Moore-Mcquillan v Workcover Corporation

[1998] HCATrans 4

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A49 of 1997

B e t w e e n -

M. MOORE-McQUILLAN

Applicant

and

WORKCOVER CORPORATION

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 AUGUST 1998, AT 3.45 PM

Copyright in the High Court of Australia

MR M. MOORE-McQUILLAN:   I am Mr Moore-McQuillan, your Honour.  I am representing myself.

MR T.M. McRAE:   If the Court pleases, I appear for the respondent (instructed by Donaldson & Walsh).

GLEESON CJ:   Yes, Mr Moore-McQuillan.

MR MOORE-McQUILLAN:   Your Honours, this is an application for leave from the Full Court.  Basically, I am not sure if you have got hold of an amended summary of argument today.

GLEESON CJ:   Yes, we have that one.

MR MOORE-McQUILLAN:   I am not going to bore you to death and go through my long-winded one.  I have summarised it down to the four points.

GLEESON CJ:   Thank you.

MR MOORE-McQUILLAN:   Basically this is - the original complaint was lodged by Workcover in 1994 and that is in the book of documents that I have supplied - the original complaints.  The complaints are a simple roll‑up plea.  They do come no other way than that and that was the way it proceeded.  That was my first point.  The High Court has dealt with this very matter of section 122 in Walsh v Tattersall (1966) 70 ALJR 884. The prosecution from the very incept of the whole thing was a nullity. It did not have - they have not followed the procedures and they have not even followed the rules right from the word go.

When I approached Mr Perry back after the duress and everything else at the occurrence of 13 March 1996, there was still a problem with the innocence.  I had signed - I had a plea of guilty inside the cells which I had inexperienced lawyers who did not give me any advice.  I was locked up in the Adelaide Remand Centre while the whole matter was going on.  I had not found any information what was going on.  There was doubts about my mental state and a psychiatrist was supposed to be called that day, and in the morning they said, “No, we will just cancel that”.  And that afternoon this guilty plea went through.

The letter that Mr Perry in his verdicts goes through that I signed, does not say I was guilty at any point.  It actually says quite clearly that I was innocent all the way through it.  I never ever admitted guilt.  I never ever wanted to admit guilt for something I did not do.  The problem with the whole thing was that when I approached Mr Perry again, later on, after the first appeal was dismissed, the problem with that is that there was no documentation ever supplied.  Then documentation started coming over 12 months after the court charges actually came down, the guilty plea had actually been entered.

So we had a period of 12 months go past.  Then once that documentation started coming out, we come to point two.  Now, Mr Perry said there was a simple argument of underpayments from section 122 of the Worker’s Rehabilitation and Compensation Act.  The point is I never said I was not earning money from an outside source other than Workcover, and I have also declared it back to them.  But the problem with that is that at no time during their charges did they ever take into account the Act itself.  They did not take into account that the Act had a section 35(1)(b)(ii) which said that I could do that and I had to declare it, and then they had to take a set formula.  They never did any of that.  So they failed in their own proceedings of administrating their own Act which is point one.

The second point is that Mr Perry said there was not sufficient evidence to take this to the Full Court.  The Full Court just dismissed it and said that was it, there was not enough time for leave, it was too long and there was not any justification for this matter going on any further.  However, I then took the matter to the Workers’ Compensation Tribunal who then last year, after six days of hearing this matter, and they went through and they were supplied five sets of inaccurate documents from Workcover for the same period of time that said, and this should have showed quite clearly the money I earned, the money that they supplied or they paid as a benefit, should have shown a deficit that should have shown quite clearly the underpayment that they are alleging.

The problem with it was that in JD1, which I also supplied in the book of documents, that came down on 19 January this year, Acting Judge Thompson from the Workers’ Compensation Tribunal examined the financial records upon which the charges against me were met and were found to be highly unreliable.  He actually quotes and goes right through JD1.  I also appealed JD1 in the Workers’ Compensation Tribunal to the Full Bench of the Workers’ Compensation Tribunal because of points that were still - because of the inaccuracy of the documentation, et cetera.  That just came down as JD50 and that is also in the book of documents.  I believe you have a copy of that.

Now that clearly shows that the Full Bench of the Workers’ Compensation Tribunal also had a problem with the documentation.  In fact, the Full Bench went to the point that they found it incapable to constitute on the basis that in the finding of a civil charge, I understand it failed all the way along, because Workcover could not produce at any time before then, and this is just - and the request only made for the Workers’ Compensation Tribunal was to prove, I believe, that there was an overpayment - sorry, an underpayment to me and Workcover has failed in that duty.  Instead, they said, “No, there is an overpayment to you and you owe us money”, but they could not prove it and I could not prove it because I could not take their financial records.  They have refused to have anybody, an independent auditor, go through the books to make sure.  There was refused ‑ ‑ ‑

GLEESON CJ:   May I interrupt you to ask you a question.  What we are dealing with here is - correct me if I am wrong - an application for leave to appeal against a decision of the Court of Appeal dismissing an appeal from Justice Perry who declined to give you an extension of time.

