Moore-McQuillan v WorkCover Corporation of South Australia - [2017] SASCFC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOORE-MCQUILLAN v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2017] SASCFC 113
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Bampton)
22 September 2017
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - VEXATIOUS LITIGANTS AND PROCEEDINGS
Appeal against orders declaring the appellant a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 (SA) (the SCA).
In proceedings substantially delayed by the appellant’s own actions the Judge found that the appellant instituted 63 vexatious proceedings over the course of 16 years in spite of binding decisions by courts and tribunals. The Judge ordered that the appellant required permission to institute further proceedings and stayed a number of the appellant’s extant proceedings pursuant to s 39(1) of the SCA.
The appellant appeals that order on grounds that s 39 of the SCA is not valid pursuant to the Constitution and that he was denied procedural fairness throughout the proceedings to declare him vexatious.
Held per Kourakis CJ (Peek and Bampton JJ agreeing), dismissing the appeal:
1. There is no implication in Chapter III of the Constitution which impinges on the validity of the statutory conferral of a power of the kind conferred by s 39 of the SCA (at [8].
2. It is in the nature of an action pursuant to s 39 of the SCA that the hearing and determination will proceed largely if not exclusively on an evaluation of the pleadings and judgments in the actions alleged to be vexatious (at [21]).
3. The appellant has not adduced any evidence that he was otherwise denied procedural fairness (at [30]).
4. Given the protracted history of the case, the appellant has not shown any error in the Judge’s reasons for refusing the appellant’s application to reopen his case (at [30]).
Supreme Court Act 1935 (SA) s 39, referred to.

MOORE-MCQUILLAN v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[2017] SASCFC 113
Full Court: Kourakis CJ, Peek and Bampton JJ

KOURAKIS CJ: This is an appeal against orders made on 16 December 2016 and amended on 31 May 2017 pursuant to s 39 of the Supreme Court Act 1935 (SA) (the SCA) declaring the appellant, Mr Moore-McQuillan, a vexatious litigant, prohibiting him from instituting proceedings in a prescribed court without the permission of the Supreme Court (the s 39 order). The s 39 order also stayed most of the extant proceedings instituted by Mr Moore-McQuillan.
Section 39 of the SCA provides:
39—Vexatious proceedings
(1)If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a)     an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court;
(b)     an order staying proceedings already instituted by that person.
(2)Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.
(3)An order under this section remains in force (subject to variation by the court)—
(a)     if a period for the operation of the order is fixed—until the expiration of that period or the revocation of the order (whichever first occurs);
(b)     if no such period is fixed—until revocation of the order.
(4)Where an order is made under this section, a copy of the order must be published in the Gazette.
(5)For the purposes of this section, proceedings are vexatious—
(a)     if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b)     if instituted without reasonable ground.
(6)In this section—
prescribed court means—
(a)     the Supreme Court; or
(b)     any other court of the State; or
(c)     the South Australian Employment Tribunal; and
(d)     any other tribunal of the State prescribed by the regulations;
proceedings means civil or criminal proceedings instituted in a prescribed court.
The essential reasons of the Judge for making the s 39 order were:[1]
[989]Subsection 39(1) of the Act requires vexatious proceedings to have been instituted persistently.
[990]The question whether vexatious proceedings have been instituted persistently involves a matter of judgment turning on questions of circumstance and degree. The term “persistently” suggests determination and continuing in the face of difficulty or opposition with a degree of stubbornness.
[991]Factors to be taken into account in assessing persistence include the number of proceedings, their character, the way in which they were conducted, the extent to which they represent attempts to re-litigate issues already conclusively determined and the extent to which extravagant or scandalous allegations that are not substantiated are made.
[992]I have concluded that Mr Moore-McQuillan instituted 63 vexatious proceedings over the course of 16 years. He instituted those proceedings in the Workers Compensation Appeal Tribunal, the Workers Compensation Tribunal, Industrial Relations Court, District Court and Supreme Court. Most of those proceedings involved appeals against first instance decisions. In several cases, he sought to re‑litigate issues already conclusively determined against him. In several cases, he made extravagant allegations which were not substantiated.
[993]I accept that Mr Moore-McQuillan feels a strong sense of grievance against WorkCover. This is not to conclude that his grievances entail that he was entitled to the relief which he sought against WorkCover. However, after he was met with binding decisions by courts or tribunals dismissing or rejecting his claims, he continued to litigate the same or related issues time and time again against those parties in circumstances which rendered that litigation vexatious.
[994]Taking into account all of the circumstances, I find that Mr Moore-McQuillan persistently instituted vexatious proceedings.
