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Workers' Compensation Regulator v Roos[2022] QDC 150

Workers' Compensation Regulator v Roos[2022] QDC 150

DISTRICT COURT OF QUEENSLAND

CITATION:

Workers’ Compensation Regulator v Roos [2022] QDC 150

PARTIES:

WORKERS’ COMPENSATION REGULATOR

(Appellant)

v

KARA LOUISE ROOS

(Respondent)

FILE NO:

D9/21

DIVISION:

Appeal

PROCEEDING:

 

ORIGINATING COURT:

Hervey Bay

DELIVERED ON:

28 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2022

JUDGE:

Jarro DCJ

ORDER:

  1. 1.The appeal be allowed.
  2. 2.The order of the Magistrates Court made on 17 August 2021 be set aside.
  3. 3.The proceeding be remitted to the Magistrates Court for rehearing and determination according to law before a different Magistrate.
  4. 4.Unless either party applies for (or the parties otherwise agree to) a different costs order within 14 days of this judgment:
  1. (a)
    the respondent will pay the appellant’s costs of the appeal to be assessed on the standard basis;
  2. (b)
    an indemnity certificate pursuant to sections 15(2) and 16(1)(a) of the Appeal Costs Fund Act 1973 is granted to the respondent in respect of the costs of the appeal.

CATCHWORDS:

APPEAL – INDUSTRIAL MAGISTRATES COURT – WORKER COMPENSATION AND REHABILITATION – Whether the appellant has standing to appeal – whether the learned Magistrate erred in finding a no-case to answer of six charges – whether the respondent should be granted an indemnity certificate pursuant to s 15(2) and 16(1)(a) of the Appeal Costs Fund Act 1973

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003

Appeal Costs Fund Act 1973

Justice Act 1886

CASES:

Builders Licensing Board v Spurway Constructions (Syd) Pty Ltd (1976) 135 CLR 616

Walsh v Stephenson (1996) 68 IR 22

Du Preez v Chelden (2020) ICQ 8

Doney v The Queen (1990) 171 CLR 207

COUNSEL:

A Bain for the appellant

A Hoare for the respondent

SOLICITORS:

Workers’ Compensation Regulator for the appellant

I M Lawyers for the respondent

  1. [1]
    This appeal concerns a successful no-case submission advanced on behalf of the respondent below following a summary trial in the Magistrates Court at Hervey Bay on 16 and 17 August 2021, for six charges brought under the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”).  The appellant was charged with one offence under s 533, one offence under s 136 and four offences under s 534 of the Act.  After hearing from nine witnesses, a submission of a no-case to answer was successfully advanced on behalf of the respondent.  The appellant seeks to challenge that decision on four grounds, namely:
    1. (a)
      there was an error in the application of the relevant legal principles concerning no-case applications.
    2. (b)
      the conclusion reached as to the requisite “notice” under the Act was erroneously applied to all charges.
    3. (c)
      there was an error concerning the statutory onus placed on claimants to notify an insurer of an engagement in a calling under the Act.
    4. (d)
      there was an error in failing to take into account relevant evidence.
  2. [2]
    The appeal is resisted for two reasons.  The first is that the appellant has no right of an appeal from an acquittal and therefore the appeal is incompetent.  Secondly, the reasons and findings by the learned Magistrate do not disclose any legal, factual or discretionary error. 
  3. [3]
    The issues therefore in this appeal are twofold.  The first is whether the appellant has standing to appeal.  The second is whether the learned Magistrate erred in finding there was a no-case to answer in respect of the six charges. 
  4. [4]
    For the reasons to follow, the appellant has standing to appeal, and the appeal is allowed principally on the basis that the learned Magistrate erred in law and failed to take into account relevant evidence for the purposes of a no-case submission.  There was a miscarriage of the application of the law as it pertained to the facts. 

Does the appellant have standing to bring this appeal?

  1. [5]
    It was contended on behalf of the respondent that the appellant has no right of an appeal from an acquittal.  It was highlighted that an appeal is not a common law remedy but a statutory right.[1]  It is therefore necessary to consider the legislation that is said to create that right in the present case.  Here it was identified that the breaches of the Act were alleged to have been committed by the respondent on the premise that the prosecution alleged the respondent failed to notify under an engagement in a calling, made false or misleading statements, and committed fraud.[2]  It was said that the proceedings for prescribed offences are brought before an industrial magistrate in the summary way under the Justices Act 1886 (“JA”).  The right of appeal is found in s 579(5) of the Act which provides:

“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.

