Moore-McQuillan v WorkCover Corp SA

[2004] HCATrans 307

[2004] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A265 of 2003

B e t w e e n -

M. MOORE-McQUILLAN

Applicant

and

WORKCOVER CORPORATION SA

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 2004, AT 11.25 AM

Copyright in the High Court of Australia

MR M. MOORE-McQUILLAN appeared in person.

MR O.W. DOWNS:   If your Honours please, I appear for the respondent.  (instructed by Lawson Smith Lawyers)

GUMMOW J:   Yes, Mr Moore-McQuillan.

MR MOORE-McQUILLAN:   Your Honour, this is a matter that came from the Workers Compensation Tribunal and has had a long history, and there have been a few issues, but basically the issue or the point of law that I will take you through, or the point of law that affects me here, can be found in the Workers Rehabilitation and Compensation Act 1986 (SA) in section 4. It is in plain language, it is not in language that has to be interpreted ‑ ‑ ‑

GUMMOW J:   Well, we are dealing with an appeal from the Full Court and what you really have to show – and their reasons appear at 39 and 40 of the book – is that there was some error in their treatment of the matter.  They emphasise the fact that the decision under appeal to them was a refusal to grant an extension of time, and that the decisions of the Review Officers had been made in 1991 and 1995. 

MR MOORE-McQUILLAN:   Yes, well, basically, if we look at the decisions, first of all, the extension of time issue was raised by the fact of the length of the time it has had.  Now, I have been before this Court on an issue of my freedom of information being refused to be granted to me, documentation was withheld at WorkCover, and it was only when Parliament changed the Act in 1997 to include the 107B section, which means that all documentation held by WorkCover can be provided and sent to myself, being an injured worker, that that information became available.  It might have been 1999, your Honour, when that Act came in, that amendment.

Basically, after that, there was a document produced where it showed – if you have my supplementary book, on pages 21, 22 and 23 and 24, you will see this documentation which was given, and you will find a little faded stamp inside there which is the 107B stamp, which is dated from March 2002.  It is not very clear on the photocopy.  Basically, the evidence that has been presented – it is quite clear that if you look even on page 22, pursuant to section 4(2)(a), average earnings from all employment was used.  There is nowhere, whether we look at the document, whether we look at the judgments from 1991 and 1995, was there any other applicant. 

It was in 1991 when it was accepted that I had a disability injury and WorkCover was given the position to work out my income.  In 1995, WorkCover released a document which is on page 10 of the application book – it starts on page 8 – and it has an outline of figures on it.  That was produced from the employer for me to take in 1995.  So it was accepted, and they worked out my income in 1991.  Then in 1995, only on the average of what I was paid by the employer, was it worked out in 1995, which is the second income, but, clearly ‑ ‑ ‑

GUMMOW J:   You have to face up, Mr Moore‑McQuillan, to the considerations that moved the Court of Appeal in refusing ‑ ‑ ‑

MR MOORE-McQUILLAN:   Yes, I will come to that, your Honour.  I will come to the point where it said there was no point of success in that appeal.  From the High Court, they said there was no reasonable amount of success.  Before McCusker in the WCAT – because there was an issue of whether it should be heard by the WCT or the WCAT, or the Workers Compensation which is now ‑ ‑ ‑

GUMMOW J:   The legislation has been changed.

MR MOORE-McQUILLAN:   Yes, but I did try and do it in the WCT, but Downs, the respondent here, argued repetitively that you cannot be doing that because it was an act that was done by the WCAT, so it had to be dealt with in the WCAT legislation.  And that was argued successfully by him before Justice Martin in the Supreme Court on, I think it was, 6 September 2002 or 2001 – I have referred to it. 

Justice Martin was under the impression, and he also gave in the transcript I have provided and his decision, that I should have been entitled to the award rates as by the Act, but because it came down – it all hung on one – because Downs was successful because he said I used the words “I may be entitled” when I should have used the words “I should have been entitled”, and therefore the application had to be changed.  Justice Martin said, take this back to the WCT and get it done by the WCAT, so I did that, the application then went back and it was then the applications that are now before this matter – were done after that instruction from Justice Martin before he left this court.

The extension of time has not been my problem – sorry, it has been my problem, because it has not been my fault, because the documentation that was required was not forthcoming.  I was forever saying and forever pleading to get someone to sort this out right back from 1991, but nothing came about.  It was only after the releasing of the action sheets from the Workers Compensation Tribunal, 107B, that documentation became available, I could actually prove what was required and show the error, that there was an error done on 4(2). 