(citations omitted; emphasis in original)
[1] WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191 at [989]-[994].
The Judge recognised that that conclusion enlivened, but did not dictate, the exercise of the discretion conferred by s 39(1) of the SCA. The Judge considered the factors affecting the exercise of that discretion and concluded that it should be exercised to make a prohibition order pursuant to s 39 of the SCA.
Mr Moore-McQuillan appeals on the following grounds:
The section 39(1)(a) is against the constitution of Australia. Where everyone has the right to a fair trial.
a/the section 39 allows WorkCover to not administer the Act which then make the injuried to suffer pain of injury. The injuried worker is by section 39 excluded from the right to be heard and a fair hearing.
b/the time taken from contact with WorkCover who refuse to administer the Act, the asking for permission under 39 adds more time to already lengthy process of expedited decision, redetermination decision, mediation, arbitration and finally a judicial determination. (refer to the matters still waiting in order 2 from 2003, 2004 and 2005 and its 2017. Justice is not seen to be done)
c/section 39 adds expense to the issue in for of extra travel for the injuried worker, extra paperwork and extra processing of time.
d/the appellant was refused entry into the court room by the sheriffs. The sheriffs acted in a threatening manner that left the appellant in fear of his wellbeing that increased the depression and anxiety. The injuried worker was treated differently to others attending the civil court (e.g. the comfortable chair was removed and a hard uncomfortable chair placed for the appellant.)
e/the procedure of sect 39 hearing allows for not cross examination, only a collection of documents that were tendered that could not be cross examined by the appellant as the tender didn’t know anything about the document history.
f/the appellant was refused the opportunity to give oral evidence by Blue J and the refusal to allow the appellant into the courtroom by the sheriffs.
g/The fact that over $661,135,000 in legal expenses has been spend against the appellant does lead the person at the back of this courtroom with the impression that the legal system has been bought off and that the appellant wouldn’t receive a fair hearing. (the Courts should be immune from this but with the appellant not being allowed to give evidence, treated differently to the lawyers, being threatened by sheriffs at the judge’s command all show that the money has been spent.)
h/the use of section 39 allows for WorkCover to be in a superior position over the injuried worker. This is not the intention of the Act or Constitution and makes the injuried worker a second class citizen.
I will treat subparagraphs (a), (b), (c), (e) and (h) as particulars of the challenge to the constitutional validity of s 39 of the SCA.
The respondent, WorkCover, contends that Mr Moore-McQuillan requires permission to appeal because orders pursuant to s 39 of the SCA are interlocutory in nature. It can be accepted that the determination of the Judge did not finally adjudicate on a controversy between Mr Moore-McQuillan and another over their respective rights and interests. However it was a determination of Mr Moore-McQuillan’s right of access to the courts. That right, which Mr Moore-McQuillan shares with all persons, natural or juristic, is to file and initiate actions, to enforce their rights and integrity in law, in a court of competent jurisdiction. It is a right which is fundamental to the very conception of the rule of law. A requirement to seek permission to initiate an action is an abrogation of that right. I acknowledge that an application may be made to revoke a s 39 order. However, it is at least arguable that an order made pursuant to s 39 affects a change of legal status which may be appealed as of right. Although an application may be made to revoke a s 39 order, such an application is premised on the correctness of the s 39 order. Be that as it may, in the circumstance of this case it is best to deal with the appeal on its merits. For the reasons appearing below, the appeal must be dismissed.
Section 39 of the SCA is a statutory reflection and an amplification of the power of the Supreme Court, as a court of record, to protect its procedures from an abuse of process by litigants. The statutory power to control vexatious litigants was first conferred on this Court with the enactment of the Supreme Court Act 1935 (SA). However a similar power was earlier enacted in the United Kingdom in the Vexatious Actions Act 1896 (UK) and the Supreme Court of Judicature (Consolidation) Act 1925 (UK). A similar power is conferred on the High Court by s 77RN of the Judiciary Act 1903 (Cth) and on the Federal Court by s 37AO of the Federal Court of Australia Act 1976 (Cth).
The express recognition of the Supreme Courts of the States in s 73 of the Constitution, and the autochthonous expedient adopted for the exercise of the judicial power of the Commonwealth by the courts of the States, has limited, in some respects, the legislative power of the States to invest jurisdictions, and confer powers on State courts. However, there is no implication in Chapter III of the Constitution which impinges on the validity of the statutory conferral of a power of the kind conferred by s 39 of the SCA. On the contrary it is supported by the way in which Chapter III buttresses the independence of Australia’s judiciary. An order pursuant to s 39 of the SCA limits, but does not deny, access to the courts by vexatious litigants. That limitation is necessary to preserve access to the courts by persons who are not vexatious. Grounds (a), (b), (c), (e) and (h) must therefore be dismissed.
