Samimi v Q-Comp[2013] QDC 203

DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr Samimi appeals under s 222 of the Justices Act 1886 against his conviction by a Magistrate on 18 April 2013 of an offence under s 533 of the Workers’ Compensation and Rehabilitation Act 2003 after a two day trial earlier in the month. The appeal is brought on the ground that her Honour erred in categorising Mr Samimi’s activities revealed by the evidence as a “calling” – this being a term defined in the Act (Schedule 6):

“calling means any activity ordinarily giving rise to the receipt of remuneration or reward including self-employment or the performance of an occupation, trade, profession, or carrying on of a business, whether or not the person performing the activity received remuneration.”

2. [2]
   There is an appeal, should the conviction stand, against so much of her Honour’s consequential orders as required repayment to the complainant Q-Comp, or to the employer/self-insurer (which made compensation payments) of all compensation amounts paid after Mr Samimi (according to Q-Comp) “engaged in a calling”, on the basis that such an outcome was mandatory under s 537:

“537  Fraud and related offences end entitlement to compensation and damages

3. (1)
   This section applies if a person is convicted of any of the following offences committed against an insurer in relation to an application for compensation or a claim for damages—

1. (a)
   an offence under section 533;

2. (b)
   an offence or an attempt to commit an offence under the Criminal Code, section 123, 408C or 488.

3. (2)
   Any entitlement the person may have to compensation or damages for the injury, and any existing claim for compensation or damages, ends.

3. (3)
   If, in the proceeding for the offence, the prosecution proves the person obtained payment of compensation or damages by the insurer, by conduct that is the offence, then, whether or not a penalty is imposed, the court must, on application by the insurer, order the person to repay the insurer all amounts of compensation or damages paid to or on account of the person as a result of the commission of the offence.

3. (4)
   The Authority may represent the self-insurer for subsection (3).

3. (5)
   An order made by a court under subsection (3) may be enforced as if it were an order made by a court in civil proceedings for a debt.

3. (6)
   Any costs incurred by an insurer in relation to a proceeding for damages to which subsection (3) applies are to be recovered on a solicitor and own client basis from the person convicted under section 533.

3. (7)
   Subsection (2) does not apply to a person only because the person is taken under section 535 to have—

1. (a)
   attempted to defraud an insurer; or

2. (b)
   defrauded an insurer of an amount not more than the equivalent of 1 week of the person's normal weekly earnings.”

3. [3]
   No challenge was made to the accompanying probation order, should the conviction stand.

4. [4]
   If Mr Samimi, who was in receipt of periodic compensation payments on the basis of medical certificates declaring him unfit for work, did engage in a calling, he came within s 136:

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

3. (1)
   A worker receiving compensation for an injury must give notice within 10 business days of the worker's—

1. (a)
   return to work; or 

2. (b)
   engagement in a calling.

Maximum penalty—50 penalty units.

3. (2)
   The notice must be given to the insurer.

3. (3)
   The notice may be a certificate in the approved form of a doctor stating the worker's capacity for work.”

At no relevant time has he given such a notice.

5. [5]
   The offence section, s 533:

“533  Offences involving fraud

3. (1)
   A person must not in any way defraud or attempt to defraud an insurer.

Maximum penalty—400 penalty units or 18 months imprisonment.

3. (2)
   If conduct that constitutes an offence defined in subsection (1) is recurrent so that, but for this subsection, each instance of the conduct would constitute a separate offence, 2 or more instances of the conduct are to be taken to constitute but 1 offence committed over a period specified in the complaint laid in relation to the conduct, and may be charged and be dealt with on 1 complaint.”

is for present purposes explained by s 535:

“535  Particular acts taken to be fraud

3. (1)
   This section applies if a person—

1. (a)
   lodges an application for compensation with an insurer; and

2. (b)
   engages in a calling; and

3. (c)
   without reasonable excuse, does not inform the insurer, in the way stated under section 136, of the person's engagement in the calling.

3. (2)
   If compensation is paid by the insurer under the application to the person or anyone else—

1. (a)
   after the start of the engagement in the calling; and

2. (b)
   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.

3. (3)
   If payments to which subsection (2) applies are not made, the person is taken to have attempted to defraud the insurer under section 533.”

6. [6]
   The crucial issue is whether Q-Comp proved beyond reasonable doubt that Mr Samimi engaged in a calling. Her Honour’s reasons identified two subsidiary issues, in the event of an affirmative answer:

Did he give a timely notification under s 136?

If no, did he have a reasonable excuse under s 535(1)(b)?

The subsidiary issues went away. Mr Samimi did not give or present evidence. Suggestions below that he may have given the notice or some equivalent advice that went astray did not impress her Honour and were not persisted in on appeal. There was no basis suggested by Mr Nelson, the appellant’s counsel, for contemplating or speculating that there may have been a reasonable excuse.

7. [7]
   This appeal being by way of re-hearing, this court is obliged to form its own views. It is not sufficient to go along with a decision which it was properly open to the Magistrate to make. See Fox v Percy (2003) 214 CLR 118, Parsons v Raby [2007] QCA 98 and Rowe v Kemper [2008] QCA 175. The final appeal court of another State fell into error in this regard in Dwyer v Calco Timbers Pty Ltd [2008] HCA 13. There was occasion to consider those decisions and their implications in Leach v Commissioner of Police [2009] QDC 066, to which Ms McClymont, counsel for the respondent, referred. Relevantly, in this case, it is my answer to the question whether, applying the criminal standard of proof, the activities Mr Samimi was filmed engaging in on 21 August 2011 and 3 September 2011 amount to engaging in or carrying out a “calling” within the definition in the Act.

