Windus v Multigroup Distribution Services Pty. Ltd.
[2004] QDC 313
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- Unreported Judgment
- Windus v Multigroup Distribution Services Pty. Ltd.[2004] QDC 313
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Windus v Multigroup Distribution Services Pty. Ltd.[2004] QDC 313
Windus v Multigroup Distribution Services Pty. Ltd.[2004] QDC 313
DISTRICT COURT OF QUEENSLAND
CITATION: | Windus v Multigroup Distribution Services Pty Ltd [2004] QDC 313 |
PARTIES: | GREGORY JOHN WINDUS Plaintiff v MULTIGROUP DISTRIBUTION SERVICES PTY LTD Defendant |
FILE NO/S: | BD3122 of 2003 |
DIVISION: | |
PROCEEDING: | Determination of preliminary question |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 17 September 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 September 2004 |
JUDGE: | McGill DCJ |
ORDER: | Order under r 388 that the Order of 10 May 2004 be corrected by: (a) For “rule 171” substitute “rule 483”; (b) After “1999” insert “the decision by the court of whether”; (c) For “or” in the fourth line, substitute “me”. The preliminary question “Are paragraphs 7 and 9 of the defence of the defendant, filed herein on 6 November 2003, a good defence to the plaintiff’s action?” answered “No.” Order that paragraphs 7 and 9 of the defence of the defendant filed 6 November 2003 be struck out. |
CATCHWORDS: | WORKERS COMPENSATION – Construction of statute – Fraud in relation to an application for compensation – whether offence also in relation to different application for compensation. WorkCover Queensland Act 1996 s 486(1), (2). Facer v Bennett [2002] 2 Qd R 295 – applied. Fahey v Keating [2002] QIC 109 – considered. R v Chong, ex parte Chong [2011] 2 Qd R 301 – applied. |
COUNSEL: | P B de Plater for the plaintiff D O J North SC and B L P Hoare for the defendant |
SOLICITORS: | Shine Roche McGowan for the plaintiff O'Mara’s Lawyers for the defendant. |
- [1]This matter concerns the correct interpretation of s 486(1) of the WorkCover Queensland Act 1996 (“the Act”), and its application to the facts relevant to the plaintiff’s action. Section 486 of the Act provided so far as is relevant as follows:
“(1) This section applies if a person is convicted of any of the following offences committed against WorkCover or a self-insurer in relation to an application for compensation or a claim for damages –
- (a)an offence under s 482;
…
- (2)Any entitlement the person may have to compensation or damages for the injury, and any existing claim for compensation or damages, ends.”
- [2]The submissions for the defendant raise an issue about which version of the Act is applicable. Section 486 operated by reference to a person’s conviction of a particular offence, which is something that in the present case occurred on a particular date. In my opinion it is the terms of s 486 as at that date, 24 July 2002, which are relevant. As at that date, that appears[1] to be the version in Reprint 5.
The facts
- [3]By this action the plaintiff claims damages for personal injuries and consequential loss alleged to have been suffered as a result of an accident in the course of his employment on 13 September 2000. It is alleged that as a result of the accident he suffered a fractured left ankle and a psychiatric disorder. Following the accident he made a claim for workers’ compensation which was given claim number S000242459.[2]The claim was evidently accepted and payment of weekly compensation to him commenced on 20 September 2000. He returned to work, albeit on light duties, on 28 August 2001 when he ceased to be paid weekly compensation. His injuries had not however completely resolved, and he was sent to a specialist for assessment. However while back at work in the course of his employment on 13 November 2001 he was involved in another accident, and suffered a further injury, this time to his right ankle.[3]He made a claim for compensation in respect of this injury, which was allocated claim number S010150937. WorkCover began to pay weekly compensation again, and continued making such payments until 23 March 2002.