Grounds (d), (f) and (g) are complaints that Mr Moore-McQuillan was denied procedural fairness in the hearing of the action to have him declared a vexatious litigant (the s 39 action). It is necessary therefore to set out the history of those proceedings.
The s 39 action was instituted by WorkCover on 7 March 2014. It was supported by an affidavit of Mr Tilley which exhibited the reasons for judgment of the Court or Tribunal in each of the multiplicity of the proceedings which were alleged to be vexatious.
On 26 September 2014 a Master directed Mr Moore-McQuillan to put his proposed evidence in written form. That order was extended to 28 January 2015 and then 2 March 2015.
On 2 March 2015 Mr Moore-McQuillan filed an answering affidavit to Mr Tilley’s affidavit but not his proposed evidence on the trial.
A trial listed for 5 March 2015 was vacated and on that day WorkCover was directed to file and serve a table comprising each proceeding alleged to have been brought without reasonable ground or for an ulterior purpose and stating the grounds for so alleging. The table was filed on 13 March 2015.
On 18 March 2015 the Judge listed the action for trial on 5 May 2015 and directed Mr Moore-McQuillan to lodge any documents on which he proposed to rely by 2 April 2015. On 20 March 2015 a second affidavit of Mr Tilley was filed to update the Court on changes to the status of proceeding since March 2014. A third affidavit of Mr Tilley was filed by way of response to Mr Moore-McQuillan’s affidavit of 2 March 2015. An updated version of the table was also filed.
The trial of the s 39 action commenced on 5 May 2015 and proceeded over four days until 8 May 2015. WorkCover relied on a written opening address which had been filed on 16 March 2015. WorkCover then called Mr Tilley who gave evidence correcting and supplementing matters contained in his two primary affidavits.
Mr Moore-McQuillan made numerous objections to questions asked of Mr Tilley in evidence-in-chief and made numerous submissions on various matters arising out of that evidence. The Judge recorded that many of Mr Moore-McQuillan’s objections and submissions were prolix and repetitive. He observed that even though Mr Tilley’s evidence-in-chief extended over five days the questions asked of him and his answers accounted for a very small minority of the total time.
On 8 May the trial was adjourned to 1 June 2015 which date was subsequently varied to 2 June 2015. Orders were made that by 22 May 2015 Mr Moore-McQuillan file a list of the documents that he intended to tender with copies of any of those documents which were not publicly available. The Judge ordered that Mr Moore-McQuillan file an affidavit of the evidence he intended to adduce at trial by 29 May 2015. Mr Moore-McQuillan did not file or tender any documents or an affidavit.
Mr Tilley swore a fourth affidavit on 2 June 2015 exhibiting further copies of some eight reasons for judgment and a document was produced entitled ‘Sources of Exhibits’ identifying the source of the various documents exhibited to his affidavit.
On 2 June 2015 Mr Moore-McQuillan appeared by telephone. He made an application that the Judge recuse himself, which application was refused. The trial was adjourned to the following day. On 3 June 2015 the trial resumed and proceeded over three days until 5 June 2015. On 5 June 2015, the seventh hearing day, Mr Tilley completed his evidence-in-chief and Mr Moore-McQuillan cross-examined him on the voir dire on the admissibility of the documents tendered by WorkCover. On the eighth day of the hearing the Judge entertained Mr Moore-McQuillan’s objections to the admission of the documents on which WorkCover relied. The documents which were the exhibits to Mr Tilley’s affidavits were admitted. Mr Moore-McQuillan commenced his cross-examination of Mr Tilley. The trial was adjourned to 2 July 2015, but was subsequently postponed to 3 July 2015.
On 1 July 2015 Mr Moore-McQuillan filed an interlocutory application seeking and order dismissing the action on the grounds that WorkCover was relying on documents which precluded him from cross-examining witnesses as to the facts and circumstances of the claims which were adjudicated in the various judgments. Mr Moore-McQuillan also sought an order that a case be stated to the Full Court on the denial of an opportunity to cross-examine those witnesses. Mr Moore-McQuillan again asked the Judge to disqualify himself. All three applications were dismissed.
