Dance v Jemeas Pty Ltd [2019] QSC 256 [2019] 44 QLR

SUPREME COURT OF QUEENSLAND CITATION: Dance v Jemeas Pty Ltd [2019] QSC 256 PARTIES: ROBIN AARON DANCE (plaintiff/respondent) v JEMEAS PTY LTD (defendant/applicant) FILE NO/S: 256 of 2018 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 15 October 2019 DELIVERED AT: Rockhampton HEARING DATE: 14 October 2019 JUDGE: Crow J ORDER: Application dismissed. CATCHWORDS: PROCEDURE – STATE AND TERRITORY COURTS – GENERALLY – where plaintiff alleges injury during the course of his employment – where trial is listed to commence next week – where defendant alleges the plaintiff has failed to disclose prior history of low back pains and consequently has engaged in false and misleading statements – where defendant applies to adjourn the trial until the Workers’ Compensation Prosecution Unit has made a decision whether to prosecute the plaintiff in criminal proceedings – whether the trial should be adjourned Uniform Civil Procedure Rules 1999 (Qld) r 467(4) Workers’ Compensation & Rehabilitation Act 2003 (Qld) s 536, 533, 534, 537 Hamilton Island Enterprises Ltd & Anor v Johnston [2010] QSC 38 Brooks v Ticor Chemical Company Pty Ltd [2003] 2 Qd R 117 COUNSEL: R Perry QC and J Sorbello for the plaintiff/respondent R Morton defendant/applicant -- 1 of 9 -- 2 SOLICITORS: Morton & Morton for the plaintiff/respondent Hall & Wilcox for the defendant/applicant [1] The applicant/defendant, Jemeas Pty Ltd (‘Jemeas’), applies to adjourn the trial listed to commence next Tuesday 22 October 2019. The plaintiff, Mr Dance, opposes the application. [2] Mr Dance is currently 44 years of age having been born on 5 May 1976. He is a baker by trade and alleges that in the course of his employment with Jemeas on 1 November 2016, he suffered an injury to his back lifting a large aluminium bowl containing sausage roll filling weighing approximately 45.2kg. Mr Dance pleads a substantial claim in damages particularised at $872,511 as resulting from that injury. [3] Yesterday, 14 October 2019, Jemeas was successful in seeking leave to further amend the amended defence essentially to put in issue the nature and extent of any injury sustained on 1 November 2016. [4] Further, by amendments to paragraphs 7A and 7B of the statement of claim, Jemeas seeks to run a case that Mr Dance has been deliberately dishonest in failing to disclose a 13- year history of low back and hip pain. As leave has been granted to make the amendments, the case is to proceed upon those issues, in particular, the nature and extent of any injury sustained on 1 November 2016 having regard to Mr Dance’s prior history of low back and hip pain. Such issues are not uncommonly litigated. Importantly, however, pursuant to paragraphs 7A and 7B of the amendments, Jemeas alleges that by Mr Dance failing to disclose his prior history of low back pains, he has engaged in false and misleading statements. Again, an attack on the plaintiff’s credit is a routine matter in a personal injury claim. [5] On 4 April 2019, the parties signed a request for trial date in which both parties estimated the length of trial of two days. The plaintiff sought a preference for a listing of the trial in the week of 10 June 2019 and the defence sought a preference for a listing in the weeks commencing 13 May, 20 May, or 27 May 2019. The certificate contained the usual certifications, namely, that proceedings is ready for trial within the meaning of Uniform Civil Procedure Rules 1999 (Qld) r 467(4) and all necessary steps to proceedings are complete. [6] Furthermore on 4 April 2019, an application was filed for directions for expert evidence with orders being made by consent on 23 May 2019. Having received the request for trial date, the registry sent a notice of trial on 15 April 2019. The civil trial was set down to commence in the sittings at the Rockhampton Supreme Court in June 2019 and “not before 10 June 2019”. [7] On 28 May 2019, Jemeas filed an application seeking an adjournment of the trial date from 10 June 2019 “until such time as the Office of Industrial Relations, Workers’ Compensation Prosecution Unit has made a decision regarding the referral of the plaintiff’s claim under s.536 of the Workers’ Compensation & Rehabilitation Act 2003 (Qld).” -- 2 of 9 -- 3 [8] A further order was sought that if the decision was made by that office to prosecute, the civil matter be stayed until the criminal proceedings were finalised. Application was heard in the Supreme Court at Brisbane on 30 May 2019. The application was supported by a comprehensive affidavit of Ms Elizabetta Sorbello. [9] The difficulty in this matter is well explained by paragraphs 32 to 34 of Ms Sorbello’s affidavit filed 28 May 2019. They are as follows: “32. Under cover of letter dated 4 April 2019, and received by post on 8 April 2019, the plaintiff solicitor advised that the plaintiff has not received treatment from a chiropractor in relation to this injury. Our client’s best recollection is that he last saw a chiropractor over 10 years ago. Exhibited to my affidavit and marked ES24 is a true copy of this correspondence. 