8. [8]
   Mr Samimi had applied for workers compensation on 24 March 2011 on the basis of an injury to his right ankle. Medical opinion was that he was fit for certain duties. He returned to work on a limited basis. A series of “Suitable Duties Programs” (“SDP”) was prepared, setting out the number of hours expected of him and special requirements such as alternating between sitting and standing or moving about at short intervals; the employer apparently provided “Cab Charge” facilities for transport to and from work. The latest “SDP” was dated 25 July 2011 and found (without challenge) to have been signed at work on what seems to have been the appellant’s last day. By 2 August 2011 it was established by the employer that Mr Samimi was no longer showing up, and could not be contacted. Medical certificates of fitness for work had started to come in from medical practitioners (by fax), the latest on 17 November 2011, covering the whole period from 26 July.

9. [9]
   The employer engaged an investigator to carry out surveillance, to whom it was put that he had instructions to look for a mobile food van – which he said was possible.

10. [10]
    I have not viewed the recordings Mr Houghton made; they cover hours of activity. Counsel in the appeal (both of whom also appeared at the trial) accepted that her Honour’s summaries of what is to be seen were accurate; upon those summaries I propose to rely:

“22. The recordings show Samimi engaging in sustained activity. On 21 August 2011 he is working in and near a mobile food van, which bears several signs advertising food products for sale. Houghton says he was at an event arranged by Rotary. There is no apparent social aspect to the activity. Early in the day on 21 August when the weather is inclement Samimi stands out of the rain, occasionally leaving to walk round the site, for a period of about an hour and a half. During the day he walks, carries boxes and laden buckets, tips up and adjusts a food warmer. From about 10 am he is cooking with tongs, wearing an apron and gloves. This continues till after 11 am, he is then seen moving round the event site, at 12 he resumes cooking and makes kebabs. He carries more boxes of food to the food van at about 12.18. Similar activity involving food preparation and barbeque cooking continues over a four hour period at least. Samimi then packs up the van. He carries a folded table and other items which he loads into the boot of a car. He bends to pick up boxes. By 15.54 he is still dismantling the van while a woman watches. At 16.04 he pushes the van and attaches it to the tow bar of a vehicle that he then drives.

23. On 3 September 2011 Houghton records an event at Toowoomba, described as a “Muslim religious event”. Samimi drives. He uncovers a trailer at the location, appearing to be in a hurry. He carries what appears to be a stainless steel box, then walks backwards carrying what seems to be a heavy blue box, then carries a big glass cabinet. He moves a barbeque. He carries a bucket and makes kebabs. He is bending, moving and unpacking more supplies. He works without stop for some five hours. Apart from food preparation tasks, for example threading meat onto skewers, he places the skewers on a barbecue where another person turns the skewers. The work looks stressful and the tasks are undertaken under pressure. Samimi appears to be experienced in doing this work. At 4 pm he is packing up, carrying boxes, stepping up onto the tray of the utility.

Did Samimi engage in a calling?

24. The Concise Oxford Dictionary 5th edition defines a cook as a person whose business is to cook food, and the verb cook as meaning to prepare food by heat. The Macquarie Online Dictionary relevantly defines the verb as ‘to prepare (food) by the action of heat, as by boiling, baking, roasting, etc”, and the noun as ‘someone who cooks’ and ‘someone whose occupation is the preparation of food for the table’.

25. Counsel for the complainant referred me to the decision of President Hall, Anthony John Hawkins AND Allan Adam Jones (No 31 of 2000) in the Industrial Court of Queensland. The prosecution was under the WorkCover Queensland Act 1996. His Honour referred to the definition of ‘calling’ in that Act. The definition is the same as that in Schedule 6 to the current legislation, set out at paragraph 9 above. Actual receipt of remuneration is not necessary. Mr Nelson, Counsel for the defendant, says that I should take all circumstances into account, including that there is no evidence of Samimi being paid. President Hall said this:

‘It cannot be disputed that in characterising an activity one must look at the whole of the circumstances including the context in which the activity is engaged in. In my view s. 484 does not require a chef in receipt of workers’ compensation benefits to inform Workcover Queensland every time he cooks himself an evening meal. I should have thought that having regard to the purpose of the work, its duration and the location at which it occurred, a reasonable man would have characterised the activity as domestic rather than as the performance of a trade or occupation, and would have concluded that it was an activity which does not ordinarily give rise to the receipt of remuneration or reward.’

I have no hesitation in finding beyond reasonable doubt that the sustained activity in a non-social environment, undertaking food preparation for a barbeque amounts to engaging in a calling as a cook. The signage on the food van, together with the sustained activity, at Carindale, and the repetitive, high pressure circumstances of the cooking at Toowoomba, satisfy me that the defendant engaged in a calling being an activity that would ordinarily give rise to the receipt of remuneration or reward. The issue of actual remuneration, or being a volunteer, is not on point. It is also not relevant that Samimi may have been working with a family member. In any event, he gave no evidence about that, and I make no finding about the identity of people with whom he was working (whether or not paid to do so) on the relevant days.