- [4]On 24 July 2002 the plaintiff pleaded guilty in the Magistrates Court at Beenleigh to a summary offence, namely that between 21 December 2001 and 23 March 2002 at Beenleigh he defrauded WorkCover.[4]He was sentenced to six months imprisonment suspended forthwith for an operational period of three years, and ordered to make restitution in respect of certain compensation payments, investigation costs and professional costs, totalling $23,447.52, plus $59 court costs. He was allowed 18 months to pay with an order for levy in distress in default.[5]
- [5]He apparently suffered a significant injury in the second accident, which left him with a 15 percent impairment of the right lower leg, so that his loss of any ability to pursue a claim for damages in relation to that injury as a result of s 486(2), which is undisputed, was a substantial penalty apart from any sentence imposed by the magistrate. In those circumstances the magistrate properly imposed a sentence which did not involve any period of actual imprisonment.
- [6]By a claim filed in this court on 22 September 2003 the plaintiff claimed damages in respect of the injuries alleged to have been suffered in the accident on 13 September 2000. In its defence filed with a notice of intention to defend on 6 November 2003 the defendant alleged relevantly in paragraphs 7 and 9 as follows:
“7. Further, the defendant states:
- (a)that on 24 July 2002 in the Magistrates Court at Beenleigh in the State of Queensland the plaintiff was convicted that between 21 December 2001 and 23 March 2002 he did defraud WorkCover Queensland contrary to s 482(1) of WorkCover Queensland Act 1996 (‘the said Act’);
- (b)in the premises any entitlement the plaintiff had, or may have had, to compensation or damages for injuries, including those the subject of this claim, and any existing claim for compensation or damages ended on conviction of the plaintiff aforesaid pursuant to s 486(2) of the said Act.
- As to the allegations in paragraph 10 of the statement of claim, the defendant denies that the District Court has jurisdiction to hear the claim as the defendant states any entitlement to the claim has been extinguished by reason of the matters pleaded in paragraph 7 hereof.”
- [7]On 29 March 2004 the plaintiff applied for an order pursuant to r 171 that paragraph 7 of the defence be struck out. That application came on before me on 10 May 2004. On that occasion it seemed to me more appropriate to determine whether paragraph 7 gave rise to a good defence as a preliminary question separately and in advance of the trial, without being distracted by the question of whether the issue was sufficiently clear to decide on an application under r 171. In order to give the defendant a proper opportunity to deal with the issue on that basis, the matter was adjourned to a date to be fixed for the determination of whether paragraphs 7 and 9 gave a good defence to the action. That question came on before me for separate determination on 10 September 2004.
Defining the issue
- [8]It is immediately apparent from the terms of those parts of s 486 quoted above that it did not operate simply because a person was convicted of any offence committed against WorkCover; it only applied where a person was convicted of one of the nominated offences (relevantly here an offence under s 482) “in relation to an application for compensation or a claim for damages.” Both an application for compensation and a claim for damages existed with reference to an injury. That followed from the definitions in ss 10 and 11. The former provided relevantly:
“Compensation is compensation under this Act, that is, amounts for a worker’s injury payable under chapters 3 and 4 by WorkCover … to a worker, a dependent of a deceased worker or anyone else …”
Section 11 provided relevantly:
“Damages is damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay the damages to –
- (a)the worker; or
- (b)if the injury results in the worker’s death – a dependant of the deceased worker.”
The term “injury” was itself defined in s 34, but it does not appear that any part of that definition is presently relevant.
- [9]The significance is that both an application for compensation and a claim for damages was something that existed with respect to an injury, either “a worker’s injury” or “injury sustained by a worker”. These I think mean the same thing. It follows logically that where s 486(2) referred to an entitlement a person may have to compensation or damages from the injury, that was a reference to the injury the subject of the application for compensation or the claim for damages identified in subsection (1).
- [10]Subsection (2) used the definite article in relation to “injury”, and therefore operated by reference to a particular injury, not any injury. Had the legislature intended the latter meaning, the indefinite article would have been used. The clear intention of the legislature was to refer back to the injury which was the subject of the application for compensation or the claim for damages referred to in subsection (1). That provided the necessary connection between the two subsections.
- [11]A consideration of the operation of subsection (3) tends to confirm that the section as a whole operates in a balanced way if it is confined in the manner that I have indicated. Subsection (3) deals with past payments but only those caused by the commission of the offence. Subsection (2) deals with future rights, but also only those related to the offence which has been committed, by reference to the connecting feature of the injury.
