McDonald v The Workers Compensation Tribunal - [2013] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Application for Judicial Review)
MCDONALD v THE WORKERS COMPENSATION TRIBUNAL
[2013] SASC 34
Reasons for Decision of The Honourable Justice Nicholson
19 March 2013
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - MASTERS
Proceedings for judicial review commenced - permission to proceed under 6R 200(1) required - permission to proceed refused by a Master - appeal to a single Judge.
Held - Appeal dismissed.
Supreme Court Rules 6R 200, referred to.
McDonald v Department of Education and Children’s Services [2011] SAWCT 18; Francis McDonald v Department of Education and Children’s Services [2011] SAWCT 36; Ferdinands v A-G (SA) [2007] SASC 53; Gawler Region Community Forum Inc v Minister for Urban Development and Planning [2011] SASC 76; Re Stan Potter (1984) 117 LSJS 77; R v Strickland ex parte Bartsch (1986) 133 LSJS 468; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; State of South Australia v McDonald (2009) 64 SASR 344; BQ and HM Doe Pty Ltd v National Australia Bank (1999) SASC 124; Kroezen v CGU Workers Compensation (SA) Ltd (Louth Bay Abalone Pty Ltd) [2005] SAWCT 41; House v R (1936) 55 CLR 499, considered.

MCDONALD v THE WORKERS COMPENSATION TRIBUNAL
[2013] SASC 34
Appeal from a Master
NICHOLSON J.
Introduction

By a summons and interlocutory application filed in this Court on 24 September 2012 and directed to the Workers Compensation Tribunal, Francis Thomas McDonald, as applicant (described as plaintiff on the documents) has sought an order for judicial review by this Court of the decision of the Workers Compensation Tribunal (Hannon DP) delivered on 23 November 2011.[1] Mr McDonald, in his interlocutory application, requested that the Supreme Court set aside the two orders made by Hannon DP, being:
(i)that the notice of dispute (sic) 17 November 2009 with respect to the employer’s determination of 9 November 2009 be struck out for want of prosecution; and
(ii)that the worker pays the employer’s costs of and incidental to the proceedings with respect to the period from 22 September 2011 to the date of these orders.
[1] Francis McDonald v Department of Education and Children’s Services [2011] SAWCT 36.
An applicant for judicial review in this Court must first obtain permission of the Court before proceeding with the action. The matter came before a Master of this Court, who delivered reasons dated 4 December 2012 refusing permission for Mr McDonald to proceed with his action for judicial review.[2] Mr McDonald now appeals to a single Judge of this Court against that decision of the Master to refuse permission. An appeal to a single judge against such an interlocutory order of a Master is by way of re-hearing.
[2] Unreported, McDonald v The Workers Compensation Tribunal reasons of Judge Withers dated 4 December 2012.
An application for permission to proceed with judicial review is governed by Rule 200 of the Supreme Court Civil Rules 2006 (SA), the relevant parts of which are as follows.
(1)If a plaintiff claims to be entitled to an order for judicial review, an action for judicial review may be commenced but cannot proceed further in the Court without the Court’s permission.
. . . .
(4)The Court may grant permission if the Court is satisfied that there is a reasonable basis upon which the applicant might establish a right to review.
In undertaking this exercise, the Court is to have regard to the locus standi of the plaintiff, the nature of the decision challenged, the person to whom the order is to be directed and the justiciability of that decision.[3]
[3] Ferdinands v A-G (SA) [2007] SASC 53 (Layton J).
Ordinarily permission will not be granted unless the Court is satisfied that all persons who may be adversely affected by the decision are joined as defendants. In the present case, Mr McDonald has only directed his application to the Workers Compensation Tribunal as defendant. In the event that permission to proceed were to be granted, the initiating process would need to be amended to include, at least, the respondent to the decision of Hannon DP concerning which judicial review is sought.
Without finally deciding, I am prepared to accept for present purposes that the phrase “reasonable basis” where used in 6R 200(4) imports a notion no more burdensome for an applicant than that an arguable case or a prima facie case is to be demonstrated. As Judge Lunn has pointed out in Gawler Region Community Forum Inc v Minister for Urban Development and Planning,[4] the common law required an applicant for judicial review to obtain an order nisi before being able to serve a defendant and the test for granting such an order nisi was the showing of “a prima facie matter of substance which was reasonably arguable and which was fit for the consideration of the Full Court”.[5]
[4] [2011] SASC 76.
[5] At [3], citing Re Stan Potter (1984) 117 LSJS 77; R v Strickland ex parte Bartsch (1986) 133 LSJS 468.
