Heley v Johnson[2013] QDC 345

[2013] QDC 345

DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE REID

Appeal No 29 of 2013

DAVID ERROL HELEYAppellant

and

RAYMOND GARY JOHNSON Respondent

BRISBANE

2.34 PM, WEDNESDAY, 26 JUNE 2013

JUDGMENT

HIS HONOUR:The appellant appeals a decision of a learned Magistrate to strike out two complaints comprising, in all, 10 charges under sections 534 and 535 of the Workers’ Compensation and Rehabilitation Act. The Magistrate found the complaints were instituted out of time. The applicant contends that the Magistrate acted on a wrong interpretation of provisions of the Workers’ Compensation and Rehabilitation Act and, in particular, section 579(3)(b)(ii) thereof, and that he came to an erroneous conclusion about the facts of the case.

The respondent claimed to have been injured during the course of his employment, on the 4^th of February 2008. He alleged, in Supreme Court Proceedings, the trial of which began before Byrne J on the 4^th of October 2010, that he was a real estate agent and slipped on the stairs of a property owned by the defendant’s in that action. In his judgment, the learned Magistrate’s describes the Supreme Court action as a master servant action. It seems the action was in fact against the owners and occupiers of the property on which he claims to have been injured but nothing turns on this misunderstanding although it of course means that WorkCover would not have been an effective party to the action as it would be in a master servant action.

The matter settled on day 2 of the trial but only after the respondent in this matter had given sworn evidence and been cross-examined. As a consequence of hearing his evidence, Byrne J caused his associate to write a letter to WorkCover on the 4^th of November 2011. The letter was addressed to:

“Mr Tony Hawkins, Chief Executive Officer, WorkCover Queensland”

The letter was detailed and voluminous. It summarised relevant aspects of the respondent’s evidence, including an allegation that he was not able to work up to the 30^th of November 2008. An economic loss report had been prepared by his accountants on the basis of his inability to so work. The letter indicated, however, that “(t)he evidence may be thought to have indicated” a number of matters, including:

3. (1)
   that the respondent admitted returning to work in September 2008. Transcript references to that admission were given.
4. (2)
   That, during the time the respondent claimed to be unable to work, he performed at least part of his real estate duties. Some details of his engagement as a real estate agent in the period between May and September 2008 were provided, as was an admission to that effect given by the respondent in some proceedings related to his divorce.
5. (3)
   That a video showed him at an open house inspection on the 20^th of September 2008, said to be inconsistent with his stated case.

A folder containing the transcript from the trial, the respondent’s amended statement of claim and statement of loss and damage, various statutory declarations of the respondent, a statement of claim related to the divorce proceedings referred to and a bundle of PAMDA Ff 22a’s (appointment of real estate agent) and real estate advertisements, which were together exhibit 20 of the trial, were provided. Details of the solicitors for the plaintiff and the defendant in the Supreme Court trial were also given.

Ms Early, an employee of WorkCover Queensland, subsequently carried out investigations and prepared a detailed “chronology and summary” dated the 15^th of December 2010. I note that the document highlights that the period of 12 months from the last commission of a possible offence “expires on 28.10.09” and that the period of “six months from the offence first coming to the knowledge of WorkCover (ie last investigation) expires on 4.5.11(?)”  The document refers also to a “restitution amount” of $26,653.99 and of potential charges under s 533/534/535 of WCRA. The document also lists a number of “to do” items, including speaking to co-employees and employers of the defendant, obtaining relevant medical reports and speaking to WorkCover employees involved in his compensation claim. On the 23^rd of March 2011, Ms Early wrote to the respondent in the following terms:

“Dear Mr Johnson,

WorkCover currently has information that suggests to us that you may have committed an offence against the Workers’ Compensation and Rehabilitation Act 2003.

Our records show that you lodged an Application for Compensation on 3 March 2008 for an injury to your shoulder and back which occurred on 4 February 2008 in a work-related incident. Your claim was accepted for left shoulder ac dislocation / back strain and you were paid weekly benefits for loss of wages and medical expenses from 6 February 2008 to 28 October 2008.

According to our records, you advised WorkCover that, during the period when you were in receipt of weekly benefits  that you were unable to work and have not done so since the work related accident of 4 February 2008.

