Blackwood v Hinder[2017] QDC 239

DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   By complaint made on 28 May 2015, the appellant, Simon Blackwood commenced a proceeding in the Industrial Magistrates Court against the respondent, Colin Hinder, in which he alleged that the respondent had committed three offences against the Workers’ Compensation and Rehabilitation Act 2003 (WCRA). One charge, brought pursuant to s 533 WCRA, was that the respondent had defrauded WorkCover Queensland. The other two charges, brought pursuant to s 534(2) WCRA, were that the respondent had stated false or misleading information knowing that information was false or misleading in a material particular.

3. [3]
   The respondent applied to an industrial magistrate to have the proceeding struck out or permanently stayed on the ground that it had been commenced outside of the time allowed under s 579(3) WCRA. On 23 November 2015 an industrial magistrate found that the proceeding had been commenced out of time and struck it out. The magistrate also ordered the appellant to pay the respondent’s costs in the sum of $25,500.

4. [4]
   The appellant appeals to this court on the grounds that the learned industrial magistrate erred in striking out the proceeding and in making the costs order.

5. [5]
   For the reasons which follow, the appeal should be allowed and the orders set aside.

The statutory provisions relevant to the proceeding below

6. [6]
   Section 579 WCRA^[1]provides:

“579Summary proceedings for offences other than against ch 8

3. (1)
   This section applies to a proceeding for an offence against this Act other than chapter 8.

(1A) A proceeding for an offence committed by an insurer against section 486B(2) is to be taken in a summary way under the Justices Act 1886 before an industrial magistrate on the complaint of—

1. (a)
   the Regulator; or

2. (b)
   a person authorised for the purpose by the Regulator; or

3. (c)
   the Attorney-General.

3. (2)
   A proceeding for an offence other than an offence against section 486B(2) is to be taken in a summary way under the Justices Act 1886 before an industrial magistrate on the complaint of—

1. (a)
   the Regulator or WorkCover; or

2. (b)
   a person authorised for the purpose by the Regulator or WorkCover; or

3. (c)
   the Attorney-General.

3. (3)
   A proceeding must start—

1. (a)
   within 1 year after the commission of the offence; or

2. (b)
   within 6 months after the commission of the offence comes to the knowledge of—

(i) for a proceeding mentioned in subsection (1A)—the Regulator; or

2. (ii)
   for a proceeding mentioned in subsection (2)—the Regulator WorkCover;

whichever is the later.

3. (4)
   All penalties recovered under a proceeding are to be paid—

1. (a)
   if a proceeding was brought by the Regulator—to the Regulator; or

2. (b)
   if a proceeding was brought by WorkCover—to WorkCover.

3. (5)
   A person aggrieved by a decision of the industrial magistrate in the proceeding may appeal against the decision to a District Court judge under the Justices Act 1886.” 

7. [7]
   Section 583 WCRA provides:

“583Evidence

3. (1)
   The Regulator may issue certificates for subsection (2).

3. (2)
   A certificate stating the following matters is evidence of the matters in any proceeding about anything arising under this Act—

1. (a)
   that commission of an offence against this Act came to the knowledge of the Regulator or delegate issuing the certificate on a specified date; 

3. (3)
   WorkCover’s chief executive officer may issue certificates for subsection (4).

3. (4)
   A certificate stating the following matters is evidence of the matters in any proceeding about anything arising under this Act—

…

(c) that 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. (5)
   A document purporting to be a certificate under this Act is admissible as the certificate it purports to be in any proceeding about anything arising under this Act.

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

1. (a)
   that the person making the complaint is authorised to do so; 

2. (b)
   that the matter of the complaint came to the knowledge of the complainant or the Regulator or WorkCover’s chief executive officer on a specified day.

8. [8]
   The Regulator referred to in those provisions is the Workers’ Compensation Regulator established under s 326(1) WCRA. By s 326(2) the Governor in Council may appoint a public service officer as the Regulator. The appellant is the Regulator. By s 326(4) the Regulator must act independently when making a decision under the Act. The functions of the Regulator include to conduct and defend proceedings under the WCRA before a court: s 327(1)(n).

9. [9]
   The Regulator may delegate a function or power under the Act to, relevantly, an appropriately qualified authorised person: s 329. The Regulator may, by instrument, appoint certain persons as an authorised person for the Regulator: s 330(1). Inspectors appointed under either the Industrial Relations Act 1999^[2]and the Work Health and Safety Act 2011 are taken to be authorised persons appointed by the Regulator: s333(2). Functions of authorised persons include to investigate contraventions of the WCRA and to assist in the prosecution of offences against the Act.

10. [10]
    WorkCover is established under the WCRA as a body corporate which may sue or be sued in its corporate name: ss 380 and 381. WorkCover’s functions include to perform functions conferred on it by the WCRA: s 383(1)(b).

11. [11]
    WorkCover is to have a chief executive officer: s 442(1). It is the duty of WorkCover’s chief executive officer, under the board of WorkCover, to manage WorkCover: s 443.

12. [12]
    Anything done in the name of, or for, WorkCover by its chief executive officer is taken to have been done by WorkCover: s 444. The chief executive officer’s powers may be delegated by the chief executive officer to an appropriately qualified WorkCover employee: s 445.

13. [13]
    The requirement for WorkCover to have a chief executive officer, the duty of the chief executive officer to manage WorkCover, the deeming of things done by the chief executive officer in the name of, or for, WorkCover as things having been done by WorkCover and the powers of delegation to an appropriately qualified WorkCover employee, were matters also established under the former WorkCover Queensland Act 1996: ss 399(1), 400, 401 and 402.

14. [14]
    Section 42(1) of the Justices Act 1886 provides:

“42Commencement of proceedings

1. (1)
   Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.” 

The subsequent amendment

15. [15]
    Four months after the hearing of the appeal, when the decision was reserved, the appellant filed a supplementary outline of submissions drawing the court’s attention to amendments to the WCRA made by the Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016^[3]and which commenced upon receiving assent on 8 September 2016. The amendments had been made subsequent to the hearing of the appeal and the reservation of the court’s judgment.

16. [16]
    Section 579 WCRA was amended so as to include offences against Ch 12, Pt 2 of the Act within a definition of “prescribed offence”. Each of the charges which were brought against the respondent alleged offences against Ch 12, Pt 2. By an amendment to s 579(1A) a proceeding for a prescribed offence is to be taken under the Justices Act 1886 on the complaint of the Regulator, a person authorised for the purpose by the Regulator, or the Attorney-General. By those amendments, the capacity for WorkCover to commence proceeding by complaint for offences of fraud was removed.

17. [17]
    The explanatory note to the provision in the amending Bill said:

“Clause 45 amends section 579(1A) to provide that proceedings for an offence committed under section 486B(2) and chapter 12, part 2 (fraud and false and misleading statements) are taken in a summary way before an industrial magistrate on the complaint of either the Workers’ Compensation Regulator, a person authorised for the purpose of the Workers’ Compensation Regulator, or the Attorney-General.

This change aligns with the requirement under section 536 of the Act for insurers to refer matters of suspected fraud and false and misleading statements to the Workers’ Compensation Regulator for investigation and potentially to commence a complaint.

The change is also in response to the Industrial Magistrates Court decision of Simon Blackwood v Colin Hinder and provides that where certain prosecutions for offences against the Act are to be, or have been, commenced by the Workers’ Compensation Regulator, only the knowledge of the Workers’ Compensation Regulator is relevant to the timeframe for commencing a fraud proceeding.”

18. [18]
    The amending Act also introduced a transitional provision for the amendment of s 579 into the WCRA. The new section, s 726, provides: 

“(1)New sections 578 and 579 apply to a proceeding for an offence committed before the commencement if a proceeding for the offence has not been finally dealt with before the commencement.

3. (2)
   If a proceeding for the offence has started, but has not been finally dealt with, before the commencement, the proceeding may be continued if it was started—

1. (a)
   by a person who may start the proceeding under new section 578 or 579; and

2. (b)
   within the period within which the person may bring a proceeding for the offence under new section 578 or 579.” 

19. [19]
    The appellant submits that because this appeal had not been determined prior to the commencement of those amendments, they apply to this matter.

20. [20]
    The respondent filed submissions in response in which it took no issue with the appellant having filed submissions. Rather, the respondent addressed the substance of the appellant’s supplementary submissions.

21. [21]
    The respondent did not concede that the explanatory notes to the Bill were relevant, because s 597(3) as it was worded at the relevant time, and as it had submitted in his primary submission, was clear in its meaning. The respondent submitted that “no extrinsic explanation was needed to ascertain the plain meaning of the section.” That submission, in asserting that the ordinary meaning of s 597(3) was clear, puts to one side any contrary contention that the provision was ambiguous or obscure. It also does not recognise that even if the provision is not ambiguous or obscure, and its ordinary meaning does not lead to a result that is manifestly absurd or unreasonable, consideration still may be given to the explanatory notes to confirm the interpretation conferred by the ordinary meaning.^[4]

22. [22]
    Notwithstanding that he did not concede the relevance of the explanatory notes, the respondent went on to address them. In his submission, the reference to the Magistrates Court decision in this matter as the “catalyst” for amending the legislation is confirmation that the interpretation for which he contended at first instance and on the appeal is correct.

23. [23]
    He submits that the transitional provision has no application because the “proceeding” referred to in the amended s 579 is the prosecution at first instance and that proceeding was dealt with on 23 November 2015 by the learned industrial magistrate. There was no relevant proceeding on foot as at the date of the amendment. He submits that the appeal is not such a proceeding. He refers to the absence of reference to appeals in general in the new provisions and to the absence of any reference to this particular appeal, presumably in the explanatory notes. He contends that such omission of any reference to appeals must be regarded as deliberate.

24. [24]
    The respondent referred to s 20C(2) of the Acts Interpretation Act 1954 which provides that if an Act makes an act or omission an offence, the act or omission is only an offence if committed after the Act commences. The respondent submits that “The effect of the amending Act is to create three prescribed offences in the WRCA s 579. By doing so, that section falls within the restrictions imposed by s 20C(2) of the AIA”.

