borsa v The Queen [2003] WASCA 254, considered

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, considered

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25, considered

R v DBY [2022] QCA 20, considered

R v Dobie [2011] 1 Qd R 367; [2009] QCA 394, considered

Sochorova v Commonwealth of Australia [2012] QCA 152, considered

COUNSEL:

M J Jackson for the applicant

A L Bain for the respondent

SOLICITORS:

Fisher Dore Solicitors for the applicant

Workers Compensation Regulator Prosecutions Unit for the respondent

  1. [1]
    MULLINS P:  For the reasons given by Dalton JA, I joined in the order made by the Court on 14 April 2023 refusing the application for leave to appeal.
  2. [2]
    I agree with Bond JA’s reasons in relation to the appropriate costs order and that the applicant must pay the respondent’s costs of the application.
  3. [3]
    BOND JA:  I have had the advantage of reading in draft the reasons for judgment of Dalton JA.
  4. [4]
    I agree with the reasons which her Honour expresses for joining in the order which dismissed the application for leave to appeal.  I respectfully take a different view as to the way in which this Court should exercise its discretion with respect to the costs of the application.
  5. [5]
    In Sochorova v Commonwealth of Australia [2012] QCA 152 Margaret Wilson J (with whom Muir and Fraser JJA agreed) observed:[1]

“Because the basis of a costs order is compensatory rather than punitive, the fact that an unsuccessful party is not legally represented or is impecunious or otherwise disadvantaged is not in itself a ground for refusing to make a costs order in favour of the successful party.”

  1. [6]
    And in Northern Territory v Sangare (2019) 265 CLR 164 the High Court affirmed the proposition that the impecuniosity of an unsuccessful party, without more, is not a sufficient reason for depriving a successful party of its costs.[2]  The Court went onto note:[3]

“… As a practical matter, difficulties arise in determining the level of impecuniosity at which it would become a relevant consideration. There would also be substantial practical difficulties in determining, after the conclusion of the litigation, the unsuccessful party’s financial standing. In point of principle, it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party. That consideration of basic justice does not lose its compelling force simply because the successful party happens to be wealthy: the successful party, whether rich or poor, did not ask to be subjected to the expense of unmeritorious litigation. The statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant-in-person.”

  1. [7]
    The Court also noted that the circumstance that the successful party might be a public authority is irrelevant to the exercise of the discretion as to costs.[4]
  2. [8]
    In my view, neither the applicant’s impecuniosity, nor the undoubted disadvantages which she suffers by virtue of her serious mental health conditions operate as grounds for refusing to make a costs order in favour of the successful party in this application.
  3. [9]
    Costs should follow the event.  I would order that the applicant pay the respondent’s costs of the application.
  4. [10]
    DALTON JA:  This was an application pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal against a decision dismissing an appeal against conviction in the Magistrates Court for six breaches of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act).  The application was dismissed at the hearing.  These are my reasons for joining in that order.
  5. [11]
    The applicant was injured at work, and while receiving workers’ compensation from a self-insurer under the Act (Coles), undertook work for two other employers without disclosing this to WorkCover.  Various offence provisions of the Act are relevant:

“136  Worker must notify return to work or engagement in a calling

  1. (1)
    A worker receiving compensation for an injury must give notice within 10 business days of the worker’s—
    1. return to work; or
    2. engagement in a calling.

Maximum penalty—50 penalty units.

  1. (2)
    The notice must be given to the insurer.

…

533 Offences involving fraud

  1. (1)
     A person must not in any way defraud or attempt to defraud an insurer.

Maximum penalty—500 penalty units or 5 years imprisonment. 

…

534 False or misleading information or documents

  1. (1)
    This section applies to a statement made or document given—
    1. to the Regulator or WorkCover for the purpose of its functions under this Act; or
    2. to an entity or person as a self-insurer; or
    3. to a registered person for the purpose of an application for compensation or a claim for damages.
  2. (2)
    A person must not state anything to the Regulator, WorkCover, a self-insurer or a registered person the person knows is false or misleading in a material particular.

Maximum  penalty—150  penalty  units  or  

1  year’s imprisonment.

  1. (3)
    A person must not give the Regulator, WorkCover, a self-insurer or a registered person a document containing information the person knows is false or misleading in a material particular.

Maximum  penalty—150  penalty  units  or  

1  year’s imprisonment.

