'Win-at-all-costs' case puts WorkCover's power at risk
A recent and expensive case has highlighted the power of WorkCover, South Australia, to prosecute at will, riling the state's shadow Attorney General and its highest court.
The South Australian Supreme Court full panel has called for reforms to way WorkCover prosecutes and is prosecuted in fraud cases, to make a fair and impartial system.
The call comes following accusations raised in parliament by the state's shadow Attorney-General, Vickie Chapman, who said: “WorkCover alleges that it has spent more than $700,000 on prosecution costs in the case of Thompson v Duffin. The case has been thrown out by the Full Court of the Supreme Court on the grounds that the prosecution, which was directed by WorkCover and not by the DPP, acted improperly."
And Chapman told The New Lawyer today: “The judgment is utterly scathing of the action of WorkCover South Australia in proceeding in the case, of which they had already made an assessment to his entitlements."
“[The Court] made such strong statements that, in future cases WorkCover should not be responsible for the decision on whether to prosecute.”
The case of Thompson V Duffin, or WorkCover, was a workers' compensation fraud case, which saw Jeff Thompson charged with making fraudulent claims relating to an illness.
When handing down the judgment of the full court, Justice Bleby, Justice Gray and Justice Layton said the case was “conducted as if it were a civil recovery action on the part of WorkCover or as if it were defending a claim for income maintenance and other benefits… It bore all the hallmarks of a desire to win at all costs, with scant regard to the fact that it was prosecuting serious criminal offences.”
They added: “The second matter of concern relates to the position of WorkCover as a complainant or 'victim' and WorkCover as a prosecutor. In most cases of criminal prosecutions, an independent agency of the State will conduct a prosecution based on information supplied by a complainant. However, the prosecutor does not represent the complainant.
"In this case, WorkCover was, in effect, the complainant or victim, having allegedly paid to Thompson substantial benefits under the Workers Rehabilitation and Compensation Act which it believed had been paid in circumstances where there was a breach of s 120 of the Act. But it was also the prosecutor.
"The nominal complainant was an officer of WorkCover. WorkCover gave the instructions. The prosecution was conducted by WorkCover’s solicitors, not a State prosecuting authority. There was not that necessary degree of detachment between complainant or victim and prosecutor.”
It is the detachment between the complainant or victim and prosecutor that Chapman wants addressed immediately.
“I think the Attorney General agrees that something needs to be done, whether for prosecution purposes the DPP is the most suitable entity, or as he takes the view that the crown solicitor should do it.”
Like WorkCover SA, the NSW, Victorian and Queensland bodies all have the same system in place, with no independent advisors or consultation.
“WorkCover should not be responsible for the decision on whether to prosecute,” explained Chapman.
“It’s not lonely a matter that has cost the tax payer, it’s a matter of principle, there has to be some independence.”