Moore-McQuillan v WorkCover - [2005] SASC 494

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOORE-MCQUILLAN v WORKCOVER
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Debelle and The Honourable Justice Anderson)
22 December 2005
ADMINISTRATIVE LAW - JUDICIAL REVIEW
The appellant appealed against the refusal by a Master of his application for leave to serve three separate proceedings seeking judicial review against WorkCover and the Master's order striking out the proceedings - held that none of the proceedings disclosed an arguable case for judicial review - appeal dismissed.
Supreme Court Rules r 98.04A(1) and r 98.05(3), referred to.
Twist v Randwick Municipal Council (1976) 136 CLR 106, considered.

MOORE-MCQUILLAN v WORKCOVER
[2005] SASC 494
Full Court: Perry, Debelle and Anderson JJ

PERRY J. The Court heard three separate appeals brought by Mr Moore-McQuillan against orders made by a Master.
In each of the three proceedings Mr Moore-McQuillan seeks judicial review against WorkCover.
In all three matters, in accordance with SCR r 98.04A(1)(a), Mr Moore-McQuillan sought leave to serve the proceedings.
On 15 April 2005, following publication of brief reasons, the Master refused to grant leave to serve the proceedings, but instead exercised his power under SCR r 98.05(3) to strike out the summons by which each of the proceedings was instituted. He did so on the basis that there was no reasonable prospect that the court would make an order in the nature of judicial review in any of the proceedings.
By an order dated 5 July 2005, a judge of the court extended the time for the lodging of an appeal against the Master’s orders to the date upon which Mr Moore-McQuillan had already lodged appeal papers, that is, 2 May 2005. At the time he did so, the judge indicated that he agreed with the reasons which had been given by the Master for the orders striking out the proceedings, but that he considered that Mr Moore-McQuillan had a right of appeal and that it was proper in the circumstances to extend the time to appeal.
Applications for leave to serve a summons for judicial review are ordinarily heard ex parte (SCR r 98.04(A3). Consistently with the position at first instance, the appeals were heard ex parte.
Mr Moore-McQuillan appeared on his own behalf to prosecute the three appeals, which were listed for hearing together.
I will briefly explain the nature of each of the proceedings.
In one of the proceedings,[1] Mr Moore-McQuillan seeks to have convictions recorded against him in the Adelaide Magistrates Court in March 1996, set aside. The Magistrates Court is not named as a defendant in the proceedings, which are directed to WorkCover only.
[1] Action No 214 of 2005.
Mr Moore-McQuillan endeavoured to remedy that deficiency by including “Magistrates Court of SA” in the heading which appears on the cover page of the appeal book. No order has been made to support that purported amendment.
In the other two proceedings, Mr Moore-McQuillan seeks judicial review of matters which have been determined, in one instance in the Workers Compensation Appeals Tribunal (“the Tribunal”),[2] and in the other instance in the Industrial Relations Commission (“the IRC”).[3]
[2] Action No 215 of 2005.
[3] Action No 213 of 2005.
In those other two proceedings, neither the Tribunal nor the IRC have been named as defendant, the proceedings again being limited to WorkCover only. Once again, Mr Moore-McQuillan attempted to address that potential difficulty, without any order having been made permitting an amendment, by inserting a reference to the IRC and the Tribunal in the heading which appears on the cover page of the appeal book.
In the orders sought in those two proceedings, the relief claimed is directed to WorkCover only.
In the action concerning the Tribunal, Mr Moore-McQuillan seeks orders that WorkCover calculate “the correct amount” of his “income entitlement pursuant to s 4(7) of the Workers Rehabilitation and Compensation Act”, and that any arrears be paid to him.
In the action concerning the IRC, he seeks orders that WorkCover calculate “the correct amount of income superannuation” pursuant to certain stated awards, and that any “back pay and entitlements” be paid to him.
In my view, the reasons given by the Master for the orders which he made are entirely correct.
It is impossible to deduce from the statement of claim in each of the proceedings, precisely what proceedings are the target of the applications which Mr Moore-McQuillan has brought. Neither is it possible to identify in the affidavit filed in support of the application for leave to serve the proceedings in each case, any intelligible grounds upon which the application is brought.
Furthermore, as the Master pointed out, the nature of the judicial review sought was not disclosed in either of the proceedings, although the only possible order in the nature of judicial review which could conceivably be pursued by Mr Moore-McQuillan is certiorari. However, the orders sought in two of the proceedings are not orders which would be made on an application for judicial review.
While in the proceedings seeking an order setting aside the Magistrates Court conviction, the order sought could conceivably be made on an application for judicial review, the Magistrates Court has not been properly joined as a defendant. Neither is the record of that court before this Court, so that it is impossible to say that there is an error on the face of the record.
A further consideration is that pursuant to SCR r 98.06, a summons for judicial review must be issued within six months from the date when the grounds for the review first arose, “and shall in all cases be made as promptly as possible”. These three summonses are hopelessly out of time.
It is unnecessary to refer to other shortcomings referred to by the Master.
No ground has been made out to justify interference with the orders made by the Master.
I would dismiss the appeals in each case.
DEBELLE J. Mr Moore‑McQuillan (“the appellant”) made three applications for judicial review. On 18 April 2005 Master Lunn made orders dismissing all three applications. The appellant appeals against each order.
Each appeal involves different issues. It is, therefore, desirable to deal separately with each.
213 of 2005
In this application the appellant seeks an order for judicial review in respect of decisions of the Full Bench of the Industrial Relations Court made in 2001 and 2002. It is not entirely clear whether he seeks a review of a decision of the Full Bench of the Industrial Court or of the Full Bench of the Industrial Relations Commission. However, for the reasons below, the appellant faces an insuperable difficulty in either instance.