  1. [6]
    Thus the right of appeal is only afforded to a “person aggrieved”.  It was contended that the appellant is not a “person aggrieved” based on the authorities of Walsh v Stephenson[3] and Du Preez v Chelden[4] such that the appeal is incompetent.
  2. [7]
    The respondent highlighted that in Walsh v Stephenson, it was held that a “person aggrieved” did not include the prosecution.  This conclusion followed a close analysis of settled precedent being:
    1. (a)
      Referring to Deane J in Thompson v Mastertouch TV Service Pty Ltd (No. 3)[5]:
      1. There is a well-established and strong principle that:

“an appeal, as of right, from a judgment of acquittal pronounced by a superior court is not a recognised part of the appellant process in the administration of criminal justice”.[6]

  1. (ii)
    Deane J went on to describe the existence of such an appeal as “contrary to a fundamental principle of the common law”.  The principle is based in:

“the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction”.

  1. (iii)
    Deane J added that the principle applied:

“in respect of judgments of acquittal pronounced, after hearing on the merits, by a court of competent jurisdiction regardless of whether the judgment was pronounced after the verdict of a jury and regardless of whether the relevant issues were issues of fact or of law”.[7]

  1. (iv)
    The legislature may however depart from this principle, and accord such a right of further challenge.  But because of the possible drastic effect of an arguable departure from the principle, that is, that “double jeopardy [would be] at the whim of a disgruntled prosecutor even after acquittal in a trial on the merits”, legislation will not be considered apt to accord a right of appeal in such circumstances unless it uses “words that point clearly and unambiguously to that conclusion”.[8]
  1. (b)
    Referring to R v Tyrone County JJ,[9] a passage adopted by Deane J, “before you can appeal against an acquittal, the words must be clear, express and free from ambiguity”.[10]
  2. (c)
    By contrast, Deane J referred to the State provisions for review of decisions of justices, which he described as “the main departure from the principle of no appeal from a judgment of acquittal in the administration of criminal justice”,[11] and his Honour mentioned ss 209(1) and 222(1) of the JA.  Those provisions accord a right to secure a review upon a person “aggrieved as complainant, defendant or otherwise”.
  3. (d)
    In Cook v Southend Borough Council,[12] Woolf LJ referred to the need for “very clear statutory language to establish an exception to the general rule”.
  4. (e)
    In R v Keepers of the Peace and Justices of County of London[13], Lord Coleridge CJ stated:

“Is a person who cannot succeed in getting a conviction against another person ‘aggrieved’?  He may be annoyed at finding that what he thought is a breach of law is not a breach of law; but is he ‘aggrieved’ because some one is held not to have done wrong?  It is difficult to see that the section meant anything of that kind.  The section does not give an appeal to anybody but a person who is by the direct act of the magistrate ‘aggrieved’ – that is, who has had something done or determined against him by the magistrate.”

  1. [8]
    It was also highlighted on behalf of the respondent that in Du Preez v Chelden, Martin P considered the classes of appellants captured by a “person dissatisfied”.[14]  In that case the respondent accepted that a “person aggrieved” did not include the prosecution because the prosecution, unlike a defendant, is not someone to whom something has been done as a consequence of the decision.[15]  Martin P held:
    1. (a)
      The common law principle, that an acquittal on the merits cannot be questioned by another court, can only be abrogated by clear language.
    2. (b)
      If the term “comes within that category of description which allows alternative construction and where there are alternative constructions available that court held that which is consonant with common law is to be preferred”.
  2. [9]
    It was submitted on behalf of the respondent that the plain consequence of the authorities is that the appellant in the present instance is not a “aggrieved person” for the purpose of the Act, and therefore the appellant has no right of appeal.
  3. [10]
    As to the respondent’s reliance upon the authority of Du Preez v Chelden, the appellant submitted that the respondent’s argument does not take into account s 579(5) of the Act which refers to the right of appeal under the JA which makes specific provision for a complainant to appeal.  Further in Du Preez, the defendants were acquitted of charges for alleged breaches under the Mining and Quarrying Safety and Health Act 1999 and the appeal power was given under s 556 of the Industrial Relations Act 2016 in respect of breaches under that legislation.  Section 556 of the Industrial Relations Act 2016 only refers to a “person aggrieved” by a decision of a magistrate.  The difference in this case is that s 579(5) of the Act specifically states a person aggrieved may appeal under the JA.  It is the JA that then sets out that person aggrieved for the purposes of an appeal under the JA can be a complainant.  These matters were not present in Du Preez.
  4. [11]
    The appellant therefore relies upon s 579(5) of the Act together with s 222 of the JA to demonstrate his right to appeal, given he is the complainant and s 222 of the JA makes the express allowance for the appellant as complainant in the matter to appeal as a person aggrieved by a decision to the District Court.  Reliance was placed on s 4 of the JA defining an “order” to include:

“Any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a magistrate’s court and any refusal by a magistrate’s court to hear and determine any complaint or to entertain any application made to it, but does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as a magistrates court or to hear an examination of witnesses in relation to an indictable offence”.

  1. [12]
    It was submitted that the JA therefore expressly does not allow an appeal against a decision of a magistrate to dismiss a charge against an indictable offence but does not prohibit an appeal against a dismissal of a summary offence; whether that be by way of a finding of a no-case to answer or an acquittal.  Further, the power to appeal either a no- case decision, an acquittal or an appeal against sentence by this complainant in relation to a summary offence, is founded in s 222 of the JA; otherwise it would lead to an absurdity where the complainant would also not have standing to appeal a sentence imposed under the Act. 
  2. [13]
    The appellant has also placed reliance on the Explanatory Notes to s 579(5) which stated: “the clause provides that a decision of the industrial magistrate can only be appealed to a District Court judge.  This aligns the appeal rights of appellants for all summary offences under the Act, and for these types of offences (e.g. fraud) under other legislative regimes”.[16]
  3. [14]
    Even without the Explanatory Notes, it is my view that the appellant has standing to appeal.  That is because the statutory right is conferred under s 579(5) of the Act which in turn refers to the JA.[17]  It is a different situation to the authorities relied upon by the respondent of Walsh and Du Preez because they involved matters concerning other statutory rights not relevant in the present instance which do not clearly permit a complainant, who might otherwise be aggrieved, to appeal. 
  4. [15]
    Walsh involved a person charged under the Industrial Relations Act 1990 for a failure to pay wages under a State Award.  The complainant was an industrial inspector whose complaint was dismissed by an industrial magistrate.  Under s 118(3) of the Industrial Relations Act 1990, a “person aggrieved” by a decision of an Industrial Magistrate could appeal the decision to the Industrial Court.  The wording did not extend to “under the JA”, unlike s 579(5) of the Act.  Consistent with the authorities to which I was referred by Mr Hoare of counsel who appeared for the respondent, it was determined in Walsh that the general terms of s 118(3), in referring merely to the right of a “person aggrieved”, were inadequate to confer a right of appeal against the acquittal of a defendant in criminal proceedings.  In Walsh it was observed that Deane J in Thompson v Mastertouch TV Service Pty Ltd (No.3)[18] referred to the State provisions for review of decisions of justices (including acquittal after a hearing on the merits), and more relevantly ss 209(1) and 222(1) of the JA¸ and it was stated that “those provisions accord a right to secure a review upon a person ‘aggrieved as complainant, defendant or otherwise’.” 
  5. [16]
    Du Preez, like Walsh, considered a different statutory regime.  The statutory regime concerned breaches under the Mining and Quarrying Safety and Health Act 1999 which permitted a “person aggrieved” to appeal to the Industrial Court under the Industrial Relations Act 2016, as opposed to the JA which specifically permits “a complainant” as a “person aggrieved” by virtue of s 222 to appeal.  The wording of the statutory regime in Du Preez was insufficient to displace the principle that, when construing sections which are said to support a right of appeal against acquittal, wide or general words should be read down so as to avoid radical or substantial change to existing law in the absence of a clear contrary intention.[19]  Here there is, in my view, a clear contrary intention in the Act by reference to the JA which in turn permits the complainant, as an aggrieved, to appeal.   

Was there an error in finding there was a no-case to answer in respect of all six charges?

  1. [17]
    By amended complaint, the respondent was charged with the following:
    1. (a)
      a breach of s 533(1) of the Act said to have occurred between 26 April and 4 September 2019.
    2. (b)
      a breach of s 136 of the Act said to have occurred on or about 10 May 2019.
    3. (c)
      four breaches of s 534(2) of the Act said to have occurred on 6 June, 24 June, 1 August and 8 August 2019.
  2. [18]
    Sections 136, 533(1) and 534(2) of the Act are stated in these terms:

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

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

Maximum penalty—50 penalty units.