…

  1. (5)
    It is enough for a complaint against a person for an offence against subsection (2) or (3) to state the information or document was false or misleading to the person’s knowledge, without specifying which.

535 Particular acts taken to be fraud

  1. (1)
    This section applies if a person—
    1. lodges an application for compensation with an insurer; and
    2. engages in a calling; and
    3. without reasonable excuse, does not inform the insurer, in the way stated under section 136, of the person’s engagement in the calling.
  2. (2)
    If compensation is paid by the insurer under the application to the person or anyone else—
    1. after the start of the engagement in the calling; and
    2. before the insurer is informed in the way stated under section 136 of the engagement in the calling;

the person is taken to have defrauded the insurer of the payments under section 533.

...”

The Charges

  1. [12]
    The complaint in the Magistrates Court was well-particularised and I will use those particulars to set out a detailed statement of the offences of which the applicant has been convicted.  The first charge was the most comprehensive of the charges:

“Charge One – Section 533/535 – Fraud

Between the 2nd day of March 2020 and the 25th day of September 2020 at Cairns and elsewhere in the Cairns Magistrates Court District in the State of Queensland, TAMARA ELIZABETH MALONEY (the defendant) defrauded a self-insurer, namely Coles Group Limited (the self-insurer) in contravention of sections 533 and 535 of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA).

Particulars

  1. At all relevant times, Coles Group Limited was a self-insurer for the purposes of the WCRA.
  2. On 14 February 2020, the defendant lodged an application for compensation to Coles Group Limited (the self-insurer) under the WCRA claiming for a work-related psychological injury sustained on 26 January 2020 while working at Liquorland in Woree.
  3. On the application for compensation form, the defendant signed the ‘workers’ statement’ agreeing to advise the self-insurer if her circumstances changed or she became aware of any matter that would make the information in the claim form false or misleading. She also agreed to advise if she undertook any employment (paid or unpaid), including self-employment, during her claim.
  4. On 2 March 2020, the defendant had a telephone conversation with Mr Martin Willoughby from the self-insurer where she was asked ‘do you have any other employment’ and the defendant said words to the effect of ‘no other employment outside of Coles.’
  5. The claim was accepted on 27 March 2020 with compensation payments starting that day backdated to 29 January 2020 and paid until the end of the claim on 3 June 2021.

…

  1. On 13 April 2020, the defendant signed a new application for compensation form for the injury sustained on 26 January 2020, this time using the correct form for the self-insurer as the original application form was a WorkCover Queensland form.
  2. On the new application form, the defendant answered ‘no’ to the question contained in that form asking if she had any other employment at the time of the injury and/or signed the ‘statement of team member’ agreeing to advise the self-insurer

if her employment circumstances changed during the period of the claim.

