Moore-McQuillan v WorkCover Corporation (No 2)

[2005] SASC 246

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal from a Master: Application)

MOORE-MCQUILLAN v WORKCOVER CORPORATION   (NO 2)

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 2)
[2005] SASC 246

Masters Appeal

Application for extension of time

GRAY J

1. 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.

2. 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;

   ...

   (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.

3. 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.”

4. 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.

5. 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.

6. 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.

7. The Master provided reasons for the orders as follows:

   These reasons are supplementary to the reasons delivered today in action 213/05 and need to be read in conjunction with them.

   I deduce from the convoluted statement of claim and the affidavit of the plaintiff in this action that he seeks judicial review to set aside a conviction recorded against him in March 1996 in the Adelaide Magistrates Court for some offence involving WorkCover fraud.  He seeks to attack the conviction on the basis of errors in the evidence allegedly only becoming apparent in subsequent proceedings and on suppression of relevant evidence by WorkCover to his prejudice.

   There is no suggestion in the material filed by the plaintiff that he had appealed against that conviction to the Supreme Court.

   Again, it would appear that the only remedy in judicial review which could possibly be available on the matters alleged by the plaintiff 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 Magistrates Court 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 Magistrates Court, which could be the subject of an order for quashing, has been put in evidence by the plaintiff.

   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 six months from the date when the grounds for review first arose.  These grounds would appear to have arisen in 1996, and so these proceedings are now grossly out of time.  No extension of time has been sought.

   Here there is no reasonable prospect that the Court would make any order in the nature of a judicial review.  Accordingly, under R 98.05(3) 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 his order under R 106.05(3) for 21 days from today.

8. 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 and 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.

9. 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.