Moore-McQuillan v WorkCover - [2009] SASC 290

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOORE-MCQUILLAN v WORKCOVER
[2009] SASC 290
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Sulan)
29 September 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
Applications for extension of time to appeal and permission to appeal to Full Court against dismissal of applications by primary judge to re-open appeals against convictions recorded in the Magistrates Court for obtaining payments or benefits by dishonest means and from an order of the Workers’ Compensation Appeal Tribunal refusing an application for an extension of time to appeal against decisions of review officers as to the applicant’s entitlement to weekly payments.
Held: No substance to the issues applicant wishes to pursue on appeal – appeal bears no reasonable prospect of success – no substance to applicant’s complaints in relation to hearing before primary judge – application for extension of time to appeal refused.
Workers Rehabilitation and Compensation Act 1986 (SA) s 20(1)(a), referred to.
Moore-McQuillan v WorkCover Corporation SA [2007] SASC 219; Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (formerly Royal & Sun Alliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2006] SAWCT 70; Moore-McQuillan v WorkCover (Wolf Air and Dive Shop) [2003] SAWCAT 1; Moore-McQuillan v WorkCover [2003] SASC 325, discussed.

MOORE-MCQUILLAN v WORKCOVER
[2009] SASC 290
Full Court: Duggan, Bleby & Sulan JJ

THE COURT: The applicant seeks an extension of time within which to appeal and permission to appeal to the Full Court against a judgment of Perry J delivered on 26 February 2007.[1] On that occasion Perry J dealt with two applications by the applicant. The first was an interlocutory application to re‑open an appeal to this Court in action number 830 of 1996. The second was a similar application which sought permission to appeal to this Court in action number 1113 of 2003 against a decision of the Workers Compensation Appeal Tribunal. Both applications were dismissed by Perry J.
[1] Moore-McQuillan v WorkCover Corporation SA [2007] SASC 55.
In the case of an interlocutory judgment, an appeal to the Full Court requires permission: Supreme Court Civil Rules 2006 (SA) r 281. Under r 282 an application for permission to appeal may be heard by the single judge against whom the appellant seeks permission to appeal or by the Full Court. By the time the applicant made his application, Perry J had retired. In the circumstances the matter came before Layton J.
The application was out of time and, for reasons she then gave, Layton J refused an extension of time in which to apply for permission to appeal.[2]
[2] Moore-McQuillan v WorkCover Corporation SA [2007] SASC 219.
The applicant is unrepresented. The document which he filed in the present matter purports to be a Notice of Appeal. However, the orders sought in the document are an extension of time within which to appeal and permission to appeal. In the circumstances it is appropriate to deal with the matter as an application for extension of time and permission to appeal.
The application is one of many initiated by the applicant in relation to a knee injury which he suffered on 9 September 1990. The applicant claimed compensation pursuant to the Workers Rehabilitation & Compensation Act 1986 (SA) (“the Act”) and a Review Officer held that he had suffered a compensable disability and subsequent incapacity. Extensive litigation followed upon the determinations by other Review Officers of the level of payments to which the applicant was entitled under the Act.
Much of the history of the matter is set out in the judgment Hannon DPJ in Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (formerly Royal & Sun Alliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop).[3]There is no need to repeat that history in these reasons.
[3] [2006] SAWCT 70 (30 August 2006).
As stated above, Perry J dealt with applications in two actions initiated by the applicant in the Supreme Court. In action number 1113 of 2003 the applicant applied for leave to appeal from a decision of McCusker DPJ sitting in the Workers Compensation Appeal Tribunal[4] whereby he refused to extend time for an appeal against the decisions of the Review Officers who dealt with applications by the applicant for a reconsideration of his entitlements to compensation payments. The application determined by Judge McCusker was refused on the ground that it had no reasonable prospects of success.
[4] Moore-McQuillan v WorkCover (Wolf Air and Dive Shop) [2003] SAWCAT 1 (31 July 2003).
Perry J dismissed the application for permission to appeal against that decision. On 2 October 2003 the Full Court refused an application for permission to appeal against the decision of Perry J. In their joint judgment[5] Doyle CJ, Prior and Vanstone JJ stated:[6]