  1. (2)
    The notice must be given to the insurer.
  2. (3)
    The notice may be a certificate in the approved form of a doctor stating the worker’s capacity for work.

…

533 Offences involving fraud

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

Maximum penalty—500 penalty units or 5 years imprisonment.

534 False or misleading information or documents

…

  1. (2)
    A person must not state anything to the Regulator, WorkCover, a self-insurer or a registered person the person knows is false or misleading in a material particular.

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

  1. [19]
    The case against the respondent below was that on 22 January 2019 she lodged a claim for compensation for a physical injury she suffered while working as a corrective services officer.  The claim was accepted and was finalised on 31 January 2019.  Approximately three months’ later, a psychological injury manifested and a secondary claim was accepted. 
  2. [20]
    The prosecution alleged that throughout the period of both claims, the respondent operated a business as a real estate agent.  The case was particularised on the basis that the respondent failed to notify the insurer of her “engagement in a calling” as required under the statutory regime.  The live issue in the hearing, and ultimately the reason for the successful no-case submission, was that on 31 January 2019, the respondent told the insurer that she had an interest in a real estate business and “just worked as needed”.  This disclosure however, according to the prosecution, was only made in the course of a single conversation the respondent had with the insurer in the context of the physical injury claim.  It was submitted for the prosecution below that the respondent never notified of her “engagement in a calling” after the acceptance of the psychological injury.  Relevant to these charges and proof of any dishonest intent, the prosecution submitted that the respondent also misled the insurer and her treating doctor about her work status during the claim regarding the psychological injury.
  3. [21]
    In applying Doney v The Queen[20] the learned Magistrate formed the view on the basis of the evidence that in relation to all charges:

“the prosecution evidence is not sufficient to call upon the defendant to answer the charges and the charges are dismissed and the defendant is discharged”.[21]

  1. [22]
    His Honour placed particular emphasis on a conversation between the insurer and the respondent on 31 January 2019 where the respondent was asked by the insurer as to whether she had any other sources of employment or income.  The respondent said, “I am the owner of a real estate agency business.  I just work there as needed”.[22]  It seems this was instrumental in allowing the no-case submission.  During his Honour’s reasons, his Honour had regard to other evidence.  For instance, in relation to proof or otherwise of s 136 of the Act, his Honour said:

“To support the elements of that offence the prosecution called the following witnesses: …Derek Wright, Raema Allen, and Kylie Puller, who had appointed Converse Property Agents to sell properties on their behalf.  Prosecution also called Mark Hinds who is the surveillance operative who conducted surveillance of Ms Roos on Saturday, 10  August 2019, which reports, and the tape tendered to the court, purports that Ms Roos was conducting open house on that particular date.

In relation to the evidence of Mr Hinds, the surveillance operative, by itself it means nothing but when you combine that evidence with the evidence of the three property owners, in my view, the evidence does establish that a properly instructed jury could come to the conclusion that Ms Roos, during the periods that she held appointments to sell those houses for those witnesses, was engaged in a calling.  I say that because each of the witnesses, that being Wright, Allen and Puller, were, in my view, completely honest and independent witnesses who gave evidence that the defendant on at least a fortnightly basis held open house sessions for them and communications were with Ms Roos herself.

Having made that decision, I now have to determine whether Ms Roos gave the insurer notice that she was engaged in a calling within 10 business days in accordance with s 136.  The evidence given by the witnesses Lisa Gram and Jade Daddo has to be considered before that determination is made.  I consider that the relevant aspects of Ms Gram’s evidence is her evidence of an interview, or a telephone conversation with Ms Roos which commenced at 9.46am on the 31st of January 2019. 

At the commencement of that conversation Ms Gram read out the usual statement that officers of the complaint play prior to interviewing defendants, after which Ms Roos indicated she understood and agreed with that statement.  Following that the defendant’s contact details and banking details were checked and Ms Gram asked Ms Roos the following question, and I quote ‘do you have any employment/income?’ to which Ms Roos replied, and I quote, ‘I have my own business in real estate.  I just work as needed.”  The rest of the interview on that date in my view, is irrelevant to the issue I have to decide. 