This office has obtained evidence of work you performed as a real estate agent in the period you claimed workers’ compensation benefits for loss of wages. The performance of this work could amount to an offence against the Act.

WorkCover is currently investigating this matter. Part of this investigation process involves offering you the opportunity to take part in a record of interview. Interviews of this nature are electronically recorded. The purpose of the interview is to determine if you have any relevant information to offer in response to the allegations.

I’m obliged to warn you that you do not have to take part in this interview. Further to this you are not obliged to make any statement or say anything. Any statement that you make or anything that you say will be recorded and may later be used in evidence. This includes any verbal statement you may make to me or any other employee of WorkCover, in person or by phone.

You may choose to seek legal advice regarding this matter prior to responding to this request. If you choose to take part in the interview, you are also entitled to have any appropriate person of your choice present.

If you decide you would like to participate in an interview, please contact me on 07 3006 6615  by the close of business 8 April 2011. Arrangements will then be made for a mutually suitable date and time for this interview to take place.”

Ms Early later, on the 23^rd of November 2011, prepared a summary of the matter which indicated her belief that there was a prima facie case against the respondent. That summary was exhibit 1 before the magistrate. It reads as follows; 

“On March 3 2008, the worker, a real estate agent, lodged an application for compensation for an injury to his left shoulder following a fall at a property that he was showing to prospective buyers.

The claim was accepted and compensation and benefits were paid between 6 February 2008 and 28 October 2008. The claim was finalised as a result of the worker advising WorkCover that he’d returned to work with his pre-injury employer.

The worker then pursued a common law action against the owners of the property where he sustained the injury. The insurers of the property engaged investigators and lawyers to gather evidence to defend that action and the matter proceeded to trial on 4 October 2010.

On the first day of the trial the worker gave evidence that he had not returned to work, however evidence of him performing some of the duties as a real estate agent was put to him. Throughout his testimony, the worker denied engaging in employment and said that he did not consider the duties he performed constituted employment. He ultimately conceded that he had returned to work approximately one month earlier than he had advised WorkCover but continued to deny that the other activities constituted employment.

The civil trial concluded and the Supreme Court subsequently wrote to WorkCover advising that during the trial evidence emerged that we may think warrant further investigations.

As a result of further investigations evidence has been gathered which shows that the worker continued to work as a real estate agent through the entire period of his claim.

Whilst further documentation is currently being requested from Elders Real Estate Agents our panel lawyer is of the view that there is a prima facie case that the worker has committed 1 count of Fraud and 9 counts of providing either false and misleading documents to WorkCover or providing false and misleading information to WorkCover and registered medical practitioners. Panel further considered that we have reasonable prospects of success.”

The complaints in the matter were also sworn on about the 23^rd of November 2011. On that day, a certificate under section 583(4)(c) of the Act was issued certifying that on the 23^rd of November, “The commission of the offence came to the knowledge of” the certifier, David L Heley. Mr Heley is a person to whom WorkCover’s chief executive officer had delegated the powers of the chief executive officer pursuant to section 445 of the Act.

Statutory Provisions:  

Section 579(3)(b)(ii) of the WCRA provides:

“A proceeding must start –

3. (b)
   within 6 months after the commission of the offence comes to the knowledge of –

3. (i)
   …
4. (ii)
   for a proceeding mentioned in subsection (2) – the chief executive officer of the Authority or WorkCover;

whichever is later.” 

It is common ground that the subject proceedings were for an offence against the Act other than chapter 8 and that the proceedings were for an offence under section 579(2) of the Act. Section 445(1) provides:

“WorkCover’s chief executive officer may delegate the chief executive officer’s powers, including a power delegated to the chief executive officer, to an appropriately qualified WorkCover employee…”

Sections 468 and 469 contain provisions for the issue and display of identity cards given to such authorised persons. Section 583(3),(4)(c) and (6) provide as follows:

3. (3),
   “  WorkCover’s chief executive officer may issue certificates for subsection (4).” 
4. (4),
   “ A certificate stating the following matters is evidence of the matters in any proceeding about anything arising under this Act-

3. (c)
   the commission of an offence against this Act came to the knowledge of WorkCover’s chief executive officer or delegate issuing the certificate on a specified date.” 