This has also gone before Justice Olsson, and Eric Minden, who was the case manager who made the decisions at that time, said quite clearly that they only did WorkCover case managements when they worked out the income – only used 4.2 because it was just quicker and easier than having to work out the award rates and whatever and leave it up.  That was it.  At all times when I complained, I was only told you are only allowed to have what you are entitled to by your employer, by the average.  I was never, ever instructed or informed.  It was only after a decision in 2001 where Mr Downs was successful in going to the Workers Compensation Tribunal and removing ‑ ‑ ‑

KIRBY J:   But, Mr Moore-McQuillan, as Justice Gummow has explained to you, your basic problem is that you got out of time, you went to Deputy President McCusker and sought an extension of time.  He declined an extension of time.  So you have got yourself caught up in what we classify in the law as a procedural matter. 

MR MOORE-McQUILLAN:   Yes, it is procedural.

KIRBY J:   You do not get to the substance unless you can overcome the procedural impediment ‑ ‑ ‑

MR MOORE-McQUILLAN:   The reason – yes. 

KIRBY J:    ‑ ‑ ‑ and the problem is that it has gone through Deputy President McCusker, Justice Perry and then the Full Court, and none of them have found a basis on which you can overcome the procedural matter.  I cannot remember, in the nine years I have been on the High Court, the Court giving special leave in a matter of procedure unless there is some important error that has led to the procedural order. 

MR MOORE-McQUILLAN:   Well, before McCusker ‑ ‑ ‑

KIRBY J:   And I cannot see that error.

MR MOORE-McQUILLAN:   Before McCusker, right, if we go back to that situation itself, Justice McCusker – there are a few problems with Justice McCusker as it stands on its own.  One, in 1998 in a mediation process, McCusker became the mediator, and he stated before myself and WorkCover, and gave an undertaking to us both, that if he became the mediator he could never, ever, hear another matter concerning myself and WorkCover ever again.  Then he turns up.  I actually wrote to him, and that is on the last page of the ‑ ‑ ‑

KIRBY J:   Yes, but that is only a very prudent thing for a person who has been involved in a case where you have been very anxious about it.  In such a case, a judge or a judicial officer or arbitrator is entitled to say, “Well, I think it looks better if I do not have anything to do with either side”, and that is something that was open. 

MR MOORE-McQUILLAN:   All right, I can accept that, but I cannot accept then that he had meetings from 2001 to 2003 with Hans Lutterus on the end here for WorkCover in a mediation process where the mediation process was he was still mediating, but he was Moore‑McQuillan v WorkCover in a mediation process and I was not invited to the mediation process.  In fact, I was barred from the mediation process which went from 2001 to 2002, where they discussed my matters and my case – McCusker and WorkCover – over that period of time without me being present, and I was then bound by decisions that were held behind closed doors that were discussed without me being present.

Now that would itself put up an issue of prejudice and bias towards me from McCusker, because when they are discussing my future, I assume, behind closed doors, that they are not talking about the footy tips, but they would be talking about my matter, considering that was the matter that was at hand. And I not being present, it leads to a situation where it is only one side giving an argument and working out what they are going to do.  It become a very biased situation on its own.

Go one step further again, that even in Justice Olsson’s latest decision, because he is now hearing these matters in the Workers Compensation Tribunal – in his latest decision that was brought down on 2 July 2004 in the Workers Compensation Tribunal SAWCT 72 of this year on page 3, point 7, he says:  “However, as 15 matters additional to 92 documents were recently located in files, former files raised in relation to them, although various batches of the documentation bear registry receipts, stamps retrospectively dated 24 July 1997, 30 December 1997 and 20 January 1998, no steps were taken at the relevant times to proceed to process them in accordance with the relevant provisions of the Workers Compensation Act and/or the rules.  The reason for this is not apparent”. 

Now, the problem I also had is that I lodged with the – when you lodge an appeal to the Workers Compensation WCAT, you lodge documentation as well, which I did, to the WCAT on the day.  What was usual practice that I have had in the past is that the first time we meet it is discussed what documentation I require from them and what documentation I have lodged and if that is enough, but it was not.  On that day, that – the documentation I lodged to the Workers Compensation Tribunal was not before McCusker.  McCusker even said that “There is no documentation or anything before me to prove otherwise”.  The action sheets were not before him, or the day I returned the supplementary book, and other documents were lodged in the Tribunal but not before him.