I agree with Judge Lunn in Gawler Region that 6R 200(4) poses a low threshold for a plaintiff to cross and that the approach of the Court should be analogous to that adopted when considering whether or not a defendant’s application for summary judgment against a plaintiff should be granted.[6] According to Ceneavenue Pty Ltd v Martin[7] summary judgment is not to be granted against a plaintiff,
unless after exercising extreme care the court was satisfied there was no real question to be tried and that it did not have a reasonable, as distinct from a fanciful, prospect of success.
As with summary judgment matters, it should only be in clear cases that permission to proceed with an application for judicial review is refused.
[6] See especially Gawler Region at [5] and [13].
[7] (2008) 106 SASR 1 at 21.
To understand the background to Mr McDonald’s application it will be helpful if I first summarise the decision of Hannon DP that has been complained of.
McDonald v Department of Education and Children’s Services[8]
[8] [2011] SAWCT 36.
On 3 September 2009, Mr McDonald filed a claim against the Department of Education and Children’s Services and various predecessors, claiming compensation under the Workers Rehabilitation and Compensation Act 1986 (‘the Act’).[9]
[9] He alleged that he had suffered and continued to suffer stress, anxiety and depression as a result of "bullying, harassment, victimisation and discrimination". A previous compensation claim by Mr McDonald for alleged mental injury resulting from long term harassment in 2002 and earlier had been served on the respondent in July 2002, but withdrawn in 2003.
On 9 November 2009, the claim was rejected by the respondent. In its determination the respondent purported to reject the claim on the merits and also on the basis that Mr McDonald had failed to give notice of the disability as soon as practicable after its occurrence, and had failed to submit a claim for compensation with respect to the disability within the prescribed period of six months. The respondent asserted that the making of a claim more than thirteen years after the alleged injury date of August 1996 (as asserted on the claim form) had substantially prejudiced the ability of the respondent to properly investigate and defend the claim and to address issues of disability, incapacity, rehabilitation and return to work.
Mr McDonald lodged a notice of dispute in the Workers Compensation Tribunal concerning this determination. The matter was referred from conciliation for judicial determination on 4 June 2010. The parties subsequently agreed that the matters in issue in the proceedings would encompass the question as to whether the alleged mental injury arose out of any one or more of a series of events and incidents during the periods:
(i)1988-1991 when Mr McDonald was employed as a contract teacher;
(ii)during 1996 when he was employed at Mount Barker High School; and
(iii)during 1997-2002 when he was employed at Brighton Secondary School.
A number of directions hearings were held prior to the last one on 17 November 2011. Throughout the conduct of the matter, as Hannon DP put it, Mr McDonald “became increasingly pre-occupied by a perceived need to have the Tribunal amend the name of the respondent to accord with what he submitted was its proper description”.[10]
[10] At [6].
On 20 September 2011, at Mr McDonald’s request, the matter was called on for directions. Mr McDonald told the Tribunal that he intended to lodge a notice of discontinuance of his compensation claim. Mr McDonald said that he wished to discontinue the claim because, in his view, if he had an entitlement to compensation under the Act, it was not appropriate to continue with the claim while he pursued a proposed claim for damages for negligence against the State of South Australia (or servants or agents of the State or third parties) with respect to his mental injury. This submission was founded upon Mr McDonald’s view as to the meaning and effect of s 54(1) and s 54(4a)(b) of the Act.[11] Mr McDonald acknowledged that he had already been unsuccessful in Supreme Court proceedings for damages brought against the State of South Australia.[12]
[11] At [8].
[12] State of South Australia v McDonald (2009) 64 SASR 344.
After some further discussion between the parties and Hannon DP, the directions hearing concluded on the basis that the matter would be left in the trial list for 5 March 2012 but pending lodgement of the proposed notice of discontinuance by Mr McDonald.
On 22 September 2011, Mr McDonald provided the Registry with a notice of discontinuance. This indicated that he sought to discontinue “the entire case” as based on his notice of dispute filed on 17 November 2009, due to it being in the incorrect jurisdiction.[13]
[13] At [11].
On 23 September 2011, Hannon DP caused a letter to be sent to Mr McDonald, drawing Mr McDonald’s attention to rule 16(1) of the Workers Compensation Tribunal Rules 2009 (SA).[14] The letter also advised Mr McDonald that his proposed notice of discontinuance could not be effective unless the respondent consented to it, or unless leave for its filing was given by the Tribunal. He was informed that the notice of discontinuance would be held on file pending a further directions hearing on Friday 21 October 2011 which he was invited to attend.