26. Counsel submitted that it was possible that Samimi had been given some treatment by one of his doctors, possibly a cortisone injection, as suggested by Dr Wagon in one of his medical certificates, giving temporary relief from pain. That does not assist Samimi. The offence is not that he worked, or that his condition was improved, but that he engaged in a calling without notifying his employer. President Hall explains in Hawkins AND Jones:

‘The essence of the offence is the failure to disclose. And one may understand why the failure to disclose has been made an offence. Knowledge that the recipient on benefits is performing work would understandably prompt WorkCover Queensland to reconsider whether the payment of benefits should be continued, reduced in quantum or brought to an end. The purpose of s. 484 is to require the recipient of benefits to disclose information about what the recipient is capable of doing from time to time in order that Workcover Queensland may assess its continuing liability to him.’”

11. [11]
    The passages specifically accepted as accurate by Mr Nelson were paragraphs 22 and 23 and, as I understood him, the last part of paragraph 25. I reproduced paragraph 26 of her Honour’s reasons because it illustrates Mr Nelson’s awareness that the statutory provisions are obviously concerned with workers in receipt of compensation on the basis of presumed or asserted incapacity to work who are apparently capable of working effectively enough so that (whether or not actually earned) payment might be expected. The “cortisone” theory and equivalents deserve to go nowhere in the absence of some basis in the evidence. Reference was made in the hearing to the Supreme Court Bench Book as pertinently describing circumstances in which a defendant’s failure to give or present evidence may become relevant, while adherence to the standard of proof beyond reasonable doubt is maintained.

12. [12]
    If a person can and does work, albeit in such special conditions as appear to have applied here when the doing of that work was recorded, why should that information, in a legislative context like the present one, I rhetorically ask, not be provided to the employer/insurer/Q-Comp so that the most appropriate decision about compensation (which may be to continue it) can be made?

13. [13]
    Mr Nelson, on the footing that Q-Comp’s case was that the calling of “cook” had been engaged in, argued in his written submissions:

“Did the Appellant Engage in a Calling

4. The Complainant alleged that on two occasions the Appellant engaged in a calling as a cook. The Appellant challenged that issue at the trial and it was addressed by the learned Magistrate at paragraph 24 and 25 of her written decision.

5. The Appellant does not take issue with the fact that the witness Christopher Houghton had taken video footage of him:

1. a.
   on 21 August 2011 cooking food on a barbeque at what he described as a Rotary event; and

1. b.
   on 3 September 2011 preparing food and placing it onto a barbeque where it was cooked by another person and for a much shorter period of time it showed the Appellant at the barbeque cooking some of that food at what was descried as a ‘Muslim religious event at a community hall’.

6. Not every person that cooks food can be said to have engaged in a calling as a cook and it is necessary to look at the context and circumstances in which the ‘activity’ takes place. The activity of cooking food is conducted in a wide spectrum of circumstances. Every day and every weekend, people cook at home, at barbeques, at community and charitable events and they are neither paid nor would they be considered to have engaged in a calling as a ‘cook’. Equally, there are people that cook food at restaurants and in café’s in circumstances where they are ordinarily paid and there could be no doubt that they were engaged in a calling as a cook.

7. There is a dividing line to be drawn and that is set by the definition in Schedule 6 of the Act which defines a ‘calling’ as:

‘any activity ordinarily giving rise to the receipt of remuneration or reward including self-employment or the performance of an occupation, trade, profession, or carrying on of a business, whether or not the person performing the activity received remuneration.’

8. The learned Magistrate failed to have regard to the proven circumstances in which the Appellant was found to have been cooking and to decide whether the particular activity engaged in on that occasion and in that context was one, ‘ordinarily giving rise to the receipt of remuneration or reward’.

9. The test should have been whether the activity that was actually engaged in was proven to be one which, in the same context, would ordinarily give rise to remuneration or reward.

10. It is agreed that the actual receipt of remuneration is not necessary but the prosecution had to prove beyond reasonable doubt that the circumstances in which the Appellant was cooking were such that they would ordinarily give rise to remuneration for the person doing that activity and there was simply no evidence about that issue.

11. The Appellant argued that the facts which were known, that one event was a Rotary event and the other was a Muslim religious event, were indicators that the cooking was not an activity which would ordinarily give rise to remuneration. The learned Magistrate refused to have regard to the nature of the events on the basis that they were not proven, effectively shifting the burden to the Appellant to prove that the events were the kind at which one would not ordinary expect remuneration.”

The point in paragraph 6 is well made. However, I do not accept the implication in what follows that activities like the appellant’s documented ones on the two days, which it was (understandably) accepted involve activities typical of a cook – and potentially of a calling – cease to attract that categorisation because, if one looks beyond Mr Samimi’s food van (which it seems displayed a price list for the offerings) and barbeque space, one learns that the context was (making assumptions favourable to him) a charity or faith community event. Mr Nelson suggests the point is that in such contexts some may perform these services without expecting any financial return or equivalent (one simply doest not know). In my opinion the question is whether the activities of the person involved are such that in the general market, there would be persons willing to pay to have them performed on the basis of their value.

14. [14]
    I am unable to understand what evidence the prosecution might have called to supply the asserted gap in their case. If a procession of Rotarians or religious leaders came along saying that they invariably or sometimes made payment, or that they had never made or heard of payment, what would that prove? I cannot think of any other category of potential witnesses who would be helpful, such as food van owners or operators.