MR MOORE-McQUILLAN:   Yes, you are correct about that.  That is exactly what we are here for.  But what I am saying is that he also said in his summary, in the second, when he refused that appeal, he also stated and in the application book you will find it at - sorry, in the book of the documents you will find it at, where it goes to - from the transcript it is pages 58 and 68 of the book of documents and I believe it is at page ‑ ‑ ‑

GLEESON CJ:   But the judgment that you are appealing against is at pages 32 and 33 of the book of documents, is it not?

MR MOORE-McQUILLAN:   Weekly payments?

GLEESON CJ:   Do you have that book, the application book?  Do you have page numbers ‑ ‑ ‑

MR MOORE-McQUILLAN:   The application book - I am sorry, your Honour, I had the wrong book.

GLEESON CJ:   Can you go to pages 32 and 33?

MR MOORE-McQUILLAN:   Yes I can, your Honour.

GLEESON CJ:   That is the judgment against which you seek leave to appeal, is it not?

MR MOORE-McQUILLAN:   That is correct, your Honour.  I appeal this because Mr Perry said that the balance, that the whole matter of whether I was guilty or not guilty, or whatever, failed because of Avery J and because a guilty plea went through.  He also stated that the reason why - and that is why I drew your attention to the transcript that he mentioned on page 65 of my application - the applicant’s book of authorities.  It says:

The question though is not whether, on some sort of balance of an account between you and WorkCover, any monies were due in one direction or the other.

It was 100 per cent, that is what it was.  The whole matter for underpayment, the whole matter of earning money dishonestly, or whatever it was, as I understood it and from what I was told, because I was not supplied with any documentation from Workcover whatsoever, even to this very date I have never received any documentation from them for what they produced their evidence on, or their charges.  But that was quite clearly that the whole point came down to that to show an underpayment or an overpayment, there would have to be a balance one way or the other.

GLEESON CJ:   Justice Perry dismissed your appeal to him on 2 August 1996.

MR MOORE-McQUILLAN:   Yes, because of evidence.

GLEESON CJ:   And you made an application for leave to appeal to the Full Court on 4 April 1997.

MR MOORE-McQUILLAN:   That is correct, your Honour.

GLEESON CJ:   And what is the explanation of that delay, between August 1996 and April 1997?

MR MOORE-McQUILLAN:   I am sorry, your Honour, what happened between - that extension of time?  The problem was, that from the point when I got the - in August to April - I never had any more documentation.  It has only came April of 1997 that I did start getting some documentation released to me from Workcover, even though it was anonymously and I was told by people from Workcover that I should have looked at certain aspects of the documentation I had and it drew attention to things that were wrong.  I did not know about section 35(1)(b)(ii) not being overlooked by the section, and I started finding more evidence coming through.  Some was released, and when I started getting this new evidence that proved that I was right.  Because at the time before, I was never given any documentation.  Once this new evidence started coming available, then I found that I could now prove, because I never had any documentation before, no one had any documentation before, so we then went to the courts and said, look, there is new evidence.  There is stuff that has come out that we never had before, I never had before and Workcover released it. 

That was the distance between the - that is why it came about.  But before, it was no good saying, appealing straight off from Mr Perry from August in 1996, I had no more documentation or any evidence at all.  In fact, the only time I could do ever do anything, and the only time I could actually respond and react - it was not a point that I never said I was not - I have always said I was innocent.  I never said I was guilty.  But I never had any documentation.

The problem with this whole thing between August and April is that I did not have any documentation, I did not have any proof.  I could not do anything.  The person at the other end, you can scream all you like, but until you get that hard evidence it is very hard.  I was searching and searching through documentation.  I was going through everything I could find to get some documentation and only when it becomes available, then I could do something about it.  That is when it came about in April.  I did point that out to Mr Perry.  Mr Perry then said, “Show me”.  I had to produce a book for him.  I did do that.  He looked at it and said, “I am not looking at that”.  He then said, “It is not a matter of one way or the other”.  He dismissed all the evidence that came out.  He dismissed the Act altogether and he said, “No”.

