Moore-McQuillan v WorkCover

[2010] SASC 162

Supreme Court of South Australia

(Appeal from a Master: Civil)

MOORE-MCQUILLAN v WORKCOVER

[2010] SASC 162

Judgment of The Honourable Justice Nyland

28 May 2010

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT

Appeal against direction of a Supreme Court Master that documents be rejected as frivolous and vexatious - direction was an administrative action against which there is no right of appeal - no basis for review as issues determined by Full Court - appeal dismissed.

Supreme Court Civil Rules 2006 RR 53, 285; Supreme Court Act 1935 s 50(1), referred to.
Moore-McQuillan v WorkCover [2009] SASC 290; Moore-McQuillan v WorkCover [2010] HCASL 23, considered.

MOORE-MCQUILLAN v WORKCOVER
[2010] SASC 162

1. NYLAND J:         This appeal is concerned with a direction of a Master of this Court that an interlocutory application and affirmation received from the appellant by post on 27 August 2008 be rejected pursuant to Rule 53 Supreme Court Civil Rules 2006 as frivolous and vexatious.  The appellant was advised of the rejection of those documents by letter of 15 September 2008 from the Acting Manager of Registry Services of the Supreme Court Civil Registry.  The order sought by the appellant in the interlocutory application was to re-open an appeal which appeared to relate back to the decision of Perry J, delivered on 26 February 2007.  On that occasion, Perry J dealt with two applications brought by the appellant.  The first was an interlocutory application to this Court to re-open an appeal in action number 830 of 1996.  The second was an application for permission to appeal in action number 1113 of 2003 against a decision of the Workers Compensation Appeal Tribunal.  Both applications were dismissed by Perry J. 

2. On 27 April 2007, the appellant lodged an application for leave to appeal against the decision of Perry J.  By the time the application was lodged, Perry J had retired and the matter came on for hearing before Layton J.  On 19 June 2007, Layton J delivered judgment with respect to that matter.  She refused the appellant’s application for an extension of time and ordered the appellant’s application be struck out.  She did, however, make a further order that to the extent that the appellant was seeking permission to appeal to the Full Court in relation to her decision of 19 June 2007 that the appellant do so by filing a notice of appeal to the Full Court in respect of each matter, seeking the necessary permission to appeal pursuant to Rule 285(1)(a).  She extended the time for the appellant to file a new notice of appeal in relation to each matter for a period of 28 days, commencing on 19 June 2007. 

3. On 31 August 2007, the appellant filed a further application seeking permission to appeal to the Full Court, although the application itself bears the date 19 July 2007.  That matter was dealt with by Kelly J on 12 October 2007.  Kelly J extended the time within which any notice of appeal be filed for 28 days from that date, but struck out the application dated 19 July 2007 as incompetent.  She advised the appellant that if he wished to appeal from the judgment of Layton J, he was required to seek permission from the Full Court by filing a notice in the appropriate form, as ordered by Layton J on 19 June 2007. 

4. The appellant subsequently endeavoured to file the interlocutory application and affirmation, which are the subject of this appeal.  A copy of the proposed notice of appeal was included in those documents.  They were referred to Judge Lunn, who directed they be rejected.  The appellant now wishes to appeal against the direction given by Judge Lunn.  

5. The appellant has been unrepresented throughout these proceedings.  When this particular matter came on for hearing before me there appeared to be some confusion as to the history of the matter, as a result of which I advised the appellant that I would examine the file to clarify the situation for him.  As part of that examination I obtained a copy of the court record, which sets out the various steps taken and documents filed in this action.  I then instructed my Associate to write to the appellant, setting out my understanding of what had occurred, together with a copy of the court record.  A copy of the letter written to the appellant is annexed hereto and marked “A”.  In that letter I drew the attention of the appellant to paragraph 39 of the reasons for judgment of Layton J, delivered on 19 June 2007, wherein she said:

   In deciding that an extension of time should not be granted, or even if granted that permission to appeal should be refused in both matters, I agree with the following observations of Perry J:

   [60]Those reasons and the decision of the appeal tribunal make it plain that it can fairly be said that Mr Moore-McQuillan has exhausted all of his legitimate avenues of review.  Indeed, he has repeatedly brought applications vexatiously in an effort to circumvent decisions that lay in the path of his seeking any further reviews of his rights.

   [61]So far as his present application is concerned, this Court has already held, both at first instance and on appeal, that Judge McCusker’s decision was not affected by any error of law.  Identification of such an error was preconditioned to further access to this Court.

   [62]The subsequent decisions, more particularly the decision of Olsson Aux J, could not constitute fresh evidence which could in some ex post facto manner convert the decision of Judge McCusker into a decision tainted by error of law.

6. In the letter to the appellant I advised him that if he wished to pursue his application he should file a proposed notice of appeal in proper form.  As I understand the matter, after that letter was sent to the appellant he filed a further application in which he sought an extension of time within which to appeal and permission to appeal.  Those documents were accepted by the Court and on 17 June 2009 Gray J referred the application to the Full Court for hearing.  The Full Court heard the appellant’s submissions as to that matter on 9 September 2009.  On 29 September 2009 the Full Court delivered judgment.[1]  The application for extension of time was refused.  The Court said at [15]:

   There is no substance in the issues which the appellant wishes to ventilate in the compensation matter or the application to re-open the appeal against his conviction for offences against the Act.

   [1]    Moore-McQuillan v WorkCover [2009] SASC 290.

7. Notwithstanding that judgment on 17 February 2010 when he was appearing before me on unrelated matters, the appellant indicated that he still wished to pursue his appeal against the direction given by Judge Lunn.  I proceeded with the matter ex parte as WorkCover was not informed of this matter being raised. 

8. Section 50(1) Supreme Court Act 1935 provides that an appeal lies against a “judgment” of a Master. An administrative act of a Judge is not a judgment against which an appeal lies.

9. In my opinion, the direction given by Judge Lunn with respect to the rejection of the appellant’s documents was an administrative action against which there is no right of appeal.  It is unnecessary to consider whether there is any basis upon which there should be a review of Judge Lunn’s direction, as in my opinion the matters sought to be argued by the appellant are no longer relevant.  They have been the subject of argument and a decision of the Full Court.  On 11 March 2010 the High Court refused an application for leave to appeal against that decision.[2]  The appeal against the direction of Judge Lunn is therefore dismissed

   [2]    Moore-McQuillan v WorkCover [2010] HC ASL 23 (11 March 2010).

   
   

   ANNEXURE “A”