Moore-McQuillan v WorkCover Corporation SA - [2007] SASC 219

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
MOORE-MCQUILLAN v WORKCOVER CORPORATION SA
[2007] SASC 219
Reasons for Decision of The Honourable Justice Layton
19 June 2007
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR RELATIONSHIPS OR CIRCUMSTANCES
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Applications for permission to appeal to the Full Court against the decision of a single Judge who in turn dismissed applications to re-open two actions in the Supreme Court on the basis of alleged "fresh evidence" - the first being a dismissed appeal in relation to convictions in the Magistrates Court for obtaining payments for benefits by dishonest means, and the second in relation to a refusal to grant leave to appeal against an order of the Workers' Compensation Appeal Tribunal - application that Judge be disqualified on the ground of actual and apprehended bias - application refused - applications for permission to appeal out of time - consideration of whether extensions of time should be granted - Held: the applications disclosed no reasonable prospects of success - no error disclosed in the reasoning of the single Judge - extensions of time refused - applications struck out.
Workers Rehabilitation and Compensation Act 1986 (SA) s 4(2) and s 20(1)(a); Summary Procedure Act 1921 (SA) s 76A; Supreme Court Civil Rules 2006 (SA) r 117(2)(a) and r 285, referred to.
Ebner v Official Receiver in Bankruptcy (2000) 205 CLR 337; Jackamarra v Krakouer (1998) 195 CLR 516; Re JRL; ex parte CJL (1986) 161 CLR 342, applied.
Moore-McQuillan v WorkCover Corporation [1996] SASC 5727; Moore-McQuillan v WorkCover Corporation [1998] SAWCT 1; SAWCT 2; SAWCT 3; SAWCT 50; Moore-McQuillan v WorkCover (Wolf Air and Dive Shop) [2003] SAWCT 1; Moore-McQuillan v WorkCover & Ors [2004] SAWCT 38; Moore-McQuillan v WorkCover Corporation (SA) [2007] SASC 55, discussed.
TRAMS Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312, considered.

MOORE-MCQUILLAN v WORKCOVER CORPORATION SA
[2007] SASC 219
LAYTON J.
Introduction

Mr Moore-McQuillan, by two separate applications, has sought “leave to appeal” from a judgment delivered by Perry J on 26 February 2007. These applications have been filed in two Supreme Court actions: the first being SCCIV-96-830, and the second being SCCIV-03-1113. The judgment in Moore-McQuillan v WorkCover Corporation SA [2007] SASC 55 dealt with both applications, which are the subject of the present “leave to appeal” applications.
Disqualification for bias
When this matter came on for hearing before me by telephone-link up, Mr Moore-McQuillan requested that I disqualify myself on the basis of what appeared on his argument, to be actual and apprehended bias. The alleged bias appeared to be based on me having represented WorkCover Corporation SA (“WorkCover”) as a barrister in the Workers Compensation Tribunal. He asserted that I had:
…never been really for a worker, you’ve always been representing, and a fair bit of your income was from representing and being paid by WorkCover.
He further asserted:
…if your sole income before you came [to] your position now was to deal with the respondent, then you would be more favourable to them and to their points of view than to the points of view of the worker, which is me.
Applying the well-recognised principles of both actual and apprehended bias, I decline to disqualify myself from hearing this application. I have not previously had any involvement in any of the court actions of Mr Moore-McQuillan. The fact that I have previously acted for WorkCover from time to time, along with many other clients including individual workers, is in my view a totally inadequate basis for disqualification on either ground of bias. In reaching this conclusion, I particularly bear in mind the High Court decisions of Re JRL; ex parte CJL (1986) 161 CLR 342 and Ebner v Official Receiver in Bankruptcy (2000) 205 CLR 337, which state that applications for disqualification should only be acceded to where it is clear that a reasonable apprehension of bias has been demonstrated. It is an abdication of judicial responsibility to do otherwise.