  1. The defendant had been employed by Ausfuel Services Pty Ltd (Ausfuel) since at least 18 March 2019 as a service station attendant.
  2. The defendant returned to work at Ausfuel during the fortnight from 17 February 2020 to l March 2020 after approximately one month of no work, working 30 hours in that fortnight.
  3. From 20 January 2020, the defendant was employed by Woolworths Group Limited (Big W) and commenced engaging in a calling by working during the week of 23 March 2020 to 29 March 2020, working eight hours in that week.
  4. On 20 April 2020, the defendant had a telephone conversation with Suzana Kitanovic, Claims Specialist from the self-insurer. During that conversation, the defendant was asked if she had recently obtained employment elsewhere and the defendant said words to the effect of ‘no’.
  5. During that telephone conversation, Ms Kitanovic asked whether the defendant had recently obtained employment at Big W, and the defendant said words to the effect that ‘she had started working there three weeks ago but it is only casual employment.’
  6. Also during the telephone conversation on 20 April 2020, the defendant was advised by Ms Kitanovic that her wages from other employers need to be disclosed weekly and that her wage entitlements from Liquorland would need to be recalculated to avoid overpayment. This information was confirmed in an email from Ms Kitanovic to the defendant on the same date. From on or about 26 April 2020, the defendant provided the self-insurer with payslips from her Big W employment.
  7. The defendant continued to fail to disclose her ongoing engagement in a calling with Ausfuel until 24 September 2020.
  8. The defendant did not inform the self-insurer of her engagement in a calling with either Big W or Ausfuel within 10 business days of 27 March 2020 as required by s 136 of the WCRA.
  9. The defendant did not have a reasonable excuse for failing to inform the self-insurer of her engagement in a calling with either employer within 10 business days of 27 March 2020.”
  1. [13]
    Charges 2 and 3 were both based on a subset of the facts particularised in relation to charge one.  Charge 2 was that contrary to s 136 of the Act, the applicant worked at Woolworths Group Limited while she was receiving compensation and did not notify the self-insurer.  Charge 3 was identical except it related to the work at Ausfuel Services Pty Ltd.
  2. [14]
    Charge 4 was proffered pursuant to s 534(2) on the basis that the applicant gave information to a self-insurer that she knew to be false or misleading.  The conversation with Mr Willoughby (paragraph 4 of the particulars to charge 1) was relied upon.  The particulars to charge 4 included, “The defendant knew that the information she stated to the self-insurer on 2 March 2020 was false or misleading in a material particular as she knew [she] was employed by and had been working shifts for Ausfuel Services Pty Ltd”.
  3. [15]
    Charge 5 was that the applicant gave the self-insurer a document for the purpose of an application knowing the document contained information which was false or misleading, in contravention of s 534(3) of the Act.  This relied upon the application form signed on 13 April 2020 (paragraph 7 of the particulars to charge 1).  The particulars to charge 5 included, “The defendant knew the information provided in the application form on 13 April 2020 was false or misleading in a material particular as she knew she was employed by and had been working shifts for Ausfuel”.
  4. [16]
    Charge 6 was that the applicant stated information to a self-insurer that she knew was false or misleading in contravention of s 534(2) of the Act.  This charge relied upon the telephone conversation with Ms Kitanovic on 20 April 2020 (paragraph 12 of the particulars to charge 1).  The particulars to charge 6 alleged that “The defendant knew that the information was false or misleading in a material particular for the defendant to only discuss information about her employment at Big W and not give the self-insurer information about her employment at Ausfuel …”.

Plea to the Charges

  1. [17]
    At the hearing in the Magistrates Court the applicant was represented by a solicitor, who announced at the beginning of the proceeding, “this matter is proceeding by way of a plea of guilty to six charges before your Honour”.  The solicitor also said to the magistrate, “… if your Honour was to proceed with the arraignment, I have taken my client through the charges … and there’s no – my client can be arraigned in bulk, if that assists”.  The magistrate asked for confirmation that it was a plea of guilty and the solicitor replied that it was.  The magistrate asked the applicant to stand, and explained to her that there were six charges which he was going to read and ask for one plea to all six charges.  The applicant told the magistrate she understood this and after being arraigned said, “I plead guilty, your Honour”.  The magistrate confirmed with her that she understood that was a plea of guilty to all six charges, and she told the magistrate that she did understand that.  Further, in answer to the magistrate’s questions, she confirmed that she made the plea of her own free will.  The magistrate asked whether that was consistent with the solicitor’s instructions, and the solicitor confirmed that it was.

Dr O'Hare’s Report

  1. [18]
    The prosecutor tendered material on the sentence, including a statement of facts, which was agreed.  The solicitor acting for the applicant tendered a short report (two pages) from the psychiatrist Dr O'Hare.  Dr O'Hare had treated the applicant intermittently since 2001.  She had diagnosed her with various conditions, including a personality disorder; post-traumatic stress disorder, and depression.  Her report responded to five specific questions posed by the applicant’s solicitors.  I extract a list of the questions from the report:
    1. How long and in what capacity have you been treating [the applicant]?
    2. Diagnosed mental health conditions and duration?
    3. Current treatment regimes/medication?
    4. Prognosis or anticipated length of treatment?
    5. Any observations you see fit to make regarding the impact of the court process on [the applicant’s] conditions (leaving aside any comments about culpability or penalty).
  2. [19]
    Dr O'Hare’s answer to the final question caused difficulties because the psychiatrist did not leave aside questions which related to culpability.  Instead she said:

