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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] SASC 219
Decision Date: 19 June 2007

CaseChat Overview and Summary

The case of Moore-McQuillan v WorkCover Corporation SA involved an appeal against the decision of a single Judge who dismissed applications to re-open two actions in the Supreme Court on the basis of alleged "fresh evidence". The first action was a dismissed appeal in relation to convictions in the Magistrates Court for obtaining payments for benefits by dishonest means, and the second was in relation to a refusal to grant leave to appeal against an order of the Workers' Compensation Appeal Tribunal. The applicants sought permission to appeal to the Full Court, and also applied for the Judge to be disqualified on the grounds of actual and apprehended bias, and for extensions of time for appeal.

The legal issues before the court were whether the applications disclosed any reasonable prospects of success, and whether any errors were disclosed in the reasoning of the single Judge. The applicants argued that they had been denied a fair hearing and that there was new evidence that could have changed the outcome of the original decisions. The respondents argued that the applications were without merit and that any errors were not prejudicial.

The court found that the applications disclosed no reasonable prospects of success, and that there were no errors in the reasoning of the single Judge. The court held that the applicants had exhausted all legitimate avenues of review, and that the subsequent decisions could not constitute fresh evidence that could convert the original decisions into ones tainted by error of law. The court also found that the applicants' allegations of bias and lack of natural justice were unfounded. Accordingly, the applications for permission to appeal out of time were refused and the applications were struck out.

In summary, the Full Court dismissed the applicants' appeals and refused the extensions of time for appeal. The court found that the applications were without merit and that there were no errors in the reasoning of the single Judge. The applicants' allegations of bias and lack of natural justice were also found to be unfounded. The orders of the single Judge were therefore upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LAYTON J

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.

Ratio Decidendi

Legal Principle Established

Established by: LAYTON J

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 20078.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.