3. (6),
   “A statement in a complaint for an offence against this Act of any of the following is evidence of the matter stated –

3. (b)
   that the matter of the complaint came to the knowledge of the complainant or the chief executive officer of the Authority or WorkCover on a specified day.”

The learned magistrate, in his decision, concluded, at paragraphs 32 and following, as follows,

“If it is the case that the Applicant has the onus of proof, then on balance I find, based on the foregoing, that the chief executive officer at least had constructive notice of the subject letter and WorkCover had notice or constructive notice of the subject letter on or about 5 November 2010. If I’m mistaken as to the date of constructive notice or notice then in my view, the letter of Alison Early of 23 March 2011 would result in the limitation period expiring on or about 23 September 2011, some two months before the actual date of the complaints before me.” 

33. “If the onus is on the Respondent, then the onus has not been discharged.” 

The onus he was there referring to was the onus of proving whether the chief executive officer, or his delegate, had notice of the commission of an offence. In so finding, the learned magistrate was influenced by the factual matters set out at paragraphs 30 and 31 of his judgment as follows,

3. (a),
   The subject correspondence was personally addressed to the chief executive officer, Tony Hawkins, a designated statutory complainant attaching sworn documentary material.
4. (b),
   WorkCover or the Authority is a well funded entity with appropriate financial resources, access to significant expertise and possessing a significant public profile. (c), the subject correspondence is date-stamped as being received on 5 November 2010. …
5. (d),
   By 15 December 2010, Exhibit 5 was produced by “Prosecutions Advisor” Alison Early referring to an “Allegation of potential offence…Return to a calling”, and with the following footnote under “Time” –

“6 months from the offence first coming to the knowledge of WorkCover, (i.e. last investigation) expires on 4/5/11 (?)”.

And, additionally, that Alison Early wrote to the applicant on 23 March 2011, as I have described.

The learned magistrate was of the view that Ms Early may properly be described as a “responsible person” and referred to Smith v Baldwin at page 385. I shall come to that case later. He also found that the content of the letter of the 5^th of November 2011, provided such information as to give the chief executive officer and WorkCover, “reasonable grounds for belief in the commission of the offence”. I interpose here that, even if that were true of WorkCover, the question of whether it would have given the chief executive officer such reasonable grounds was dependant, of course, upon the chief executive officer reading that letter in detail.

The applicant submits,

3. (i),
   that the learned magistrate erred in finding that knowledge of the complainant as to the commission of an offence under section 535 of the Workers Compensation and Rehabilitation Act need only be constructive; 
4. (ii),
   that he erred in finding that the knowledge of the chief executive officer, pursuant to section 579(3)(b)(ii) was the knowledge of WorkCover. It was also submitted in the alternative by the appellant that;
5. (iii),
   the magistrate erred in failing to properly consider the elements of the offence under section 535, especially the elements identified in subparagraph (c) and (d) of paragraph 26 of the appellant’s written outline when considering the knowledge of the complainant in a prosecution under the Act;  ,
6. (iv),
   erred in failing to properly consider both complaints before the court.

The appellant also submitted that;

1. (i)
   the letter of 4 November 2010 indicated to WorkCover only that, “further investigation by WorkCover might be warranted and was not itself the prima facie evidence of such offences” 
2. (ii)
   There was no evidence the letter came to the attention of the Chief Executive of WorkCover, but rather was dealt with by its employee Ms Early who herself concluded only that the respondent, “may have committed an offence” as she indicated in her letter to the respondent on 23 March 2011; 
3. (iii)
     That the complainant only became aware of the likely commission of an offence on 23 November when briefed with exhibit 1 , the “summary of facts” prepared by Ms Early earlier set out.
4. (iv)
   That section 579 of the Act does not speak about “constructive knowledge”, but computes time for a prosecution from the date upon which “the commission of the offence comes to the knowledge” of the Chief Executive or his delegate.

The certificate certifying that, “the commission of the offence came to the knowledge” of the delegate only on 23 November 2011 is then evidence of that fact, which evidence was not rebutted. The learned magistrate appeared to accept that to be so, apart from his view about, “constructive knowledge”.