“Ms Maloney will suffer considerable distress and potential relapse of her underlying conditions under the rigour of the court process.  When subject to such scrutiny her anxiety escalates and her usual difficulty with interpersonal communication becomes amplified.  She may become emotionally dysregulated and unable to express herself in a coherent fashion.  She is likely to be combative and angry in her manner.  She will fixate on minor details and find it difficult to take in the entirety of the legal process.  Her rigid thinking style and strong moral compass made the plea of guilty a difficult one for her as she genuinely did not intend to mislead Workcover but rather failed to interpret the forms she was required to fill in in an appropriate way.  She had no assistance in the completion of the forms.  She was not informed of any error or omission or offered a culturally sensitive solution to her misjudgement given her significant interpersonal disadvantage and difficulty in expressing herself or representing herself in a way conducive to guidance or assistance.  There has been an unfortunate mismatch between the Workcover administrative process and my patient’s ability to express herself and provide information in an accurate way largely due to illness-related lack of judgement.  In order to mitigate this risk, I have offered her increased support around this time and it is hoped this will reduce her risk of relapse and exacerbation or aggravation of her underlying conditions.” (my underlining).

Use of Dr O'Hare’s Report

  1. [20]
    Before the magistrate the solicitor who was prosecuting the matter for WorkCover sought to make some submissions about this part of Dr O'Hare’s report.  She said:

“… Dr O'Hare has asserted that the defendant didn’t intend to mislead WorkCover. In our submission, your Honour, that’s not correct. Even if the defendant had not understood her obligations at the outset, as I’ve mentioned, once that first undisclosed job came to light, it’s incontrovertible that she did understand her obligations because she went on to fulfil them for several months until the second undisclosed job came to light.

HIS HONOUR: Sorry, this is a plea and I’m supposed to be sentencing on agreed facts.

[PROSECUTOR]: Yes, your Honour. It’s really just - - -

HIS HONOUR: I mean - - -

[PROSECUTOR]: It’s really just to address a couple of paragraphs in the submissions on behalf of the defendant, but I’m happy to move on if your Honour’s not - - -

HIS HONOUR: Well, it’s simply that - I mean, if there’s a contest between her intent, I mean, I’m not sure - I mean, I’m not here to today to resolve questions of fact. It’s a plea and the statement of facts are set out and they’ve been agreed to by the parties. [APPLICANT’S SOLICITOR]: They are agreed, your Honour.

The - - -

HIS HONOUR: Yes. So there’s nothing - - -

[APPLICANT’S SOLICITOR]: The references in the medical report really go to moral culpability as opposed to legal responsibility.

HIS HONOUR: Yes, sorry. I’m just going back to the - before we get to that, just even the - about the - Ms Maloney’s knowledge, if you like, or her understanding of the purpose. Aren’t I sentencing her on the statement of facts that’s been tendered to me?

[APPLICANT’S SOLICITOR]: Yes, your Honour.

[PROSECUTOR]: If I can put this way, your Honour, I suppose I’m just raising it in order to point out what I see are relevant contentions in Dr O'Hare’s report that I would urge your Honour to disregard. HIS HONOUR: Yes.

[PROSECUTOR]: And I can leave it at that.”

  1. [21]
    The magistrate then read Dr O'Hare’s report and said:

“HIS HONOUR: …

Yes, I’ve read that, [Prosecutor]. Look, for what it’s worth, the doctor’s – I mean, [the applicant’s solicitor] can address me on it but the doctor’s state – there’s two things about the doctor’s statement about the intent: one, it’s hearsay; and two, I really don’t think it’s – would be within the psychiatrist’s field of expertise. That said, really, as I understand your submission, [Prosecutor], is that you’re asking me to infer that Ms Maloney understood the purpose from her admissions – her admitting to the first job and being provided the payslips. That’s what you’re asking me to do today, is that right?”

  1. [22]
    There followed a passage in which the prosecutor relied upon various parts of the material before the magistrate on sentence to urge the magistrate to find that there were financial motivations for the offending rather than “a lack of understanding”.  That is, the prosecutor asked the magistrate to find a financial motive for the applicant’s offending.  Motive is, of course, a different concept to intention.  The prosecutor was asking the magistrate to recognise that the applicant’s criminality was not at the lowest level, but was more culpable because of a financial motive.
  2. [23]
    In the way of things, the solicitor acting for the applicant submitted to the opposite effect.  She addressed the magistrate on Dr O'Hare’s report as part of submissions in mitigation.  Of particular relevance to this application is the following statement made by the applicant’s solicitor before the magistrate, “Your Honour, Dr O'Hare has made some observations towards the end of her report which may be helpful in determining my client’s moral culpability.  Her legal responsibility isn’t in dispute obviously by the plea of guilty but it sheds some light on the context of her offending and how it came about, how she failed to appreciate properly what her obligations were and why she didn’t report as required.”
  3. [24]
    These submissions continued.  They included references to the applicant’s state of mind at the time of the offending.  I think it is fair to summarise them by saying that the applicant’s solicitor urged the magistrate to understand that the applicant was suffering from mental health conditions and was financially stressed and should be sentenced on the basis that she did not have any significant criminal motive, that is, that criminality of the offending was low.  The submissions were designed to elicit sympathy for the applicant.  Like many submissions of this type, these submissions are not capable of close, logical analysis.  In summary, the applicant’s solicitor said:

“So, your Honour, the relevant factors that would ameliorate sentence in this matter I submit would be the defendant’s character and work history, her lack of convictions, her early plea of guilty and a demonstrated remorse. And, overridingly, the mental health conditions that she suffers and continues to suffer which have impacted on her judgment in this matter and her inability to fulfil her obligations not to the level of a defence but certainly to an extent that would serve to reduce the sentence which might otherwise apply.” (my underlining).

  1. [25]
    It was pellucidly clear that the elements of the offences to which the applicant had pled guilty before the magistrate were not in dispute.  The magistrate was only undertaking only the task of sentencing based upon the applicant’s plea to the well-particularised charges, and an agreed statement of facts.

The Magistrate’s Sentencing Remarks

  1. [26]
    In his sentencing remarks addressed to the applicant, the magistrate recorded a prosecution submission that, “I could infer that you understood your obligations, mainly from a conversation that you had with an employee of the self-insurer on 30 September 2020”.  He went on to say:

“Ms Maloney, in your particular case I do not consider that I am able to draw this inference and that is because of a number of reasons. One is that the contemporaneous file note – in that, you specifically state that it was not your intention to gain financially and that was in an email at that time. Second, I accept the submission from your solicitor Ms O'Reilly that you provided a response to a very specific question about specific employment and that is consistent with the medical evidence provided by Dr O'Hare, who is your consultant psychiatrist and has been treating with you for some 20 years.

So her opinion has to be afforded due weight and her opinion is that you do not understand legal process due to the myriad of medical conditions you suffer from and I accept that evidence and your comment from the contemporaneous email is consistent with that evidence. It is also consistent with – prior to this offending, you had unblemished character for the entire – or other than this incident, at that stage you were 42, for the entire 42 years of your life. There is also a character reference provided by your friend Alice Vernon who specifically states:

I have always found Tamara to be an honest and direct person. She regularly donates new clothing and personal care items to the Ruth’s Women’s Shelter.

And in addition I also do not have to consider I am able to draw that inference because your claim was otherwise meritorious. So rather than calculated and brazen, Ms Maloney, the view I form based upon that evidence, is that your behaviour can be more properly characterised as a careless aberration within the context of the myriad – of your myriad conditions. Therefore because of that reasoning, personal deterrence does not – is not as significant in your case and does not feature as strongly.

Although the length of the fraud and the quantum are relevant, I consider that they are outweighed by your particular circumstances. In addition, Ms Maloney, although it was an early plea of guilty in light of clear evidence, I accept it is evidence of remorse by you, given your otherwise unblemished character and it is consistent with the sentiments you expressed in the contemporaneous file note of 1 October 2020.” (my underlining).

Basis of Application

  1. [27]
    The underlined part of the passage just extracted from the magistrate’s remarks on sentence seems to have inspired the unsuccessful appeal to the District Court and this application.  The appeal point agitated by the applicant before the District Court was, “The learned magistrate erred in not rejecting the appellant’s pleas of guilty because on the admitted facts the appellant could not in law have been guilty of the offence and a miscarriage of justice occurred as a result”.  The grounds of the application before us were:

“The learned District Court judge erred in applying an improper construction of ss 533 and 535 of the Workers’ Compensation and Rehabilitation Act 2003 to the facts, namely at [23] that the prosecution excluded the appellant’s ‘careless aberration’ as an excuse under ss 533 and 535 for count 1.

The learned District Court judge erred in applying an improper construction of s 534 of the Workers’ Compensation and Rehabilitation Act 2003 to the facts, namely at [23] that the prosecution had proved the appellant had the requisite knowledge for counts 4, 5 and 6.”

