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 brought by Mr Moore-McQuillan following his claim to have suffered a compensable injury in the course of his employment on 9 September 1990.
Two books, one dealing with judgments arising out of fraud proceedings in the Magistrates Court and the other dealing with judgments given in various civil proceedings, were produced and furnished to me between the two hearings.
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.
As I have so far explained, the application for directions seeks to reopen the appeal, which I assume to be the appeal which I heard against the decision of the Magistrates Court, on the sole ground “because of new evidence not available at the time of the original trial or appeal”.
On perusing closely the affirmation filed by Mr Moore-McQuillan in support of the application, I have great difficulty in identifying anything that could be characterised as “new evidence”.
However, at one stage (see par 10 of the affirmation) Mr Moore-McQuillan refers to a judgment of Olsson Aux J sitting in the South Australian Workers Compensation Tribunal, being a judgment delivered on 23 April 2004.
That judgment followed a hearing when Olsson Aux J heard evidence and arguments directed to identifying whether any arrears of weekly payments were due to Mr Moore-McQuillan with respect to his claim for compensation arising out of the alleged work injury to which I have referred.
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.
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.
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.
One has only to spell out the argument to see that it is untenable.
In his affirmation, Mr Moore-McQuillan also refers to what he alleges to have been breaches of undertakings given by WorkCover in the context of the mediation process that at one stage was undertaken. Part of his affirmation reads:
13.The appellant and respondent have since 1998 been involved in a mediation process which was to resolve all matters before all courts, this would have included this matter.
14.The respondent during this mediation did make some undertakings.
15.The undertaking that involved this matter was that the respondent would not oppose leave being granted before the High Court to have the matter returned to a lower court and sorted out.
16.The respondent did not comply with this undertaking which has prejudiced the appellant.
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.
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.
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.
In the circumstances there is no evidence of any undertakings being given which have in any way prejudiced the appellant.
As Mr Moore-McQuillan is unrepresented and despite the abusive and offensive manner in which he argued the matter before me, I have nonetheless endeavoured to make sense of the material which he has brought into court in support of his application.
Beyond the observations which I have made, I have been unable to spell out of the material any support for the application, which must be dismissed.
Moore-McQuillan v WorkCover Corporation – action number 1113 of 2003
This application refers to proceedings instituted in this Court in August 2003. In the proceedings, Mr Moore-McQuillan sought, inter alia, leave to appeal from a decision made by Deputy President Judge McCusker sitting in the Workers Compensation Appeal Tribunal, being a decision delivered on 31 July 2003.
In his decision, Judge McCusker dismissed an application for an extension of time within which Mr Moore-McQuillan might appeal against two decisions of review officers dated respectively 27 August 1991 and 13 October 1995. The decisions of the review officers related to applications by Mr Moore-McQuillan for a reconsideration of the reckoning of his average weekly earnings said to be payable with respect to a compensable injury alleged to have been suffered on 9 September 1990. The refusal to extend the time for an appeal was predicated on the view that the proposed appeal had no reasonable prospect of success.
These proceedings are yet another of a long series of attempts by Mr Moore-McQuillan to have the amounts of the weekly payments reviewed.
There has been a number of other proceedings in this Court brought by Mr Moore-McQuillan seeking orders to that end. See, for example, Moore-McQuillan v WorkCover[2] in which Mr Moore-McQuillan sought judicial review against decisions of WorkCover, but failed both at first instance and on appeal to obtain leave to serve the proceedings.
[2] Full Court, 22 December 2005 [2005] SASC 494 (unreported).
Mr Moore-McQuillan’s initial application in these proceedings came before me for hearing on 22 August 2003 when, in an ex tempore ruling, I dismissed the application for leave to appeal from the decision made by Judge McCusker.
Mr Moore-McQuillan then renewed the application for leave to appeal before the Full Court. In a decision dated 2 October 2003, the Full Court again dismissed the application.
There was no further activity in this file until the present application was brought.
Insofar as the application seeks to have an appeal re-opened, it is misconceived. There has never been an appeal in this matter. As I have explained, the action commenced as an application for leave to appeal, and leave has never been granted. However, I am prepared to deal with the application on the footing that it is yet another attempt to obtain leave to appeal from the decision of Judge McCusker.
As I have said, in his application, which is now before me, Mr Moore-McQuillan seeks to rely on “new evidence not available at the time of the original trial or appeal”.
In support of his application, Mr Moore-McQuillan filed a lengthy affirmation in which he canvasses the various proceedings which he has brought in various jurisdictions in an endeavour to secure payment of what he maintains are arrears of weekly payments which were previously incorrectly calculated.
In the decision given by me, and subsequently by the Full Court, the question at issue was whether a proposed appeal against a refusal to extend time to bring an appeal against the original rulings of the review officers, raised a question of law. The right of appeal under the legislation in force at the time limited any appeal to a question of law.
