A claimant has been found guilty of two charges of fraud in a personal injuries claim,1 with Carter Newell Lawyers referring the matter to the Attorney General for offenses under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).
Instructions were received to act in response to a claim where Jason Qubeck alleged to have slipped and fallen at a boarding house in 2012 and suffered personal injuries. Following enquiries into various aspects of the claim, factual discrepancies between the information and disclosure provided by Mr Qubeck and the independent enquiries arose.
Efforts to identify and clarify those discrepancies with Mr Qubeck’s solicitor resulted in his position being maintained with no resolution of the issues.
It was determined that the extent of the factual disputes were significant and, if Mr Qubeck’s evidence was to be accepted, they could have a substantial impact on the potential quantum of his claim which would have been a miscarriage of justice and unfairly imposed on our client’s position.
As a result, a referral was made to the Attorney General in an effort to utilise ss 72 to 73A of the PIPA.
The PIPA contains provisions aimed at the protection of the personal injuries claim process from false or misleading documents or information being used by a claimant in support of a claim.
Although they have been in force since the PIPA’s inception, the sections are rarely utilised and, until this recent decision, had not yet been successfully enforced against a claimant.
Section 72 of the PIPA states that:
‘(1) A person must not in any way –
(a) defraud or attempt to defraud a respondent; or
(b) deliberately mislead or attempt to deliberately mislead a respondent; or
(c) connive at conduct by another that contravenes paragraph (a) or (b).’
Offenses carry a maximum penalty of 400 penalty units or 18 months imprisonment.
Section 73 goes on state that –
‘(2) A person must not state anything to the respondent or contributor 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 respondent or contributor 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.’
Section 73A of the PIPA requires a proceeding for an offense against those provisions to be pursued summarily before a magistrate on the complaint of the Attorney General or their authorised representative.
Carter Newell referred the matter to the Attorney General at whose direction an investigation was carried out by the Department of Occupational Workplace Health and Safety (DOWHS) and the complaint was thereafter prosecuted by Crown Law.
In support of the prosecution, evidence was provided by the solicitor from Carter Newell with conduct of the claim, the respondent and Mr Qubeck’s alleged employer at the time of the incident. Mr Qubeck also gave evidence at the hearing.
The allegations of fraud pursued by Crown Law for the purposes of the referral focused on Mr Qubeck’s statement in his Notice of Claim that he was employed by Leyburn Kindling Supplies (Leyburn Kindling) at the time of the incident and suffered loss of wages or salary as a result of the incident.
Based on that allegation, two charges were made:
- That Mr Qubeck attempted to deliberately mislead the respondent between the provision of his Notice of Claim and the date of the referral; and
- That Mr Qubeck gave to the respondent a Notice of Claim under the PIPA containing information he knew was false or misleading in a material particular.
Both parts of the Notice of Claim form contain a declaration pursuant to the Oaths Act 1867 (Qld) which require the claimant to declare that the statements of fact are true and correct.
The allegations of fraudulent conduct by Mr Qubeck arose from his employment history contained in Part 2 of his Notice of Claim. He stated that he usually worked 35 hours per week earning $350 to $400 net per week. Evidence from that employer and a co-worker stated that Mr Qubeck had not worked for Leyburn Kindling since 3 August 2012 (two weeks prior to this incident) and he had only worked there on a casual basis for a period of eight days prior to that time.
An effort by Mr Qubeck to explain his absence after 3 August 2012 as a two week leave period while he moved house was not supported by the alleged employer and he was not expected to return to work with Leyburn Kindling.
The representation about his employment was never withdrawn and Mr Qubeck maintained during the hearing that he was employed by Leyburn Kindling at the time of the incident.
Evidence was led regarding various other statements by Mr Qubeck which were disputed but, as they did not go to the specific charges pursued in the prosecution, they were not explored further.
Mr Qubeck disputed the charges on the basis that he had not been told by Leyburn Kindling that he was no longer needed and he considered he held a full-time casual role.
Mr Qubeck alleged that he had gotten up to drive to Leyburn to see if he could get more work on the date this incident occurred.
Bradford-Morgan LM found Mr Qubeck’s responses to questions during his cross-examination inconsistent with his assertions in the Notice of Claim, his interview with the investigator from the DOWHS and his evidence in chief that he was employed, working 35 hours per week and had lost wages as a consequence of the incident.
Evidence given by Mr Qubeck that he had spoken with a representative of Leyburn Kindling by telephone about obtaining further work and that he had worked for Leyburn Kindling in the week prior to the incident was dismissed as not credible.
Bradford-Morgan LM also concluded there were significant discrepancies in Mr Qubeck’s evidence concerning the circumstances of the incident but made no particular finding in relation to those issues as they did not relate to the charges being pursued.
Mr Qubeck was described as demonstrating an indifference for the truth when confronted by prior inconsistent assertions he had made and as having a tendency of self-aggrandisement. One example provided in receiving that conclusion related to Mr Qubeck’s report to the emergency room doctor that his occupation was ‘aviation pilot’ and his inability to explain the difference between that description and packing kindling.
Mr Qubeck also denied evidence given by a director of Leyburn Kindling and a co-worker about a personal relationship and the seasonal nature of the work involved despite direct evidence to the contrary being given. Mr Qubeck’s evidence that he sometimes flew to Leyburn in a private plane rather than driving was also dismissed as not being credible, with Bradford-Morgan LM noting that the motivation for his deception was not evident.
Ultimately, Bradford-Morgan LM found that Mr Qubeck had made a deliberate attempt to mislead the respondent and that he knew he was providing false information. Mr Qubeck was described as having ‘a persistent and concerning tendency to overstate evidence to favour his defence which he abandoned upon being presented with cogent evidence that it was untrue (including when the issue had been conceded on his behalf)’.
A submission that Mr Qubeck was confused was rejected as he had previously made a successful claim on WorkCover Queensland in relation to a different matter, he had prepared the Notice of Claim with legal advice from his solicitor and persisted to tell untruths in his evidence, ‘many of which were of no probative value’, but also in relation to pivotal issues.
It was accepted that Mr Qubeck had made a decision to submit a claim when he knew that he was not employed and that, in doing so, he deliberately attempted to mislead the respondent into approving a claim for lost wages. Bradford-Morgan LM accepted that this offence was a deliberate attempt and intended to mislead and that Mr Qubeck’s provision of false or misleading information in his Notice of Claim satisfied both charges, for which guilty convictions were made.
Sentencing will be carried out shortly.
Somewhat frustratingly, the provisions regarding fraudulent representations by a claimant in a claim pursued under the PIPA are under-utilised.
However, with this successful prosecution of fraud allegations, Carter Newell expects this precedent may be cited as a deterrent to other claimants tempted to overstate their losses or pursue untenable allegations in support of a claim.
Respondents are often at a disadvantage in taking steps to corroborate statements made by claimants in support of a claim and, in circumstances of factual disputes, both parties may traditionally have considered some risk that one or the other would be accepted at trial.
This decision shows that, where clear evidence is available to dispute a claimant’s version of events or evidence being led, there are real consequences, and an attempt to skew a claim to increase its prospects or its potential quantum can result in direct, personal punishments of a criminal nature which will surely have a flow on effect on the PIPA claim.