  1. [28]
    The reasons advanced for the court to allow this appeal were summarised on the notice of application as follows:

“The construction of sections 533, 534 and 535 of the Workers’ Compensation and Rehabilitation Act 2003 raises the important statutory construction question of the required state of mind for those offence provisions.  This is a question which has not been decided by the Court of Appeal.

The resolution of that question in this case matters because there was evidence before the learned Magistrate which may have precluded the requirements of those sections being met.”

  1. [29]
    These contentions contain fatal flaws.  They fail to recognise that there were no contested facts before the magistrate.  He was engaged in sentencing the applicant.  By her plea the applicant admitted the offending (including any necessary states of mind) in the charges as particularised.  There was no evidence before the magistrate of any facts which showed that the applicant could not in law have been guilty of the offences to which she pled.
    1. (a)
      Dr O'Hare’s expression of opinion (unbidden) was not evidence of the applicant’s state of mind at any time.  With respect, the magistrate was right in pointing out that anything Dr O'Hare said on this topic was hearsay.  Further, insofar as Dr O'Hare expressed an opinion, it: (i) assumed only part of the facts particularised in the charges, and (ii) came nowhere near establishing that at the time of the offending the applicant did not know what she was doing, or that what she was doing was wrong.  Dr O'Hare was not called as a witness, or cross-examined on the sentencing hearing.  Her report was tendered by consent on the basis that it went to mitigation, not that it was exculpatory evidence.
    2. (b)
      The applicant tendered a file note on the sentence (referred to by the magistrate in the extract above) which recorded the applicant saying to a WorkCover employee, “It has never been my intention to gain financially from my employer as a result of the incident which took place”.  This was hearsay.  Additionally, in terms, it was not evidence of a reasonable excuse (s 353 of the Act) and it was not evidence that the applicant did not know that the information she gave to the self-insurer was false and misleading in a material particular.
  2. [30]
    I do not think that the passage I have underlined in the magistrate’s sentencing remarks is the magistrate making a finding about the state of mind of the applicant, or the applicant’s intention, so far as the elements of the charges are concerned.  Taken in the context which I have outlined, the magistrate was making a finding as to the level of criminality involved of the offending as part of the sentencing process.  Competing submissions had been made about this.  He resolved the issue in favour of the applicant: he saw the criminality as low level.  He was sympathetic to the applicant because of her mental health problems and he took that into account in mitigating the sentence which he was imposing.
  3. [31]
    On this application the applicant raised issues to the interpretation of s 535(1)(c) of the Act with respect to charge 1, which we do not feel the necessity to explore or determine, beyond noting that the contention was that a guilty state of mind beyond carelessness was an element of this charge.  So far as charges 4, 5 and 6 were concerned, the respondent accepted by its particulars, that knowledge of false or misleading information given to the self-insurer was an element of the offences.  The applicant made no argument as to charges 2 and 3, which were charges brought under s 136, a provision of strict liability.
  4. [32]
    The applicant’s argument was advanced on the basis that the magistrate had found that the applicant was only careless and this was inconsistent with her having sufficient intention to have committed the offences charged at charges 1, 4, 5 and 6.  Submissions were made in support of this, such as “… the magistrate, in effect, was put on notice about a particular issue, a factual contest, and the submission is that, on the facts before his Honour, he should have, in my respectful submission, rejected the plea of guilty”.[5]  The applicant relied below upon a passage in R v Dobie.[6]  These submissions are not based in reality.  There was no factual contest.  The magistrate was careful to make certain there was none, and in fact there was none.  The applicant’s argument is based on a fundamental misapprehension and mischaracterisation of comments which the magistrate made in sentencing.
  5. [33]
    The District Court judge hearing the appeal from the magistrate understood this.  He said:

“I have concluded that there are no grounds to disturb the plea, conviction or sentence in respect of counts 1, 4, 5 and 6. The elements of the offending for those counts are relevantly framed by the offence provisions of ss 533, 534 and 535 of the Act. Only count 1 relied upon the exclusion of ‘reasonable excuse’ for not giving timely notification of employment or calling. Counts 4, 5 and 6, required knowingly giving false or misleading information. In my view the appellant by her plea on the accepted facts rendered as otiose any earlier inconsistent assertions, misplaced psychiatric opinion, and unwavering submissions. For counts 1, 4, 5 and 6, the prosecution did exclude any reasonable excuse for count 1 and any knowledge of falsity in the information relied upon for counts 1, 4, 5 and 6.’” – [4].