So he then said, “You have not got any documentation, you have not got anything here, it is only your word”, and WorkCover were never given the opportunity to say how they produced it.  It would have been a simple matter if WorkCover just produced ‑ ‑ ‑

KIRBY J:   See, again, you are dealing with the substance in that ‑ ‑ ‑

MR MOORE-McQUILLAN:   Yes, I am dealing with the substance, I agree, but the High Court ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ and I understand why you are doing that, but, you see, it was a very long interval, 1991, 1995, I think, decisions of review officers, and that came up to Judge McCusker, and he refused you the extension time within which to proceed.  So all that we have before us is a refusal by the Full Court which said, “You have two impediments”.  This is what the Full Court said:  “The first is, we only have in the Full Court the right to interfere on a point of law, and, secondly, we only have the right to interfere in a procedural matter if you show that there is some serious error of principle in the exercise of the discretion to refuse you the extension of time”.  Both of those elements, they said, were missing.

MR MOORE-McQUILLAN:   Well, the point ‑ ‑ ‑

KIRBY J:   Now, what is the special leave point in the High Court of Australia?  We are the highest Court in the country. 

MR MOORE-McQUILLAN:   Yes, I agree ‑ ‑ ‑

KIRBY J:   We cannot become involved in every case. 

MR MOORE-McQUILLAN:    ‑ ‑ ‑ you are my last chance, and otherwise, if I walk out of here today with you refusing leave, apart from already bankrupt, I would be also missing income ‑ ‑ ‑

KIRBY J:   Well, we understand that.  We take this very seriously. 

MR MOORE-McQUILLAN:   I am taking it more than seriously, because I am made bankrupt, your Honour ‑ ‑ ‑

KIRBY J:   Yes, we understand that ‑ ‑ ‑

MR MOORE-McQUILLAN:    ‑ ‑ ‑ and they are the people who are holding me to bankruptcy.

KIRBY J:    ‑ ‑ ‑ but we have to apply the law, and the law says ‑ ‑ ‑

MR MOORE-McQUILLAN:   I agree with that, but the law has not been applied in this case.

KIRBY J:   Well, you say that, but you have to show a very serious error of principle to overcome a procedural decision by an experienced judge who says that there is no reason to extend the time.  It was a very lengthy time, 1991 and 1995, and you are really asking to re‑open ‑ ‑ ‑

MR MOORE-McQUILLAN:   I agree, it is like 13 or 14 years, but the problem with it is, your Honour, that in 1991 they had the job of doing it and I kept on complaining, but I was never given any – the thing you have to realise is, and if you look at my history of – I have been trying to get the matters and everyone has been bogging me down in procedural matters.  The procedural matters – it is quite clear that it does not work for me, it actually works against me, because what actually happens is, they held everything in freedom of information, then refused to grant me my freedom of information, so I could not get the documentation. 

Having been unsuccessful in this Court on that matter, then 107B comes along, they had to give me the documentation.  So I finally get the documentation and I am very quick, once I have the documentation, to proceed.  But the problem I had all those times is I kept on asking, writing, and what was happening, and what is happening even now, is that they take the stuff out of legal – they put it into legal privilege or they put it into freedom of information, which I was barred from both.

Now that I have my 107B file, I am entitled to some documentation, it only now comes apart, because they have withheld this documentation.  It is no good saying we had an opportunity under discovery.  The only problem with discovery was that every time I had to ask for a document, I had to not only describe the document and the date and what was involved and who wrote it and what it looked like, and I could not do that unless I knew they had the document in the first place.

So I was hampered by saying, “Well, I want the documentation for this period”.  So I was always hampered with trying to get it.  Once I got the documentation, I was very quick on the uptake to get it…..because then I had the evidence.  But it has been 14 years of banging away.  I have had restraining orders put against me, I have been persistently trying to get my rights, there have been more hassles, more assault charges, everything, you can name it, any way to obstruct or to hinder.  Now that it is into bankruptcy, they find it even more enjoyable that this is an occurrence.  The silly point about it is, WorkCover admit, the case manager…..at the moment admits that they have made an error, that 4(7) was never applied.

KIRBY J:   Well, again, you are back in the merits of the case. 

MR MOORE-McQUILLAN:   I know I am back in the merits, but the point of law ‑ ‑ ‑

KIRBY J:   We are only here to review on a point of law, an error of law or of principle in the Full Court.

MR MOORE-McQUILLAN:   Well, the extension of time before McCusker was ‑ ‑ ‑

GUMMOW J:   Judge McCusker, please.