3. (v)
   To hold otherwise would be contrary to the decision of the Court of Appeal in Cross Country Realty v Peebles 2006 QCA 501, in which McMurdo J states at paragraph [9] ff; 

[9] Those observations were not central to the decision in Smith and are therefore not binding on this Court. In any case they relate to a different although similar provision under a different although similar statute. The High Court has repeatedly emphasized the need when interpreting and applying a statutory provision to look at the language of the statute rather than secondary sources or materials: Weiss v The Queen.3 Proceedings under the Act may be brought summarily under the Justices Act 1886 (Qld).4 Under the Justices Act s 142A, complaints under the Act can be brought by a "public officer", a broadly defined term which includes "an officer or employee of the public service of the State ...".5 Both Mr Peebles and Mr Cushion were public officers entitled to bring complaints under the Act. But the complainant in each of the complaints the subject of this application was not Mr Cushion but Mr Peebles. The plain words of s 589 require only that the proceeding for an offence against the Act be taken within one year after the offence is said to have been committed (s 589(1)(a)) or six months after the commission of the alleged offence comes to the complainant's knowledge as long as that is within two years after the commission of the alleged offence (s 589(1)(b)). Giving the words in s 589(1) their ordinary meaning, the term "complainant" in s 589(1)(b) means the complainant who brings the proceedings for an offence or offences under the Act, here Mr Peebles. That interpretation, which still places firm temporal limits on bringing proceedings within, at the maximum, two years after the alleged commission of the offence, is consistent with the objects of the Act set out in s 10. It is also consistent with Holmes J's observations about similar provisions in the Auctioneers and Agents Act in Foxpine Pty Ltd v Collings,6 with which Davies JA and I agreed, and with Williams J's approach taken to different but analogous statutory provisions in Ayres v WorkCover Queensland.

[10] That is sufficient to dispose of the applicants' contentions but I also make the following observation. The knowledge and belief necessary to satisfy a magistrate under s 550 of the Act that there are reasonable grounds for suspecting that there may be evidence obtained at the place the subject of the search will not necessarily equate to the knowledge to which s 589(1)(b) refers. The knowledge referred to in s 589(1)(b) requires a higher degree of certainty than the reasonable grounds for suspicion required for the issue of a search warrant under s 550(1) of the Act. It involves the complainant having knowledge of facts sufficient to establish a person's contravention of the Act.

[11]] In the light of the undisputed evidence from Mr Peebles, which the magistrate appears to have accepted, the magistrate could not have reasonably found that Mr Peebles had reasonable grounds for believing the applicants had committed offences under the Act before he examined the seized boxes of documents in March 2004. At that time he had not and could not have formed a view about whether he had sufficient evidence to bring charges against the applicants under the Act. It follows that the complaints brought by Mr Peebles against the applicants on 21 June 2004 were within the time limits permitted by s 589(1) of the Act. The decision of the District Court judge was plainly right. This is not an appropriate case in which to grant leave to appeal under s 118(3) District Court of Queensland Act 1967 (Qld).

3. (vi)
   There is no room for the doctrine of constructive notice, a point made by President Hall in Thiele v Davis 2000 165 QGIG 23, where the President said inter alia;

“If he succeeds in showing that Ms Thiele had actual knowledge of the commencement of the offence six months prior to the commencement of the proceedings, he will be entitled to succeed. The apprehension is that rather than seeking to show actual knowledge on the part of Ms  Thiele he will seek to show constructive knowledge by Ms Thiele on proof that a reasonable complainant would have known an inference of the complainant knew may be appropriate.”

“The complainant has not been made by the Department … The complainant has been made by Ms Thiele. There is nothing in the Industrial Relations Act 1999 which glosses the ordinary meaning of complaint which is, of course, the person who makes the complaint. There is nothing in the Industrial Relations Act 1999 which requires the attribution to Ms Thiele on the knowledge of Mr Bock or Mr Bock and various other employees  within the Department … It is perfectly understandable for the legislature to have adopted such a scheme. It is a scheme which has enabled the Department of Employment, Training and Industrial Relations to corral the mind of the natural person making the decision to proceed on a complaint from the opinions, impressions and views of all other employees of the Department. .”

See also Bulger v Woodham 2007 QIC 2.

3. (vii)
   The learned magistrate ignored the statements of principle in Thiele v Davis (supra) and Bulger v Woodham STET and instead purported to rely on Smith v Baldwin (1979) Qd R 380 at 385 to hold that the doctrine of constructive notice was applicable.