[14] Which provides: “An applicant may at any time up to 7 days prior to the date when the matter is set down for hearing or mention before a member, discontinue the application either wholly or in part and after that date may only discontinue with the consent of all parties or with the leave of the Tribunal.”
On 21 October 2011, the directions hearing took place but Mr McDonald did not attend. The respondent submitted that:
(i)the claim for compensation under the Act should be struck out for want of prosecution; or alternatively,
(ii)if Hannon DP was to grant leave to file the notice of discontinuance, his Honour should only do so on the basis that the discontinuance would have the effect of a final judgment against Mr McDonald which would prevent him from later renewing the compensation claim.
On the material before him, Hannon DP took the preliminary view that one of these courses of action should be taken. His Honour recorded, in written directions issued to the parties, the basis for this preliminary view, including various legal and factual considerations. His Honour invited Mr McDonald to attend a directions hearing on 17 November 2011 if he wished to put submissions opposing the course foreshadowed by his Honour.[15] Mr McDonald attended the hearing on 17 November 2011 and Hannon DP received further submissions from both parties. His Honour delivered his decision and reasons for decision on 23 November 2011.
[15] At [16] and [17].
Hannon DP held that Mr McDonald’s claim for compensation under the Act should be struck out for want of prosecution.[16] Specifically he made the following orders.
I order that the notice of dispute dated 17 November 2009 with respect to the respondent’s determination of 9 November 2009 be struck out for want of prosecution. The intended effect of this order is that there be final judgment against Mr McDonald with respect to his challenge to the respondent’s determination to reject his compensation claim against the respondent based upon the events arising during his employment from 1988 to 2002 inclusive. It necessarily follows that the trial dates commencing on Monday 5 March 2012 are vacated.
His Honour ordered that Mr McDonald pay the respondent’s costs of and incidental to the proceedings and its attendances at directions hearings for the period from 22 September 2011 to 23 November 2011.[17]
[16] At [38].
[17] At [40].
Whilst his Honour accepted that Mr McDonald had an arguable case for compensation under the Act, and that ordinarily a litigant ought not be shut out from putting an arguable case, his Honour explained that such a factor is not always a decisive consideration when determining whether to strike out proceedings for want of prosecution. Hannon DP referred to the following passage from Lander J in BQ and HM Doe Pty Ltd v National Australia Bank.[18]
… there must come a time when a party has so conducted the litigation that it would be appropriate to shut that party out of that party’s litigation even if the point is arguable. Justice delayed can be justice denied. Both the plaintiff and the defendant are entitled to justice. If the plaintiff has conducted his or her case so that the defendant has suffered prejudice or will suffer injustice in defending the case then the defendant is entitled to justice, and justice can only be achieved by shutting the plaintiff out of his or her case. However prejudice to the defendant is not a pre-requisite to the exercise of the jurisdiction to dismiss for want of prosecution. It is an important factor but not the only factor. In considering whether the position has been reached that a plaintiff’s claim must be dismissed for want of prosecution, it seems to me that the principles in Ulowski v Miller subject to one matter are appropriate principles for consideration of an application of this kind, notwithstanding that the principles were first espoused in 1968. The further matter to which regard must be had is the concept of case flow management. If the plaintiff's inaction has caused prejudice to other litigants then that also is a factor to which regard must be had in considering whether the order should be made. It is not only the parties before the Court who are entitled to justice. There will be circumstances when the plaintiff's inaction requires that in the interests of the administration of justice the action be dismissed: United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156 per King CJ at 160.
[18] (1999) SASC 124 at [103].
His Honour also drew attention to other factors which a court may take into consideration when determining whether to strike out a claim for want of prosecution, as referred to in Kroezen v CGU Workers Compensation (SA) Ltd (Louth Bay Abalone Pty Ltd).[19]
These well known factors include the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.
[19] [2005] SAWCT 41 at [30]-[31].
Hannon DP held that on the basis of the following considerations, in combination, the proceedings should be struck out for want of prosecution.
(i)The length of the proposed delay is indefinite.[20]
[20] At [31] and see also [36].
The delay which will result if the proceedings are indefinitely postponed by an adjournment is unnecessary. There is no basis for Mr McDonald’s belief that s 54 of the Act prevents him from continuing with his compensation claim before this Tribunal whilst at the same time pursuing proceedings in the common law courts against non‑employer third parties, a view which I have repeatedly expressed to him and which he seems to acknowledge but to then ignore.
(ii)The administration of justice would be brought into disrepute.[21]
[21] At [32].