25. [25]
    That submission is incorrect. The effect of the amendments to s 579 is not to create three prescribed offences. The effect is that various offences, already existing within the Act, are prescribed for the purposes of s 579. The amendments to s 579 create no offences at all. Section 579 in its previous and amended forms creates no offences. It is a procedural provision dealing with how proceedings for various offences otherwise created by the Act may be brought. Section 20C(2) of the AIA has no application.

26. [26]
    The respondent also refers to s 21 of the AIA in support of his submissions. Section 21 provides:

“(1)  If an Act repeals some or all of the provisions of an Act and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.”

27. [27]
    The respondent submits that s 21 “means that the former provisions relating to time in s 579 remain in force in the disposition of the matter at first instance”.

28. [28]
    Section 21 of the AIA also has no role to play in this matter. It simply preserves the operation of the former s 579 until the commencement of the amended s 579. However, if upon its commencement the amended s 579, upon its proper construction, has retrospective effect on an existing proceeding, s 21 AIA does not prevent that.

29. [29]
    The real issue is whether the amended s 579 has any application to this appeal. In my view, the respondent is correct in his contention that it does not.

30. [30]
    Section 579(5) WCRA provides that a person aggrieved by a decision of an industrial magistrate in the proceeding may appeal to this court under the Justices Act. Such an appeal is brought pursuant to s 222 of the Justices Act. Such an appeal is by way of rehearing: s 223.

31. [31]
    On an appeal by rehearing, the court must decide the rights of the parties in accordance with the law as it exists at the time of hearing the appeal.^[5]This was not a case in which there had been an amendment to the law between the date of the magistrate’s decision and the date of rehearing. The amendment occurred after the hearing when the court was reserved. In those circumstances, the law to be applied is, in my opinion, that which applied prior to the subsequent amendments.

32. [32]
    If I am wrong about that issue, I am of the opinion that the amendments do not apply in any event. As the respondent correctly submits, a “proceeding” referred to in s 726 WCRA is a proceeding for an offence before the Industrial Magistrates Court. Section 726(1) refers to “a proceeding for the offence (which) has not been finally dealt with before the commencement”. The relevant proceeding for an offence in respect of these matters was the proceeding before the Industrial Magistrate. That proceeding was finally dealt with by the learned magistrate’s order striking out the proceeding. That occurred on 23 November 2015; before the commencement of the amended provisions.

33. [33]
    Section 726(2) refers to “a proceeding for the offence which has been started, but has not been finally dealt with, before the commencement”. Again, there is no such proceeding here.

34. [34]
    This appeal proceeding is only brought, and could only be brought, because the Industrial Magistrate had finally dealt with the proceeding commenced in that court.

35. [35]
    The fact that the amended s 579 may, by operation of s 726, apply to the proceeding if the order striking it out is set aside is not to the point. What is to the point is that there is presently no proceeding to which either s 579 or 726 can apply. This appeal is not a proceeding for an offence able to be commenced under s 579 either in its pre-amendment or post-amendment form. Neither s 579 nor s 726 have any work to do in respect of this appeal proceeding.

36. [36]
    For these reasons, the law to be applied is that which was considered by the learned industrial magistrate in the proceeding at first instant.

The relevant facts

37. [37]
    On 15 August 2013 the respondent made an application for compensation under the WCRA. He claimed to have injured his back in the course of his employment on 6 July 2013.

38. [38]
    On 21 August 2013 the respondent’s employer emailed Mr Ben Leonard, a claim representative with WorkCover, requesting an investigation into the respondent’s claim for compensation because although the respondent was on the relevant project “no work related injury occurred to Colin”.

39. [39]
    On 5 September 2013 a work colleague of the respondent, Arthur Jones, provided a statement in which he said that on 8 July 2013 he was asked to escort the respondent to a medical centre. In what Mr Jones described as a brief conversation he recalled the respondent having informed him “that it may be his sciatica playing up”. Mr Jones suggested sitting on tennis balls. The respondent is said to have said that he had used a golf ball previously. Mr Jones collected the respondent from the medical centre. He recalled the respondent having told him that the medical centre had told the respondent that he could return to work, and that he would be OK and that it was not work related.

40. [40]
    On 9 October 2013 Dr Michael Weidmann, a neurosurgeon, examined the respondent. That had occurred at the request of Ms Tracy Duffy, a customer adviser within WorkCover. Dr Weidmann provided WorkCover with a report the same day in which he stated “Mr Hinder is otherwise in good general health and he denies any back injuries or symptoms in the past”.

41. [41]
    On 21 October 2013 Dr Peter Grant, a general practitioner, wrote to Tracy (apparently Tracy Duffy) of WorkCover enclosing copies of what were said to be all relevant imaging reports held on his electronic health records. These were provided in response to a telephone request, apparently made by Ms Duffy. Dr Grant noted several of the images were undertaken before the respondent’s report of the onset of low back pain as outlined in the workers’ compensation certificates, copies of which Dr Grant attached. Dr Grant observed that Ms Duffy would appreciate that those documents “are pivotal in deciding if liability exists and if the currently claimed impairment is temporary or permanent”. He suggested “any specialists obtained in relation to his present claim be read after considering these report [sic]”.

42. [42]
    The imaging reports provided by Dr Grant included one of an x-ray of the lumbosacral spine dated 29 March 2011 which recorded “past back injury when working with Toll Dnata when crushed between aircraft pallets”. There was no indication as to when that injury may have been suffered.

43. [43]
    Those records also included a referral letter from Dr Grant to Princess Alexandra Hospital Neurology and Neurosurgery dated 29 March 2011 in which he said that he had “referred Colin for early assessment of the L5-S1 disc prolapse causing bilateral thigh and knee pains worse on the left as well as left toe numbness. The pain has been present for four months whilst the toe has been numb for six weeks”.

44. [44]
    On 31 March 2014 Ms Duffy again referred the respondent to Dr Wiedmann. Dr Wiedmann examined and interviewed the respondent on 1 April 2014 and provided a report of that date. In it he referred to Ms Duffy having provided records from Dr Grant including the x-ray report of the lumbar spine dated 29 March 2011 and a CT scan of the lumbar spine dated 28 March 2011 which showed a left central disc protrusion at L5-S1. He noted that comparison with an MRI of the lumbar spine taken on 20 August 2013 showed no progression. He also referred to Dr Grant’s referral of the respondent to the Princess Alexandra Hospital and the reasons for that.

45. [45]
    Dr Wiedmann said:

“This new information indicates Mr Hinder’s pathology was all pre-existing and had been previously symptomatic. I asked him about this and he said he couldn’t remember.

On relooking at the incident work on 6 July 2013, the injury itself was of a very minor nature and there was no immediate back pain. His back pain began the following morning when he awoke. On reviewing the new information, it becomes highly likely that the incident at work may have been a very minor aggravating factor that may have caused a short term exacerbation of his symptoms. However he would not fulfil the definition of a significant aggravating factor. The progression of his symptoms was far more likely due to the underlying and ongoing degenerative condition. This is the usual natural history of this condition. His surgery was therefore undertaken for a pre-existing condition. Assessing his condition has been difficult because of his dishonesty.”

46. [46]
    The WorkCover Queensland Communications Report records a telephone conversation between Ms Duffy and the respondent on 3 April 2014 in which she advised the respondent of having received Dr Weidmann’s report. She records asking the respondent if he had ever been referred to the Princess Alexandra Hospital Neurology and Neurosurgery back in 2011 to which he is recorded as having replied that he could not remember. He was asked if he could remember having scans at that time and he is recorded as having responded that he may have had a scan. Ms Duffy records telling him that she had copies of the scan saying that he had disc prolapse at L5-S1 level impinging on his left S1 nerve root. She records asking him whether he recovered from this and that he advised that he must have.

47. [47]
    On 4 April 2014 Ms Duffy emailed Dr Peter Lucas. In the email Ms Duffy referred to the respondent having denied any back injuries in the past when first reviewed by Dr Weidmann on 9 October 2013. She said:

“In Dr Weidmann’s report dated 1 April 2014 in light of the new information^[6]he advised that the surgery was undertaken for a pre-existing condition and that Colin’s treatment to date has been adequate and that no further treatment or therapy is required. Any further treatment for his lumbar spine condition is because of the degenerative condition and is not the work related sustain [sic]  on the 6 July 2013.”

48. [48]
    Ms Duffy attached for Dr Lucas’ perusal the reports of Dr Weidmann, Dr Grant’s referral of the respondent to the Princess Alexandra Hospital and the x-ray and CT reports from 2011. The email then set out a series of questions and provided space for Dr Lucas to make his responses.

49. [49]
    Dr Lucas responded that he was not aware of the respondent’s extensive pre-existing condition which necessitated a referral to the Princess Alexandra Hospital in 2011. He was then asked:

“Given your previous report date [sic] 10^th October 2013 and your opinion that the treatment/surgery was all for the work related injury does the provided information change your opinion in respect of the extent of his work related injury?”

50. [50]
    Dr Lucas responded:

“Yes. I tend to agree with Dr Weidmann’s thoughts.”

51. [51]
    On 22 April 2014 Ms Duffy telephoned the respondent to discuss Dr Lucas’ report.^[7]The Verbal and Unsuccessful Communications Log records:

“Rang to discuss report from Dr Lucas.

Dr Lucas has agreed with Dr Weidmann’s comments that any ongoing issue now related to his pre-existing back condition.

Advised that based on this information his claim will now close as of the 25-04-14. Advised Colin of his right of review.”

52. [52]
    On 23 April 2014 Ms Duffy wrote to the respondent confirming the cessation of his claim.^[8]In it she said:

“As discussed with you on 22 April 2014, WorkCover Queensland has decided to stop your claim for the aggravation of your pre-existing condition, as you are no longer incapacitated for work or suffering the effects of this aggravation.”