- [12]Indeed, as I understand it, Senior Counsel for the defendant did not argue to the contrary, that is to say, did not submit that the conviction of the plaintiff of the offence in relation to an application for compensation meant that any entitlement to damages in respect of any injury had been terminated: p.30. Rather the dispute between the parties was as to whether the offence of which the plaintiff was convicted was one in relation to the application for compensation in respect of the injury[6]which is the subject of the present action.
- [13]Counsel for the plaintiff submitted that, in reliance on the particulars provided in the complaint, the offence was in relation to the application for compensation made by the plaintiff in respect of the second accident. The defendant however submitted that, although the offence was in relation to that application for compensation, it was also in relation to the earlier application for compensation, in respect of the first accident. It followed that any entitlement to damages from the injury suffered in the first accident had ended.
Analysis
- [14]Where it is necessary for the purposes of a civil proceeding to identify the scope and content of an offence of which a person has been convicted, in some previous criminal proceeding, it is necessary to have regard to the particulars of the offence, and the basis upon which the convicted person was sentenced.[7]The particulars of the charge were set out in the complaint, and are as follows:
“1. Gregory John Windus caused WorkCover Queensland to receive an application for workers’ compensation benefits on or about 3 November 2001.
- That application was accepted by WorkCover Queensland and Mr Windus was paid workers’ compensation benefits from 9 November 2001 to 23 March 2002.
- Gregory John Windus obtained and supplied to WorkCover Queensland medical certificates alleging he was totally incapacitated for work for the stated period.
- Gregory John Windus knew such allegations to be untrue as he was not totally incapacitated for work or at all during the period of the charge. During the period of the charge alleged, Windus worked in the capacity of a butcher and was not incapacitated for work as he alleged or at all.
- Gregory John Windus knowingly failed to inform WorkCover Queensland that he was not incapacitated for work for the purpose of misleading WorkCover to its detriment by causing WorkCover to pay to and on behalf of Gregory John Windus compensation/benefits to which he knew he was not entitled.
- Gregory John Windus knew he was not incapacitated for work and not entitled the compensation/benefits.
- Gregory John Windus intended to retain the compensation.”
- [15]The magistrate in his sentencing remarks did not refer to anything which assists in identifying the scope of the charge. In those circumstances it is relevant to consider the basis of sentencing, as revealed in the submissions made on either side. Generally speaking, factual assertions by the prosecution are taken as admitted unless they are specifically disputed, or a conflicting fact is put forward on behalf of the defence; factual assertions on behalf of the defence are equally taken as proved unless they are disputed by the prosecution, or of course rejected by the court.
- [16]Turning to the transcript of the proceeding, the prosecution asserted that as a result of the fraud WorkCover paid out $16,813.08, which was said to be recoverable pursuant to s 486(3). That subsection provided relevantly that: “If, in the proceeding for the offence, the prosecution proves the person obtained payment of compensation … by WorkCover … by conduct that is the offence, then, … the court must on application by WorkCover … order the person to repay WorkCover … all amounts of compensation … paid to or on account of the person as a result of the commission of the offence.” It is apparent that this provision was limited to compensation payment of which was obtained by conduct constituting the offence. It did not extend to all compensation (or indeed damages) paid by WorkCover as a result of any injury, or even necessarily in respect of the particular injury. By asserting that this particular sum had been obtained by the offence, the prosecution was making a statement as to factual basis of the offence, a statement which may be treated as having been accepted for the purpose of sentence. This is significant for present purposes, because it was conceded on behalf of the defendant that, notwithstanding some difficulty in identifying exactly how that amount was made up, all of it was referable to the second application for compensation.
- [17]The further submissions made during that hearing did not raise any factual matters which are relevant to identifying whether or not the offence was one in relation to the earlier application for compensation. They reveal that, on a number of days within the relevant period, the plaintiff was helping out a friend for a period of a few hours in the operation of a butcher shop. This was by no means fulltime work, but the definition of “calling” is very wide.[8]This was an offence because of a very wide definition of “calling” in the Act, the terms of s 484, and the fact that during this period he obtained and passed on to WorkCover on three occasions medical certificates that he was totally incapacitated for work.