What I have actually proven now is that by taking it to the Workers’ Compensation Tribunal and producing the same period of time, and taking the same evidence to find out if there was an underpayment or an overpayment and it would be settled once and for all when the Judicial Determination No 1 came through in the Workers’ Compensation Tribunal.  It was proved quite clearly that there was no underpayment or overpayment because they supplied five sets of inaccurate documents - now this is a government organisation that is in charge of looking after this State’s Worker’s Rehabilitation and Compensation Act.  These are the people who are supposed to be answerable to the government and they had five attempts at producing the same documents which should have been a simple audit matter, and they did so.  They went and got an audit and they could not produce it.  It still comes down to the point that they say that you are guilty of dishonest payments, but we cannot prove it because we cannot show it in our documentation.  That is the point - why I went to the Workers’ Compensation Tribunal because I believe that the overpayment was that I had been underpaid and that they had not paid enough. 

The problem with it was that the Workers’ Compensation Tribunal came up with the whole verdict of which way it went.  They could not prove either way because the fact that if Workcover had been correct back in 1996, they would have supplied accurate documentation right from the word go, not after five attempts at doing the same set of figures to get - and if you read JD1, it was scathing about the amount of inaccuracy and it was not just like a couple of dollars, it was tens of thousands out.  It went up and down.  It was a very - it was not just like a minor mistake.  It was definitely a class act of five different documents from the same set of figures.  They had no idea what they were doing and I am still with the verdict of saying “you’re guilty”, because you have earned money dishonestly, even though I declared it.  I did everything I was told to do.  The case manager said, “This is what you have to do”.  I did everything they did and then the case manager turned around and said, “No, we are not doing anything now”, and they are not even answerable because under section 122(4) of the Act they are beyond prosecution.  They commit fraud.  They commit dishonesty.  They break the Act, do not honour it, whatever.  That does not matter because they are in charge of the Act but they do not have to face any penalties and that is a problem with the Act right from the word go.  That is a big problem with people who sit behind the counters and who cannot supply five sets of documents that were accurate.

So the period between August and April, I had no documentation whatsoever.  But once the documentation came about, and once I had that documentation, then I was not short or slow in bringing it towards the attention of all the authorities.  I brought it to the Worker’s Compensation Tribunal, I brought it before Mr Perry, I took it to the Full Court, and then I took it straight onto the High Court because the documentation kept on coming out and it kept on proving what I have been saying all the way along.  This is not just something I have been making up.  This is stuff that is actually fabricated.  This is something that no man should have ever been in the situation of being charged on no evidence.  I was charged on no evidence.  They supplied no documentation.  They supplied five sets of inaccurate documentation to a tribunal when, clearly, I did not even have a chance to alter, doctor, or anything, I did not even have a chance to know what the documentation were.  So they actually hid all the documentation from me and even to this very day, I am still not entitled to my freedom of information.  So I still cannot get the accurate documentation or get a chance to have a look at the documentation to check to see if it is inaccurate, out of date, misleading - all the components of the Act that are stated in South Australia of 1991.  So that is a problem in itself.

Like I said, once the documentation became available, now there was an extension of time, but the extension of time was not my fault.  I did not have any documentation, nor could I set my mind to it, or do anything else.  Mr Perry sent it back because of Justice Avery and he said that there was two ways that you can overdo a plea of guilty.  One:  if you could never possibly have done the crime in the first place, and I have proven that in the Workers Compensation Tribunal with documentation, or I believe I have.  Two:  that there was other circumstances, et cetera.  I have done everything I can physically do to produce documentation in evidence.  Before the trial I kept asking for my documentation.  I insisted on my documentation.  I asked and repetitively kept on going, even on Carter v Hayes I asked for the documentation under the discovery process.  Mr Crimmond, Chief Magistrate, said on 10/10/95, “You don’t get discovery.  You do not get your freedom of information.  That’s the end of the story.”  That was the end of it.

Then they put restraining orders against me for me completely going up.  Now, this is something that no man should have ever been in the situation where I believe it was a kangaroo court.  It was a civil prosecution.  It was not a Crown prosecution.  The matter was brought up by Mr Pat Amey from Donaldson and Walsh.  At no time - at any time did they produce any accurate documents or any documentation at all.

The more I kept on asking for my documentation, the more I insisted on getting my documentation, because I was representing myself, the more I got restraining orders.  The restraining orders took the rights away from me and when the restraining orders were eventually revoked after I had appealed them in the Supreme Court, it was found quite clearly that Workcover had, and Mr Fields SM from Magistrates Court had stated quite clearly that the restraining orders had taken away my rights; Workcover had a statutory obligation to honour my rights as an injured worker.  They failed to do that and the restraining orders were not confirmed at all.