53. [53]
    The Reason for Decision included the following:

“Based on the medical opinion of your treating specialist Dr Peter Lucas, an opinion of independent medical examiner DrMichael Weidmann:

I am now satisfied that any further treatment would now be treat the underlying pre-existing degenerative condition and not the aggravation sustained on 6 July 2013 and any ongoing incapacity is now due to your underlying degenerative condition.”

54. [54]
    On 24 April 2014 a “fraud report” form was submitted from the WorkCover Queensland website reporting an alleged fraud by the respondent. In it the following was said:

“Colin and Toni Hinder have submitted a compensation claim for Colin’s back injuries and have managed to get so far with this complaint. As a relative of Colin I would like to stay anonymous. But I can tell you that this injury has not occurred from Colin’s recent occupation in the mining industry.

This injury occurred many years ago as a personal injury. Myself and other family members have sat and listened to them speak about how this so-called payout is to fund a new project. They realised they wasted dad’s money and now want more.”

55. [55]
    On 27 May 2014 Ms Fiona Toppenberg, a senior prosecution consultant with WorkCover, wrote to the respondent’s GP, Dr Peter Grant, informing him that “WorkCover Queensland is in the process of investigating this claim to ensure the claimant’s compliance with their [sic] obligations under the Workers Compensation and Rehabilitation Act 2003”. She sought a full copy of Dr Grant’s file relating to the respondent to assist in that process. Dr Grant provided those records. They were apparently printed on 1 July 2014.

56. [56]
    On 1 September 2014 Ms Toppenberg wrote to Ms Melissa Obirst, a legal and policy officer with the Regulator in the following terms:

“Please find attached copy of the following for your consideration to prosecute:

• Overview and chronology (by 2).
• Statutory file S13AW086908.
• Communications report.

Should you require any further information please do not hesitate to contact me.”

57. [57]
    On 13 February 2015 Ms Obirst wrote to Dr Lucas informing him that the Regulator was investigating the respondent for alleged offences against the WCRA. She referred to the surgery performed by Dr Lucas under the claim on 11 November 2013. She asked Dr Lucas to assist with the Regulator’s investigation by answering certain questions; informing him that it was an offence not to provide information requested without a reasonable excuse.

58. [58]
    In the first of the questions asked of Dr Lucas it was said that WorkCover had provided him with a copy of Dr Grant’s records by facsimile on 4 April 2014. A copy of those records was attached to the 3 February 2015 letter “for ease of reference”. The letter went on to identify the following particular matters which were contained in Dr Grant’s records:

“(a)on 4 July 2008, Dr Grant noted in this records the worker had ‘six months back pain’ and ‘tender lumbar paravertebral muscles down to centre of lumbar spine’;

2. (b)
   on 12 February 2009, 2 March 2009 and 11 March 2009, DrJeffrey Ong issued a workers’ compensation medical certificate to the worker for ‘strained right knee and strained lumbar back’. The stated cause of injury was ‘pushing a four tonne pallet on a roller’ (the worker lodged a workers’ compensation claim for this injury);

3. (c)
   on 27 February 2009 Dr Grant noted in his records ‘Colin says he injured his left lumbar spine and knee two weeks ago at work at the airport for Toll Dnata with aggravation on Sunday and Monday’. Dr Grant further noted ‘tender over sacroiliac joint and right knee’;

4. (d)
   on March 2009, Dr Grant noted in his records the worker attended for ‘low back pain’;

5. (e)
   on 13 March 2009, Dr Grant noted in his records the worker stated his ‘back is still painful’;

6. (f)
   on 17 March 2009, Dr Grant issued a workers’ compensation medical certificate for ‘lumbar spine and right knee pain’;

7. (g)
   on 28 March 2011, Dr Grant noted in his records ‘recent CT shows L5-S1 disc prolapse, longstanding history of lower back pain and bilateral knee pains as well as numbness in L5 dermatome for years; past back injury when working with Toll Dnata when crushed between aircraft pallets’;

8. (h)
   on 28 March 2011, a CT cervical spine and lumbar spine by Dr Richard Budge shows ‘left central disc protrusion L5/S1 impinging on S1 nerve root’;

1. (i)
   on 29 March 2011, Dr Grant noted in his records the worker attended for a consultation. Dr Grant noted ‘letter written to Princess Alexandra Hospital re left L5-S1 prolapse’;

10. (j)
    an x-ray report by Dr Gregory Amos dated 29 March 2011 notes ‘early arthropathy seen at L4-L5 and L5-S1’.”

59. [59]
    Ms Obirst’s statement that Dr Lucas had been provided with Dr Grant’s records on 4 April 2014 was not correct. The email from Ms Duffy to Dr Lucas, as has already been observed, referred to having attached Dr Weidmann’s reports, Dr Grant’s referral of the respondent to the Princess Alexandra Hospital, the CT scan of 28March 2011 and the x-ray of 29 March 2011. Ms Duffy made no reference to having attached Dr Grant’s records.

60. [60]
    Furthermore, the complete records of Dr Grant had not been provided to WorkCover prior to WorkCover emailing Dr Lucas on 4 April 2014. Dr Grant had provided some limited records under cover of a letter dated 21 October 2013. Those documents, or some of them, were exhibited to the affidavit of Bartholomew Michael Lee filed 30September 2015.^[9]

61. [61]
    Dr Grant’s letter and its attachments appear to have been sent by facsimile at 09:52 on 21 October 2013. The facsimile refers to there being 13 pages of which only 7 appear exhibited to Mr Lee’s affidavit. However, what can reasonably be inferred is that the clinical notes of Dr Grant, which themselves comprised 17 pages by October 2013, had not been provided. Dr Grant’s letter of 21 October 2013 referred to having attached “a copy of all relevant imaging reports” and the workers’ compensation certificates. The documents exhibited to Mr Lee’s affidavit appear to be the imaging reports and the referral to the Princess Alexandra Hospital, but not the workers’ compensation certificates. The workers’ compensation certificates to which Dr Grant was referring, and which he attached, would appear to be those which he issued in respect of the respondent’s more recent claim to which the investigation related. This is evident from Dr Grant referring to the imaging reports including “several undertaken before Colin reports onset of low back pain as outlined in the workers’ compensation certificates (copies attached)”.

62. [62]
    The full medical records held by Dr Grant had not been provided to WorkCover until 1 July 2014. Those records were provided in response to the request from Ms Toppenberg dated 27 May 2014.

63. [63]
    From that, it can be deduced that the matters referred to in paragraphs (a) to (g), inclusive, as set out in the Regulator’s letter to Dr Lucas of 3 February 2016 would not have been previously provided to him on 4 April 2014. For reasons which will be developed later, that fact is of some relevance to the factual conclusions drawn by the learned magistrate.

The charges

Charge 1 on the complaint is that between 14 August 2013 and 26 April 2014 the respondent defrauded WorkCover. This charge relates to the obtaining of benefits by the respondent under his claim for compensation. The claim for compensation included a statement that he had not suffered any previous similar injuries or conditions.

64. [64]
    On 5 September the respondent had told a claims representative, Mr Ben Leonard, words to the effect that he “has had no previous back injuries”. The respondent had also denied to Dr Weidmann on 9 October 2013 that he had any back injuries or symptoms in the past.

65. [65]
    It is alleged that as a result of the respondent knowingly making dishonest representations to WorkCover and Dr Weedman, a detriment was caused to WorkCover by depriving it of the opportunity to make a properly informed decision based on all of the relevant information about whether to accept the claim and/or to continue to pay the respondent compensation. The respondent is alleged to have obtained a benefit by way of the compensation paid that he was not entitled to receive.

66. [66]
    Charge 2 is one under s 534(2) of stating false and misleading information. It relates to the statement made to Mr Leonard on 5 September 2013.

67. [67]
    Charge 3 is also one under s 534(2). It relates to the statement made to Dr Weidmann on 9 October 2013.

The contentions below

68. [68]
    Before the Industrial Magistrates Court the respondent, Mr Hinder, (who was the applicant below) had contended that on a proper construction of s 579(3) a proceeding for a relevant offence must be commenced within one year after the commission of the offence (which is not the case here) or within six months after the commission of the offence comes to the knowledge of either the Regulator or WorkCover. Once either the Regulator or WorkCover have that knowledge the proceeding must be commenced within six months; whether commenced by the Regulator or by WorkCover.

69. [69]
    Mr Hinder contended that the commission of the offence came to the knowledge of WorkCover, through Ms Duffy, in April 2014, and that the commencement of the proceeding on 28 May 2015 was outside the prescribed time.

70. [70]
    The Regulator had contended that s 579(3) required the proceeding to be commenced by either the Regulator or WorkCover within six months of the commission of the offence coming to their respective knowledge. That is, the proceeding could be commenced by the Regulator within six months of the commission of the offence coming to his knowledge, or by WorkCover within six months of the commission of the offence coming to its knowledge. The Regulator submitted that to construe the provision otherwise would lead to an absurdity because the time for bringing a complaint where the insurer was WorkCover would be shorter than where an employer was a self- insurer.

71. [71]
    In the alternative, the Regulator submitted that the words “whichever is the later” that appear at the end of s 579 apply to the knowledge of the Regulator and WorkCover, not as between s 579(3)(a) and (b). He contended that if knowledge of the commission of the offence was acquired by WorkCover, it was nonetheless acquired by the Regulator later; on 28 May 2015.

72. [72]
    The Regulator further submitted that the further evidence contained in Dr Lucas’ report received in April 2015 was required in order to be satisfied that there was knowledge of facts sufficient to establish a contravention of the WCRA.

73. [73]
    It was further submitted for the Regulator that in respect of the knowledge of WorkCover, it was the knowledge of the Chief Executive Officer of WorkCover, not of any other employee, which was relevant.

The decision below

74. [74]
    In finding in favour of Mr Hinder on his application and striking out the complaint, the learned magistrate said:

“The self-insurer, for example, can inform WorkCover or the regulator, and the Act is clear, and has been amended so that a particular office holder is not named. WorkCover is a corporation and the employees, servants or agents are – actions can be attributed to WorkCover. Therefore, –  my view is I find that communication to an employee of WorkCover such as Ms Duffy is the proper communication and can start – and a proper communication of knowledge, even if it is to an employee of WorkCover.