The Tribunal is entitled to have regard to the fact that, not only do the grounds upon which Mr McDonald has applied for an indefinite postponement of proceedings lack merit, but also that his application has been made in the context of his persistent refusal to accept decisions which have previously been made by various courts and this Tribunal which have rejected the assertions he continues to make. To allow him to postpone the compensation proceedings indefinitely to relitigate claims already rejected would bring the administration of justice into disrepute. A large amount of time has already been spent by the Tribunal assisting the parties to prepare this matter for trial, and much of it is likely to be wasted if the proceedings are indefinitely postponed.
(iii)There are considerations involving public interest.[22]
There are considerations involving the public interest. In 1980, well before case management principles assumed the importance they now have, Wells J said the following in Pezzano v Perre:[23]
“Courts provide a facility, an important facility, to the community. It is a facility that is greatly sought by litigants. Lists are increasing, difficulties are continuous in the management of hearings. It seems to me that if parties decide that they want to invoke the proceedings of this court, or, indeed, of any court, then they should act crisply, responsibly, promptly. Once the wheels are set in motion then, in the absence of some good reason, they should continue to turn; and, in my view, there is a dual responsibility, a responsibility of the parties to the courts and also to the community, a responsibility of the courts to the parties and to the community.”
The above comments have more force than ever given the development of case management principles since that time and the ever increasing pressures on courts and tribunals to deal with proceedings in a timely and cost effective manner.
(iv)Mr McDonald has chosen not to pursue his claim in a timely fashion.[24]
At the directions hearing on 17 November 2011 Mr McDonald remained steadfast in his intention not to pursue his compensation claim pending the bringing of proceedings in other courts against third parties. In effect he has chosen not to prosecute his claim in a timely way in accordance with the practices and procedures of this Tribunal. He is not entitled, on the grounds put forward, to have the progress of his claim suspended or to have it discontinued on the basis that he be at liberty to revive it if and when he chooses at some time in the indefinite future.
Mr McDonald has rejected the opportunity to have his compensation claim heard on the merits on the trial dates allocated. It is not up to him to decide if and when the case will proceed. The respondent is entitled to have the case against it heard in a timely way, and the public interest and the application of case management principles require an appropriate use of the Tribunal time. Bearing in mind that a decision on this issue involves an exercise of the general discretion of the Tribunal, and having regard to the overall interests of justice in the context of the considerations set out above, I conclude that it is not appropriate to allow the hearing of the compensation claim to be put in abeyance to indulge Mr McDonald’s desire to pursue proceedings elsewhere.
(v)Mr McDonald was the cause of his own prejudice.[25]
Accepting that he has an arguable claim, Mr McDonald will be prejudiced if the application to dismiss his claim is granted, but his implacable insistence upon now taking another path in pursuit of his perceived legal rights, despite the consequences of that path being made very clear to him, makes him the sole author of that prejudice. Every effort that it is appropriate for the Tribunal and the respondent to make in order to have Mr McDonald reconsider his desired course of action has come to nought. There is no relevant conduct on the part of the respondent which can weigh in favour of Mr McDonald.
[22] [33]-[34].
[23] (1980) 32 SASR 336 at 341
[24] [37], [38].
[25] [36].
The application before the Master

Mr McDonald raised 10 grounds which he asserted provided a reasonable basis for judicial review of the decision of Hannon DP delivered on 23 November 2011. Those 10 grounds were supported by an affidavit and written submissions which largely repeated the material in the affidavit together with oral submissions all of which were before the Master. His Honour held that none of the 10 grounds provided a reasonable basis on which Mr McDonald might establish a right to an order for judicial review. His Honour in his reasons dealt with each proposed ground in turn. I agree with his Honour’s reasons and no purpose would be achieved to repeat or re-state those reasons here.
The appeal
Mr McDonald in his notice of appeal raised only two grounds of appeal although each appears to incorporate one or more of the grounds put before the Master. A difficulty in understanding the notice of appeal arises from its format. The first “ground” is comprised of 7 paragraphs of discursive and argumentative material and the second “ground” is comprised of 10 paragraphs of discursive and argumentative material. At no time in the notice of appeal, the written submissions put forward in support of the appeal,[26] or the oral submissions presented by Mr McDonald at the hearing of the appeal, has Mr McDonald identified a basis upon which the learned Master might have erred.