MR MOORE-McQUILLAN:   Sorry, Judge McCusker, DP, was because he had no documentation and I did not present any documentation on that day for him to see what I was saying.

KIRBY J:   If you do not present the documentation, you can hardly blame the judge for refusing your application.

MR MOORE-McQUILLAN:   But I did.  That is the whole problem.  That is where I really am – that is where the prejudice really comes down.  I lodged it with the registry.  The funny thing is, with my application, they got my applications, but they did not get my documents, and they all came together.  So they have got my applications, which they have accepted, but my documentation that came with it they did not get, and yet it came in the same list.  That was never presented to McCusker either.  When I have gone back to the registry and asked for those documents, I get this, “No, you’re not allowed to talk to us, we don’t have to talk to you.  See you, go away”.  I get stonewalled and I cannot get through that.  I am getting down close to this, your Honour, and that is the reason why. 

I have tried to get – and if this documentation was presented, I would have to be successful because the Act is quite clear.  The stupidity of it all is that WorkCover took away my award rate, but never at any time have they paid me the award rate.  So I was awarded in the first decision $330 a week for a diving instruction from 1991, but in 2002 they said, “Being a diver, you are entitled to $965 a week.  We remove you from that”.  So they did not take 330, they took the award rate, but they do not pay the award rate which they are supposed to under the Act. 

Then I have the contradiction – that is where the problem comes down.  You cannot be fair on one side.  If the law works one way, it must work the other.  Either they have got to say, “Right, we are only taking $330”, or I am supposed to have been paid the award rate.  When it came to Judge Perry, Judge Perry came in and said, “The Act says you can’t come here”.  He was not looking at the WCT and he was not looking at section 100 for what it was done under WCAT.  He was looking at the latest amended version of the Workers Compensation and Rehabilitation Act.  That is where his error came in, because he did not look at section 100 of the WCT of that period, which I have included in the ‑ ‑ ‑

KIRBY J:   Yes, but we are hearing an application for special leave to appeal from the Full Court.

MR MOORE-McQUILLAN:   Yes.  I had to go before him first and he said, “You can’t come here, because the rules don’t say you can, because it’s been changed”, but it was not because I was still under the – I was forced to go under the WCAT, because if I did not I could have gone to the Full Bench of the WCT and had the matter heard there, but I was not.  I was then forced – once I came from Judge McCusker, I had to then go to the Full Court and I have to get leave from Justice Perry.  Justice Perry refused, because he said that section 100 does not exist any more.  So then when it got to the Full Bench, they are saying the same thing.  I must admit, they did say that the issue of underpayment – they said that there is an issue of the money, of the underpayment. 

It is quite clear.  Look, all I am asking is that – and not only that.  The WCT Full Bench put a question of law to the Full Bench of the Supreme Court on a matter of income, and they said that the question was just a simple mathematical – it was an error.  I think I have mentioned it in my – they said it was just simple mathematics.  It has been a long erroneous history, a sad history, of coming to this point, but it should be just sorted out if it is a mathematical problem.  The Act is quite clear.

KIRBY J:   That may be so, and, as statutory officers, with their duty to the law, they may have to do that, perhaps they should do that.  But we can only intervene in the decision of courts if you show an error of law, an error of principle.

MR MOORE-McQUILLAN:   Yes, and what I am saying is the error of law in this point is that the extension of time was refused by Judge McCusker because he did not have the documentation, which I had lodged with the court and for some reason it was not presented.  Even though I had approached the judge after and said, “What about the documentation?”, the prejudice that exists in there and what‑not, he said, “You can’t talk to me about this.  I’ve made my decision”.  I had to go to Perry.  Once it got to Perry, that did not get ‑ ‑ ‑

KIRBY J:   I think we understand that.

MR MOORE-McQUILLAN:   Justice Perry did not do it because he said it is 103, then it got to the Full Court and they did the same thing.  But the problem with it is at no time – this has got a history, but at no time in any of the cases and that has 4(7) ever been applied to my income.  It does stand ‑ ‑ ‑

KIRBY J:   I think you are repeating yourself.

GUMMOW J:   I think the red light is on, Mr Moore-McQuillan.

MR MOORE-McQUILLAN:   Yes, I realise that.  I know it is an important point, because it is important to me.  I just want my pay structure.  If my pay structure was sorted out properly, then I would not be in a bankrupt situation, and it is really a heavy situation of burden to be in, to be made bankrupt because you owe money, because you were not paid, because they took the full amount, but you were not paid that in the first place.  It is a ludicrous situation for me and I am just trying to get – I am pleading with the Court in one way, I suppose, because it is a simple mathematical problem, but it is not a simple mathematical problem when it comes to extension of time, because that is a procedural problem.  It should go back to the WCT. 