The relevant aspects of Ms Daddo’s evidence is the next to be considered.  The first aspect is a recorded telephone conversation that was held between herself and Ms Roos which commenced at 3.22pm on the 1st of August 2019.  That really does not assist me and then I move onto a telephone conversation that commenced at 9.39 on the 8th of August 2019.  It is then Ms Daddo advises Ms Roos that she has 10 days to advise WorkCover she is working or engaged in a calling, before it can be considered an offence.  I’m not sure what the words ‘before it can be considered an offence’ means.  …

There is further evidence from Ms Daddo to the effect that any prior communications or investigations are available to an officer conducting further enquiries.  However, in her evidence she says that when conducting that interview she was not aware that Ms Roos had informed Ms Gram on the 31st of January 2019 that she had her own business in real estate and ‘I just work as needed”.  In regard to the defendant’s statutory obligation to give notice to the insurer under section 136 of the Act I am satisfied that the conversation with Ms Gram on the 31st of January 2019 was sufficient notice to the Department in accordance with section 136.

Does that now mean the defendant could not be convicted of offences before the court?  Certainly, in my view, count 2 must fail.  That is the count relating to failure to give notice.  It is also my view the same fate falls upon the five other charges.  I say that because the defendant, in my view, had no further onus to provide any further information than she did on the 31st of January 2019 unless, of course, she was required by the Department to supply that information.

It is also my view that the Department, having received such notice on the 31st of January 2019, should have taken immediate action to suspend payments until such time as further enquiries were made on behalf of the Department concerning Ms Roos and, of course, Ms Roos had the opportunity to answer those enquiries.  Those enquiries, of course, relate to her role in the Converse Property Group.  Had that occurred, payments would not have been made and it follows that no offences could have been committed. …”