Most importantly, I do not accept the major submission that it is the knowledge of the entity which starts the proceedings which is contemplated by the legislation. If it needs to be said, the ordinary meaning of the legislation is that a proceeding must start either one year after the commission of the offence or an extended period of time, but limited to six months after the commission of the offence comes to the knowledge of the Regulator or WorkCover, whichever period is the later. That is, either the one year or the – an extended period if the – for example, if the knowledge – required knowledge – comes within the year, the proceeding can still be started within one year. It is not necessarily extended, but usually it would be.

I specifically find that the report of Dr Lucas in 2015 added nothing to the knowledge of WorkCover or to the body of knowledge about the behaviour of the respondent to the complaint. Section 579 of the Act provides, in subsection 2, for the – a number of entities or persons which can start proceedings. It can be any number of – any of the number of persons, including the Regulator and WorkCover, but also including a person authorised for the purpose by the Regulator or WorkCover, or the Attorney-General.

Section 579(3) clearly provides when the proceedings must start. Section 579(3)(b) speaks of a time limitation after knowledge is received, as a starting point. It does not refer to the knowledge received by entities in s 579, sub-paragraph (2) – entities who may start proceedings. It simply says when proceedings start. Clearly the meaning is that any of the entities mentioned in 579(2) can start a proceeding with – one year or within six months after the commission of the offence comes to the knowledge of either WorkCover or to the regulator. This is a precise definition. It is a machinery provision – provides a limited starting and end point, and for very good reasons.

Once there are reasonable grounds for believing an offence has been committed, it must then move forward in a manner – within a legislative framework – to be determined by the court, which will find whether or not, beyond reasonable doubt, there are or are not grounds. It does not mean that any entity who is allowed to start the proceedings has six months after coming into possession of knowledge to start a proceeding. It means, quite clearly, that proceedings must start once either WorkCover, through its servants or agents to whom the proper grounds are properly – knowledge that proper – of reasonable grounds are communicated to WorkCover – or to the regulator.

The consequences of the interpretation offered by the respondent to this applicant are not sensible. There could be delays where WorkCover fails to start a proceeding, or perhaps ask for a lot of reports once reasonable grounds are within its knowledge and fails to move forward. It may fail to inform the regulator, and a person may then, far too late, have to face a proceeding – a prosecution – because the entity has only recent knowledge. Another consequence is that, hypothetically, the Regulator or WorkCover may authorise another person to start a proceeding, and could be started, hypothetically, within six months of the authorised person coming into knowledge of the commission of the offence, whenever that may be.

The meaning of s 579, sub-paragraph (3), is plain. The proceeding must start within a year or within six months of a certain event. That is, knowledge by WorkCover or knowledge by regulator. In this matter, the chronology indicates that prior to 28 November 2014 WorkCover was in possession of sufficient facts to establish a contravention of the Act. An exposition of the facts are in DrWeidmann’s reports, which refer to dishonesty, and Dr Lucas’ report which, referred to his agreement with Dr Weidmann’s. The ordinary meaning of s 573 is that the time for starting a prosecution is the time – of six month – limited to six months after WorkCover – by its servants agents employees – has reasonable grounds for believing an offence has been committed, or the Regulator has that knowledge.

In this matter, WorkCover had the knowledge earlier than the regulator, and once that knowledge was within its possession, it – a prosecution could be started by any person authorised under s 579(2), but it had to be started within six months. In this case, therefore, the prosecution was started in April – in May 2015. It has not complied, as I have found, with s 579(3), and is out of time, and must be struck out.”

The grounds of appeal

75. [75]
    By his Notice of Appeal, the Regulator raised the following grounds:

“1.The Magistrate erred in striking out the complaint in that:

1. (i)
   her Honour’s finding regarding the ordinary meaning of the section was an error;

2. (ii)
   her Honour’s finding that the requisite level of knowledge of the commission of an offence was obtained prior to November 2014 was an error;

3. (iii)
   her Honour’s finding that the meaning of ‘WorkCover’ in s 579 of the Workers Compensation Rehabilitation Act 2003 (WCRA) included every employee of WorkCover was an error;

4. (iv)
   her Honour failed to take the context of s 579 of WCRA into account and did not properly apply the authority of Heley v Johnson [2013] QDC 345.

2. The Magistrate erred in awarding costs pursuant to s 158 of the Justices Act 1886 in that it was not proper for an order for costs to be made in this case taking into account all of the relevant circumstances.

3. The Magistrate erred in the exercise of her discretion to award costs in an amount higher than the scale allowed for in accordance with s 158B(2) of the Justices Act 1886 in that:

1. (i)
   her Honour erred in the reasoning and conclusion that the matter was one of ‘special difficulty, complexity or importance’, pursuant to s 158B(2) of the Justices Act 1886;

2. (ii)
   her Honour took irrelevant matters into account in finding that the case fell into that category;

3. (iii)
   her Honour could not have been satisfied on the evidence that the amount of $25,500 was just and reasonable.”

The parties’ contentions on the appeal

76. [76]
    The submissions advanced by each of the Regulator and Mr Hinder on the appeal were, essentially, those which they respectively advanced at first instance. One exception, however, was that the Regulator did not maintain the contention made below that the words “whichever is the later” at the end of s 579(3) refer to sub-paragraphs 579(3)(b)(i) and (ii), not s 579(3)(a) and (b). No written submission was made in the appeal to that effect, and on the hearing of the appeal counsel for the Regulator conceded that it “seems clear” that “whichever is the later” necessarily relates to s 579(3)(a) and (b).^[10]The concession was properly made. Those words must relate to the times limited by either S 579(3)(a) and s 579(3)(b).

77. [77]
    The Regulator maintained his contention that the ordinary meaning of s 579(3)(b)(ii), taken in its proper context, is that the knowledge of WorkCover is relevant only when it is the entity bringing the complaint, and that it is the Regulator’s knowledge that is relevant when it is the Regulator who brings the complaint. The Regulator maintained also his contention that the construction of s 579(3)(b) found by the learned Magistrate led to absurd and unintended results where self-insurers would be placed in a more advantageous position for their prosecutions than a fraud committed on WorkCover.

78. [78]
    The Regulator submitted that the learned Magistrate erred in finding that WorkCover had the requisite knowledge at a time six months prior to the complaint being brought. He contends, as he did at first instance, that the further evidence obtained “from DrLucas in April 2015 was required in order to be satisfied that there was ‘knowledge of the facts sufficient to establish Mr Hinder’s contravention of the WCRA’”. That test as to the requisite state of knowledge is taken from the judgment of the Court of Appeal in Cross Country Realty Pty Ltd & Ors v Peebles.^[11]The parties are in agreement that this is the relevant test. WorkCover never had that report. It was only obtained by the Regulator.

79. [79]
    The Regulator next submits that the learned Magistrate erred in finding that “WorkCover” as referred to in s 579(3)(b)(ii) is to be interpreted to mean any servant, agent or employee of WorkCover, rather than a particular class of person authorised to bring complaints. He submits that her Honour erred in her application of the judgment in Heley v Johnson.^[12]

80. [80]
    For Mr Hinder it is submitted that on a proper construction of s 579(3)(b)(ii) the six month time limit ran from the time at which the commission of offence came to the knowledge of either the Regulator or WorkCover. If WorkCover’s knowledge was gained prior to the Regulator having the requisite knowledge, the time limited for bringing the proceeding nonetheless ran from that earlier time at which WorkCover had the requisite knowledge.

81. [81]
    He contends that a contrary construction would lead to absurd results because a matter in which WorkCover gained the requisite knowledge could simply be ignored for years only to begin at a later time, but within six months of the Regulator gaining the requisite knowledge.

82. [82]
    Mr Maher, counsel for Mr Hinder, submits that the WCRA does not state that the relevant knowledge is that of a particular entity bringing the complaint. The time limit is imposed on the proceeding, not an entity. Reading the words “whichever is bringing the complaint” into s 579(3)(b)(ii) would alter and strain the plain meaning of the words which do appear.

83. [83]
    On that basis, it is submitted for Mr Hinder that in this matter the knowledge or otherwise of the Regulator is irrelevant because WorkCover had the requisite knowledge more than six months prior to the commencement of the proceeding.

84. [84]
    In examining the knowledge of WorkCover, Mr Hinder identifies that s 579(3) does not refer to the knowledge of the complainant. He submits that this is a critical difference between the language of s 579 and other provisions, such as s 589 of the Property Agents and Motor Dealers Act 2000 considered in Peebles. He further submits, citing a passage from the judgment of Campbell J in Smith v Baldwin; ex-parte Smith,^[13]that even where the statute refers to the knowledge of the complainant or a particular person, such as the chief executive officer, “knowledge by other officers is not ignored”. He submits that the “clear focus of s 579 is on the knowledge of WorkCover, by its servants or agents”.

85. [85]
    The submissions for Mr Hinder seek to distinguish Heley v Johnson on the basis that the wording in s 579 was different and, it is said, critically so. In that case, he submits, the enquiry was confined to the knowledge of the chief executive officer of WorkCover and his delegate, whereas “the enquiry in the present case is broader and includes relevant WorkCover employees”. The submissions do not identify which employees would be “relevant”.

86. [86]
    It was submitted for Mr Hinder that the unqualified reference to “WorkCover” could not be read down to mean a particular officer. It was further submitted that even if it could be, there was actual, demonstrable knowledge on the part of WorkCover which was said to rebut the presumption. It was contended that there was overwhelming evidence that WorkCover had reasonable grounds for believing that an offence had been committed well prior to 28 November 2014 (being the date six months prior to the commencement of the proceeding). It was said that “this submission does not depend upon constructive knowledge, but on actual knowledge confirmed by the evidence of Ben Leonard and Dr Weidmann, whose knowledge was particularised by the complainant in the complaint”.