I observe here that the contention that WorkCover’s reliance on a documentary case was unfair to Mr Moore-McQuillan is picked up by subparagraph (e) of his grounds. In so far as that ground is not just a particular as to the invalidity of s 39 of the SCA, but also a complaint of unfairness in his particular case, it must be dismissed. It is in the nature of an action pursuant to s 39 of the SCA that the hearing and determination will proceed largely if not exclusively on an evaluation of the pleadings and judgments in the actions alleged to be vexatious. Mr Moore-McQuillan has not shown that there was any particular material issue in this action on which he was denied an opportunity to cross-examine by the Judge.
The trial resumed on 3 July 2015. On the ninth and tenth hearing days Mr Tilley was cross-examined and then re-examined. On the tenth and eleventh hearing days the judge heard submissions that WorkCover’s action should be dismissed because there was no case to answer. The Judge found that there was a case to answer.
On 7 July 2015 there was an altercation in the courtroom between Mr Moore-McQuillan and counsel for WorkCover. Police attended and the hearing was adjourned to 15 July 2015.
On 15 July 2015 on the application of Mr Moore-McQuillan the trial was adjourned to 7 September 2015. The Judge ordered that if Mr Moore-McQuillan wished to tender any documents as evidence in the trial he was to lodge a copy of each document with the Registry by 12 August 2015, and if he wished to give any testimonial evidence in the trial he was to file an affidavit to serve as his evidence-in-chief by 19 August 2015. No documents were filed within the time allowed or before resumption of the trial on 7 September 2015. Mr Moore-McQuillan did not appear in court when the trial resumed on that day. The Judge recorded the events of 7 September 2015 in his principal judgment as follows:[2]
[320]On 7 September 2015, the trial resumed (the fourteenth day). Mr Moore-McQuillan was not present. Mr Moore-McQuillan had been in the precincts of the Court but left before the matter was called on. He declined to return. He had earlier that morning sent by email an interlocutory application supported by an affidavit seeking that I disqualify myself on the ground of apprehended bias. He also said in the email that he wished to give oral evidence. I declined to disqualify myself. I proceeded with the trial. In the absence of Mr Moore-McQuillan, I treated his case as closed.
[321]On 7 September 2015, orders were made for written closing addresses and the trial was adjourned to 21 December 2015 (subsequently varied on Mr Moore-McQuillan’s application to 1 February 2016) for oral addresses for the purpose of supplementing the written addresses and in particular addressing questions from the bench. The dates for written closing addresses were subsequently varied such that WorkCover’s closing address was due by 8 October 2015 and Mr Moore-McQuillan’s closing address was due by 20 November 2015.
[2] WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191 at [320]-[321].

On 8 October 2015 WorkCover filed its written closing address. Mr Moore-McQuillan did not file a written closing address. When the trial resumed on 1 February 2016, for the fifteenth day, Mr Moore-McQuillan again failed to appear in court. The Judge recorded the events as follows:[3]
[323]On 1 February 2016, the trial resumed (the fifteenth day). Mr Moore-McQuillan was not present. Mr Moore-McQuillan had been in the precincts of the Court but left before the matter was called on. He had sent an email to the Court saying that he wished to give oral evidence and had been informed that he could make an application that morning for permission to reopen his case and adduce oral evidence. He did not make such an application. WorkCover clarified some questions arising out of its written closing address. Judgment was reserved.
[3] Ruling of the Honourable Justice Blue dated 4 May 2016.
On 29 February 2016 Mr Moore-McQuillan filed an interlocutory application supported by an affidavit seeking permission to give oral evidence and that the Judge disqualify himself on the ground of apprehended bias. The matter was listed for 11 March 2016 but that date was vacated and the trial came on for hearing on 4 May 2016. Mr Moore McQuillan appeared and made submissions. The Judge dismissed his application.
In dealing with the application that he disqualify himself the Judge said the following about the events of 7 September 2015:
[8]Mr Moore-McQuillan previously raised that as a ground for me to disqualify myself and I addressed that in my reasons of 7 September 2015 when I said this: ‘Next, Mr Moore-McQuillan refers to an incident which occurred in this courtroom between him and Mr Nicholas and contends that I am a witness for the respondent – ie for WorkCover and hence I am prejudiced and biased against him. There was an incident that occurred in this courtroom. As to what occurred is a matter to be determined in other proceedings in another court and I make no comment on it. I am not a witness for either party in relation to those proceedings. That incident I played no part in and a reasonable objective observer would not consider that the mere fact that I was present when that incident occurred gives rise to a reasonable apprehension of bias’. I adhere to those reasons.
[9]Mr Moore-McQuillan has added today his perception that I will use this case as an opportunity to inflict punishment on him for that incident. That submission could only proceed on the premise that Mr Moore-McQuillan was at fault for that incident or at least my perception was that he was at fault.