3. (viii)
   In Smith v Baldwin, Campbell J had said in the passage relied upon by the learned magistrate,

“there is no evidence which could support a finding that any responsible officer in the employ of the office of the Registrar of Auctioneers and Agents had reasonable grounds for believing that the respondent had committed a breach…” The appellant submitted that the learned magistrate took this to mean that if there was evidence a responsible officer of WorkCover had reasonable grounds for believing the respondent had committed a breach of the Act, that was sufficient. At paragraph 19 of his judgment when referring to this passage, the learned magistrate said: “Arguments for ‘constructive knowledge’ do not have a successful track record but in saying that historically, it is the application of the facts and the law that has failed, not the concept.”

In fact, the appellant counsel submits Smith v Baldwin (supra) is not authority for a proposition that section 579 of the Act contemplates the application of the common law doctrine of constructive notice. Rather the case appears to be authority for the proposition that the fact a complaint was made to an officer of the department did not mean the person authorised to lay the complaint received knowledge at that time that an offence had been committed. He was principally concerned with drawing the distinction between the making of a complaint by a person and the acquisition of knowledge that an offence had been committed.

3. (ix)
   The applicant contends that section 579 requires nothing more than proof of the matters set out at paragraph 21 of the applicant’s submissions, namely (a) the Chief Executive, (b) or the delegate of the Chief Executive, (c) had actual knowledge an offence had been committed, (d) on a particular date, (e) within six months of the issue of the complaint, and that a certificate to that effect made under section 583(4) is evidence of those facts unless there is contrary evidence relating to actual knowledge of the delegate. It was said there was no such evidence in this case.

3. (x)
   The applicant’s alternative argument is that even if the magistrate was correct in finding  it was sufficient if the complainant had ‘constructive knowledge’ of the commission of an offence, he erred in finding a letter from the associate of Justice Byrne on 4 November 2010 or the letter of Ms Early at 23 March 2011 exhibited such knowledge. It was said that the letter of 4 November set out some of the facts which might, but did not inevitably, lead to a conclusion an offence had been committed. The letter 23 March sought to elucidate a response from the defendant to see if there was an explanation which might mean a prosecution was not warranted. Until then it was not possible to know the true position. There was said to be no evidence of any person’s actual belief, apart from the uncontradicted certificate.

The appellant also said that there were four elements of the offence under section 535 as follows:

3. (a)
   a person makes an application for compensation involving incapacity for work,
4. (b)
   the person engages in a calling while receiving compensation,
5. (c)
   the person does not inform the insurer in the way stated pursuant to section 136 of the person’s engagement in the calling, and
6. (d)
   the person does so without a reasonable excuse.

It was argued that at most the letter on 4 November related to the question of whether the defendant had engaged in a calling whilst receiving compensation. It was accepted that WorkCover Queensland knew the defendant had made an application for compensation. The letter from the associate to Justice Byrne did not, however, address either of the matters set in subparagraph (c) and (d) above . Those elements required further investigation in order to be satisfied to the standard of ‘unequivocal consciousness of guilt’.

The letter 23 March 2011 was a necessary investigative step. The magistrate wrongly concluded the letter was evidence of the commission of the offence or perhaps that it indicated the complainant then had knowledge of the commission of offence. Further, the applicant submits that the applicant gave no consideration to the charge pursuant to section 534 of false and misleading documents contained in the second complaint.

The respondent’s submission is that in the particular circumstances of this case, the magistrate was entitled to conclude that the complainant of 23 November 2011 was not started, ‘within six months after the commission of the offence (came) to the knowledge of the Chief Executive Officer of WorkCover’. He made this submission in reliance upon:

3. (1)
   the contents of the letter of the associate of Byrne J and the fact it was specifically addressed to Mr Tony Hawkins, the Chief Executive Officer of WorkCover Queensland. 

3. (2)
   evidence of the witness, Alison Early, that she collected the letter from the executive floor of WorkCover and that her understanding of the procedure was that the documents such as the letter, and presumably the extensive attachments, are scanned and, “goes to the reading list for the Chief Executive” (see transcript T1-19 Line 45/60).

3. (3)
   the findings of the Magistrate at paragraphs 32 and 33 of his reasons that I’ve earlier referred to.

