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A $30,000 Kebab

18 September 2013

Mehran Samimi v Q-COMP [2013] QDC 203

On 9 September 2013 Judge Robin QC of the District Court dismissed Mr Samimi's appeal against a conviction of an offence under s.533 of the Workers' Compensation and Rehabilitation Act 2003 (WCRA).

Section 533 states it is an offence to defraud or attempt to defraud a workers' compensation insurer.

At first instance, the Magistrate had to decide whether Samimi engaged in a "calling" which is defined in Schedule 6 of the WCRA as "any activity ordinarily giving rise to the receipt of remuneration or reward ... whether or not the person performing the activity received remuneration".

Section 537 of the WCRA provides that a consequence of being convicted of an offence under s.533 includes "any entitlement the person may have to compensation or damages for the injury, and any existing claim for compensation or damages, ends."

Judge Robin QC also considered s.136 of the WCRA that provides a person receiving compensation for an injury must give notice of the worker's' return to work or "engagement in a calling".

The appeal was conducted as a re-hearing of the evidence in the initial trial and in particular "whether, applying the criminal standard of proof, the activities Mr Samimi was filmed engaging in on 21 August 2011 and 3 September 2011 amounted to engaging in or carrying out a "calling" ... ".

Surveillance had been obtained of Mr Samimi "engaging in sustained activity" on 21 August 2011 working in and near a mobile food van. He cooked a BBQ, including kebabs for at least 4 hours. The mobile food van advertised various products for sale.

On 3 September 2011 surveillance revealed Samimi working "without stop for some 5 hours".

The Judge at first instance concluded "I have no hesitation in finding beyond reasonable doubt that the sustained activity in a non-social environment, undertaking food preparation for a BBQ amounts to engaging in a calling as a cook. The signage on the food van, together with the sustained activity ... satisfy me that the Defendant engaged in a calling being activity that would ordinarily give rise to the receipt of remuneration or reward. The issue of actual remuneration, albeit being a volunteer, is not on point."

Mr Samimi's Counsel's submissions in response to that finding was that the events at which Mr Samimi was engaged (one being a Rotary event and the other a Muslim religious event) "were indicators that the cooking was not an activity which would ordinarily give rise to remuneration".

Judge Robin QC's response to that submission was "in my opinion the question is whether the activities of the person involving are such that in a general market, there would be persons willing to pay to have them performed on the basis of their value."

Judge Robin QC rejected Mr Samimi's appeal and confirmed the Order that Mr Samimi must repay compensation received after the commission of the events, quantified at $30,000.00.

For more information please contact: 

Cameron Seymour | Partner
Mullins Lawyers
t +61 7 3224 0360
f +61 7 3224 0333
cseymour@mullinslaw.com.au

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