15. [15]
    I have taken some time to look at the legislative history of relevant provisions. It demonstrates a policy pursued with increasing determination over time to expand the scope of fraud outlawed and punishable under the legislation and to facilitate proof in the case of prosecutions. The Workers’ Compensation Act 1916 had few precedents, but there were some, which appear to include a Virginia Statute of 1914, number 2496, apparently the model for s 27 of the (Queensland) Schedule:

“27 - Malingering an offence. Any person who attempts by malingering to obtain any benefit under this Act shall be liable to a penalty not exceeding $40 or two month’s imprisonment” (“Red Statutes” volume 8 page 825)

16. [16]
    Experience seems to have persuaded the legislature that it was a good idea to deal with frauds upon the system more comprehensively. The current provisions are not dissimilar to those in the Workers’ Compensation Act 1990:

“11.2  Offences involving fraud.

1. (1)
   A person who –

1. (a)
   with intent to defraud, makes an application for compensation under this Act in respect of an injury for which compensation under this Act is not payable;

2. (b)
   obtains, or attempts to obtain, compensation, or a benefit, under this Act by means of a statement or representation that the person does not believe to be true;

3. (c)
   obtains, or attempts to obtain, compensation, or a benefit, under this Act by malingering;

4. (d)
   in any manner, defrauds or attempts to defraud the Board;

commits an offence against this Act and is liable to a penalty of 50 penalty units or 2 months imprisonment.

3. (2)
   A person to whom or on whose account compensation under this Act is being paid on account of total incapacity for work who engages in any calling without informing the Board of the person’s return to work, or intention of returning to work, is to be taken to have thereby defrauded the Board of all payments made by the Board to or on account of such person after commencement of such engagement in the calling and before the Board is so informed.

3. (3)
   If on a compliant of an offence defined in subsection (1) it is proved that the defendant obtained payment by the Board, by conduct constituting the offence, then whether or not a conviction is recorded, or a penalty is imposed, the court may order the defendant to repay to the Board the amount of such payment whereupon the Board may recover such amount from the defendant as prescribed.

3. (4)
   If conduct that constitutes an offence defined in subsection (1) is recurrent so that, but for this subsection, each instance of such conduct would constitute a separate offence, two or more instances of such conduct are to be taken to constitute but on offence committed over a period specified in the compliant laid in relation to such conduct, and may be charged and be dealt with on one compliant.”

17. [17]
    It will be noted that “may in subsection (3) is replaced by “must” in the current s 537(3), The reference to “calling” will be noted. By the time of Reprint 3 section 11.2 had been renumbered 194 and penalties increased dramatically to 200 penalty units or imprisonment for one year. The 1990 Act was replaced in due course by the WorkCover Queensland Act 1996 which (by s 485-C, now in the 2003 Act s 536) required employers to report fraud or suspected fraud; section 163 corresponds with today’s s 136. Chapter 8 contains Part 2 – Fraud and False and Misleading statements. Sections 482-486 are reproduced in an appendix. The Explanatory Notes are instructive:

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

Clause 163 replaces section 121 of the Workers’ Compensation Act 1990. It has been modified to introduce a penalty for noncompliance and to include references to self-insurers. It specifies that a worker must notify WorkCover, or a self-insurer, in writing, within 14 days, of their return to work or engagement in a calling (even if returning to work on a partial incapacity basis). The worker may give the written notice in the form of an approved medical certificate stating the workers’ fitness for work.

The intention of this clause is to assist in identifying potential cases of fraud where a worker returns to work while still in receipt of compensation. The maximum penalty of 50 penalty units reflects the potential seriousness of noncompliance with this provision.”

Section 121(1990) in effect was preserved.

18. [18]
    The explanatory notes for Part 2 (which is reproduced in an appendix to these reasons) are:

“FRAUD AND FALSE AND MISLEADING STATEMENTS

This part creates offences for fraudulent and misleading conduct with respect to the workers’ compensation scheme. Fraud is regarded as a very serious offence, in view of the financial impost it places on the scheme and consequently all Queensland employers. The part contains penalties for persons convicted of fraud, to reflect the seriousness of the offence and to act as a deterrent to those considering fraudulent activity.

Offences involving fraud

Clause 482 replaces section 194 of the Workers’ Compensation Act 1990 with modifications.

The grounds on which fraud offences can be prosecuted have been simplified to an all encompassing provision which reflects section 194(1)(d) of the Workers’ Compensation Act 1990 as this is the provision most frequently used to prosecute fraud cases.

The clause increases the maximum penalty for an offence from 200 penalty units or 12 months in prison to 400 penalty units or 18 months in prison, to reflect the seriousness of the offence and the cost of fraud to WorkCover, self-insurers and the community in general.

The clause also reflects section 194(5) of the Workers’ Compensation Act 1990 which outlines the provision for dealing with recurrent offences in a complaint.

False or misleading information or documents

Clause 483 replaces sections 86 and 87 of the Workers’ Compensation Act 1990. The clause states that it is an offence to provide false or misleading information or statements to WorkCover. It also creates an offence of providing false or misleading information or statements to:

• self-raters
• self-insurers
• a registered person for the purpose of a claim for compensation or damages. A registered person is defined schedule 3 and includes such persons as medical practitioners.

