Moore-McQuillan v WorkCover Corporation (No 3) - [2005] SASC 247

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Application)
MOORE-MCQUILLAN v WORKCOVER CORPORATION (NO 3)
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 -appeal brought out of time - 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 3)
[2005] SASC 247
Masters 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;
...
(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.
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 he made his orders, extended time for appeal to 22 April 2005. This date passed without any appeal proceedings being lodged.
Mr Moore-McQuillan’s 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.
On my review of the papers, it would appear that Mr Moore-McQuillan has little prospect of success. 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.
The plaintiff alleges that WorkCover set the income benefit for him under the Workers Compensation and Rehabilitation Act at too lower a figure and hence that he has been underpaid benefits to which he was entitled to under that Act. This has apparently been an ongoing dispute since 1991. It is seemingly a separate claim from that dealt with in action 213/05. The plaintiff makes various oblique references to proceeding in the Workers Compensation Appeals Tribunal, but he does not exhibit any documents relating to those proceedings. He seems to want the calculations made by WorkCover of his entitlement set aside and an order made for the payment to him of an increased amount based on a different mode of calculation.
It is impossible to deduce from the papers filed whether the plaintiff is seeking judicial review of orders of the Workers Compensation Appeal Tribunal or only of determinations made by WorkCover. He would appear to be seeking judicial review in the nature of certiorari to set aside the determinations made of his entitlements and possibly mandamus to require a recalculation of his entitlements. I have not investigated whether WorkCover is a body which could be subject to judicial review by way of certiorari or mandamus.
On the material before me there is no prospect whatsoever of this Court granting an order for any judicial review to the plaintiff for the following reasons:
1Insofar as the plaintiff may be complaining about orders of the Workers Compensation Appeals Tribunal it has not been made a party to the action.
2No record of either the defendant or of the Workers Compensation Appeals Tribunal which could be the subject of an order for quashing on certiorari, 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 must be set out in the supporting affidavits. This has not been done.
4Rule 98.06 requires the summons to be issued within six months from the date when the grounds for the review first arose. This would seem to be about 1991. Thus 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 an order in the nature of certiorari where the alleged wrongs complained of by the plaintiff could be the subject of an appeal. It appears that the plaintiff has already pursued some type of appeal. Usually an applicant for judicial review is required to elect between pursuing judicial review or appealing, and he cannot pursue judicial review after an appeal fails.
6The papers disclose that the plaintiff has become bankrupt since making his initial claim. It may be that he now has no locus standi to make any such claims because they are part of his bankrupt estate, but I need not pursue that point.
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 under R 98.05(3).
The order of the Court is that 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.
The Rules of Court provide Mr Moore-McQuillan with a right of appeal. He has provided a satisfactory explanation for delays that have 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.