[10]As I said in September, the question of the rights and wrongs of that incident are not a matter for me at all. They are completely irrelevant to the issues I have to decide. They are matters to be decided in the Magistrates Court on the evidence the Magistrates Court hears. I form no view about that incident or the rights or wrongs of it and it is just incapable of having any effect on my decision in this matter. Nor would a reasonable objective observer consider that it would be incapable of having any effect. So I do not consider that it is a ground for me to disqualify myself.
[11]Mr Moore-McQuillan also refers to actions that he says the sheriff’s officers have taken. In particular, on 7 September I think, 2015 there was a hearing. Although Mr Moore-McQuillan does not refer to the date of that hearing, he has contended in his submissions before me and says in his affidavit that he was blocked by sheriff’s officers from entering the courtroom. The matter was called on on that occasion and, at that point, Mr Moore-McQuillan was no longer in the building.
[12]Before it was called on, my associate spoke to Mr Moore-McQuillan on the telephone and requested that he return to court to attend at the hearing and he declined to do so and Mr Moore-McQuillan has since referred to that in a written communication sent to my associate. Certainly I have never given any direction that Mr Moore-McQuillan is to be blocked from entering the court. I was aware on that occasion, although it was not my decision, but I was aware that the sheriff’s officers took the decision that Mr Moore-McQuillan should only enter the courtroom shortly before the matter was to be called on. That does not amount to blocking his entry for the purpose of the matter actually being called on. I do not consider that anything in relation to that incident gives rise to an apprehension by a fair-minded observer that I might not bring an unbiased mind to this matter.
The Judge returned to the events of 7 September 2015 when considering the application to re-open after he had found that there was a case to answer as follows:[4]
[28]I do not need to make any finding as to the rights or wrongs whether the sheriff’s officers blocked Mr Moore-McQuillan’s access before the matter was called on because Mr Moore-McQuillan had, in fact, left the precincts of the court before it was called on and had declined to return when my associate telephoned him and invited him to return.
[4] Ruling of the Honourable Justice Blue dated 4 May 2016.
The Judge’s reasons for dismissing Mr Moore-McQuillan’s application to re-open were as follows:[5]
[33]I reiterate in a case like this involving allegations that proceedings have been brought without reasonable ground it may be expected that in vary large measure the case will be determined on the documents rather than on oral evidence. While that it is not to say there is not a role for some oral evidence to address those documents, normally oral evidence will not be relevant in itself because the court is not determining the underlying proceedings or who ought to succeed in those proceedings; it is merely determining whether they were instituted without reasonable ground. When I made those orders, my expectation was that Mr Moore-McQuillan’s case would primarily be a documentary one where he would tender the documents that he wished the Court to have to consider whether, as WorkCover alleged, the underlying proceedings had been instituted without reasonable ground. I expected that his oral evidence would largely address either those documents or other documents that I had already received into evidence.
[34]It is common these days in civil matters for the Court to give directions that documents are to be produced in advance in a tender book and for written statements or affidavits to be produced in advance by the witnesses to save time and costs at trial. I considered that was particularly in the case here where ordinarily it may be expected that proceedings of this type should really be heard within a day or two, not heard over a matter of weeks as was the case up until the close of WorkCover’s case. So I considered it was important that the matter proceed as efficiently as possible.
[35]Mr Moore-McQuillan has not, in fact, provided the documents that he wishes to tender or affidavit evidence of his testimonial evidence. In his affidavit he says, and in his submissions he has put to me, that his mental health did not permit him to do that.
[36]I am not satisfied that this is the case. As I said before, Mr Moore-McQuillan has in fact had since August or September 2014 to produce these materials. While from time to time there might have been a reason why he needed an extension of time similar to extensions of time granted to him by Flinders University, I am not satisfied that there is any adequate explanation for him not to have compiled that material over the course of what is much longer than a year. In the ordinary course, this trial was listed for May 2015. It ought to have been completed in May 2015. We are now in May 2016.
[5] Ruling of the Honourable Justice Blue dated 4 May 2016.
Mr Moore-McQuillan has not adduced any evidence on the appeal which demonstrates that the Judge erred in finding that the sheriffs did not obstruct his access to the courtroom at the time it was called on. Moreover no error has been shown in the Judge’s reasons for refusing Mr Moore-McQuillan permission to re‑open his case having regard to the long history of Mr Moore-McQuillan’s repeated refusals to file any material on which he wished to rely. Grounds (d), (f) and (g) must therefore also be dismissed.
Conclusion
I would dismiss the appeal.
PEEK J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
BAMPTON J: I would dismiss the appeal for the reasons given by the Chief Justice.