The penalty for these offences has been increased from 50 penalty units to 150 penalty units and one year in prison to reflect the seriousness of the offence.

Particular acts taken to be fraud

Clause 484 is intended to assist in detecting offences involving fraud under this part. It replaces sections 194(2) and (3) of the Workers’ Compensation Act 1990.

The intent of the provision is to clearly state that persons applying for, or in receipt of, compensation for total or partial incapacity can not engage in a “calling” without first notifying either WorkCover, or their self-insured employer. The term “calling is defined in schedule 3 of the WorkCover bill.

The clause specifies that a person applying for, or in receipt of, compensation for total or partial incapacity who engages in a calling without first notifying either WorkCover, or their self-insured employer, is taken to have defrauded or attempted to defraud WorkCover or the self-insurer.

Duty to report fraud

Clause 485 places a clear responsibility on employers, including self-insured employers, to report to WorkCover instances of workers’ compensation fraud they reasonably believe and are occurring so that WorkCover may undertake investigations an prosecutions where appropriate. A maximum penalty of 50 penalty units applies under this clause.

Fraud and related offences end entitlement to compensation and damages

Clause 486 outlines the consequences to a person who, in relation to their claim for compensation or damages, is convicted of:

• defrauding or attempting to defraud WorkCover or a self-insurer
• an offence or an attempt to commit an offence against specific sections of the Criminal Code.

This clause:

• removes such person’s entitlement to compensation or damages for the injury in connection with which an offence in subsection (1) was committed
• allows WorkCover to apply to the court for repayment of compensation or damages paid to the person arising as a result of the commission of an offence in subsection (1) and allows such payments to be recovered as a debt to WorkCover or the self-insurer
• allows WorkCover to recover costs incurred by WorkCover or self-insurer in relation to a proceeding for damages by a person whose claim for damages was the subject of an office under subsection (1)
• allows specific circumstances whereby a person is convicted of an offence under subsection (1) in relation to their claim for compensation and damages, and may still retain their entitlement to compensation and damages. The specific circumstances are the person is taken to have:

- attempted to defraud WorkCover or a self-insurer; or

- defrauded WorkCover or a self-insurer of payments of not more than equivalent of one week of the person’s normal weekly earnings.”

The reference to the definition of “calling” will be noted and is significant in a context of the legislature’s interest in “identifying potential cases of fraud where a worker returns to work while still in receipt of compensation”.

19. [19]
    No significant change came about when the Workers’ Compensation and Rehabilitation Act 2003 was enacted, as reference to the statutory provisions confirms, likewise reference to the Explanatory Notes which are:

“Offences involving fraud

Clause 533 replaces section 482 of the WorkCover Queensland Act 1996 which makes it an offence for persons to in any way defraud or attempt to defraud WorkCover or a self-insurer.

This clause modifies this section by amending sub-section 482(1) of the WorkCover Queensland Act 1996 to change the current reference to ‘WorkCover or a self-insurer’ to ‘an insurer’.

False and misleading information or documents

Clause 534 replaces section 483 of the WorkCover Queensland Act 1996 with modifications. It states that it is an offence for a person to state anything, or give documents containing information to WorkCover, self-insurers or a registered person that the person knows is false or misleading in a material particular.

This clause modifies this section by amending sub-sections 483(1)(a), (2), (3) and (4) of the WorkCover Queensland Act 1996 to include reference to the new Authority. In addition, an obsolete reference in sub-section 483(3) to "a self-rater" has been removed.

Particular acts taken to be fraud

Clause 535 replaces section 484 of the WorkCover Queensland Act 1996 with minor modifications.

This section applies if a person lodges an application for compensation; and engages in a calling and without reasonable excuse fails to inform WorkCover or a self-insurer as required of the person's engagement in a calling. Where compensation is paid under the application to a person or anyone else after the start of the engagement in a calling and before WorkCover or the self-insurer is informed, the person is taken to have defrauded WorkCover or the self-insurer.

This clause modifies this section by amending sub-sections 484(1)(a),(c) and (2) of the WorkCover Queensland Act 1996 to change the current reference to "WorkCover or a self-insurer" to "insurer".

Duty to report fraud or false or misleading information or documents

Clause 536 replaces section 485 of the WorkCover Queensland Act 1996 which places a responsibility on employers, including self-insured employers, to report to WorkCover instances of workers' compensation fraud they reasonably believe are occurring so that WorkCover may undertake investigations and prosecutions where appropriate.

This clause modifies section 485 of the WorkCover Queensland Act 1996 to require self-insured employers to report instances of workers' compensation fraud they reasonably believe are occurring to the new regulatory Authority.

Fraud and related offences and entitlement to compensation and damages

Clause 537 replaces section 486 of the WorkCover Queensland Act 1996 which outlines the consequences to a person who, in relation to their claim for compensation or damages, is convicted of:

• defrauding or attempting to defraud WorkCover or a self-insurer
• an offence or an attempt to commit an offence against specific sections of the Criminal Code

This clause modifies section 486 of the WorkCover Queensland Act 1996 changing current references to "WorkCover or a self-insurer" to "an insurer", and including a new sub-section which allows the Authority to represent the self-insurer in the proceedings for the offence.”

The Schedule definition of calling has been retained in the current (2003) Act.