  1. [34]
    I cannot see that the arguments sought to be advanced on appeal have any merits.

Costs

  1. [35]
    The issue of the costs of this application was reserved at the hearing.
  2. [36]
    The practice is that in criminal applications and appeals, run by either the State or Commonwealth DPP, costs are not awarded.  These proceedings are different.  The respondent’s case was run by the Workers’ Compensation Prosecutions Unit, part of the Office of Industrial Relations who are charged by Crown Law for representation on this application.  Costs of the appeal to the District Court, and of the application to this Court, were always in issue between the parties.  On the appeal to the District Court, the applicant asked for the respondent to pay her costs, and the respondent asked for costs to be paid by the applicant.  There was a distinct part of the District Court judgment below which dealt with costs (they were to lie where they fell).  Costs were sought in the written outline filed by the applicant in this Court.  The respondent sought costs in its written outline.
  3. [37]
    There was no reasonable basis for the arguments advanced before the District Court judge or on this application.  The District Court judgment is a clear and well-expressed rejection of those arguments.  Despite this, the applicant’s counsel persevered with the argument on this application.
  1. [38]
    The applicant herself is not financially well-off, and she suffers from serious mental health conditions.  These must be factors balanced in any decision as to whether or not to award costs against her.  In my view, these factors must be determinative of the costs point on this application.  Like the District Court judge I think costs should lie where they fall, and that this Court should not make any order as to costs.  While I see this as creating some unfairness to the respondent, which has twice been put to expense of defending unreasonable proceedings, I think there is a real risk that the applicant could not withstand a costs order.  The respondent did not ask for an order that the applicant’s lawyers pay costs.

Footnotes

[1] Sochorova v Commonwealth of Australia [2012] QCA 152 at [17].

[2] Northern Territory v Sangare (2019) 265 CLR 164 at 173-4, [26] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ.

[3] Northern Territory v Sangare (2019) 265 CLR 164 at 174, [27] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ.

[4] Northern Territory v Sangare (2019) 265 CLR 164 at 174-5, [28] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ.

[5]  T 1-4 before the District Court Judge.

[6]  [2011] 1 Qd R 367, [10].

Close

Editorial Notes

  • Published Case Name:

    Maloney v Workers' Compensation Regulator

  • Shortened Case Name:

    Maloney v Workers' Compensation Regulator

  • MNC:

    [2023] QCA 95

  • Court:

    QCA

  • Judge(s):

    Mullins P, Bond JA, Dalton JA

  • Date:

    09 May 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Borsa v R [2003] WASCA 254
1 citation
Jump To
Cite 1 - [2003] WASCA 254
Maloney v Workers' Compensation Regulator [2022] QDC 216
1 citation
Jump To
Cite 1 - [2022] QDC 216
Meissner v The Queen (1995) 184 CLR 132
1 citation
Jump To
Cite 1 - (1995) 184 CLR 132
Meissner v The Queen (1995) HCA 41
1 citation
Jump To
Cite 1 - (1995) HCA 41
Northern Territory v Sangare [2019] HCA 25
1 citation
Jump To
Cite 1 - [2019] HCA 25
Northern Territory v Sangare (2019) 265 CLR 164
5 citations
Jump To
Cite 1 - (2019) 265 CLR 164
Cite 2 - (2019) 265 CLR 164
Cite 3 - (2019) 265 CLR 164
Cite 4 - (2019) 265 CLR 164
Cite 5 - (2019) 265 CLR 164
R v DBY [2022] QCA 20
1 citation
Jump To
Cite 1 - [2022] QCA 20
R v Dobie[2011] 1 Qd R 367; [2009] QCA 394
3 citations
Jump To
Cite 1 - [2009] QCA 394
Cite 2 - [2011] 1 Qd R 367
Cite 3 - [2011] 1 Qd R 367
Sochorova v Commonwealth [2012] QCA 152
3 citations
Jump To
Cite 1 - [2012] QCA 152
Cite 2 - [2012] QCA 152
Cite 3 - [2012] QCA 152

Cases Citing

Case NameFull CitationFrequency
DU v Judge Jackson [2024] QCA 122 1 citation
1

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