- [18]In my opinion it is quite clear from the particulars provided in the complaint that what was alleged against the plaintiff, and therefore the offence of which he was convicted, was an offence in relation to the second application for compensation, and no other. That application for compensation was identified in the particulars; the earlier application for compensation was not identified anywhere in the particulars. Further, paragraph 5 identified the specific compensation or benefits obtained or caused to be paid to which he was not entitled, that is to say, in respect of the period alleged in the charge, the compensation or benefits relating to the second application for compensation. That follows both from the terms of the particulars, and from the identification of the relevant compensation during the sentencing hearing, which was compensation which did relate only to the second application for compensation. In my opinion it is clear from the particulars and from the course of the sentencing hearing that the offence of which the plaintiff was convicted was one in relation to the second application for compensation only.
Further submissions of the defendant
- [19]The defendant submitted that during the relevant period the claim for benefits in respect of the first incident was being maintained, in the sense that costs were still being incurred in relation to the first injury. The plaintiff was examined by an orthopaedic surgeon on 17 December 2001, for the purpose of investigating the condition of the left ankle, and that report was paid for on 21 December 2001, the first day of the period named in the charge.
- [20]There was also a doctor’s bill paid on 8 March 2002, which was attributed by WorkCover to the first application for compensation, and some small amounts for travelling and pharmaceutical expenses which were also attributed by WorkCover to the first application for compensation. These were not sought to be recovered in the prosecution, and it follows that it was not part of the offence of which the plaintiff was convicted that the payment of these amounts had been obtained by the fraud. They are therefore not amounts payment of which was obtained by the fraud of which the plaintiff was convicted, and therefore cannot be a basis for relating that offence to the first payment of compensation.
- [21]In any case, assuming these payments did relate to the treatment for the first injury, I cannot see how payment of these amounts was obtained fraudulently simply by his claiming (fraudulently) that he was continuing to be totally disabled. It is not a question of whether these amounts would have been paid anyway, but whether payment of them was in fact procured by the fraudulent assertion and non-disclosure that was made. These payments were not shown to have been procured by that fraud. They are irrelevant to it, and were therefore (properly) not sought to be recovered as a consequence of it under subsection (3), and can provide no connection between the offence and the first application for compensation.
- [22]It was submitted that the file was still open and there was the prospect of the plaintiff undergoing further surgery on the left ankle, which would give rise to further costs payable in respect of the first claim. That may well be true, but in my opinion is irrelevant. There is nothing in those circumstances which make the offence one in relation to the first application for compensation, and therefore the first injury. It is not a question of determining how widely or how narrowly the expression “in relation to” is to be interpreted; there is simply no connection at all between the first application for compensation and the offence alleged.
- [23]It was submitted for the defendant that the plaintiff’s having worked as a butcher bore on his entitlement to compensation in respect of both injuries, and therefore the offence related to both applications for compensation. It does not seem to me however that this was correct. Once the plaintiff began to pursue a calling and therefore became for the purposes of the Act no longer totally incapacitated, it was fraudulent of him to continue to claim payment of compensation or other benefits on the basis that he was continuing to be totally incapacitated. But he was not then claiming this on the basis of the first injury; he had ceased to be totally incapacitated as a result of the first injury in August 2001, when he returned to work on light duties with the knowledge of WorkCover. He was not claiming that anything had happened in relation to the first injury from which he had become totally incapacitated for work. Rather it was the second injury which had rendered his incapacity total, and by continuing to claim it was total he was asserting that this effect of the second injury was continuing, and nothing more.
- [24]In any case, the fraud alleged against him was a fraud in relation to an entitlement to be paid compensation on the basis of a total incapacity pursuant to the second application for compensation, and as a consequence the second injury, and nothing more. On my understanding of the facts of the situation, the charge was properly framed in that way.[9]But if I am wrong about that, he was in fact charged and convicted only with committing a fraud in respect of only the second application for compensation. Section 486 operates only by reference to the offence of which the person is convicted, not any offence of which he might have been convicted, or might have committed. It is not a question of whether his activities might have been related to the first application for compensation, but whether the particular fraud of which he was convicted was a fraud in relation to the first claim for compensation. That has not been shown.