In both my decision and in that of the Full Court, it was held that the appeal against the exercise of a discretion against extending time to appeal did not, in the circumstances, involve a question of law.
That remains the position.
I have carefully read Mr Moore-McQuillan’s affirmation, but I must say that it is very difficult to understand some of the points which he attempts to make in it. Insofar as it is intelligible, although there is a reference to fresh evidence, it is by no means clear what that fresh evidence is alleged to be.
When I pressed Mr Moore-McQuillan during the course of his oral argument to identify the fresh evidence which he suggested had arisen, as best I understood him, he seemed to be referring to two matters.
The first was the “evidence” which he suggested exonerated him from the fraud the subject of the fraud convictions. This in turn was not so much “evidence” as findings by Auxiliary Justice Olsson sitting in the Workers Compensation Tribunal, whose decision I have referred to above. That decision found, on a close and detailed analysis of the payments made and credits to be given, that insofar as there is a complaint as to the adequacy of weekly payments, Mr Moore-McQuillan had been overpaid. I have already explained how this could not have any effect on the propriety of the convictions for fraud relating to a failure to declare income from other sources.
The second matter referred to by Mr Moore-McQuillan was an argument that on a proper construction of s 4(2) of the Act, despite the finding made by Olsson AJ, he remained underpaid.
It has previously been explained that Judge McCusker’s decision, which is the target of the present proceedings, was the dismissal of an application for an extension of time within which Mr Moore-McQuillan might appeal against two decisions of review officers. Those decisions in turn related to calculation of average weekly earnings claimed by Mr Moore-McQuillan to be payable.
The decision of Judge McCusker pivoted on his view that there was no reasonable argument that the review officer’s decisions were wrong, and that in any event, the application was hopelessly out of time. His decision was upheld on appeal to a single judge (I sat on the matter), the Full Court of this Court, and leave to appeal to the High Court was refused.
The present application offers nothing new except that in the intervening period there has been the decision of Olsson Aux J.
That decision was itself the subject of an appeal to the Workers Compensation Appeal Tribunal.[3] I am taking the unusual step of appending a copy of the reasons of the appeal tribunal to these reasons.
[3] Judgment delivered 30 August 2006 [2006] SAWCT 70.
I do so as in his judgment, Hannon DPJ sets out in careful chronological detail the tortuous passage of the litigation instigated by Mr Moore-McQuillan, all dealing with one thing, namely the adequacy of the weekly payments which have been made to him.
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.
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.
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.
Both applications are dismissed.
Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (formerly Royal & Sun Alliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop)
[2006] SAWCT 70
WORKERS COMPENSATION APPEAL TRIBUNAL (SA)
MOORE-MCQUILLAN, Markham
v
WORKCOVER CORPORATION/VERO WORKERS COMPENSATION (SA) LTD (FORMERLY ROYAL & SUN ALLIANCE WORKERS COMPENSATION (SA) LTD (WOLF AIR AND DIVE SHOP)
JURISDICTION: Appeal
FILE NO/S: 1623 of 1997
HEARING DATES:    8 June 2006; supplementary submissions received up to
  16 August 2006.
JUDGMENT OF: Deputy President Judge PD Hannon
  Deputy President Judge LJ Farrell
  Deputy President SM Lieschke
DELIVERED ON: 30 August 2006
CATCHWORDS:
Appeal against a decision of a learned Auxiliary Justice that there was no underpayment of compensation due to the appellant with respect to a specified period - The appellant complained of the learned Judge’s refusal to allow him to re-open the issue as to the correct computation of his average weekly earnings - Complaint of actual and apprehended bias - Alleged errors in the calculation of compensation paid and due during the specified period - Held that there was no basis upon which the issue as to the quantum of the average weekly earnings could be re-opened - Complaints of bias totally unfounded - No appealable error with respect to the calculations relating to compensation paid and payable during the specified period - Appeal dismissed - S 39, s 86 Workers Rehabilitation and Compensation Act 1986
Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [1997] SAWCAT 41
Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [1998] SAWCAT 32
Moore-McQuillan v WorkCover Corporationand Others [2000] SASC 228
Moore-McQuillan v WorkCover Corporation – VACC Insurance Worksafe (SA) Pty Ltd (Wolf Air and Dive Shop) [1998] SAWCT 50
Moore-McQuillan v WorkCover Corporation [1998] SASC 6919
Moore-McQuillan v WorkCover Corporation [2003] SASC 73
Moore-McQuillan v WorkCover Corporation [2003] SAWCAT 1
Moore-McQuillan v WorkCover Corporation [2003] SASC 325
Moore-McQuillan v WorkCover Corporation and Ors [2000] SASC 228
O’Brien v WorkCover/MMI Workers Compensation (SA) Ltd [2000] SAWCT 72
Royal Adelaide Hospital v Khammash [2001] SAWCT 66
Moore-McQuillan v WorkCover/Royal and Sun Alliance (Wolf Air and Dive Shop) [2001] SAWCT 99
Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd and Another (1999) 78 SASR 151
Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd [2006] SAWCT 47
Rigney v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Ngarrindjeri Land and Progress Association) [2006] SAWCT 59
REPRESENTATION:
Counsel:
Appellant:                  In Person
Respondent:              Mr O Downs
Solicitors:
Appellant:                  Not Applicable
Respondent:              Lawson Smith Lawyers
HANNON DPJ
Introduction
1Protracted litigation between the parties to these proceedings has resulted in numerous decisions of this Tribunal, the Workers Compensation Tribunal, the Supreme Court and the District Court on various issues. One set of proceedings led to a consent order by Deputy President Gilchrist (as he then was) on 14 August 1997 (“the Gilchrist order”) when directions were made for the hearing of one of the many matters in dispute, namely whether the injured worker Mr Moore-McQuillan (“the appellant”) had any and if so what outstanding entitlement to weekly payments of income maintenance for the period from 1 January 1993 to 31 October 1995 (“the relevant period”).