[26] In addition to the written material before the Master Mr McDonald also relied on, at the appeal, an 11 page written outline of argument. After I reserved my decision Mr McDonald, with permission, provided the Court with further written materials said to be in support of his argument. They comprised: (i) a letter to the Court dated 15 March 2012, (ii) a 20 page single line spaced typed written submission, (iii) transcript of direction hearings in Francis McDonald v Department of Education and Children's Services No 6932 of 2009 in the Workers Compensation Tribunal presided over by Hannon DP on 19 July 2010, 12 August 2010, 16 September 2010, 24 November 2010 and 15 December 2010 (approximately 100 pages total); (iv) a typewritten 10 page single line spaced document headed "Transcripts" which contains apparent extracts from some of the transcript provided; and (v) transcript of direction hearings in Francis Thomas McDonald v State of South Australia No 418 of 2004 in the Supreme Court of South Australia presided over by Gray J on 31 March 2006 and 3 April 2006 (approximately 70 pages in total) together with a 2 page "index". In addition, Mr McDonald handed up during the hearing of the appeal a paginated sprial bound folder of materials headed "Exhibit 1" (approximately 380 pages).
By the paragraphs under the heading “Ground One” in the notice of appeal, Mr McDonald seeks to re-agitate his position ventilated throughout the Workers Compensation Tribunal proceedings concerning the proper name of the defendant to his claim, his employer. That matter was dealt with by Hannon DP on an earlier occasion and his Honour’s decision was affirmed on appeal to the Full Tribunal.[27] The issue of the proper name of or entity which should have been recorded as Mr McDonald’s employer was not a matter that was the subject of the decision and reasons of Hannon DP on 23 November 2011 with respect to which judicial review is sought.
[27] McDonald v Department of Education and Children’s Services [2011] SAWCT 18 (30 June 2011). See generally the reasons of Hannon DP at [6].
By the paragraphs under “Ground Two” of the notice of appeal, Mr McDonald appears to wish to re-agitate a series of complaints centred on the fact that he has not yet had a disability claim heard on the merits in the Workers Compensation Tribunal and he has not yet had a vicarious liability claim heard in the Supreme Court. As was apparent from the written and oral submissions received from Mr McDonald at the hearing of this appeal, Mr McDonald is concerned at every turn to have all of his grievances, said to have been suffered or experienced over many many years, to be dealt with on the merits rather than to attend directly to the procedural issue at hand.
It is true that Mr McDonald has not had a compensable disability claim heard on the merits in the Workers Compensation Tribunal – Hannon DP expressly acknowledged that. But that is not a reason, of itself, why the decision of Hannon DP should be made the subject of a judicial review. It may be the reason why Mr McDonald wishes to have the decision to strike out his claim for want of prosecution reviewed but that is a different thing. Nothing that Mr McDonald has put either before the Master or on this appeal has demonstrated that Hannon DP might have committed an error of the type that would be amendable to a judicial review.
I recognise that Mr McDonald is acting for himself and would seem not to have had, for many many years now, if at all, the benefit of legal advice. Nevertheless, and even after allowing for this, Mr McDonald’s voluminous written materials and lengthy oral submissions have provided me with no assistance.
However, and given that the appeal is by way of re-hearing, I have conducted my own examination of the reasons of Hannon DP in the context of Mr McDonald’s over arching complaints. The decision whether or not to strike out for want of prosecution is essentially a discretionary one. Mr McDonald has been given every reasonable opportunity to have his claim heard in the Tribunal. I can discern no reasonable basis for an argument that Hannon DP erred in the exercise of the discretion open to him. No potential failure to have observed the requirements of House v R has been identified.[28]In my view, Mr McDonald’s application for judicial review, were it to proceed, would have no prospects of success. He has not shown a reasonable basis on which he might establish a right to an order for judicial review.
[28] (1936) 55 CLR 499.
I agree with the sentiments as expressed by the Master.[29]
In all of the circumstances, in my view no material has been filed in this matter which demonstrates a reasonable basis on which the applicant might establish a right to an order for judicial review. The breadth of the plaintiff’s submission make it abundantly clear that his real concern is a passionate perception on his part that he and his family have been the victims of a conspiracy involving this Court and other institutions to prevent him and his family from obtaining just compensation for the consequences of the way in which he was treated as a teacher some years ago. An application for judicial review of a decision of an Industrial Court Judge made on 23 November 2011, which decision appears in the end to have been with the concurrence or at the request of the plaintiff, is not a process that provides a foundation for the airing of those complaints.
The application and supporting material lack detail as to the precise decision made by the Tribunal and the submission that were made at the time. The application is well out of time both for the decision made on 23 November 2011 and, more particularly, for the many other complaints about earlier alleged wrongful acts that the plaintiff made in the course of his submissions. The material provided lacks cogency and focus. It is the applicant’s obligation to put before the Court relevant material to support their application. That has not occurred in this matter.
[29] Unreported, McDonald v The Workers Compensation Tribunal reasons of Judge Withers dated 4 December 2012 at [31] and [32].
The Master’s decision was correct and the appeal is dismissed.