33. A notice of trial was issued by the court on 15 April 2019. Exhibited to my affidavit and marked ES25 is a true copy of this notice. “34. On 14 May 2019, the plaintiff solicitor sent a letter in which it was detailed that our client now recollects [sic] that he may have received chiropractic treatment in 2016 from Harwood Chiropractic, 8/53 Torquay Road, Pialba, Hervey Bay Q 4655 Tel 4124 2828. Exhibited to my affidavit and marked ES26 is a true copy of this letter.” [10] Acting most efficiently, Ms Sorbello wrote to Harwood Chiropractic on 15 May 2019, received a copy of the records on 16 May 2019, and examined them to find that Mr Dance had in fact attended a chiropractor on 43 occasions between 23 December 2013 and 21 October 2016 relating to lower back and hip pain. Ms Sorbello, properly, had the chiropractic record reviewed by Dr Ivers, orthopaedic surgeon, on 23 May 2019 which caused a significant alteration to Dr Ivers’ opinion. [11] On 21 May 2019, Ms Sorbello was informed by WorkCover that the matter was being referred to the Regulator, pursuant to s 536 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) on the basis of possible false and misleading statements and suspicion of fraud being made by the plaintiff in light of the receipt of the Harwood Chiropractic records. As a result of the late disclosure by Mr Dance of his prior history of low back pain, the trial set for June 2019 was, on the Jemeas’ application, adjourned to the sittings commencing 21 October 2019. The trial was adjourned to allow the prosecution office to determine whether it wished to proceed with the prosecution. It is now one week shy of five months since 21 May 2019, however a decision to prosecute or not, has not yet been made. [12] On 4 October 2019, Jemeas filed an application seeking leave to amend its amended defence. That application was almost entirely successful. Jemeas also sought a further adjournment of the trial “until such time as the Office of Industrial Relations, Workers’ Compensation Prosecution Unit has made a decision regarding the referral of the -- 3 of 9 -- 4 plaintiff’s claim under s.536 of the Workers’ Compensation & Rehabilitation Act 2003 (Qld).” [13] The application was supported by a further comprehensive affidavit of Ms Sorbello filed 8 October 2019. In summary, the affidavit shows that from the defendant’s point of view, Ms Sorbello has undertaken every possible step in a timely manner to have the matter proceed to trial. The only matter outstanding is the decision of the Workers’ Compensation Prosecution Unit as to whether or not they elect to charge Mr Dance with any offences. [14] By Exhibit ES51 to the affidavit of Elizabetta Sorbello filed 28 May 2019, the letter of the Workers’ Compensation Prosecution Unit of 27 September 2019, Mr Dance was asked whether he wishes to attend a record of interview, and the letter advises Mr Dance that it has been alleged he has defrauded the insurer, provided false and misleading information in relation to his claim and that “[s]hould you choose to attend the Record of Interview, any information you provide will be taken into account. Please also be aware that this information may form part of the evidence if the matter proceeds to a prosecution. You are encouraged to bring a support person with you to the interview, including a legal or union representative.” [15] An affidavit of Ms Daisy Whyte filed by leave at the application shows that by 11 October 2019, Mr Dance had not taken up the opportunity to participate in a formal record of interview. In paragraph 11 of her affidavit filed 8 October 2019, Ms Sorbello deposes: “On 2 October 2019 I spoke with Simona McIlroy, Legal Officer from the Workers Compensation Prosecution Unit. She informed me that if a decision is made to charge the plaintiff with any offences that any associated complaint will be filed by the end of November 2019.” [16] Accordingly, despite being informed of the possibility of fraud, and no doubt the pending trial date set, the Workers’ Compensation Prosecution unit has not, in approximately 5 months, been able to make a decision whether it will prosecute Mr Dance or not. [17] Section 533 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides: 533 Offences involving fraud (1) A person must not in any way defraud or attempt to defraud an insurer. Maximum penalty—500 penalty units or 5 years imprisonment. (2) If conduct that constitutes an offence defined in subsection (1) is recurrent so that, but for this subsection, each instance of the conduct would constitute a separate offence, 2 or more instances of the conduct are to be taken to constitute but 1 offence committed over a period specified in the complaint laid in relation to the conduct, and may be charged and be dealt with on 1 complaint. [18] Section 534 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides: -- 4 of 9 -- 5 534 False or misleading information or documents (1) This section applies to a statement made or document given— (a) to the Regulator or WorkCover for the purpose of its functions under this Act; or (b) to an entity or person as a self-insurer; or (c) to a registered person for the purpose of an application for compensation or a claim for damages. (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. (3) A person must not give