Extensions of time
Although Mr Moore-McQuillan has applied for “leave to appeal”, I have taken his applications to be for “permission to appeal” pursuant to SCR 285 of the Supreme Court Civil Rules 2006. Since these two applications for permission to appeal arise from two applications which were treated by the single Judge as interlocutory applications and concern interlocutory proceedings, I consider that they are decisions of an interlocutory nature in accordance with the analysis contained in TRAMS Pty Ltd v The Grand Hotel Pty Ltd (1993) 170 LSJS 312. As a consequence, permission to appeal is required for both actions.
Supreme Court Rule 285(1)(b)(ii) requires that an application for permission to appeal be made within 14 days after the date of the judgment and is required to be made “to the single Judge … who gave that judgment”.
In this case the application could not be made to the Judge who gave the judgment as he has since retired, and also regrettably recently passed away. I therefore dispense with that requirement pursuant to SCR 117(2)(a).
As to the time limit of 14 days, in this case the decision of the single Judge was delivered on 26 February 2007. However, the Registry stamp on each of Mr Moore-McQuillan’s applications for leave to appeal records the documents as having been received on 27 April 2007, more than six weeks out of time. When I raised this matter with Mr Moore-McQuillan, he asserted that the date of the stamping was not correct and that he had personally posted the applications and accompanying two affidavits sworn on 13 March 2007, on that same day. He indicated that he could, if necessary, adduce evidence from a witness on that point. I note that even if they were posted on 13 March 2007 as he asserts, this was the very day upon which the applications should have been received in order to comply with the Rule (after taking into account that Monday 12 March 2007 was a Public Holiday). Therefore sending it by post on that day would necessarily mean that it could not be received until after the expiration of the time. Therefore, even on his own admissions, Mr Moore-McQuillan is out of time for seeking permission to appeal, although not as out of time as indicated by the Registry stamp.
It is therefore necessary to consider whether or not I should exercise my discretion to grant extensions of time, even accepting his assertion as to filing. At least one of the criteria with regard to granting an extension of time concerns the likelihood of success of the application. In Jackamarra v Krakouer (1998) 195 CLR 516 Brennan CJ and McHugh J said at 521:
Cases such as Palata (Palata Investments Limited v Burt and Sinfield Limited [1985] 1 WLR 942 at 946) are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant’s right of appeal has gone, court should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. [emphasis added]
Accordingly, I will deal with extension of time after I consider the merits of the applications.
I will first consider action 830 of 1996, although a number of the arguments adduced in support of permission to appeal in that action, are also relevant to action 1113 of 2003.
Action No 830 of 1996
The interlocutory application filed on 14 June 2006, being the subject of the decision of Perry J, sought that:
830/96 be reopened and re heard [sic] because of new evidence not available at the time of the original trial or appeal.
Perry J referred to this action having been instituted in this Court on 12 April 1996 by Mr Moore-McQuillan, seeking to overturn a conviction recorded against him in the Adelaide Magistrates Court on 13 March 1996. The conviction followed his plea of guilty to six counts of obtaining payments or benefits by dishonest means contrary to s 20(1)(a) of the Workers Rehabilitation and Compensation Act 1986 (“the Act”). His Honour set out at some length the history of the action which included that the appeal had been heard before him and judgment delivered against Mr Moore-McQuillan on 2 August 1996.[1]
[1] Moore-McQuillan v Workcover Corporation [1996] SASC 5727.
In the most recent judgment, Perry J notes at [12], that in his previous decision he concluded:
The overwhelming weight of evidence points to the conclusion that before he entered the plea of guilty, the appellant was fully advised of his rights by both his solicitor and counsel; that he well knew that the outstanding charges could not be dealt with on that occasion; and that there was no agreement that they were to be withdrawn.
Perry J then recites that he later refused leave to appeal to the Full Court from the decision of 2 August 1996. The application was subsequently renewed by Mr Moore-McQuillan at a Full Court hearing, and consequently the Full Court refused leave on 20 April 1997. The matter then proceeded by way of an application for special leave to appeal to the High Court, in which leave was refused on 18 September 1997.