20. [20]
    Recourse to the rather old fashioned term calling, a word of many meanings, among which the Oxford English Dictionary includes the following:

“9.a. The summons, invitation, or impulse of God to salvation or to his service; the inward feeling or conviction of a divine call; the strong impulse to any course of action as the right thing to do.

3. In reference to the Christian ministry there is often a mixture of the notions of the divine ‘call’, the vocatio or call of the bishop, presbytery, or church, and the professional ‘calling’ as in 11.

10. Position, estate, or station in life; rank. [Founded on I Cor. Vii. 20, Gr. κλήσει, L. vocatione, where it stands for the condition or position in which one was called to salvation; but afterwards often mixed up with sense 9, as if it meant the estate in life to which God has called a man.]

1. 11.a.
   Hence, Ordinary occupation, means by which livelihood is earned, business, trade.”

strikes me as rather quaint. The term rather suggests a person carrying out activities by way of services benefiting others for idealistic or principled motives, rather than for gain. However, the usefulness of “calling” as a term in the legislative context encountered here has been established in this jurisdiction since 1990, since 1996 as a defined term. The question in the appeal is whether the court can be satisfied for the serious purpose of a criminal prosecution that Mr Samimi’s proved activities, whether characterised as appropriate to cooking or some other calling/activity, come within the definition. I am as strongly persuaded as was her Honour that the recorded activities, especially considering their duration were ones “ordinarily giving rise to the receipt of remuneration or reward”, whether the special contexts on the relevant days are pertinent factors or not.

21. [21]
    The conviction must be affirmed. The financial component of her Honour’s order of 18 April 2013 was substantial. According to her endorsement it was that:

“Pursuant to s 537(3) (Mr Samimi) repay all amounts paid to or on behalf of him on or after 2/9/11, Quantified at $30,029.87.”

There is no transcript of the penalty proceeding. No doubt the commencement date for the purposes of calculating the sum was derived by application of the ten business days in s 136. 21 August 2011 was a Sunday the tenth business day after that was Friday 2 September 2011. Nothing was presented in this court to suggest that “on or” in or underlying the order worked out inappropriately. Mr Nelson’s argument that the prosecution had not proved entitlement to an order in any amount is clear enough:

“Repayment Under s 537(3)

12. The question of repayment of compensation arose after conviction. Section 537(3) of the Act requires the prosecution to prove that the Appellant obtained payment of compensation or damages ‘by conduct that is the offence’.

13. In a case where a person makes a fraudulent but successful application for compensation it can be seen quite clearly that payment of compensation is obtained by the ‘conduct that is the offence’.

14. Here, it was not proved that the Appellant obtained payment of compensation by cooking food on a barbeque at a Rotary event on a Saturday. He obtained payment of compensation because he suffered an injury. It was not proved that he had not suffered an injury, nor was it proved that he was no longer suffering from an injury.

15. Further, the obligation to make an order for repayment was limited to the amount that had been paid ‘as a result of the commission of the offence’. In this case, no amount of money was proved to have been paid as a result of the Appellant cooking on a barbeque.

16. The prosecution relied upon the Industrial Magistrates Court in Fahey v Keating (No C87 of 2002) where President Hall upheld a decision for repayment of all of the compensation that had been paid to the defendant but that was a case where the defendant had a lodged a compensation claim that was false in a material particular. It was the lodging of the false claim that caused the complainant to make payments of compensation. That case is not an authority for the proposition that all payments of compensation after a person engages in a calling must be repaid.

17. Such an interpretation is contrary to the principles of statutory interpretation where the correct starting point for analysis is the text of the legislation and not judicial statements about, or judicial elaborations of, the statute. In Victorian Workcover Authority and Anor v Esso Australia Ltd Kirby J said:

‘it is important when a task of statutory interpretation is presented, to recognise the primacy of the duty of the decision-maker to give effect to the language of legislature that has enacted the provision in question, so as to carry into effect the purpose of the lawmakers, as such purpose emerges from the provisions enacted. There is a modern tendency to concentrate on judicial exposition of legal concepts in preference to analysis of statutory provisions that contain the applicable law. This tendency should be resisted.”

18. The learned Magistrate should have ascertained the meaning of s 537(3) by a proper analysis of the words used, not by reference to an earlier judicial decision, and certainly not one with markedly different factual basis. Proper analysis would have elucidated Parliament’s intent that repayment would only be triggered where:

1. a.
   the prosecution had proven;

1. b.
   the person obtained payment of compensation;

1. c.
   by conduct that is the offence.

19. It would also have elucidated that calculation of the amount repayable was necessary having regard to the amounts of compensation paid as a result of the offence.

20. Here, the prosecution had not proved that any compensation payments had been received as a result of the Appellant cooking on two occasions.

21. The learned Magistrate had no jurisdiction to order repayment of any amount unless it was proven that the Appellant was not entitled to compensation, but that he did receive it and that the reason he received it was that he was cooking.