- [25]It was further submitted that the medical certificates relied on by the plaintiff in relation to the period the subject of the charge, and said to have been false in certifying a total incapacity for work, identified the incapacity as having been caused by both right ankle injury and left ankle injury. That is true, but in my opinion beside the point. The certificates were alleged to be fraudulent not because of the reference to any particular injury, but because the proposition that the plaintiff was totally incapacitated for work was relied on by the plaintiff in circumstances where he was also pursuing a “calling”. More importantly, they were relied on in maintaining the claim for payment of benefits as a consequence of the second application for compensation. That was the basis upon which the matter proceeded in the Magistrates Court, and indeed that was plainly the correct basis.
- [26]The particulars reveal that the prosecution case was essentially that the plaintiff, having applied for payment of compensation and benefits in respect of the second injury, and having received them, failed to inform WorkCover that he had ceased to be incapacitated for work, in that he was working in the capacity of a butcher, and instead obtained and supplied to WorkCover medical certificates that he was totally incapacitated for work, which he knew were false, thereby obtaining payment of compensation or benefits to which he knew he was not entitled. The whole basis of the criminal conduct alleged is the second application, and hence the injury associated with that application. It obviously had nothing to do with the first claim for the first injury. The charge was properly particularised by reference only to the second claim for compensation. It was not, and could not have been, related to the first claim for compensation.
- [27]It is irrelevant that during the period in question the plaintiff was still suffering some consequences of the injury to the left ankle. That was not what was preventing him working; it was the subsequent injury to the right ankle, which changed him from being a person who could work (albeit on light duties) to one who (initially) could not work at all, and who subsequently was not so disabled as to be unable to help out in a friend’s butcher shop for a couple of hours on occasions.
Fahey v Keating
- [28]Senior Counsel for the defendant sought to find some comfort in the decision of the President of the Industrial Court in Fahey v Keating [2002] QIC 109. That was a case where there was an appeal from a summary trial before an industrial magistrate alleging three counts, in respect of which following conviction an order had been made under s 486(3). The offences alleged in effect that the application for compensation was fraudulent in its inception, that is to say that the relevant fraud was committed in making the initial application for compensation. An order was made that a large amount, over $80,000, being the sum of the weekly payments, hospital expenses, medical expenses and travel expenses which WorkCover had paid to or on behalf of the appellant, be repaid. That was a case where at the time of applying for compensation the appellant had ceased his ordinary employment, but was continuing to undertake separate part-time work which was carried out, over four days, relevantly on two separate occasions two months apart.
- [29]It had been submitted for the appellant[10]that the correct approach was simply to order repayment of a modest sum in respect of the very short period when he was able to carry out some work, but not his normal employment. That argument was rejected, because the section required the court to order the repayment of all amounts paid as a result of the commission of the offence. The President said: “The intention expressed by the phrase ‘as a result of the commission of the offence’ is an intention that all compensation in fact paid to the person consequent upon the commission of the offence should be repaid.” He went on to reject the notion that the court had to try to determine what payment would have been made if the truth had been told.
- [30]The interpretation of the learned President, although draconian, appears to be entirely consistent with the words used in the subsection, and indeed the general scheme of the legislation. But plainly he was not rejecting the need for a causal connection. Rather he was emphasising the causal connection between the compensation in fact paid and the commission of the offence. But it is irrelevant in determining and assessing the scope of that causal connection that, had the offence not been committed, some other amount might well have been paid anyway. In that particular case, all the amounts paid were paid because of the fraudulent application, and were therefore paid as a result of the commission of the offence.
- [31]On the other hand, in a situation where the fraud does not taint the initial application, it is unsurprising if there subsequently has to be some apportionment of all of the payments made consequent upon the application for compensation, between those which were made consequent upon the commission of the offence and those which were not. It is only the former which are to be repaid under subsection (3). Subsection (2) will mean of course that there is no right to any further compensation in respect of the injury, that is compensation after the date of conviction, but in respect of the period up to the date of conviction, insofar as any amount of compensation has been paid to or on account of the worker other than as a result of the commission of the offence, it is not made repayable by subsection (3). Causation remains therefore an essential element of subsection (3). Properly understood, there is nothing in the decision in Fahey v Keating to the contrary.