Perry J also recited a subsequent application made by Mr Moore-McQuillan under s 76A of the Summary Procedure Act 1921, seeking that the convictions be set aside. This application was also dismissed, both in the Magistrates Court and later in the Supreme Court.
Perry J identified two particular elements of Mr Moore-McQuillan’s argument, which he understood to be the “new evidence” relied on in support of his application. The first was a decision of Olsson Aux J sitting in the Workers Compensation Tribunal (SA) in a judgment delivered on 23 April 2004.[2] The second was an allegation that there had been breaches of undertakings given by WorkCover in the context of a mediation process. Mr Moore-McQuillan identified the undertaking as being “that the respondent [WorkCover] would not oppose leave being granted before the High Court to have the matter [the convictions in the Magistrates Court] returned to a lower court and sorted out”.
[2] [2004] SAWCT 38
In dealing with the first of these arguments Perry J stated:
[27]    The reasons for judgment are lengthy and are accompanied by detailed schedules of payments and credits. It appears that Olsson Aux J took into account the earnings by Mr Moore-McQuillan which he had earlier failed to disclose and which were the subject of the fraud charges.
[28]    Olsson Aux J concluded:
[127] In the foregoing circumstances, the applicant has not discharged his onus of establishing that there has been any underpayment in respect of the relevant closed period. On the contrary, the evidence unequivocally demonstrates that he was actually overpaid.
[29]    So far as I can gather, Mr Moore-McQuillan’s argument is that as the earnings from another employer, which were the subject of the fraud charges have now been taken into account vis a vis WorkCover, WorkCover is no longer owed any money with respect to the payments which were not disclosed, and the fraud charges should now be quashed.
[30]    One has only to spell out the argument to see that it is untenable.
Mr Moore-McQuillan contends that the conclusion of Perry J in relation to the effect of the decision of Olsson Aux J was incorrect. In his own words, and I quote from his affidavit in support of this application for permission:
60.… it is a simple fact that is there is [sic] an overpayment then the fraud conviction would stand if there was not over payment or and [sic] underpayment then the fraud conviction would fail.
In this case the error for overpayment had nothing to do with the declaration of income but a primary decision maker or casemanager erred in pack [sic] pay 8 calculations and caused the slight over payment.
In his affidavit, Mr Moore-McQuillan repeats the same arguments which were rejected by Perry J. Mr Moore-McQuillan re-asserts that because the overpayment was due to a clerical error by WorkCover and not due to any failure by him to declare income, his fraud convictions should therefore not stand.
In my view, the judgment of Olsson Aux J does not demonstrate that income was disclosed by Mr Moore-McQuillan in accordance with the requirements of the Act. The fact that Mr Moore-McQuillan may have disclosed income which was taken into account by Olsson Aux J, does not mean that he had not earlier committed an offence of failure to disclose income as required by the Act. A subsequent disclosure of money does not alter the status of such convictions. As Perry J said, “one only has to spell out the argument to see that it is untenable”. In my view his Honour was correct. The judgment of Olsson Aux J does not give rise to any reasonable argument that the convictions should be quashed.
Similarly, Mr Moore-McQuillan also endeavoured to use three separate reasons for decision of Thompson DP on 19 January 1998 in [1998] SAWCT 1, [1998] SAWCT 2, [1998] SAWCT 3, to support his arguments. These three decisions were in turn referred to in the reasons of Olsson Aux J in [21] to [28] of his reasons.[3] Essentially these decisions of Thompson DP were considered in turn by the Full Bench of the Tribunal.[4] The Full Bench later agreed that due to perceived inaccuracies, that “Independent auditors conduct a search of WorkCover records concerning the financial records of the appellant”. This led in due course to the hearing conducted by Olsson Aux J. Therefore, the reasons of Thompson DP have been superseded by the conclusions of Olsson Aux J and do not add to the credence of Mr Moore-McQuillan’s argument.
[3] Moore-McQuillan v WorkCover/Vero (Wolf Air and Dive Shop) [2004] SAWCT 38
[4] Moore-McQuillan v WorkCover Corp. VACC Insurance Worksafe (SA) Pty Ltd (Wolf Air and Dive Shop) [1998] SAWCT 50
I consider there is no error in the reasoning of Perry J on this point.