the Regulator, WorkCover, a self-insurer or a registered person a document containing information the person knows is false or misleading in a material particular. Maximum penalty—150 penalty units or 1 year’s imprisonment. (4) Subsection (3) does not apply to a person who, when giving the document— (a) informs the Regulator, WorkCover, the self-insurer or the registered person, to the best of the person’s ability, how it is false or misleading; and (b) gives the correct information to the Regulator, WorkCover, the self-insurer or the registered person, if the person has, or can reasonably obtain, the correct information. (5) It is enough for a complaint against a person for an offence against subsection (2) or (3) to state the information or document was false or misleading to the person’s knowledge, without specifying which. [19] Section 537 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides: 537 Fraud and related offences end entitlement to compensation and damages (1) This section applies if a person is convicted of any of the following offences committed against an insurer in relation to an application for compensation or a claim for damages— (a) an offence under section 533; (b) an offence or an attempt to commit an offence under the Criminal Code, section 123, 408C or 488. -- 5 of 9 -- 6 (2) Any entitlement the person may have to compensation or damages for the injury, and any existing claim for compensation or damages, ends. (3) If, in the proceeding for the offence, the prosecution proves the person obtained payment of compensation or damages by the insurer, by conduct that is the offence, then, whether or not a penalty is imposed, the court must, on application by the insurer, order the person to repay the insurer all amounts of compensation or damages paid to or on account of the person as a result of the commission of the offence. (4) The Regulator may represent WorkCover or the self-insurer for subsection (3). (5) An order made by a court under subsection (3) may be enforced as if it were an order made by a court in civil proceedings for a debt. (6) Any costs incurred by an insurer in relation to a proceeding for damages to which subsection (3) applies are to be recovered on a solicitor and own client basis from the person convicted under section 533. (7) Subsection (2) does not apply to a person only because the person is taken under section 535 to have— (a) attempted to defraud an insurer; or (b) defrauded an insurer of an amount not more than the equivalent of 1 week of the person’s normal weekly earnings. [20] It may be observed that if Mr Dance is successfully prosecuted for fraud, he may face up to 5 years’ imprisonment. If Mr Dance is successfully prosecuted for false or misleading information or documents, he may face up to one year’s imprisonment. Furthermore, if the prosecution is successful pursuant to s 537, Mr Dance has no claim for damages. [21] Section 537(3) specifically makes reference to a person receiving “damages” and therefore contemplates a situation where a plaintiff has successfully brought an action in court and succeeded, but later it is proved that he has committed fraud. In such case, the court may “order the person to repay the insurer all amounts of compensation or damages paid to or on account of the person as a result of the commission of the offence.” [22] It is often the case where a person faces criminal prosecution, the person seeks a stay of a civil proceeding in order to avoid the possibility of incriminating themselves in pursuit of or defence of the civil action, see Hamilton Island Enterprises Ltd & Anor v Johnston1 where McMeekin J said: “[8] It has long been accepted that the relevant considerations in an application of this type, that is, where there are co-extensive criminal and civil proceedings, were explained by Wootten J in McMahon v 1 [2010] QSC 38. -- 6 of 9 -- 7 Gould (1982) 7 ACLR 202 at 206-207 as follows (omitting citations): (a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court; (b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper ground; (c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with; (d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding; (e) The court’s task is one of ‘the balancing of justice between the parties’, taking account of all relevant factors; (f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors; (g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s ‘right of silence’, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding. (h) However, the so-called ‘right of silence’ does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding; (i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings; (j) In this regard factors which may be relevant include: (i) the possibility of publicity that might reach and influence jurors in the civil proceedings; -- 7 of 9 -- 8 (ii) the proximity of the criminal hearing; (iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses; (iv) the burden on the defendant of preparing for both sets of proceedings concurrently; (v) whether the defendant has already disclosed his defence to the allegations; (vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him; (k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. It