87. [87]
    In respect of that last submission it should be observed that the complainant does not particularise any knowledge of either Ben Leonard or Dr Weidmann in the complaint. The complainant particularises statements made by Mr Hinder to each of Mr Leonard and Dr Weidmann. It is also particularised that Dr Weidmann provided a report dated 1 April 2014 which “did not conclude that his injury of 6 July 2013 was an ‘injury’ covered by the WCRA”. That is not a particularisation of any knowledge of DrWeidmann as to the commission of an offence by Mr Hinder.

88. [88]
    The respondent the refers to WorkCover’s establishment as a body corporate by s381 WCRA and the power of WorkCover’s chief executive officer to delegate under s 445.

89. [89]
    The respondent also referred to sections 392(3)(b)(ii) and (vi) of the WCRA submitting that those provisions “provide that WorkCover employees have the authority to exercise their powers and functions”. However, that is not what s 392 provides. That section provides certain protections for persons who deal with WorkCover. One of those protections is that a person who has dealings with WorkCover is entitled to make certain assumptions: s 392(1)(a). Those assumptions include that a person who is held out by WorkCover to be a WorkCover officer or agent of WorkCover has authority to exercise the powers and perform the functions customarily exercised or performed by an officer or agent of the kind concerned: s 392(3)(b)(ii). A WorkCover officer includes a WorkCover employee: s 392(6). Those provisions have no relevance to the issues for determination in these proceedings. There is nobody having dealings with WorkCover to be afforded the protection of that assumption.

90. [90]
    It is submitted for the respondent that “it is trite law that the ‘state of mind’ of an entity is coextensive with the state of mind of its employees”. Section769B(3) of the Corporations Act 2001 (Cth) is cited as authority for that submission on the basis that it provides that “to establish the state of mind of the body corporate, it is sufficient to show that an employee of the body corporate had that state of mind”.

91. [91]
    Section 769B(3) is not a provision of general application to all matters concerning corporations. It applies to a proceeding brought under Chapter 7 of the Corporations Act in respect of particular conduct engaged in by a body corporate. Chapter 7 deals with financial services and markets. It applies when it is necessary to establish the state of mind of the body. The proceeding before the Industrial Magistrate was not one under ch 7 of the Corporations Act in respect of conduct engaged in by WorkCover. Section 769B(3) is a provision entirely irrelevant to these matters. It is of no assistance to the respondent’s submissions. Its only relevance, perhaps, is to demonstrate that if a body corporate is to be fixed with the state of mind of its employees, a specific statutory provision to that effect may be required. There is no such provision in the WCRA.

92. [92]
    To any extent that the law is “trite” in respect of fixing a corporation with the knowledge of any person, it is that the corporation will not be fixed with the knowledge of such a person unless the person is the directing mind and will of the company. The corporation will be fixed with the person’s state of mind if the person is acting as the company, but not where the person is acting for the company. As Lord Reid explained in Tesco Supermarkets Ltd v Nattrass:^[14]

“I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company.”

93. [93]
    In Brambles Holdings Ltd v Carey^[15]Bright J said:

“Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company.”

94. [94]
    Section 444 WCRA can be seen as a statutory expression of that common law position in respect of anything done by the chief executive officer. The common law and the WCRA are both against the state of the law which the respondent’s submissions describe as “trite”.

95. [95]
    The respondent identifies a number of documents extracted from the files of WorkCover which he submits demonstrate WorkCover, through its employees, had the requisite knowledge of facts sufficient to establish contravention of the WCRA by, at the latest, 23 April 2014 when Ms Duffy and a Ms Janna Stephen signed the letter terminating his WorkCover payments. He then submits that, at the latest, the documents and statements relied on by the complainant were all within WorkCover’s actual knowledge, by its employees, by 1 July 2014. That date must be a reference to the provision of the full medical records of Dr Grant which were printed on 1 July 2014. He further submits that by the time of Dr Weidmann’s supplementary report on 1 April 2014, the facts relied on in the particulars of the complaint were within WorkCover’s actual knowledge.

The nature of the appeal

96. [96]
    The nature of an appeal under s 222 of the Justices Act, being an appeal of rehearing, is that the appellate powers of the court are to be exercised for correction of the error.^[16]The court is required to conduct a real review of the trial and the learned Magistrate’s reasons.^[17]In doing so, the court must give due deference to and attach a good deal of weight of the views of the learned Magistrate,^[18]but it remains for this court to draw its own conclusion on the evidence.

97. [97]
    In Fox v Percy [27] Gleeson CJ and Gummow and Kirby JJ observed:

If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”

98. [98]
    Further on, at [29] their Honours said:

“But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.”

Is the relevant knowledge that of whichever of the Regulator or WorkCover brings the proceeding?

99. [99]
    In my opinion, the Regulator’s contention that the relevant knowledge for the purposes of s 579(3)(b)(ii) is that of whichever of the Regulator or WorkCover brings the proceeding, should be rejected.

100. [100]
     The ordinary meaning of s 579(3)(b) WCRA is that a proceeding must be started within six months of the commission of the offence coming to the knowledge of either WorkCover or the Regulator. Each of the Regulator and WorkCover are conferred with the power to take such proceedings by making a complaint. Having conferred power on each of the Regulator and WorkCover to take the proceeding, the Act then requires such a proceeding to be commenced within six months of either having the requisite knowledge as to the commission of the offence to which the proceeding relates.

101. [101]
     Had the legislature intended the construction for which the Regulator contends, it could easily have achieved that by requiring the proceeding to be commenced within six months after the commission of the offence having come to the knowledge of “the complainant”. Having conferred power on each to be a complainant, then prescribing the date of the complainant gaining the requisite knowledge would have clearly established that it was the knowledge of whichever of the Regulator or WorkCover was exercising the power to commence the proceeding which was relevant. But that is not what was prescribed in s 579(3). Limiting the time for bringing a proceeding by reference to the time at which the commission of the offence comes to the knowledge of the complainant is the mechanism used in s 578 WCRA in respect of offences against ch 8 of the Act. That such a mechanism is not used in s 579(3), but is used in an adjacent provision, is further reason for concluding that a construction of the provision which would have that effect is not what was intended and is not to be preferred.

102. [102]
     I am also of the view that the Regulator’s submission that a construction which requires the proceeding to be commenced within six months of the commission of the offence coming to the knowledge of either WorkCover or the Regulator would lead to absurd results because the period during which a proceeding could be commenced would start run later in matters where the insurer was an employer who was a self-insurer as opposed to WorkCover, should be rejected.

103. [103]
     The legislature has conferred power upon three entities, the Regulator, WorkCover and the Attorney-General, to bring proceedings for offences committed against the Act. It has not conferred such power upon a self-insurer. The legislature has chosen to limit the time for bringing proceedings for an offence by reference to the time at which one or other of two of those entities, the Regulator or WorkCover, come to know of the commission of the offence. There is no absurdity in the legislature having provided that proceedings for offences under the WCRA to be governed in this way.

104. [104]
     Furthermore, on the construction contended for by the Regulator, the time for the commencement of a proceeding by the Attorney-General would remain uncertain. Whereas, if s 579(3)(b) is constructed to require the proceeding to be commenced within six months of the commission of the offence coming to the knowledge of either WorkCover or the Regulator, then the time within which the Attorney-General may commence such a proceeding will be clear and ascertainable.

105. [105]
     The proper construction of s 579(3)(b), in the form which it took at the relevant time, is that a proceeding was required to be commenced within 6 months of the commission of the offence coming to the knowledge of either of WorkCover or the Regulator.

Does the knowledge of WorkCover extend to that of its employees?

106. [106]
     In my opinion, the learned magistrate erred in finding that, for the purposes of s 579(3)(b)(ii), the knowledge of a WorkCover employee is taken to the WorkCover’s knowledge.

107. [107]
     In reaching that conclusion the learned magistrate said that, WorkCover being a corporation, the actions of its employees, servants and agents can be attributed to WorkCover. The same submission is made on the appeal that it is trite law that the state of mind of an entity is coextensive with the state of mind of its employees, citing s 769B(3) of the Corporations Act in support, as was made to her Honour. For the reasons already set out, that submission was not correct. However, her Honour appears to have accepted that submission.

108. [108]
     Counsel for Mr Hinder had also submitted to her Honour, as he also did on the appeal, that s 445 WCRA allows for delegation by the chief executive officer to employees. So much is uncontroversial. However, there was before her Honour no evidence of any such relevant delegation having been made by the chief executive officer in respect of the commencement of proceedings. Had there been such a delegation the state of knowledge of the person to whom the power had been delegated may have been of relevance.^[19]

109. [109]
     In my view, for the purpose of s 579(3)(b)(ii) the knowledge of the commission of the offence must be held by the chief executive officer of WorkCover (or his delegate) before time commences to run against the commencement of the proceeding for that offence for several reasons.

110. [110]
     First, s 583(3) permits the chief executive officer to issue certain certificates. Certainly that is a power which itself can be delegated by the chief executive officer. Section 583(4)(c) makes a certificate issued by the chief executive officer (or his delegate) stating that the commission of an offence against the Act came to the knowledge of the chief executive officer or delegate issuing the certificate on a specified day, evidence of that matter.

111. [111]
     In Ayres v WorkCover Queensland^[20]Williams P observed of s 196(4) of the Workers’ Compensation Act 1990 which required proceedings for an offence under that Act to be commenced within one year of the commission of the offence or within six months of its commission coming to the knowledge of the general manager of the Workers’ Compensation Board:

“That must be read with s 200(2)(c) which provides, in effect, that a certificate that the commission of an offence against the Act came to the knowledge of the general manager on a date specified in the certificate is evidence and, in the absence of evidence to the contrary, conclusive evidence of the matters contained in the certificate.”

112. [112]
     It had been argued that the knowledge referred to in s 196(4) was not actual knowledge, but constructive or imputed knowledge. In rejecting that argument, Williams P said:

“The legislature has very specifically provided in s 196(4) and 200(2) for the requisite knowledge to be that of the general manager. Of course, the general manager or chief executive officer could delegate that particular power.”