Costs

22. The Appellant seeks an Order for his costs of this Appeal.”

22. [22]
    The answer to Mr Nelson’s argument appears in her Honour’s observation in paragraph 26 that “the offence is not that he worked… but that he engaged in a calling without notifying his employer.” Section 537(3) gives the court no option. It “must” order repayment of everything laid out “as a result of the commission of the offence”. I accept that this brings in a causal connection, as does requirement that the prosecution show the defendant obtained benefits “by conduct that is the offence”. I have no doubt that in this context “conduct” may include omissions to do what the Act commands, by s 136 in particular. It must be recognised that it is not established by evidence (although Ms McClymont gave some indications from the bar table in response to questions by me as to how the system worked generally, and in this particular case) what the reaction of the relevant decision maker to an honest notice given under s 136 would have been. The policy of s 537 and its predecessors is to recover “all” payments; the only exception envisaged is the minor (presently irrelevant) one in subsection (7). I took Mr Nelson to concede that s 537, which of course is premised on a conviction secured by presentation of proof beyond reasonable doubt, envisages application of the civil standard of proof. In my view, that is the relevant standard, because the section, as I read it, attaches civil consequences to a conviction, if one occurs. The section says nothing about penalties. The civil standard would, I think, be the variable one recognised in and since Briginshaw v Briginshaw (1938) 60 CLR 336. Applying that standard, I am comfortably persuaded that, had Mr Samimi complied with s 136, revealing the circumstances established at the trial, payments would have stopped. Ms McClymont informed me that the employer/self-insurer did determine to cease making payments, but that the determination was unable to be implemented because Mr Samimi exercised his entitlement to have the matter taken to Q-Comp for review, and that payments eventually ceased because of effluxion of time. I reach the view I have indicated without reliance on Ms McClymont’s information. It might be noted that Mr Nelson was unable to present any basis on which the Magistrate’s monetary order might be cut back at the hearing (although I invited him to send in a supplementary submission on the point). He was driven to say that nothing, of what is mainly a substantial sum, could properly have been ordered repaid. It seems an unattractive proposition. Equally unattractive, I would observe, might be a ruling that invites proceedings for the purpose of determining where, between “all” and “nothing”, the right outcome under s 537 fell.

23. [23]
    Strengthening the view that s 537 should not be regarded as a penal provision requiring application of the criminal standard of proof is that there is, strictly, no penalty. No more can be required of the offender than that he disgorge amounts he is proved to have received.

24. [24]
    The appeal against her Honour’s monetary order must be dismissed.

25. [25]
    Following preparation of the foregoing, there was received from Mr Nelson the following submission dated 6 August 2013:

“3. The dates on which the appellant was engaged in cooking activities were 21 August 2011 and 3 September 2011.

4. The Respondent argues that by his “failure to disclose his activities , the appellant deprived the self-insurer of the opportunity to assess his capacity to work” and as such all payments of compensation made after the cooking activities are recoverable.

Investigation Report

5. The self insurer received an Investigation Report on or about 9 September 2011 which identified the Appellant’s cooking activities.

6. By s 136 of the Workers Compensation and Rehabilitation Act 2003 (Qld), if the Appellant had engaged in a Calling, then he had 10 days in which to inform the self insurer of that fact. By 13 September 2011, the self insurer knew that the Appellant had engaged in the cooking activities and had not informed it of those activities.

7. If the Respondent is correct that the Appellant obtained payment of compensation or damages by failing to tell the self insurer that he had engaged in the cooking activities, then the casual link between  his failure and the subsequent payments was broken when the self insurer had the cooking activities brought to its attention on or about 9 September 2011.

8. Payments made to the Appellant between 21 August 2011 and 13 September 2011 were as follows:

Medical Report/ Suspension of Claim

9. Alternatively, on 16 September 2011 the self insurer was advised by telephone from the medical specialist’s office that the Appellant had been assessed that day as unfit to work. Later that day, the Appellant refused permission for the release of that medical report and the self insurer suspended payments under the claim (Trial Exhibit 2, page 10).

10. The Appellant’s payments under the claim were re-instated by Q-Comp on 12 November 2011 (Trial Exhibit 2, page 12). Payments thereafter could not be attributed in any way to the Appellant’s cooking activities or to his failure to inform the self insurer of those activities.

11. If the Respondent is correct that the Appellant obtained payment of compensation or damages by failing to tell the self insurer that he had engaged in the cooking activities, and the self insurer’s knowledge brought about by the Investigation Report was not sufficient to break the casual link between his failure and the subsequent payments, then the self insurer’s own suspension of payments on 16 September 2011 was sufficient to break that link.

12. Any payments received by the Appellant on or after 12 November 2011 were the result of Q-Comp reinstating his Claim.

13. Payments made to the Appellant between 21 August 2011 and 12 November 2011 were as follows:

26. [26]
    According to the Magistrates Court exhibit list, exhibit 2 was a bundle of medical certificates about Mr Samimi. The intended reference is no doubt to exhibit 4, the “Workers Comp Case Notes” kept by the employer in respect of the claim, which was assigned the number 11080074. The notes, chronologically, record Mr Samimi’s return to work on occasions until late July 2011 and his refusal from that time to authorise the release of any information by medical practitioners he had seen. On 24 August there is recorded “PC” (presumably a phone call) with “W” (presumably Mr Samimi, the worker) which has him denying he had told the doctor not to provide information and being advised that he should clarify the situation with the doctor and “realise if he withholds information from us his claim will be suspended” – this being the third warning of suspension in that same call. According to page 10 of the notes, on 16 September 2011 the orthopaedic specialist’s office later advised that they had been instructed by the worker “not to release any medical information or reports to us” and later that same day in another “PC to W” in which the issue of medical information being withheld was central Mr Samimi was told of the employer’s decision that his “claim will be suspended forth with from today until a report is received from Dr Watts”. Contacts with Mr Samimi or his wife continued, but no medical information was forthcoming.