In relation to the second argument, regarding the mediation and alleged undertakings, Perry J indicated as follows:
[32]    Mr Downs denies that there was ever any mediation process which included the convictions for fraud. As he pointed out, it is impossible to think that there could be a post facto mediation resolving in some way convictions properly entered in the Magistrates Court on fraud charges.
[33]    In any event, no evidence has been brought into court by Mr Moore-McQuillan dealing with the matter, and the suggestion that there was a mediation process that is in some way relevant to the matter is nothing more than an allegation unsupported by any evidence.
[34]    Likewise, Mr Downs denies that there was ever any undertaking that the respondent would not oppose leave being granted before the High Court. There have been various applications to the High Court by Mr Moore-McQuillan. The transcript of some of them is in the books prepared by the respondent. In none of the transcripts is there any reference to any undertakings.
[35]    In the circumstances there is no evidence of any undertakings being given which have in any way prejudiced the appellant.
In relation to these findings, Mr Moore-McQuillan contends that he was denied natural justice in that he was not present at a resumed hearing on 14 February 2007. He says that he did not receive proper notification and, further, that the assertions made by Mr Downs in his absence, were “false and misleading evidence that he knowingly knew to be false”.
In relation to this allegation of the denial of a fair hearing, I note that Perry J at paragraph [6] of his reasoning sets out the following matters:
[6] Before giving judgment, I called action number 830 of 1996 on again for further hearing. I did so, as it seemed to me, on reviewing the papers, that I had not heard complete argument on behalf of WorkCover Corporation (“WorkCover”) on the first hearing. Mr Downs appeared on the resumed hearing on 14 February 2007 for that purpose, but although duly advised of the hearing, Mr Moore-McQuillan did not attend. [emphasis added]
In addition, the transcript of the hearing of 14 February 2007 refers to Mr Moore-McQuillan having been notified by letter dated 8 February 2007.
In relation to notification, Mr Moore-McQuillan stated as follows:
5.the applicant did not receive notification of the hearing dated 14 Feb 2007 in this matter.
6.the applicant does have an injury which does not allow the applicant to be mobile or able to attend the applicants PO Box where the letter addressed.
7.the applicant did have problems with his injuries to both his knees in the week prior to the 14 Feb 2007
8.the applicant also denies any phone call attempts were made on the applicant’s mobile phone on the 14 Feb 2007 as the applicants mobile phone was not working at that time.
9.the applicant received the letter notifying of a hearing on the 14 Feb 2007 on the 15 Feb 2007 and immediately notified the Associated [sic] to Perry J as soon as possible. [emphasis added]
Mr Moore-McQuillan therefore does not deny that the notice was sent, he simply states that he did not attend his Post Office box to which the letter was addressed in time for the hearing. This is no fault of the Court.
As to his allegations concerning Mr Downs, the view taken by Perry J, as expressed in his judgment, is that he had not heard complete argument from Mr Downs who was acting for WorkCover. This was the main purpose for the hearing on that date. The submissions of Mr Downs were in turn a response to the allegations which had already been made by Mr Moore-McQuillan. I do not consider that the process followed by the Judge, nor the responding submissions made by Mr Downs, amount to a denial of natural justice.
As to Mr Moore-McQuillan’s allegations that Mr Downs’ submissions were false and misleading, I have had regard to the matters contained in Mr Moore-McQuillan’s lengthy affidavit sworn on 13 March 2007 in support of his present application. That affidavit refers to transcript of the evidence of Mr Mark Calligeros, which Mr Moore-McQuillan uses to support his assertion that there was an undertaking that WorkCover “would not oppose leave being granted before the High Court to have the matter returned to a lower court and sorted out”.
