Moore-McQuillan v WorkCover Corporation No. Scgrg-98-507

[2000] SASC 243

MOORE-McQUILLAN v WORKCOVER CORPORATION
 [2000] SASC 243

Full Court:  Prior, Williams and Martin JJ

1................ PRIOR J:........................ By an application dated 3 July 2000, the applicant seeks leave of the Full Court to appeal against the dismissal of an appeal from a decision of a magistrate.  The application has been considered in private in accordance with Supreme Court Rule 94 by Justices Williams, Martin and me.  A judge of this Court dismissed the appeal on 5 May 1998 and later refused the applicant leave to appeal from his decision.  When refusing leave to appeal, the judge extended time within which the applicant might seek leave to appeal to the Full Court to 28 days. 

1. The matter dealt with on appeal by the single judge related to an application under s 76A of the Summary Procedure Act 1921 with respect to charges of obtaining a payment or benefit by dishonest means contrary to s 120(1)(a) of the Workers Rehabilitation and Compensation Act, 1986.  At the original hearing, two years before the s 76A application, the prosecution withdrew 10 of the counts.  The following day, the applicant pleaded guilty and was convicted of six of the counts.  The remaining counts were then withdrawn.  The magistrate imposed a single sentence for these admitted breaches, the court releasing the applicant on a bond in the amount of $1,000 for a period of 18 months to be of good behaviour and comply with other conditions then imposed.  There was also an order to pay WorkCover compensation, investigation and legal fees, in all, totalling in excess of $13,000, $7,500 of which was to be paid within 21 days, the balance at the rate of $200 per week.

2. The applicant appealed from the magistrate’s orders to this Court.  That appeal was dismissed on 2 August 1996.  In April 1997 the applicant sought an extension of time within which to appeal.  That was refused by the single judge in the following month.  A Full Court refused leave to appeal from the decision of the single judge in  July 1997.  On 18 September 1997, the applicant sought special leave to appeal from the High Court.  That application was dismissed on 13 August 1998.

3. Some six months after the application for special leave was filed, the applicant filed the s 76A application seeking an order that the conviction entered on his pleas of guilty in March 1996 be set aside.  A magistrate dismissed the application.  It was that order of dismissal that was the subject of the appeal heard and disposed of in this Court on 6 May 1998.  In his judgment, the second judge ruled that s 76A was not available to the applicant in the circumstances of this case.  In His Honour’s view, the section did not operate to allow a party, after exhausting appeal procedures, to make an application to a magistrate for what was, in truth, a rehearing of an appeal.  His Honour’s view was that the section cannot operate because there would be no finality to proceedings.  The judge saw the appellant as reagitating on the second appeal the same matters raised before the first judge two years before.  The second judge observed, when refusing the applicant’s application for leave, that if the applicant were entitled to any relief in relation to any error on the part of the first judge or the first Full Court, then the application for special leave to the High Court was then still alive. 

4. His Honour’s view was that there was no error demonstrated on the part of the magistrate in her dismissal of the section 76A application.  On the application for leave to appeal His Honour refused leave on the grounds that the matter gave rise to no questions of general principle or importance and that he did not have sufficient doubt about his decision to warrant the grant of leave.

5. By this belated application, well beyond the 28 days granted by the second judge when refusing leave to appeal on 5 June 1998, the applicant asserts that there has been a total miscarriage of justice and that the matter can be cured by the exercise of a power said to exist in s 76A(3)(c).  Nothing in the material presently before the Court warrants an extension of time within which to consider and grant leave to appeal.  Reference to the applicant’s medical state is not an excuse for inaction, an observation made by another Full Court recently with respect to another application by the present applicant for leave to appeal.  As in that case, so in this.  Apart from any question of delay, it seems to us that the second judge was quite correct in asserting that there was nothing fit for the attention of the Full Court on the matters raised with the second judge. 

6. The application for leave and any necessary extension of time therefor is therefore refused.