Moore-McQuillan v WorkCover Corporation (No 1)
[2005] SASC 245
•5 July 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Application)
MOORE-MCQUILLAN v WORKCOVER CORPORATION (NO 1)
Judgment of The Honourable Justice Gray
5 July 2005
ADMINISTRATIVE LAW - JUDICIAL REVIEW
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
Applicant sought judicial review in respect to issues advanced in the Industrial Relations Court of South Australia - application for leave to serve summons for judicial review refused - proceedings struck out -application for extension of time to lodge appeal granted.
Supreme Court Rules 1987 (SA) r 98.04, referred to.
MOORE-MCQUILLAN v WORKCOVER CORPORATION (NO 1)
[2005] SASC 245Masters Appeal
Application for extension of time
GRAY J:
Mr Moore-McQuillan seeks to initiate judicial review proceedings in respect to issues advanced in the Industrial Relations Court of South Australia. WorkCover has been named as a respondent.
The applications for judicial review were originally pursued before a Master of the Court pursuant to Rule 98.04A of the Supreme Court Rules 1987 (SA). That rule provides:
(1)Upon the issue of a summons seeking judicial review under Rule 98 the plaintiff shall thereupon also take out an application for direction under Rule 55 which shall seek:
(a) leave to serve the proceedings;
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(3)The application for leave to serve shall be heard ex parte by the Court in Chambers although the Court may if it thinks fit permit other interested parties to attend and be heard on the question of leave.
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Rule 98.05 provides:
“On the hearing of the application for directions in an action for judicial review the Court may:
…
(3)Strike out the summons, or such part of it as seeks judicial review, where on the evidence then before the Court there is no reasonable prospect that the Court would make any order in the nature of a judicial review.”
On 1 April 2005 the Master refused Mr Moore-McQuillan’s application for leave to serve the summons for judicial review. The Master took the view that the application was of no substance. Not only did the Master refuse leave to serve, but he exercised his jurisdiction to strike out the proceedings. As a result, the order of the Master has finally determined the proceedings and it appears that the order is final in nature. In these circumstances, Mr Moore-McQuillan has an appeal as of right to the Full Court. The Master, when making his orders, extended time for appeal to 22 April 2005. This date passed without any appeal proceedings being lodged.
Mr Moore-McQuillan’s present application is confused and contradictory. It is described as an “application for judicial review appeal to the Full Court”. However, Mr Moore-McQuillan also sought an extension of time in which to apply for leave to appeal. He also advanced an application for waiver of fees.
On the hearing of the application Mr Moore-McQuillan explained that although he received an order waiving fees in respect of the appeal process, that waiver was not received in time for him to lodge his papers prior to the 22 April 2005. He requested that the Court treat the application as an application for an extension of time to lodge the appeal. I agreed to do so.
The Master provided reasons for the orders as follows:
By the statement of claim in this action the plaintiff seeks judicial review of matters determined in the Industrial Relations Court of South Australia (“the IRC”). He seeks other judicial reviews in actions 214/05 and 215/05 which he has also instituted against WorkCover. The plaintiff is unrepresented in all three actions.
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The plaintiff’s submissions in all three actions went to one point, which he espoused with vehemence, namely that in his dealings with WorkCover, which are the subject of the three actions, he had not been dealt with according to law and the decisions of the various Courts were wrong. He conceded that as a lay person he had no understanding of the role of judicial review in the legal process and the procedural requirements necessary to pursue it. In essence his submissions were that the various decisions which were referred to in the three actions were wrong and should be overturned.
In actions 134/98 and 135/98 in the IRC which WorkCover and others were defendants the plaintiff claimed entitlements to superannuation contributions and annual leave payments under the Industrial and Employee Relations Act 1994. On 31 March 1999 the late Mr Cunningham IM dismissed both applications and delivered reasons for doing so which are exhibited to the plaintiff’s affirmation (“MMM2”). The plaintiff appealed out of time against that dismissal of his claim. On 13 November 2001 His Honour Senior Judge W D Jennings in the IRC refused his application for an extension of time to appeal and struck out his appeal. He published reasons for his decision which are exhibited to the plaintiff’s affirmation (“MMM3”). The plaintiff then appealed to the Full Court of the IRC against the decision of Judge Jennings. On 18 October 2002 the Full Court dismissed that appeal. It published reasons which are exhibited to the plaintiff’s affirmation (“MMM1”).
The plaintiff submitted that he was entitled to the amounts claimed in these proceedings in the IRC and that some form of judicial review should be granted by this Court to award him those moneys. Neither his statement of claim nor his affidavit in support identified the nature of the judicial review which he seeks or specifies the grounds on which it is sought.
The only possible order in the nature of judicial review which could apply is certiorari. On the material before me there is no prospect whatsoever of this Court granting an order for such judicial review to the plaintiff for the following reasons:
1Certiorari is a remedy ordered against an inferior Court. The IRC is not a party to the action.
2An order in the nature of certiorari is to quash an order on the record of the inferior Court. No record of the IRC, which could be the subject of an order for quashing, has been put in evidence by [Mr Moore-McQuillan]. Reasons published by members of the IRC in themselves do not constitute a record of the Court: Craig v South Australia (1995) 184 CLR 163.
3Rule 98.08(1) requires that the grounds relied upon for the particular type of judicial review sought must be set out in the supporting affidavit. This has not been done.
4Rule 98.06 requires the summons to be issued within 6 months from the date when the grounds for the review first arose. These grounds would appear to have arisen by not later than 1999 and so these proceedings are now grossly out of time. No extension of time has been sought.
5It is a discretionary ground for the Court to refuse judicial review where the alleged wrongs complained of by the plaintiff could be the subject of appeal. The plaintiff has already pursued rights of appeal. Usually an applicant for judicial review is required to elect between pursuing judicial review or appealing and he cannot then pursue judicial review after an appeals fail [sic].
6The papers disclose that [Mr Moore-McQuillan] has become bankrupt since making his initial claims in the IRC. It may be that he now has no locus standi to make any such claims because they are a part of his bankrupt estate, but I need not pursue that point.
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Here there is no reasonable prospect that the Court would make any order in the nature of judicial review. Accordingly the action will be struck out.
The order of the Court is that this action be struck out and that leave to serve the summons is refused.
As these reasons are being served by post, I extend the time for any appeal against this order under R 106.05(3) to 21 days from today.
A brief review of the matter suggests that the Master’s reasoning is entirely correct. However, the Rules of Court provide Mr Moore-McQuillan with a right of appeal. He has provided a satisfactory explanation for the delay that occurred. In the circumstances, whatever rights of appeal Mr Moore-McQuillan has should not be frustrated by the delay that has occurred and accordingly it is appropriate to extend time to appeal.
I extend time for the lodging of the appeal to 2 May 2005, the date on which Mr Moore-McQuillan lodged his appeal papers. It will be necessary for Mr Moore-McQuillan to set down his appeal within the time limits prescribed by the Rules of Court.
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