So, therefore, that did not happen until 97.  That just went past this Christmas that has gone, that they were not confirmed.  So, there has been an ongoing saga.  There were restraining orders, there was a myriad of attacks that I had to deal with other than just this matter because of restraining orders that were put in place.  There was - been trying to deal with this to get evidence.  For a person who is a lay person, I knew nothing about the law.  In fact, in was a learning curve for me.  I knew nothing about it from the time they started with this, until the point where I get here and to the point where I can put something together and start reading documentation.  I knew nothing about it.  Now, I know something, but that is all I have ever done.  Since 13/3/96 all I have done is try to find some way of finding my innocence and I have had to do that by going to the Supreme Court library, by trying every way I can to find documentation.       When something comes to my hand, once I got the documentation, that only occurred in April of the following year, in 97, 12 months after the criminal conviction.

The Full Court has also considered that the reason for extending time by Perry J had to apply with - point No 3 of my point which is actually by Jackamarra v Krakouer, 1998, this year, and I believe that that is the same instance and the same conditions that apply to me.  There has been a great miscarriage of justice and I cannot stop - you know, I cannot control the events that have happened.  I do not think anybody should have endured what I have and I ask that the fact that they cannot supply any documents and they have gone now to three trials:  we have gone to Full Bench of the Workers Comp; the Workers Compensation Tribunal itself and to the Magistrates Court and at no time can they produce any documentation.

I tried to explain this to Mr Perry but I did not have enough documentation.  I had some documentation.  We have gained a little bit more as days go by and we get a little bit more but there was enough that Mr Perry should have realised right from the word go that there was a problem.  If you look at this afresh, he argued the point about the letter that I wrote in the cells.  But that letter in the cells does not admit guilt, it admits innocence.  I at no time pleaded guilty or said I was guilty yet, they said, “No, that’s the way it is.” 

I was done under duress, because I was a correctional service officer and then I was locked up in the Adelaide Remand Centre.  That is not a good place for anyone to be, on one side to the other, and I was in that cell for the whole month under duress.  Now, that did have my mental state one way or the other and I have no qualms about that.  I was really wanting to get out and be free from that environment and that anxiety for itself.  Plus not having any information. 

The day before the trial was the only time the solicitors actually came and asked me what was going on about the case.  I did not know what was going on.  And then they started plea bargaining.  The problem with this is that right from the word go plea bargaining went very wrong.  They wanted to plea bargain all the way along.  I did not know what was going on.  Lawyers sitting out there having cups of coffee and in the fresh air.  I am in a 10 by 10 cell in the back of the Magistrates Court not even knowing what is going on.  Then they come along and say, “Here’s the deal.”  I do not know what is going on.  “Sign this.  You’re going home tonight.”  It did not even happen.  They changed their mind over night. 

I have always pleaded my innocence and I believe if this went back to another trial I would be proven innocent again.  I would not be pleading guilty.  And we have got enough documentation.  They have had two attempts at trying to prove it right and they could not do it.  They had five different sets of documents to supply.  I do not think we can argue about any more than that.  I do not know if there is any other questions you could ask about that but that is simply the whole thing, it is.

GLEESON CJ:   Thank you very much.

This is an application for special leave to appeal against a judgment of the Full Court of the Supreme Court of South Australia given on 24 July 1997.  On that date the Full Court refused the applicant leave to appeal against an order of Perry J.  Perry J had, on 23 May 1997, refused to extend the time within which the applicant could seek leave to appeal to the Full Court against a decision of Perry J on 2 August 1996.

The decision of the Full Court of the Supreme Court, in refusing leave to appeal, was a discretionary decision and the applicant has been unable to demonstrate that an appeal would have sufficient prospects of success to warrant the grant of special leave.  The application for special leave to appeal is dismissed.

Is there a question of costs, Mr McRae?

MR McRAE   I ask for an order for costs, your Honour.

GLEESON CJ:   What do you say about that, Mr Moore-McQuillan?

MR MOORE-McQUILLAN:   Your Honour, I say that there should not be any costs in this because I have done all the work myself on this.  They have already got the evidence from the Workers Compensation Tribunal.  I am very disappointed that we have actually lost on this appeal when considering that the evidence is quite overwhelmingly - - -

GLEESON CJ:   No, I wanted to ask you what you had to say about costs.

MR MOORE-McQUILLAN:   Your Honour, I believe there should not be costs awarded in this situation because even if there is costs in the Supreme Court here they have had, when we have come here, a maximum of $150 because I am unrepresented - was ever issued.  If you do wish to order costs - because otherwise they become astronomical and before long we end up with a problem where people cannot get justice because we cannot afford to come to the venue to declare our innocence when they add cost to it that become too much where people sell their life out.

GLEESON CJ:   Thank you.  The applicant must pay the costs of the respondent of the application.

AT 4.07 PM THE MATTER WAS CONCLUDED