The application for judicial review was made on 18 March 2005. An application for judicial review must be made within six months from the date when the grounds for review first arose. The issues the subject of this application arose in 2001 and 2002 respectively. The appellant’s application is, therefore, well out of time. There is no application for any extension of time nor is there anything in the grounds upon which the appellant seeks the orders of judicial review which suggests that it is appropriate to extend the time. The application is so far out of time that it must be refused. That is the appellant’s first difficulty.
The second and more significant difficulty for the appellant lies in the terms of s 191 and of s 206 of the Industrial and Employee Relations Act 1994 which, since 16 May 2005 has been called the Fair Work Act 1994 and which, for convenience, I will call “the Act”. If the appellant seeks to appeal against a decision of the Industrial Relations Court, s 191(1) provides only limited grounds on which to appeal to this Court. It provides
191(1) An appeal lies to the Supreme Court from a judgment, order or decision of the Full Court if –
(a)the appeal is based on an alleged excess or deficiency of jurisdiction; or
(b)the Supreme Court grants leave to bring the appeal.
It is apparent from the grounds on which the appellant relies that he seeks to challenge the decision on its merits. There is no allegation, nor in the circumstances could there be any allegation, of an excess or deficiency of jurisdiction. There was, therefore, no ground upon which this Court could hear an appeal under s 191(1)(a). In addition, there is no ground which justifies a grant of leave to appeal.
It is not entirely clear from the papers whether the appellant exercised his right of appeal or sought leave to appeal. If he did, he has exhausted his remedies of review. If he did not, it is now too late to seek to apply for judicial review when he had a right of appeal available to him. The Court will not be inclined to make an order in the nature of judicial review when an alternative remedy is available: Twist v Randwick Municipal Council (1976) 136 CLR 106. That principle would apply with even greater force given the extraordinarily long delay in bringing this application.
If the appellant seeks to review the decision of the Industrial Relations Commission, he faces another barrier. Section 206 of the Act provides for finality of decisions of the Commission in these terms:
206(1) A determination of the Commission is final and may only be challenged, appealed against or reviewed as provided by this Act.
(2)However, a determination of the Commission may be challenged before the Full Supreme Court on the ground of an excess or want of jurisdiction.
There is no right of appeal to this Court from decisions of the Industrial Relations Commission. The only means by which a party may apply to this Court to challenge a decision of the Commission is on the ground of an excess or want of jurisdiction as provided in s 206(2). There is nothing in this application which demonstrates any excess or want of jurisdiction. The application must, therefore fail on that ground.
The appellant has other difficulties. The application betrays a complete misunderstanding of the purpose and function of an application for judicial review. He is not to be blamed for that. However, the nature of the relief he seeks is not clear. If, as it seems, he seeks an order of certiorari, he should have joined the Court or the Commission as a party to the application. As neither are parties, this Court cannot grant the relief which the appellant seeks. Even if the appellant were to apply to add the court as a party, leave would not be granted because, for the reasons already stated, there is no ground on which the Court could possibly grant the relief he seeks.
Master Lunn refused the application on other grounds. The appellant has failed to demonstrate that he erred. This appeal must, therefore, be dismissed.
214 of 2005
In this application, the appellant seeks to set aside a conviction for fraud and penalties imposed in respect of that offending. The convictions were entered in 1996. The application is, therefore, some eight years late. In all the circumstances, the application is well out of time and must be refused on that ground, especially as there is nothing in the application which would justify granting an extension of time.
In addition, an application by way of judicial review is not in the particular circumstances of this case the appropriate manner in which to set aside a conviction ordered in a court of summary jurisdiction. The proper means to do so is to appeal to the Supreme Court but any appeal is long out of time.
There are other difficulties with this application. One of those is that WorkCover is not the proper party. But it is unnecessary to examine those other issues, given that there are strong grounds upon which this appeal must be dismissed.
This appeal also must be dismissed.
215 of 2005
In this application the appellant seeks orders in the nature of judicial review which will affect the amount of an income entitlement under the Workers Rehabilitation and Compensation Act 1986. The appellant does not identify any particular decision which could properly be the subject of an application for judicial review. Instead, he seeks some kind of general review by this Court of his dealings with WorkCover since 1991. As he says in paras 15 and 16 of his application:
15.The appellant is now wishing to correct the wrong by having the correct award rates applied to the income entitlements pursuant to the Act by WorkCover and thus address the back pay of these entitlements to the appellant.
16.This matter is part of the other judicial review sought by the appellant and all documentation is cross-referenced and applies to all.
An application for judicial review can only be made where it seeks to review a particular decision of an administrative body or an inferior court. It is not a process by which to undertake a general review of the kind which the appellant seeks. This application is, therefore, fundamentally flawed. As Master Lunn said in his reasons, there is no reasonable prospect that the Court would make any order in the nature of judicial review. The appellant has not been able to demonstrate any error in the reasons of the Master.
For these reasons the appeal must be dismissed.
For these reasons I would dismiss each of the three appeals instituted by the appellant.
ANDERSON J. In each case I would dismiss the appeals. I agree with the reasons of Perry J.