Moore-McQuillan v WorkCover Corporation SA - [2007] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MOORE-MCQUILLAN v WORKCOVER CORPORATION SA
[2007] SASC 55
Judgment of The Honourable Justice Perry
26 February 2007
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES
Applications by worker to re-open previous unsuccessful applications to the Supreme Court, in the first instance by way of an appeal from convictions recorded in the Magistrates Court for obtaining payments or benefits by dishonest means, and in the second instance by way of an application for leave to appeal from an order of the Workers’ Compensation Appeal Tribunal refusing an application for an extension of time to appeal against decisions of review officers as to the applicant’s entitlement to weekly payments – the applicant grounded the applications on the footing that there was fresh evidence bearing on both matters – held that there was no fresh evidence disclosed in the material put before the court and no other ground upon which the applications could succeed – applications dismissed.
Workers' Rehabilitation and Compensation Act 1986 s 4(2) and s 20(1)(a); Summary Procedure Act 1921 s 76A, referred to.
Moore-McQuillan v WorkCover Full Court, 22 December 2005 [2005] SASC 494 (unreported); Moore-McQuillan v WorkCover and Ors Olsson Aux J, 23 April 2004 [2004] SAWCT 38 (unreported); Moore-McQuillan v WorkCover and Ors (on appeal) 30 August 2006 [2006] SAWCT 70 (unreported), considered.

MOORE-MCQUILLAN v WORKCOVER CORPORATION SA
[2007] SASC 55
Civil

PERRY J. Mr Moore-McQuillan makes two applications, in similar terms in two different proceedings.
The first application is styled as an interlocutory application filed on 14 June 2006 (FDN 29) in action number 830 of 1996.
In that application Mr Moore-McQuillan applies for the following orders or directions:
1.General directions
1. The appeal Moore-McQuillan v WorkCover SCGRG 830/96 be re opened and re heard because of new evidence not available at the time of the original trial or appeal.
The other application was filed on 30 June 2006 in action number 1113 of 2003. That application is in exactly the same terms as the one which I have just quoted except that it refers to reopening the appeal in action number 1113 of 2003.
Mr Moore-McQuillan filed an affirmation in support of each application. Both applications came on for hearing jointly before me on Wednesday 20 December 2006. After hearing argument, I reserved judgment in both matters.
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.
On the first hearing, I asked Mr Downs to have those instructing him prepare a book made up of copies of the judgments pronounced in various jurisdictions in the large number of actions…

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 55
Decision Date: 26 February 2007

CaseChat Overview and Summary

Moore-McQuillan applied to the Supreme Court to re-open two unsuccessful proceedings relating to workers’ compensation payments. The first was an appeal against convictions recorded in the Magistrates Court for obtaining payments or benefits by dishonest means, and the second was an application for leave to appeal from an order of the Workers’ Compensation Appeal Tribunal refusing an extension of time to appeal against decisions of review officers regarding the applicant’s entitlement to weekly payments. The applicant argued that there was fresh evidence supporting both matters. The legal issues before the court were whether there was fresh evidence justifying the re-opening of the proceedings and if not, whether there was any other ground upon which the applications could succeed.

The court examined the evidence put forward by the applicant and found no fresh evidence that had not already been considered in previous proceedings. The court also noted that the applicant had previously raised and failed to substantiate the same grounds in earlier unsuccessful appeals and applications. The court held that there was no fresh evidence disclosed in the material put before it and no other ground upon which the applications could succeed. Consequently, the applications were dismissed.

The court dismissed the applications, holding that there was no fresh evidence disclosed in the material put before it and no other ground upon which the applications could succeed. The court found that the applicant had previously raised and failed to substantiate the same grounds in earlier unsuccessful appeals and applications. The court held that there were no grounds to re-open the proceedings, and the applications were dismissed.

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

PERRY J

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Ratio Decidendi

Legal Principle Established

Established by: PERRY J

As will be seen, the fraud proceedings are the subject of action No 830 of 1996, which I will deal with first.Moore-McQuillan v WorkCover Corporation – action number 830 of 1996 These proceedings were instituted on 12 April 1996 when Mr Moore-McQuillan filed a notice of appeal in this Court seeking to overturn a conviction recorded against him in the Magistrates Court sitting at Adelaide. 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”). The grounds advanced by Mr Moore-McQuillan in support of the appeal included what he described as “inappropriate advice to plead guilty, the appellant now wishes to plead not guilty to the offences”. In the notice of appeal he went on to allege abuse of process by the prosecution, and other irregularities. The appeal came on for hearing before me. In my judgment delivered on 14 August 1996 I concluded:[27]In this case it appears to me that 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 further that there was no agreement that they were to be withdrawn.The reference to “outstanding charges” was to a group of charges alleging breach of restraining orders. Mr Moore-McQuillan maintained that his plea of guilty to the fraud charges was on the basis, inter alia, that those other charges, which were still pending, would not be further prosecuted.I proceeded to dismiss the appeal. On 23 May 1997, I refused leave to appeal to the Full Court. The application for leave to appeal was renewed before the Full Court, which in turn refused leave on 20 July 1997. At a hearing on 18 September 1997, Mr Moore-McQuillan unsuccessfully applied for special leave to appeal to the High Court. Subsequently, on 18 March 1998, Mr Moore-McQuillan filed an application in the Magistrates Court under s 76A of the Summary Procedure Act 1921 seeking an order that the convictions entered on 13 March 1996 be set aside. When the matter was argued before a magistrate on 31 March 1998, the same arguments as those which had been agitated on the hearing of the appeal to this Court were advanced by Mr Moore-McQuillan. The application under s 76A was dismissed. Subsequently, an appeal was brought to this Court from that dismissal. A single judge of the Court dismissed the appeal. He held that s 76A could not be invoked simply to re-argue matters which had been agitated on an earlier unsuccessful appeal to this Court. The order dismissing the appeal to this Court was made on 6 May 1998.[1][1] Judgment of Lander J, 6 May 1998, file number 507 of 1998, judgment No S6671 (unreported). So far as I can gather from the papers, there was no further action taken, at least in this Court, by Mr Moore-McQuillan with respect to the Magistrates Court fraud convictions, until now.