GUMMOW J:   Thank you.  Yes, Mr Downs.

KIRBY J:   Mr Downs, the contention that the documentation was not before Judge McCusker, has that been raised before?  What is your submission in relation to that?

MR DOWNS:   In relation to that, could I take your Honours to page 30 of the book of documents.

GUMMOW J:   Page 30 of the application book?

MR DOWNS:   Yes, your Honour.  If one would consider paragraphs 8 and 9 there, you will see that the actual documentation was not before Deputy President McCusker, but the issue that this man is addressing now was before him – about the awards.

KIRBY J:   What do you say in relation to the suggestion that the lack of the documentation undermined the judge’s order and that he might have come to a different order if he had had the documentation?

MR DOWNS:   I say it makes no difference.  The issue itself was addressed by his Honour in coming to the conclusion of not granting an extension of time, as evidenced in those paragraphs.  Consequently, it cannot be said that it was a matter that was failed or omitted to be addressed

by his Honour in exercising his discretion.  So the point in issue has been clearly addressed verbally before his Honour, and his Honour has obviously taken that into account in refusing to exercise his discretion.  I say that that is a fit and proper course.

GUMMOW J:   Thank you.

MR MOORE-McQUILLAN:   Your Honours, can I just say one thing about that?

GUMMOW J:   Yes.

MR MOORE-McQUILLAN:   In point 9 he has a query, because I worked 54 hours as a diving instructor and then I worked another 40 hours after hours as a – sorry, I worked 54 hours as a shop manager and then I worked after hours for another 40 as dive manager, and then I was living on site as well.  The problem in point 9 is that he says, “You couldn’t have done all those hours”.  I did.  And proven that he came to the conclusion in 7.9 that that was just not so.  If he had all the documentation before him and he had the original decision of Lovering, which is on page 1 of the appeal book, the bottom two paragraphs clearly outline that there were two jobs and that I did work those hours.  So he disputed that I worked those hours, and yet it was already found and never been in dispute that ‑ ‑ ‑

KIRBY J:   Mr Moore-McQuillan, I cannot imagine the High Court of Australia getting involved in sorting out a matter of that kind. 

MR MOORE-McQUILLAN:   No, I realise that, but what I am trying to do is get this matter – all I want is this matter brought back to ‑ ‑ ‑

KIRBY J:   Yes, I know you do, but to do that you have to overcome a discretionary procedural order that was made at the level of the judiciary, it has been considered by a single judge of the Full Court, no error found.  It has been considered by the Full Court, no error found.  It is a big ask to ask the High Court of Australia to get into a procedural matter of this kind.

MR MOORE-McQUILLAN:   But, your Honour, no documentation was ever given before them, so what they went on is what they had and what was already presented before.

KIRBY J:   You have heard what Mr Downs said.  I think you have had your time.

MR MOORE-McQUILLAN:   But it still comes down to the point of the fact that the Act is quite clear and it seems quite clear ‑ ‑ ‑

KIRBY J:   That is a separate matter.  That is a question behind the procedural impediment that is in your path. 

MR MOORE-McQUILLAN:   Yes, but I do not think those things were ever set up, your Honour, by Parliament intending to hinder the process.  The beginning – the problem – the fault lies at the initial point in 1991 with WorkCover, because they were the ones who did not administer the Act correctly.  Now, by holding back the documentation, they have been rewarded.

GUMMOW J:   I think we are going over what we have already gone over.

MR MOORE-McQUILLAN:   I know it is the matter of the case, but it is important, your Honour, because, like I said, I have been made bankrupt on this.

GUMMOW J:   Yes, we understand that. 

MR MOORE-McQUILLAN:   I think that it should just go back to the WCT for it to be heard by the Full Bench and get them to sort it out.

GUMMOW J:   Thank you.

The applicant seeks leave to appeal from a judgment of the Full Court of the Supreme Court of South Australia.  That court found no error of law in the refusal by the South Australian Workers Compensation Appeal Tribunal, declining the applicant an extension of time to appeal.  The applicant has not shown the error that would authorise this appellate court to disturb such a procedural decision.  The legislation also has been changed in relevant ways.  No point of principle has been identified.  Accordingly, special leave must be refused and refused with costs.

AT 11.54 AM THE MATTER WAS CONCLUDED