may be relevant to consider the nature of the defendant’s obligation to the plaintiff; (l) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed.” [23] Mr Dance however does not seek a stay of proceedings, but rather he wishes to proceed with his litigation. Presently, with the defendant seeking a stay of proceedings, there is a converse of the usual type of application brought where a plaintiff may face criminal sanction as a result of participating in a civil proceeding. [24] Mr Perry of Queen’s Counsel for Mr Dance points out that the prejudice which Jemeas alleges if an adjournment is not granted is a prejudice in potentially the insurer paying out a sum of damages and in the future not being able to recoup that sum of damages if it is expended by the plaintiff after a successful prosecution of the plaintiff. Mr Perry points out that a remedy may be achieved by a stay of judgment. I accept that submission. [25] In determining the application for adjournment, it is necessary to balance the rights of Mr Dance, Jemeas and its insurer. Mr Dance alleges injury on 1 November 2016. It is the defendant’s case that Mr Dance has a long history of prior back problems and that he has deliberately failed to disclose these such that he is a man of little or no credit and that the damages which ought to be awarded, if he succeeds, would be confined. The defendant further argues that if the prosecution was allowed to take its due course and in the event the Workers’ Compensation Prosecution Unit decide to prosecute Mr Dance and are successful, then the defence is further prejudiced by having to conduct the trial and attempt to recoup any judgment monies. [26] With reference to the principles in McMahon v Gould set out in the judgment of McMeekin J, particularly at paragraphs 8(a) to (f) I proceed on the basis that prima facie, Mr Dance as plaintiff is entitled to have his action tried in the ordinary course of the business of the Court. The prejudice which may be suffered by Mr Dance in granting the -- 8 of 9 -- 9 defendant’s application to adjourn is not currently quantifiable because there can be no reliable estimates as to when a prosecution of Mr Dance may conclude. Given that it has taken 5 months already to determine whether there ought to be a prosecution and given that it is necessary for at least a further month and a half for a decision to be made whether or not to prosecute Mr Dance, all that can be suggested is that the delay that Mr Dance may suffer is perhaps more likely to be judged in years rather than months. [27] An example of this and the effect of the appeal provisions of the Act may be seen by perusal of the decision of Dutney J in Brooks v Ticor Chemical Company Pty Ltd2. In that case, Dutney J concluded on the application for the stay as follows: “[12] It follows from my interpretation of the legislation that the appeal to the Industrial Magistrate will not have any necessary effect on the action for common law damages irrespective of the outcome. Even were I wrong in this view s486(2) does not presently apply because the applicant has not been convicted. The applicant should not be held out of his trial because of the presence of an appeal by WorkCover in circumstances where a successful outcome will only mean that WorkCover can proceed to prosecute the charges at some future time if it chooses. In the exercise of my discretion I would not stay the proceedings nor prevent Mr Brooks from having his trial when the case is ready.” [28] In the present case, I am inclined to exercise my discretion in the same manner as Dutney J did. That is, I would not allow an adjournment nor a stay of the proceedings nor prevent Mr Dance from having his trial when his case is ready. It is ready now and it will be tried next week. In my view, the balance of the respective prejudices favours the continuation of the trial next week. In this regard, I note that the case is unusual insofar as it is the plaintiff, Mr Dance, who faces potential prosecution and has made it plain that not only does he not seek a stay but it is likely that he will waive his privilege against self-incrimination and in fact answer questions relating to his conduct concerning his prior back symptoms and his WorkCover claim. [29] As it may be relevant to costs, it is necessary to record that, having received the late disclosure of the prior back pains, the representatives of the defendant have worked in an extremely efficient manner to have the matter ready to proceed to trial. Accordingly, any delay with respect to the conduct of the case has been caused by the actions of the plaintiff and not by the defendant nor its representatives. [30] The reason for the application for the stay is the late disclosure by Mr Dance of his prior back history and the necessity of the defendant’s insurer to refer the matter to the workers’ compensation prosecution unit and the consequent delay in that unit, which is beyond the control of the defendant, in determining whether it will or will not prosecute Mr Dance. [31] In those circumstances my preliminary view is to reserve costs, I will nonetheless hear submissions on costs. 2 [2003] 2 Qd R 117 at [12]. -- 9 of 9 --