  1. [23]
    The learned Magistrate took the view that charge 2 (the offence alleged under s 136 of the Act) must fail.  I note the offence date as alleged by the prosecution was on or about 10 May 2019 which obviously post-dated the conversation between the insurer and the respondent on 31 January 2019 and was after the time the psychological injury manifested and the secondary claim accepted.  His Honour’s view was that “the same fate falls upon the other five charges”.  Those charges however related to different alleged offences on different dates under s 533(1) (being for charge 1) and s 534(2) (being for charges 3, 4, 5 and 6).
  2. [24]
    On appeal both parties agreed that the determination of a no-case submission requires the prosecution case to be taken at its highest.[23]  In the context of a trial by jury, a directed verdict of not guilty can only be given if the prosecution case taken as its highest cannot support a verdict of guilty.[24]  The same approach should be adopted by magistrates hearing summary trials.[25]  The question to be decided is not whether the defendant ought to be convicted based on the evidence, but whether the defendant could lawfully be convicted.[26]
  3. [25]
    I am unable to discern from his Honour’s reasons consideration of other prosecution evidence relied upon to establish proof of charges 1, 3, 4, 5 and 6.  His Honour really only considered charge 2.  For example, regarding charge 1, the prosecution alleged the offence occurred between 26 April 2019 and 4 September 2019.  Taken at its highest, sufficient proof of that for the tribunal of fact to determine arises from a number of conversations between the respondent and the insurer on 26 June 2019, 1 August 2019, 8 August 2019 and 19 August 2019,[27] coupled with the respondent’s attendances at her general practitioners during that time,[28] and surveillance of the respondent on 10 August 2019 regarding her conduct at four open houses.
  4. [26]
    The learned Magistrate perhaps made reference to some of these matters, however his Honour did not consider all of the evidence relied upon by the prosecution to substantiate charge 1 for which the defendant could potentially be lawfully convicted.  The test to be applied upon a submission of a no-case to answer is whether there is evidence which, if accepted, would provide evidence of each element of the charge.  Even if the evidence is tenuous, it must be taken at its highest and the judge or magistrate should allow the matter to be tried by the tribunal of fact, because it is a matter for the tribunal of fact to consider in the course of deliberations.[29]
  5. [27]
    There was in my respectful view a miscarriage in the application of the principle enunciated in Doney. 
  6. [28]
    I accept the submission advanced on behalf of the appellant that the learned Magistrate was not seen to transparently apply the test in a practical way.  For example, no reference was made to the prosecution’s evidence and submissions and identifying some feature which rendered the case on each charge untenable at law.  It was highlighted on behalf of the appellant that when regard is had to the totality of the evidence, the ambiguous nature of the 31 January 2019 disclosure itself (that is what the respondent relayed to the insurer in the telephone call) and whether it could be said to reflect her actual employment status at any stage, an inference of dishonesty was open.  That inference ought to have been left to the tribunal of fact.  Here it was not considered.  The learned Magistrate did not take that body of evidence at its highest and, in doing so, erred in the practical application of the relevant principles concerning a no-case submission.
  7. [29]
    With the benefit of hindsight, perhaps the learned Magistrate ought to have dismissed the no-case submission and simply called upon the defendant and then, if so inclined, used the conversation taken between the respondent and the insurer on 31 January 2019 as determinative upon the requisite standard of proof.  That however did not occur in the current situation.  Technically, the evidence ought to have been taken at its highest such that ultimately the determination would have been made by the tribunal of fact.  I do accept in a situation such as this involving a summary hearing, the tribunal of fact is of course the magistrate however technically, all of the evidence should have been considered, together with submissions as to the veracity or otherwise of proof of the relevant charge or charges in order for the magistrate to come to a concluded view, beyond reasonable doubt.  It follows that grounds 1 and 4 of the appeal, as it relates to charge 1 on the amended complaint, have been made out and it is unnecessary for me to make observations regarding grounds 2 and 3 of the appeal.
  8. [30]
    The same reasoning applies with respect to proof of the charges alleged under s 534(2) of the Act.  There was other evidence which the learned Magistrate should have had regard to, and, it is not clear from his Honour’s reasons whether his Honour did so.  For example, with respect to charge 3, the offence is alleged to have occurred on 6 June 2019.  No reference was made to the respondent’s consultation with Dr Tokyo Swe, a general practitioner for the respondent who consulted with her on 6 June 2019.  No reference was made by his Honour regarding that consultation which, taken at its highest, could potentially demonstrate to the tribunal of fact the doctor was not aware in any way that the respondent had an interest in a real estate business or that the defendant had considered other employment options.  Dr Swe certified the defendant as unfit for any work.  The doctor had no knowledge of her working at the real estate business until a later date.  Such evidence could potentially be taken, at its highest, in combination with other evidence to establish charge 3 under s 534(2) of the Act.  That is not to say that the prosecution has proven, beyond reasonable doubt, charge 3 but the totality of the evidence, taken at its highest, ought to have been the subject of consideration by the tribunal of fact.  It is not apparent from the learned Magistrate’s reasons whether this evidence was considered when deciding an acceptance of a no-case submission with respect to charge 3.
  9. [31]