Mr Moore-McQuillan submits that this transcript reveals that Mr Calligeros admitted that his instructions from WorkCover were that WorkCover “would not actively support but to not opposing [sic] leave to appeal for this matter”. Such a statement could not in any event support that there was an “undertaking” of the nature for which Mr Moore-McQuillan contends. At best it was an indication that WorkCover would not oppose leave, which would have left it to Mr Moore-McQuillan to argue his case for special leave before the High Court. Mr Moore-McQuillan was unsuccessful. I also conclude, as did Perry J, that “it is impossible to think that there could be a post facto mediation resulting in some way convictions properly entered in the Magistrates Court on fraud charges”. These are criminal matters for the courts and are not matters to be negotiated between the parties. None of the further arguments or material put to me on this application persuades me that there was any error by Perry J in reaching the decision he did on that matter.

I come to the final additional matter which Mr Moore-McQuillan sought to argue. This additional argument was set out at paragraph [64] of his affidavit:
64.… the appellant only pleaded guilty after the Magistrate offered a guilty plead would result in the appellant being released from the Adelaide Remand Centre and able to return home.
Such a submission is contrary to the previous conclusions in the judgment delivered by Perry J on 2 August 1996, as set out previously in paragraph [14] above.
In short, I see no error in Perry J’s reasoning in relation to the arguments put forward by Mr Moore-McQuillan.
Action No 1113 of 2003
This “leave to appeal” application seeks to argue that Perry J’s decision in dismissing his application to “reopen” this action is wrong. The action concerns proceedings instituted in the Supreme Court in August 2003. Those proceedings sought, amongst other matters, leave to appeal from a decision of Deputy President Judge McCusker sitting in the Workers Compensation Appeal Tribunal, delivered on 31 July 2003.[5] That decision of Judge McCusker was a dismissal of an application made by Mr Moore-McQuillan for an extension of time within which to appeal against two decisions made by Review Officers on 27 August 1991 and 13 October 1995. The decisions of the Review Officers concerned applications made by Mr Moore-McQuillan to have his average weekly earnings reconsidered. Judge McCusker refused to extend the time for an appeal on the basis that it had no reasonable prospects of success. The matter eventually came before the Supreme Court. On 22 August 2003, Perry J dismissed the application for leave to appeal from the decision of Judge McCusker. Mr Moore-McQuillan then renewed the application for leave to appeal before the Full Court, and the Full Court again dismissed the application on 2 October 2003. The High Court in turn refused special leave to appeal on 12 August 2004. Therefore, there was never an appeal in this action to “reopen”, as leave to appeal had been refused, as Perry J noted.
[5] Moore-McQuillan v Workcover (Wolf Air and Dive Shop) [2003] SAWCAT 1 (31 July 2003)
Mr Moore-McQuillan in his submissions to me referred to “fresh evidence” being the findings of Olsson Aux J as previously described. In addition, he submitted that on a proper construction of s 4(2) of the Workers Compensation Act (SA), he was underpaid. This is despite the finding made by Olsson Aux J that he had been overpaid.
Perry J considered the same arguments and concluded that there was no basis for the application. His Honour noted that one of the reasons for Judge McCusker refusing an extension of time was that the applications were hopelessly out of time. In my view Perry J was correct. There is no foundation for the application.
Conclusion
In deciding that an extension of time should not be granted, or even if granted that permission to appeal should be refused in both matters, I agree with the following observations of Perry J:
[60]    Those reasons and the decision of the appeal tribunal make it plain that it can fairly be said that Mr Moore-McQuillan has exhausted all of his legitimate avenues of review. Indeed, he has repeatedly brought applications vexatiously in an effort to circumvent decisions that lay in the path of his seeking any further reviews of his rights.
[61]    So far as his present application is concerned, this Court has already held, both at first instance and on appeal, that Judge McCusker’s decision was not affected by any error of law. Identification of such an error was preconditioned to further access to this Court.
[62]    The subsequent decisions, more particularly the decision of Olsson Aux J could not constitute fresh evidence which could in some ex post facto manner convert the decision of Judge McCusker into a decision tainted by error of law.
For the reasons that I have set out above, I refuse the extensions of time, and I order that both applications be struck out. Even if I granted the extensions of time, or the applications were in fact, within time, I would have refused permission to appeal.