27. [27]
    The note for 12 November 2011 is:

“Decision to suspend claim has been overturned by review officer R Murray at Q-Comp. Claim must now be reinstated.”

28. [28]
    The reviewed decision came within the s 540(1)(b)(iii), being one by a self-insurer to terminate or suspend payment of compensation. Following sections of the Act set out how a review may be sought and then progress.

29. [29]
    I understand the appellant’s argument to be that the chain of causation for s 537 purposes was broken, so that, depending upon which scenario the court adopts, it was open to order repayment by Mr Samimi only of the amounts set out in paragraph 8 or paragraph 13 or some of them, presumably the one or ones after 2 September 2011.

30. [30]
    While appreciative of Mr Nelson’s rising to the court’s challenge, I am not persuaded by the argument. There seems to be no good reason why reinstatement of the claim would stand in the way of investigation by Q-Comp, or whatever may be the appropriate authority, of apparent offences under the Act and of the ordinary consequences of a conviction under s 537. In effect, reinstatement of a claim as directed here is in a sense provisional and in no way protects the person receiving further compensation in consequence or from potentially having to disgorge. Continued receipt of compensation can and should still be seen as a result of the commission of the offence.

Appendix

PART 2 –FRAUD AND FALSE AND MISLEADING STATEMENTS

Offences involving fraud

482.(1)  A person must not in any way defraud or attempt to defraud WorkCover or a self-insurer

Maximum penalty- 400 penalty units or 18 months imprisonment.

1. (2)
   If conduct that constitutes an offence defined in subsection (1) is recurrent so that, but for this subsection, each instance of the conduct would constitute a separate offence, 2 or more instances of the conduct are to be taken to constitute but 1 offence committed over a period specified in the compliant laid in relation to the conduct, and may be charged and be dealt with on 1 compliant.

False or misleading information or documents

483.(1)  This section applies to a statement made or document given –

1. (a)
   to WorkCover for the purpose of its functions under this Act; or

2. (b)
   to an entity or person as a self-insurer or self rater; or

3. (c)
   to a registered person for the purpose of an application for compensation or a claim for damages.

3. (2)
   A person must not state anything to WorkCover, a self-insurer a self-rater or registered person the person knows or is false or misleading in a material particular.

Maximum penalty – 150 penalty units or 1 year’s imprisonment.

3. (3)
   A person must not give WorkCover, a self-insurer, or a self-rater 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.

3. (4)
   Subsection (3) does not apply to a person who, when giving the document –

1. (a)
   informs WorkCover, the self-insurer , the self-rater or the registered person, to the best of the person’s ability, how it is false or misleading; and

2. (b)
   gives the correct information to WorkCover, the self-insurer, the self-rater or the registered person, if the person has, or can reasonably obtain, the correct information.

3. (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.

Particular acts taken to be fraud

484.(1)  This section applies if a person –

1. (a)
   lodges an application for compensation; and

2. (b)
   without reasonable excuse, engages in any calling without informing WorkCover or the self-insurer in the way stated under section 163 of the person’s engagement in a calling.

3. (2)
   If compensation is paid by WorkCover or the self-insurer under the application to the person or anyone else –

1. (a)
   after the start of the engagement in the calling; and

2. (b)
   before WorkCover or the self-insurer is informed in the way stated under section 163 of the engagement in the calling;

the person is taken to have defrauded WorkCover or the self-insurer of the payments under section 482.

3. (3)
   If payments to which subsection (2) applies are not made, the person is taken to have attempted to defraud WorkCover or the self-insurer under section 482.

Duty to report fraud

1. 485.
   If an employer or employer who is a self-insurer or self-rater believes, on reasonable grounds , that a person is defrauding or attempting to defraud WorkCover or the self-insurer, the employer must give WorkCover any information the employer has in relation to the suspected fraud.

Maximum penalty – 50 penalty units.

Fraud and related offences end entitlement to compensation and damages

486.(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 –

1. (a)
   an offence under section 482;

2. (b)
   an offence or an attempt to commit an offence under Criminal Code, section 123, 427, 429, 430, 488, 489 or 494.

3. (2)
   Any entitlement the person may have to compensation or damages for the injury, and any existing claim for compensation or damages, ends.

3. (3)
   If, in the proceeding for the offence, the prosecution proves the person obtained payment of compensation or damages by WorkCover or a self-insurer, by conduct that is the offence, then, whether or not a penalty is imposed, the court must on application by WorkCover or the self-insurer, order the person to repay WorkCover or the self-insurer all amounts of compensation or damages paid to or on account of the person as a result of the commission of the offence.

3. (4)
   An order made by a court under subsection (3) may be enforces as if it were an order made by a court in civil proceedings for a debt.

3. (5)
   Any costs incurred by WorkCover or the self-insurer in relation to a proceeding for damages to which subsection (3) applies are to be recovered on a solicitor and own client basis from the person convicted under section 482

3. (6)
   Subsection (2) does not apply to a person only because the person is taken under section 484 to have –

1. (a)
   attempted to defraud WorkCover or a self-insurer; or

2. (b)
   defrauded WorkCover or a self-insurer of an amount not more than the equivalent of 1 week of the person’s normal weekly earnings.