113. [113]
     Although s 579(3)(b)(ii) refers to the knowledge of WorkCover whereas s 196(4) of the Workers’ Compensation Act referred to the knowledge of the general manager, s 589(3)(b) must still be read with s 583(4)(c) which refers to the knowledge of the chief executive officer or his delegate. That is the relevant knowledge to be certified. That provision specifically refers to the knowledge of that person. On the construction asserted for Mr Hinder, s 583(4)(c) would become meaningless. The chief executive officer or his delegate could issue a certificate; but its content would be irrelevant.

114. [114]
     Williams P considered Smith v Baldwin; ex- parte Smith. His Honour considered that it was of some relevance. In Smith, the Full Court of the Supreme Court had concluded that knowledge of the commission of the offence for which the proceeding was brought was required to be held by the complainant. Williams P considered it significant that in the legislation which he was considering the reference was not to the complainant as such, but to a specific designated person, namely the general manager.

115. [115]
     The passage from Smith upon which the respondent relies was:

“In any event, there is not one jot of evidence to show that any person who may have been authorised under the Act to lay complaint either had knowledge, or had, or should have had, reasonable grounds to believe, prior to August 1, 1977, that the respondent had committed an offence. Consequently, whether or not there may be some situations where a person who lays a complaint should be deemed to have had the prior knowledge possessed by his servant or agent does not arise for consideration here.”

116. [116]
     That passage of the Judgment of Campbell J does not assist the respondent. First, it was an observation made after His Honour had clearly determined that it was the knowledge of the complainant which was relevant under the particular statutory provision. Secondly, the passage is not, as the respondent submits, authority for the proposition that even where the statute refers to the knowledge of the complainant, or a particular person such as the CEO, “knowledge by other officers is not ignored.” Campbell J did not state that there were some situations where the specific person may be deemed to have the knowledge possessed by another, but that the case before him was not such a situation. His Honour said that the question of whether or not there may be such situations did not arise for consideration. Expressly, the issue was not considered, let alone determined, such that is stood as authority that there may be such situations. But the respondent’s submission sought to take the passage even further and contended that the knowledge of others is relevant in all situations. His submission based on Smith is plainly wrong.

117. [117]
     A further reason for construing s 579(3)(b)(ii) as requiring the commission of the offence to be within the knowledge of the chief executive officer (or his delegate) is the way in which the proceeding must be commenced.

118. [118]
     Section 579(2) prescribes that the proceeding must be taken in the summary way under the Justices Act 1886 before an industrial magistrate on the complaint of the Regulator or WorkCover, or a person authorised for the purpose by the Regulator or WorkCover, or the Attorney-General. Section 42 of the Justices Act deals with the commencement of proceedings. It provides:

“Commencement of proceedings

3. (1)
   Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.

(1A)However, where a defendant is present at a proceeding and does not object, a further charge or an amended charge may be made against the defendant and be proceeded with although no complaint in writing has been made in respect thereof.

3. (2)
   Where a defendant has been arrested on any charge and no complaint in writing has been made and in a case to which subsection (1A) applies particulars of the charge against the defendant shall be entered on the bench charge sheet.”

As McGill DCJ pointed out in Bowman v Brown^[21]there is authority that a corporation, such as WorkCover, can be a complainant in its own name under the Justices Act. His Honour cited the judgment of the Full Court of the Supreme Court in Barcaldine v Spence^[22]. In that case, Philp J said in delivering the judgment of the court:

“Section 42 of the Justices Act requires proceedings to be commenced by a complaint and permits the ‘complainant’ to make and lay it in person or by his counsel or solicitor or other authorised agent.

A corporation could make a complaint under seal, but to do so, it may make and lay it by a solicitor or other agent.

As we have pointed out, by the common law a corporation may institute legal proceedings, but we see no reason to suppose that the legislature intended to confine the word ‘complainant’ to natural persons. The Council has given express statutory authority to sue in its own name and so prima facie may become a complainant. Section 42 permits a complainant to be laid ‘in person’ – a thing which a corporation cannot do – but it also permits a complainant to lay it by ‘his solicitor’. It seems to us that the legislature must have intended the word ‘his’ to include the word ‘its’ when the complainant is a corporation.” (original emphasis)

119. [119]
     The court concluded that, “generally speaking, a corporation may make and lay a complaint under the Justices Act by its solicitor”.

120. [120]
     Applying that reasoning, WorkCover can be a complainant in its own name under the Justices Act; but must make the complaint by a natural person, being its lawyer or other person authorised in that regard. By ss 443 and 444, the chief executive officer is authorised to make the complaint on behalf of WorkCover. Therefore, that it is the chief executive officer’s knowledge which is relevant under s 579(3)(b)(ii), and which is to be certified under s 583(4)(c), is consistent with the chief executive officer’s authority to make the complaint under both the WCRA and the Justices Act.^[23]

121. [121]
     In my view, a construction of s 579(3)(b)(ii) which requires the relevant knowledge to be that of the chief executive officer of WorkCover is also consistent with the legislative history of the provision.

122. [122]
     As originally enacted, s 579(2) provided that the proceeding for the offence was to be taken on the complaint of the chief executive officer of the authority or WorkCover,^[24]or a person authorised for the purpose by the chief executive officer of the authority or WorkCover,^[25]or the Attorney-General.^[26]The proceeding was required to be started within one year after the commission of the offence,^[27]or within six months after the commission of the offence came to the knowledge of the chief executive of the authority or WorkCover.

123. [123]
     The explanatory note to cl 579 of the Workers Compensation and Rehabilitation Bill 2003 reads:

“Clause 579 replaces s 525 of the WorkCover Queensland Act 1996 which specifies that offences (other than offences under chapter 8) are to be taken by way of complaint and summons before an industrial magistrate.

This clause modifies ss 525(2), (3) and (4) of the WorkCover Queensland Act 1996 to apply to both WorkCover and the authority.”

124. [124]
     Section 525(2) of the WorkCover Queensland Act 1996 immediately before its repeal by the WCRA provided that proceedings for an offence were to be taken in a summary way under the Justices Act before an industrial magistrate on the complaint of the chief executive officer or a person authorised for the purpose by the chief executive officer or the attorney-general. “Chief executive officer” was defined to mean the chief executive officer of WorkCover Queensland appointed under s 399 of that Act.^[28]By s 525(3)(b) the proceeding was to be commenced, relevantly, within six months after the commission of the offence came to the knowledge of the chief executive officer.

125. [125]
     Section 400 of the WorkCover Queensland Act was in identical terms to s 443 WCRA and required the chief executive officer, under the board, to manage WorkCover. Section 401, like s 444 WCRA, provided that anything done in the name of, or for, WorkCover by its chief executive officer was taken to have been done for WorkCover. Section 402, like s 445 WCRA, permitted the chief executive officer to delegate his powers to an appropriately qualified WorkCover employee.

126. [126]
     Section 529(1) permitted the chief executive officer to issue certain certificates. By s 529(2)(c) a certificate issued stating that the commission of an offence against the Act came to the knowledge of the chief executive officer or delegate issuing the certificate on a specified date was evidence of that matter. It was the analogue provision to s 583(4)(c) WCRA.

127. [127]
     From this it can be seen that at the time immediately before the repeal of the WorkCover Queensland Act 1996 the person authorised to commence the proceeding was the chief executive office of WorkCover, and that it was the chief executive officer’s knowledge of an offence having been committed which was relevant to the commencement of the limitation period for bringing the proceeding. It was his knowledge which was to be certified.

128. [128]
     The modifications to s 525 of the WorkCover Queensland Act which were to be made by the enactment of s 579 such that those provisions would “apply to both WorkCover and the authority”, relate to the establishment of the Workers’ Compensation Regulatory Authority under s 326 WCRA as originally enacted. The authority was also a body corporate;^[29]and was to have a chief executive officer,^[30]who was, under the board, to manage the authority.^[31]Anything done in the name of, or for, the authority by its chief executive officer was taken to have been done by the authority.^[32]

129. [129]
     Where s 579(2)(a), (b) and (3)(b) spoke of “the chief executive officer of the authority or WorkCover”, it was a reference to two natural persons: the chief executive officers of each of the authority and WorkCover. Formerly, it was only the chief executive officer of WorkCover who was so authorised under s 525 of the WorkCover Queensland Act. This extension of the power to commence proceedings to the chief executive officer of the authority, and the time in which to do so by reference to his state of knowledge, was reflected in s 583(1) and (2) which permitted the authority’s chief executive officer to issue certificates, including a certificate stating that the commission of an offence against the Act came to his knowledge, or that of his delegate issuing the certificate, on a specified date.^[33]

130. [130]
     By the Workers Compensation Rehabilitation and Other Legislation Amendment Act 2013^[34]the WCRA was amended to replace the Workers’ Compensation Regulatory Authority with the Workers’ Compensation Regulator. The Regulator was an office established under s 326(1) of the amended WCRA. The Regulator is to be a public service officer appointed as the Regulator by the Governor in Council.

131. [131]
     In s 579 the replacement of the authority with the Regulator was achieved by omitting the words “chief executive officer of the authority” where they appeared in each of s 579(1)(A)(2) and (3)(b), with the word “Regulator”. This amendment was made by s 102 of the Amendment Act. The explanatory note to cl 102 of the Workers Compensation and Rehabilitation and Other Legislation Amendment Bill 2013 read:

“Clause 102 amends s 579 to remove reference to the authority.”

132. [132]
     Similarly, s 583(1), (2)(a) and (2)(b) were amended “to remove references to the authority”.^[35]Notably, s 583(3) and (4), which provided for the issuing of evidentiary certificates by the chief executive officer of WorkCover, were unchanged.