Conclusion
- [32]It follows that the matter pleaded in paragraph 7 of the defence of the defendant is not a good defence to the plaintiff’s claim, and accordingly, having decided that question adversely to the defendant, it is appropriate for that paragraph to be struck out under r 485.
- [33]The allegation in paragraph 9 is consequent upon the matter raised in paragraph 7. Apart from that, even if s 486(2) had given the defendant a good defence, there is nothing in the section which would prevent the District Court of Queensland from deciding that issue. On any view of the matter, there is no substance to the allegation in paragraph 9 of the defence of an absence of jurisdiction in this court, which cannot be a good defence to the action. It follows that that paragraph should also be struck out.
Correction of the earlier order
- [34]I should also mention that when the order that I made on 10 May 2004 was drawn up in the registry it contained three clerical errors. The order that I made was that the decision by the court of whether paragraphs 7 and 9 of the defence of the defendant are a good defence to the plaintiff’s action be tried separately from any other questions, before the trial of the proceeding, before me on a date to be fixed. That order was made under r 483. The order of the court as drawn up is relevantly in the following terms: “Pursuant to rule 171 of the Uniform Civil Procedure Rules 1999, paragraphs 7 and 9 of the defence of the defendant, filed herein on 6 November 2003, are a good defence to the plaintiff’s action be tried separately from any other questions before the trial of the proceeding before or on a date to be fixed with liberty to apply for further directions.”
- [35]That order requires amendment, pursuant to r 388, to correct the clerical mistakes which have been accidentally introduced into it. Accordingly under that rule I make the following amendments:
- (a)For “rule 171” substitute “rule 483”;
- (b)After “1999” insert “the decision by the court of whether”;
- (c)For “or” in the fourth line, substitute “me”.
- [36]As a result of that amendment, the question becomes, and my answer to it is, for the reasons given above, as follows:
Are paragraphs 7 and 9 of the defence of the defendant, filed herein on 6 November 2003, a good defence to the plaintiff’s action?
Answer: No.
- [37]I order that paragraphs 7 and 9 of the defence of the defendant filed 6 November 2003 be struck out. The costs of the determination of the question will be part of the costs of the action, if any order in respect of them is ultimately made.[11]
Footnotes
[1] I have been unable to confirm that, because the Act, having been repealed, seems to have been removed from the OPC website, as though it had ceased to be relevant.
[2] Affidavit of Tayler filed 5 May 2004 paragraph 5; affidavit of Barrett filed 2 September 2004 paragraph 2.
[3] Affidavit of Tayler paragraph 7; affidavit of Barrett paragraph 3.
[4] Affidavit of Barrett paragraph 4; Exhibit KMB-3, KMB-4.
[5] It seems to me that, insofar as the payments were ordered to be refunded under s 486(3) of the Act, it was not appropriate for them to be included in a restitution order under the Penalties and Sentences Act 1992; this follows from s 486(4).
[6] Strictly speaking two injuries, the physical and the psychiatric, but for the purposes of this analysis it is sufficient, and clearer, to speak of one injury.
[7] R v Chong, ex parte Chong [2011] 2 Qd R 301 at 306, 311; Facer v Bennett [2002] 2 Qd R 295 at 300. The latter is more important, but ought not, in the absence of amendment, to go beyond the particulars of the complaint. But it may be that a plea of guilty is on a factual basis which is not as wide as all that is alleged in the particulars.
[8] See the Act schedule 3.
[9] The only quibble I would have with the charge was the use of the words “or at all” in paragraph 4 of the particulars. That is an allegation that at the relevant time he was not at all incapacitated for work, whereas it was clear that as a result of the injury he had some incapacity for work. His behaviour was fraudulent because his incapacity was not total but he was claiming that it was. Under part 8 of chapter 3, entitlement to total or partial incapacity is determined separately. In view of the facts put before the magistrate, he could not properly have been sentenced on the basis that he was not incapacitated at all.
[10] A number of grounds were argued, but only this one is presently relevant.
[11] See s 325, affidavit of Masotti filed 7 May 2004 paragraph 15.