During oral argument the respondent’s counsel specifically indicated that the issue of constructive notice on which the Magistrate relied was not something he had specifically relied on during submissions before the Magistrate and did not rely on before me. Rather, he submitted that the effect of the certificate raised only a rebuttable presumption and that the particular facts of this case justified a conclusion that the Magistrate was entitled to find that in fact, the Chief Executive Officer did have the relevant knowledge of the commission of the offence, because of the matters I just earlier set out.

Mr Sofronoff, in response to that submission, submitted that there was no evidence the Chief Executive Officer had ever read the letter from Byrne J’s associate and that in any case the letter itself was in terms that made it clear only that it was a suspicion and not an “unequivocal consciousness of guilt”. He submitted that the evidence of Ms Early did not establish that the CEO had ever read the letter so as to acquire whatever knowledge was to be gleaned from it.

In my view that assertion is clearly correct, particularly in circumstances where, at the commencement of the trial, counsel for the respondent raised the matter and asked that the person who swore the complaint, David Healy and Ms Early, be called to give evidence. They were ultimately made available and called by counsel for the respondent.

Before me reliance was also placed by counsel for the respondent on Jones v Dunkel to support an inference that the failure to call the CEO was relevant in assessing whether in fact the CEO had such knowledge. I think the fact that counsel did not seek to call Mr Hawkins or to have him called, in the circumstances of this case, militates strongly against such a submission on an appeal. In any case the Magistrate did not make a finding that the CEO had such knowledge or place reliance on Jones v Dunkel. Further, as counsel for the appellant submitted, Jones v Dunkel, even if it applied would only allow the Court to conclude that a witness not called could have given no helpful evidence for the party failing to call him. In this case, he submitted, even if such an inference had applied, a proposition he strongly refuted, the Court would then be left in the position where there was no evidence as to the CEO’s actual state of knowledge.

The drawing of an inference that the Chief Executive’s evidence could not have been helpful cannot translate to positive evidence that he had a particular state of knowledge. In my view it is quite clear that the evidence did not allow the Magistrate to conclude that the CEO of WorkCover had the relevant knowledge. Indeed, the Magistrate did not attempt to so conclude. Rather, he relied on the doctrine, as he understood it, of constructive notice, to impute the knowledge of Ms Early to the complainant, who was the Chief Executive Officer’s delegate. In my view he was wrong to do so. The proper approach to this matter is to consider the meaning of the words used in section 579(3)(b)(ii) of the Act in conjunction with the power of delegation in section 445.

In ascertaining the meaning of section 579 regard may also be held to section 583 of the Act. All those provisions are in part 3 of chapter 14. Part 3 deals with “proceedings”. It is clear in my mind that the proper construction of section 579 is to confine the knowledge referred to in section 579(3)(b)(ii), in the circumstance of this case, to the knowledge of the delegate of WorkCover’s Chief Executive Officer, Mr Heley, who was the complainant. To hold otherwise would be to ignore the specific reference in section 583(4)(c) and (8) to the phrase, “to the knowledge of WorkCover Chief Executive Officer or delegate issuing the certificate” in the former section, and to the phrase, “came to the knowledge of the complainant” in the latter.

In my view, consistent with the interpretation of similar provisions in other legislation and  in Cross Country Realty Proprietary Limited v Peebles (supra) and Thiele v Davis (supra), the only relevant inquiry is to the state of knowledge of the complainant in this case, and not other employees of WorkCover. Inquiries as to the state of mind of the Chief Executive Officer would also be relevant, but as I’ve indicated it hasn’t been demonstrated he had any  relevant knowledge in this case.

In such circumstances I find that the Magistrate erroneously concluded that the certificate of the delegate was not sufficient evidence to cause him to conclude the proceeding was started within six months after the commission of the offence came to the knowledge of the delegate of the CEO of WorkCover. I find that the proceedings were started within the time allowed by section 579 of the Act.

I direct that the matter be returned to the Industrial Magistrates Court for the matter to proceed according to law.

In such circumstances I’m not required to consider the further arguments raised by the appellant that the Industrial Magistrate erred in failing to properly consider the elements of an offence under section 535 of the Act, or that he failed to properly consider the complaint with respect to offences under section 534 of the Act.

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