133. [133]
     In s 579 the omission of the words “chief executive officer of the authority” and their replacement with the word “Regulator” had the effect of replacing one natural person with another. Insofar as this replaced the authority and reference to its chief executive officer with the Regulator, it achieved the legislative intent stated in the explanatory note. However, the words “chief executive officer” which were omitted, had previously qualified both “the authority or WorkCover”. Their omission resulted in a reference which was previously to the chief executive officer of WorkCover seemingly becoming a reference to WorkCover.

134. [134]
     By that omission, insofar as s 579 related to the commencement of proceedings it resulted, for the first time, in those proceedings being authorised to be commenced not by an natural person, namely the chief executive officer of WorkCover, but by the corporation itself. It also, for the first time, related the time limited for the commencement for proceeding not to the knowledge of a natural person; namely the chief executive officer of WorkCover, but purportedly to the knowledge of the corporation. There is no indication of any legislative intent to do so. The absence of any such legislative intention is apparent from the amending Act’s silence in respect of such an intention, the express intention being limited to replacing the authority and references to it with the Regulator. The explanatory note also discloses no such intention. The absence of such an intention is also apparent from the provisions dealing with evidence of knowledge of the relevant person, the chief executive officer of WorkCover or his delegate, remaining unchanged.

135. [135]
     For all of these reasons, the knowledge of WorkCover Queensland referred to in s 579(3)(b)(ii) WCRA is that of the chief executive officer of WorkCover, or his delegate authorised for the purpose of making a complaint about the commission of an offence against the Act.

136. [136]
     The learned magistrate erred in construing that provision such that it extends to the knowledge of any employee of WorkCover. The learned magistrate’s order striking out the complaint should be set aside on that basis.

Did an employee of WorkCover have the requisite knowledge?

137. [137]
     Although the finding already made is sufficient to dispose of the appeal, I should consider the next issue, whether an employee of WorkCover had the requisite knowledge, lest my construction of s 579(3)(b)(iii) be incorrect.

138. [138]
     In my opinion, the learned magistrate erred in concluding, as her Honour appears to have done, that Ms Duffy had the requisite knowledge; that is knowledge of facts sufficient to establish the respondent’s contravention of the Act. I do not consider that the matters to which the respondent points as establishing that knowledge do so.

139. [139]
     The respondent submits that the allegations relied on in the complaint, namely the misleading of Mr Leonard and Dr Weidman, were confirmed by 23 April 2013 when Ms Duffy and Ms Stephen signed a letter terminating his WorkCover payment. However, WorkCover’s knowledge of facts sufficient to establish the respondent’s alleged contraventions of ss 533 and 534 WCRA is not established upon knowledge being acquired of those persons having been misled. Those persons may have been misled because a false statement was made to each of them upon which they acted. However, the provision of false information, even if acted upon, does not constitute a contravention of either s 533 or s 534. Knowledge that Mr Leonard and Dr Weidmann had been misled does not amount to knowledge of facts sufficient to establish the relevant contraventions.

140. [140]
     For there to be a contravention of s 533 there must have been a defrauding of WorkCover, or an attempt to defraud it. The making of a false statement alone would not satisfy the elements of that offence. There is an element of dishonesty to fraud.^[36]In order to prove an offence against s 533 that element of dishonesty would have to be proven. The relevant knowledge of facts sufficient to establish that contravention would necessarily include knowledge of facts sufficient to establish dishonesty.

141. [141]
     The same is true for s 534. Making a statement which is false or misleading will not, of itself, contravene s 534. In order for there to be a contravention of s 534 the person must state something which the person knows to be false or misleading.

142. [142]
     Objectively establishing that the statement was false or misleading, or even that it was acted upon such that a person was misled, will not make out the offence. The subjective knowledge of the maker of the statement must also be established. A person will not have knowledge of facts sufficient to establish a contravention of the Act until such time as the person has knowledge of facts sufficient to establish that the maker of the statement knew it to be false and misleading.

143. [143]
     The respondent’s submission that the allegations relied on in the complaint are the misleading of Dr Leonard and Dr Weidmann is incorrect. For the reasons already explained, those allegations would be insufficient to establish any of the alleged contraventions. An examination of the particulars of each of the charges in the complaint makes that plain.

144. [144]
     In respect of charge 1, the complaint particularises, at paragraph (h), that the representations made by the respondent to each of Mr Leonard and Dr Weidmann were dishonest, and that the respondent knew them to be so “because he had previously suffered a similar injury, injuries or symptoms to his back prior to 6 July 2013”.

145. [145]
     The complaint further particularises that, at paragraphs (i) and (j), by alleging:

“(i)the defendant had sought medical attention for an injury to his back in 2008, 2009 and 2011 and had previously claimed workers’ compensation for a lower back injury in 2009;

10. (j)
    as a result of the defendant knowingly making dishonest representations to WorkCover and Dr Weidmann, a detriment was caused to WorkCover by depriving it the opportunity to make a properly informed decision based on all of the relevant information about whether to accept and/or continue to pay the defendant compensation.

146. [146]
     Therefore, the fact of injuries or symptoms suffered in 2008, 2009 and 2011 all form part of the basis upon which it is alleged that the respondent’s representations to MrLeonard and Dr Weidmann were knowingly dishonest.

147. [147]
     Similarly, in respect of charge 2 it is alleged at paragraph (f) of the particulars to that charge that:

“(f)the defendant knew the information he provided to MrLeonard was false or misleading in a material particular as he knew that he had suffered previous injuries to his back and did not disclose that information.”

148. [148]
     So too in respect of charge 3 it is said in respect of the respondent’s statement to DrWeidmann in the assessment conducted on 9 October 2013 in which he denied any back injuries or symptoms in the past, at paragraph (i) of the particulars;

“(i)the defendant knew the information provided to Dr Weidmann on 9 October 2013 to be false or misleading in a material particular as he knew he had suffered previous injuries to his back.”

149. [149]
     It is tolerably clear that the references to “injuries” in each is to those injuries alleged to have been suffered in 2008, 2009 and 2011.

150. [150]
     When Ms Duffy wrote to the respondent on 23 April 2014 informing him of the cessation of his claim, she did not have knowledge of the 2008 and 2009 injuries. In fact, there is no evidence that she ever had such knowledge. The material which had been obtained prior to that from Dr Grant in October 2013 was restricted to matters in 2011 and 2013. The x-ray report dated 23 March 2011 referred to a past back injury when working with Toll Dnata, but did not indicate a date. The past medical history set out in Dr Grant’s referral to the Princess Alexandra Hospital dated 29 March 2011 did not identify previous back injuries. There is no evidence that Ms Duffy had reference to any records of WorkCover in respect of any earlier claim. The WorkCover claim history in evidence was not produced until 23May 2014. The material relevant to the 2008 and 2009 injuries was only provided to WorkCover by Dr Grant on 1 July 2014. That information was not sought by MsDuffy, but by Ms Toppenberg; and not until 27 May 2014. It is clear from Ms Toppenberg’s letter that WorkCover was still investigating the respondent’s compliance with the Act at that time.

151. [151]
     WorkCover’s reasons for ceasing the respondent’s claim for compensation as communicated in the letter from Ms Duffy and Ms Stephen on 23 April 2014 did not include any allegation of contravention of the Act. It was ceased because it was a claim for an aggravation of a pre-existing condition and it was considered that the respondent was no longer incapacitated for work or suffering the effects of the aggravation, and that any further treatment would be to treat the pre-existing condition and not the work related aggravation injury. All of that implies that there had been compensable injury constituted by aggravation of a pre-existing condition.

152. [152]
     It was not until after the letter of cessation had been written that WorkCover received via its website a fraud report purportedly from a member of the respondent’s family alleging a fraudulent claim.

153. [153]
     Even following the cessation of the claim WorkCover, by another employee, Ms Evanna Paul, referred the respondent to Tersia De Wilzem of Kinetic Health, Loganholme for an examination and assessment of permanent impairment. That referral referred to the earlier back claim in February 2009 and enclosed a copy of that claim file. Given that the worker claim history report was also dated 23 May 2014, it would appear to have been generated by Ms Paul at that time and for that purpose. There is no evidence that anyone at WorkCover gave consideration to that 2009 claim at any earlier time. It did not refer to any injury sustained in 2008.

154. [154]
     The respondent’s submission that by the time of Dr Weidmann’s supplementary report on 1 April 2014 the facts relied on in the particulars of the complaint were within WorkCover’s actual knowledge also should be rejected. As already observed, those particulars include matters of which Dr Weidmann had not been informed, and which were not known by WorkCover at that date.

155. [155]
     The reference to the respondent’s “dishonesty” by Dr Weidmann in his report of 1April 2014 does not fix knowledge of facts relevant to dishonesty upon WorkCover. Her Honour’s reasons suggest that she considered it did. The comment by Dr Weidmann emerged from his having been provided the information from Dr Grant about the investigations performed in 2011. Dr Weidmann asked the respondent about that information and Dr Weidmann reported the respondent “said he couldn’t remember”. That is the statement upon which Dr Weidmann seems to have made his comment concerning the respondent’s dishonesty. That comment by Dr Weidmann based upon that statement by the respondent, which itself may have been accurate and honest at the time at which it was made by the respondent, would not be evidence of the fact of dishonesty which WorkCover would need to possess such that it had knowledge of facts sufficient to establish a contravention of the Act.

156. [156]
     Nor would the statement of Dr Lucas in his report of 4 April 2014 that he tended to agree with Dr Weidmann’s thoughts, even if that were a reference to his agreeing with Dr Weidmann’s opinion about the respondent’s dishonesty. But he was clearly not referring to that opinion as to dishonesty in any event. It is clear from the question to which he was responding in making that statement that he was agreeing with Dr Weidmann’s opinion that the surgery had been undertaken for the treatment of a pre-existing condition not a work related injury. If there is any doubt about that (which I do not consider there is) it is removed by Dr Lucas’ report of 5 April 2015 in which he explains that his statement that he agreed with Dr Weidmann’s comments “specifically relate to the fact that I genuinely agree that the surgery was indeed to treat his underlying longstanding concern which undoubtedly was aggravated by the incident in question”.