    Charge 4 concerns an alleged breach of s 534(2) of the Act having occurred on 24 June 2019. Whilst the learned Magistrate made reference to a conversation between the respondent and the insurer on 1 August 2019, the prosecution evidence to prove charge 4 related to a conversation between the respondent and the insurer on 24 June 2019.  The learned Magistrate did not consider this evidence for the determination of the no-case submission or if it had, it is no apparent from the learned Magistrate’s reasons whether this evidence was considered at all when deciding an acceptance of a no-case submission with respect to charge 4. [30]  As with charge 3, such evidence could potentially be taken, at its highest, in combination with other evidence to establish charge 4.  That is not to say that the prosecution has proven, beyond reasonable doubt, charge 4 but it ought to have been the subject of consideration by the tribunal of fact. 
  10. [32]
    Charge 5 concerns an alleged breach of s 534(2) of the Act having occurred on 1 August 2019.  Whilst the learned Magistrate made reference to the conversation between the respondent and insurer on 1 August 2019, his Honour was of the view that “that evidence does not assist me”.  No further explanation was given for its rejection.  Again, with respect, the entire evidence must be taken at its highest for determining a no-case submission.  Perhaps his Honour took the view with respect to lack of proof of charge 2, being an offence under s 136 of the Act, in order to influence a determination with respect to proof of charge 5, which concerns a different provision of the legislation, being of course a different offence, alleged to have occurred on a different date.  The learned Magistrate needed to have regard to the totality of the prosecution evidence regarding any ambiguous nature of any disclosure given by the respondent because the prosecution highlighted that an inference of dishonesty could be made on the facts.  The body of evidence at its highest must be considered and it seems to me the prosecution was deprived of the opportunity to have the evidence taken at its highest. 
  11. [33]
    The same reasoning applies to charge 6.  It is not unsurprising then that the submission was advanced on behalf of the appellant that charges 1 and 2 were contingent on the “notice” given in January 2019 as being insufficient to potentially discharge the defendant’s statutory obligation to notify the insurer of an engagement in a calling. Charges 3 to 6, however, were not.  It was submitted on behalf of the appellant, which I accept, that the learned Magistrate failed to assess s 534 separately from ss 533 or 136 offending.  Even if “the notice” provided in January 2019 was deemed sufficient by the tribunal of fact, the respondent could still be convicted of having misled those individuals in respect of a particular matter on those discrete occasions.  The true extent of her capacity to engage in work of any kind, and on one occasion earning a commission on the sale of a house, was relevant to the management of her stress claim.  I accept the submission advanced on behalf of the appellant that there was a failure to refer to parts of the evidence which supported the inferences contended by the prosecution. Principally, that evidence was:
    1. (a)
      The regular workers’ compensation medical certificates provided stating that the defendant had “no capacity to work” and the reliance WorkCover had on those documents;
    2. (b)
      The dishonest representations to WorkCover and her doctor, from which her knowledge and intent can be inferred;
    3. (c)
      The fact that Dr Swe, the medical practitioner who was regularly certifying her as unfit for any work, seeing her repeatedly in the context of a WorkCover claim, had no knowledge of her working at the real estate business until she was discovered;
    4. (d)
      Her attempt to distance and minimise her involvement in the business after being discovered;
    5. (e)
      The emails and oral evidence from clients regarding the regular contact and fortnightly open homes which were conducted by the defendant during the claim period; and
    6. (f)
      The social media evidence which demonstrated she was the sole point of contact for the business throughout the relevant period.
  12. [34]
    Taken at its highest, these matters could have led to proof of the relevant charges, even if the tribunal of fact viewed the evidence as tenuous.  That is a matter for the tribunal of fact to consider in evaluating the entire evidence.  
  13. [35]
    Therefore, I am satisfied that there has been a miscarriage in the application of the principle enunciated in Doney such that the matter should be remitted before a different Magistrate.  For completeness I should add that the matter should be remitted before a different Magistrate to consider all of the charges, including charge 2 in circumstances where despite the disclosure having been made by the respondent on 31 January 2019, the offending period is said to have related to a subsequent date being 10 May 2019.  There was potentially evidence led on behalf of the prosecution which, taken at its highest, could demonstrate proof of charge 2 and in any event is a matter which ought to have gone to the tribunal of fact.[31] 
  14. [36]
    On each charge, there was an incorrect application of the appropriate test to the facts.  It is not unsurprising in the circumstances as was submitted by the appellant that the learned Magistrate was not seen to transparently apply Doney in any practical way, for example, by referring to the prosecution’s submissions and identifying some feature which rendered the case on each charge untenable at law.  The matter is remitted. 
  15. [37]
    Mr Hoare of counsel, on behalf of the respondent, sought that the costs of the appeal be met by the Appeal Costs Fund in the event an error of law has been established.
  16. [38]
    I have determined that an error of law has been made by the learned Magistrate.  Section 15(2) of the Appeal Costs Fund Act 1973 provides that where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made on that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.  I consider the circumstances of this case such that it would be just and reasonable to compensate the successful appellant for his costs, although it would be inequitable for either party to bear the financial burden of the proper recourse to this Court.  As such a certificate should be granted in respect of the costs ordered on this appeal.  The effect of an indemnity certificate is set out in s 16 of the Appeal Costs Fund Act 1973.  In the circumstances I consider it an appropriate case to order that the respondent pay the appellant’s costs of this appeal, and that an indemnity certificate issue in her favour.