The decision by the Tribunal in July of this year was to refuse to extend the time within which to appeal against the decisions of the Review Officers made in 1991 and 1995. The time for appealing had well and truly expired. As we have noted, the ultimate point is whether the amount of payments under the Act, to which Mr Moore-McQuillan is entitled, have been correctly computed.
The decision by the Tribunal indicates that it was satisfied that the appeal had no reasonable prospect of success; that Mr Moore-McQuillan had had earlier opportunities to raise the complaints that he was now making, and that to allow these complaints to be raised so late in the piece would be manifestly unfair to the respondent.
This court has power to grant leave to appeal only if the proposed appeal raises a question of law, and would not grant leave to appeal if the appeal appears to have no reasonable prospect of success. It is important to bear in mind that the decision under appeal is a decision to refuse to grant an extension of time.
We can find no indication of an error of law in the Tribunal’s refusal to grant an extension of time. The Tribunal has clearly considered the appropriate issues and principles. We can find no indication of an error by the Tribunal in its approach to the question of whether the time within which to appeal should be extended.
That was the view of the judge of this court who refused leave to appeal from the decision of the Tribunal.
Because we are of the opinion that an appeal against the decision of the Tribunal to refuse to extend time within which to appeal has no reasonable prospects of success, our view is that leave to appeal should be refused.
[5] Moore-McQuillan v WorkCover [2003] SASC 325.
[6] Ibid at [10]-[15].
The other matter dealt with by Perry J was action number 830 of 1996. In this matter the applicant appealed to the Supreme Court to overturn convictions recorded in the Magistrates Court on six charges of obtaining payments by dishonest means contrary to s 20(1)(a) of the Act. The applicant had pleaded guilty to the charges but claimed that he had been given inappropriate advice to do so.
Perry J dismissed the appeal after finding that the applicant was properly advised and that no case had been made out for setting the convictions aside.
On 23 May 1997 Perry J refused permission to appeal against his decision. The application for permission to appeal was renewed before the Full Court and permission was refused on 20 July 1997. There followed an unsuccessful application for special leave to appeal to the High Court.
The applicant attempted to re-open the original appeals in action number 830 of 1996 and action number 1113 of 2003 in two applications filed in June 2006. These were the applications which were dismissed by Perry J on 26 February 2007. The applicant applied for an extension of time and permission to appeal against the decision of Perry J. As stated, Layton J refused an extension of time in which to appeal. Her Honour commented that, even if an extension of time had been granted, she would have refused permission to appeal. She agreed with the following observations of Perry J who, when referring to the reasons of Hannon DPJ in the matter dealing with the calculation of the applicant’s entitlement under the Act, said:[7]
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.
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.
Despite these comments and the refusal of his applications by Perry J and Layton J, the appellant has persisted with applications to this Court which are misconceived and devoid of merit.
[7] Moore-McQuillan v WorkCover Corporation SA [2007] SASC 55 at [60]-[61].
The application to the Court on this occasion was accompanied by an affirmation by the applicant dated 4 May 2009. In the affirmation, and in oral submissions before us, the applicant complained that Perry J was prejudiced against him. He stated that at the time of the hearing His Honour was extremely ill and unable to perform his duties. A reading of the transcript of proceedings and His Honour’s judgment clearly establish that there is no substance to these complaints.
The remainder of the material in the affirmation and the oral submissions does no more than regurgitate the history of the compensation proceedings and the applicant’s complaints in relation to it.
There is no substance in the issues which the applicant wishes to ventilate in the compensation matter or the application to re-open the appeal against his conviction for offences against the Act.
The application for an extension of time within which to appeal is refused.