157. [157]
     The respondent further submits that the documents and statements relied on by the complainant were all within WorkCover’s actual knowledge by its employees by 1July 2014 at the latest. That would appear to be a reference to the date upon which Dr Grant’s further records, which included the information concerning the 2008 and 2009 injuries, were produced. However, the mere provision of those records to WorkCover would not fix it with the requisite knowledge. As the decision in Peebles makes clear, an examination of the records would be necessary before a view could be formed as to whether there was sufficient evidence to establish contravention of the Act. The evidence does not establish that any officer or employee of WorkCover gave such consideration to those records such as would give rise to the requisite knowledge before the material was sent to the Regulator by Ms Toppenberg on 1 September 2014.

158. [158]
     Further, the respondent’s submission that WorkCover had that actual knowledge “by its employees” implicitly accepts that such knowledge was not within any one employee. It is to be recalled that the learned industrial magistrate found that the requisite knowledge was within Ms Duffy in April 2014. It is not necessary to decide the point, but even if corporate knowledge of WorkCover extended to that of its employees, I would doubt that the corporation could be fixed with a state of knowledge that no one employee had on the basis of an accumulation of the knowledge of several employees.^[37]

159. [159]
     For these reasons, the learned magistrate erred in finding WorkCover had the requisite knowledge at any time.

160. [160]
     Further, in my view the learned magistrate erred in her specific finding “that the report of Dr Lucas in 2015 added nothing to the knowledge of WorkCover or to the body of knowledge behaviour of the respondent to the complainant”. It may be accepted that the report added nothing to the knowledge of WorkCover. It was not sought by, or provided to, WorkCover. The relevant point is that WorkCover never knew of the matters contained in that report; which were matters Relevant to any formation of a view that the charged offences, as particularised, had been committed.

161. [161]
     Importantly, the request for the report was accompanied by all of the records of DrGrant, including those related to the 2008 and 2009 injuries. Dr Lucas not had previously been provided with that information.

162. [162]
     In response to the question “In the circumstances, is it your opinion the worker’s pre-existing condition was symptomatic or asymptomatic prior to the work related event on 6 July 2013?” Dr Lucas said “In light of the evidence it would seem that he had the natural history of a degenerative lower back condition where there were instances of symptomatic concerns followed by periods where there were no symptoms”. (emphasis added)

163. [163]
     That response, quite clearly, was informed by the further evidence from Dr Grant’s records provided to Dr Lucas.

164. [164]
     Another question asked:

“If WorkCover had provided you with the records of Dr Peter Grant prior to the surgery of 11 November 2014, would you have recommended WorkCover pay for the surgery on the basis that he surgery was to treat the work related injury?”

165. [165]
     Dr Lucas’ response included:

“Thus in relation to your question I was distinctly under the impression on the basis of Dr Grant’s referral which did not reference any prior concerns and in consultation with Mr Hinder himself where he has reflected that there hasn’t been any concerns in the past and this was a new finding. I at that point did suggest that I felt that it was distinctly work related though I did make reference to the fact that there was a degenerative phenomenon within the disc at L5/S1 radiologically.

Finally, if indeed I had been aware of his prior history and that his leg pain was the same or near the same as he had in the past, then I would have reflected that this was an aggravation of an underlying degenerative phenomenon as opposed to a new disc protrusion of a work related nature complicating a degenerative phenomenon.”

166. [166]
     That response was quite clearly informed by the further information. Given that it was in response to an enquiry as to whether he would have recommended WorkCover pay for the surgery, that must have added to the Regulator’s knowledge of facts relevant to the complaint. Charge 1 alleges that the respondent received compensation for which he was not entitled.^[38]Charge 3 alleges that as a result of the false or misleading information provided by the respondent, which he knew to be false or misleading, WorkCover paid for the surgery on his back. Dr Lucas’ further report clearly informs those allegations which are vital to the charges.^[39]

167. [167]
     For those reasons, I am of the view that Dr Lucas’ report did add to the body of knowledge which the Regulator had in respect of these matters and informed the issue as to whether there was knowledge of facts sufficient to establish a contravention of the WCRA by the respondent.

168. [168]
     Importantly, WorkCover never had knowledge of those facts, by any of its employees. Without knowledge of them I would not conclude that either the Regulator or WorkCover had knowledge of facts sufficient to establish the contraventions as alleged in the complaint.

169. [169]
     For all of these reasons, the decision of the learned industrial magistrate ought be set aside.

Costs

170. [170]
     The final issue to be resolved on the appeal is that concerning the exercise of the learned industrial magistrate’s discretion to award costs, and in an amount higher than the scale allowed for in accordance with s 158B(2) of the Justices Act 1886.

171. [171]
     In my view, her Honour erred in the exercise of that discretion.^[40]In reaching her decision to award costs in amounts beyond the scale, her Honour said:

“The complaint is serious. If it proceeded, the defendant may have been sentenced to a term of imprisonment. That term of imprisonment may have been suspended or parole ordered if convicted. Even if a suspended sentence was imposed a conviction would be recorded if there was a term of imprisonment imposed. A conviction would significantly affect his life, his living and ways of living.”

172. [172]
     Having then satisfied herself as to the quantum of the costs being sought and that they were just and reasonable, her Honour then went on to say:

“The defendant, in 2015, having had his benefits ceased by WorkCover, found himself in the position, in May – the end of May, beginning of June 2015 – found himself in the position of having a serious charge made against him. Today, he’s in the position of having a serious charge withdrawn when there has not been a ventilation of the allegations when he has been charged, but there has not been no adjudication on the grounds of the charge against him when it well could have been, as I have found, at an earlier stage, and should have been if the Act was to – was complied with.

If the matter had proceeded as it should have, he would have been convicted or acquitted. That has not occurred. So in this case, I exercise my discretion to award costs, and I award costs on the amount sought on the higher scale for these reasons. It is an important matter. The prosecution must proceed in a timely way, and the machinery provisions of an Act relating to a penal matter must be – particularly in relation to a penal matter – must be complied with.

It is clear that significant work had to be done to establish the application, and I accept has been done by the legal representative to prepare, to enquire and to understand the basis of the complaint. The matter is one of public and general importance because a prosecution is involved. The preparation of the matter is complex, even if the eventual application on statutory interpretation was not particularly – a complex matter, in terms of understanding legislation and understanding the ordinary meaning of legislation.

The ordinary meaning, I have found, is that – it is an interpretation which the prosecution had not adopted in good faith, taking the view that the prosecution could be delayed beyond a time when WorkCover, or an employee of WorkCover, found out, or came into possession of knowledge about a matter. It is in the public interests, and is of general high importance, that prosecutions, as I have said, proceed in a timely manner so that the – a person charged can be dealt with on a plea of guilty or a plea of guilty – or a finding of not guilty.

This application is – departs from the ordinary case in that it is complex, in that fraud is alleged and it is an application to discontinue a serious allegation. I consider – and it is an important application. I consider – I take into account the impact on the defendant or, in particular – or the public generally – if the prosecution had proceeded, or other prosecutions proceed, without a check of this application or other – check of this application or the enquiry application or other applications, in that it is a – requires a focus on the facts and a marshalling of the facts behind the making of the complaint.

Unless I am wrong, other people will be affected by the decision, including the employees of WorkCover who, as I have found, have a duty cast on them to, if they have the required knowledge, to start a proceeding, or to refer it to a person within a relatively short period of time – six months. It is a point of law that it applies across the board – it’s likely to be raised again.”

173. [173]
     Her Honour appears to have determined to award costs, and to award them in the higher amount, on the basis that the complaint was serious for the reasons identified by her Honour. However, whilst it may be accepted that the complaint is serious, and the consequences for the respondent also serious if convicted, that is not a feature of itself warranting an award of costs, or one identifying any special difficulty, complexity or importance of the case.^[41]

174. [174]
     Nor is the fact that the proceedings were struck out on a procedural application, a matter which, of itself, would warrant an award of costs being made in favour of the respondent or, an award in a higher amount because of some special difficulty, complexity or importance of the case.

175. [175]
     Matters of importance which her Honour referred to seem to be that the prosecution did not “proceed in a timely way” as the period for bringing the complaint had not, on her Honour’s findings been complied with. That issue having been determined to the contrary on the appeal, that basis of importance as found by her Honour has been removed. In any event, I am not of the view that a failure to comply with the time limited for bringing a complaint is a matter which would elevate the importance of a case such that it would warrant the awarding of costs at a higher amount.

176. [176]
     The fact that the proceedings involved a prosecution also does not make the case one of such special difficulty, complexity or importance as to warrant a higher order of costs. The mere fact of a prosecution being involved does not render the matter one of public and general importance.

177. [177]
     Her Honour accepted that the preparation of the matter was complex even if its ultimate resolution was not. As these reasons on the appeal reflect, the matter is not without complexity. However, I am not of the view that it is of such complexity as to place it within a special category of cases in which costs at a higher amount ought be awarded.

178. [178]
     Her Honour’s suggestion that the interpretation adopted by the appellant was not done so in good faith is, with respect, misplaced. There is nothing in the evidence to establish, or even suggest, that the interpretation advanced by the appellant not was genuinely held, even if incorrect.

179. [179]
     So too the fact that fraud is alleged does not make the case, of itself, complex as her Honour appears to have found. Nor would I find that the application was important in the sense that her Honour found in that it has some impact on the public generally, or indeed on employees of WorkCover in the discharge of their duty. Of course, in this latter respect, the basis for her Honour’s view that the decision had some general effect on the employees of WorkCover has been removed by the decision on the appeal.

180. [180]
     For those reasons, I am of the view that her Honour erred in awarding costs in favour of the respondent and also in ordering those costs in an amount higher than that allowable under the scale.

Disposition

181. [181]
     The orders on the appeal are:

1. Appeal allowed.

2. Set aside the orders of the Brisbane Industrial Magistrates Court made on 23 November 2015.

3. Remit the matter to the Brisbane Industrial Magistrates Court to be determined according to law.