Order

  1. [39]
    The orders are therefore as follows:
    1. (a)
      The appeal be allowed.
    2. (b)
      The order of the Magistrates Court made on 17 August 2021 be set aside.
    3. (c)
      The proceeding be remitted to the Magistrates Court for rehearing and determination according to law before a different Magistrate.
    4. (d)
      Unless either party applies for (or the parties otherwise agree to) a different costs order within 14 days of this judgment:
      1. the respondent will pay the appellant’s costs of the appeal to be assessed on the standard basis;
      2. an indemnity certificate pursuant to sections 15(2) and 16(1)(a) of the Appeal Costs Fund Act 1973 is granted to the respondent in respect of the costs of the appeal.

Footnotes

[1] Builders Licensing Board v Spurway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 619.

[2]  Sections 136, 533 and 534 of the Act.

[3]  (1996) 68 IR 22.  This is a case which followed R v Keepers of Peace and Justice of County of London (1890) 25 QBD that held an appeal right granted to any person that “shall think himself aggrieved by…any order, conviction or judgment” did not include a prosecutor.

[4]  (2020) ICQ 8.

[5]  (1978) 38 FLR 397.

[6]  At 412.

[7]  At 402.

[8]  At 408.

[9]  (1906) 40 ILT 181 at 182.

[10] Thompson, 401.

[11]  At 404.

[12]  [1990] 2 WLR 61, 68.

[13]  (1890) 25 QBD 357, 361.

[14]  Section 234 of the Industrial Relations Act 2016.

[15]  At [30], applying Walsh v Stephenson (1996) 68 IR 22.

[16]  Workers Compensation and Rehabilitation and Other Acts Amendment Bill 2004, p27.

[17]  Section 579(5) of the Act states: “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”.  Section 222 of the JA permits a person who feels aggrieved by an order made by a justice in a summary way on a complaint for an offence to appeal to a District Court judge.  

[18]  (1978) 38 FLR 397, 404.

[19]  Martin P in Du Preez at [23] citing Smith v The Queen (1994) 181 CLR 338 at 346-347 per Mason CJ, Dawson, Gaudron and McHugh JJ.

[20]  (1990) 171 CLR 207.

[21]  Decision, T4, ll 35 – 37.

[22]  Decision, T3, l 34 – T4, l 2.

[23] R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220, [17].

[24] Doney v The Queen, supra.

[25] Goli v Blue 11 Pty Ltd [2018] QDC 108, [95].

[26] May v O'Sullivan [1955] HCA 38.

[27]  See T1-26, T1-28 and T1-30.

[28]  See for example Exhibit 1 from pages 88 onwards.

[29]  See for instance R v Galbraith [1981] 1 WLR 1039.

[30]  T1-26.

[31]  See for example Exhibit 1, pp 88 and following and pp 4 and 5.

Close

Editorial Notes

  • Published Case Name:

    Workers' Compensation Regulator v Roos

  • Shortened Case Name:

    Workers' Compensation Regulator v Roos

  • MNC:

    [2022] QDC 150

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    28 Jun 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
2 citations
Jump To
Cite 1 - (1976) 135 CLR 616
Cite 2 - (1976) 135 CLR 616
Cook v Southend Borough Council [1990] 2 WLR 61
1 citation
Jump To
Cite 1 - [1990] 2 WLR 61
Doney v The Queen (1990) 171 CLR 207
2 citations
Jump To
Cite 1 - (1990) 171 CLR 207
Cite 2 - (1990) 171 CLR 207
Du Preez v Chelden [2020] ICQ 8
2 citations
Jump To
Cite 1 - [2020] ICQ 8
Cite 2 - [2020] ICQ 8
Goli v Blue 11 Pty Ltd [2018] QDC 108
1 citation
Jump To
Cite 1 - [2018] QDC 108
May v O'Sullivan [1955] HCA 38
1 citation
Jump To
Cite 1 - [1955] HCA 38
R v Galbraith (1981) 1 WLR 1039
1 citation
Jump To
Cite 1 - (1981) 1 WLR 1039
R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220
1 citation
Jump To
Cite 1 - [2016] QSC 220
R v Keepers (1906) 40 ILT 181
1 citation
Jump To
Cite 1 - (1906) 40 ILT 181
Smith v The Queen (1994) 181 CLR 338
1 citation
Jump To
Cite 1 - (1994) 181 CLR 338
The Queen v The Keepers of the Peace and Justices of the County of London (1890) 25 QBD 357
2 citations
Jump To
Cite 1 - (1890) 25 QBD 357
Cite 2 - (1890) 25 QBD 357
Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397
8 citations
Jump To
Cite 1 - (1978) 38 FLR 397
Cite 2 - (1978) 38 FLR 397
Cite 3 - (1978) 38 FLR 397
Cite 4 - (1978) 38 FLR 397
Cite 5 - (1978) 38 FLR 397
Cite 6 - (1978) 38 FLR 397
Cite 7 - (1978) 38 FLR 397
Cite 8 - (1978) 38 FLR 397
Walsh v Stephenson (1996) 68 IR 22
3 citations
Jump To
Cite 1 - (1996) 68 IR 22
Cite 2 - (1996) 68 IR 22
Cite 3 - (1996) 68 IR 22

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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