2A learned Auxiliary Justice of the Tribunal investigated this issue and found that the appellant had not established that he had been underpaid his entitlement to income maintenance payments with respect to the relevant period. The appellant now appeals against that decision.
3The appellant’s notice of appeal, and his written and oral submissions in support of it, extended to matters well beyond the scope of the inquiry undertaken by the learned Judge, and beyond the jurisdiction of this Tribunal on appeal against his decision. The same occurred in the proceedings before the learned Judge. As he described it:
“There were…repeated attempts by the applicant to seek to resurrect certain issues that have been foreclosed by prior appeal processes or relevant statutory provisions and to ventilate other matters of contention between himself and the respondent not pertinent to the issues arising in this case…they are irrelevant for present purposes. Most of them relate to contentions concerning the proper calculation of notional weekly earnings at various points in time.”[4]
[4] Par 3 of decision at first instance Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2004] SAWCT 38
4The learned Judge refused to allow the appellant to re-agitate previously decided issues or matters which were not relevant to the issues before him.
5The range of issues sought to be raised by this appeal encompasses the following:-
1.      Whether the learned Judge erred in declining to revisit issues he considered had been previously determined in relation to the correct notional weekly earnings entitlement applicable from the onset of the appellant’s incapacity.[5]
[5] Grounds 4, 8 and 10
2. Whether, in declining to revisit the above issues, the learned Judge erred in his interpretation of s 39 of the Workers Rehabilitation and Compensation Act 1986 (“the Act”).[6]
[6] Ground 10
3.      Whether the learned Judge was biased generally, and whether he prejudged the issues and conducted himself in a manner prejudicial to the worker during the trial.[7]
[7] Grounds 1, 2, 3, 4, 5, 11, 12, 13 and 14 of appeal notice and submissions.
4.      Whether the learned Judge should have disqualified himself from hearing the proceedings due to there being a reasonable apprehension of bias as a result of his being a member of a Full Bench of the Supreme Court in previous decisions involving the appellant.[8]
[8] Ground 6
5.      Whether the learned Judge erred in his calculation of the income maintenance entitlements due to the appellant and received by him (including interest due on late payment of entitlements) with respect to the relevant period.[9]
[9] Grounds 7, 8 and 9
6The issues raised in the first four of the above categories give rise to questions of law capable of determination on this appeal. For reasons which I explain below, complaints as to the factual findings and calculations made by the learned Judge do not give rise to questions of law and cannot be pursued on this appeal.
Background to the hearing before the learned Judge
7It is necessary to have some appreciation of the considerable litigation relating to the issues which the appellant unsuccessfully sought to pursue before the learned Judge.[10]
[10] I present a summary of these matters – full details are set out in pars 11-36 of the decision.
8The appellant claimed compensation for a left knee injury allegedly suffered on 9 September 1990. An initial rejection of that claim was set aside by Review Officer Lovering on 27 August 1991, who determined that the appellant had suffered a compensable disability and subsequent incapacity. She did not determine the appropriate quantum of income maintenance, leaving it to the parties to agree.
9Agreement did not eventuate, and ultimately a determination was made by the then compensating authority on behalf of WorkCover Corporation (“the respondent”) on 11 October 1991 which set the weekly income maintenance entitlement at $765.88. Payments were made on this basis as adjusted until 13 October 1995, when Review Officer Pope, after a three day hearing, having granted the appellant an extension of time with respect to a belated notice of dispute as to the determination of 11 October 1991, set aside the determination and substituted a notional weekly earnings entitlement as at the date of injury of $1,024.19. This figure was arrived at by aggregating the appellant’s income from his mixed duties as a shop assistant (or, as he put it, retail manager) and as a diving instructor and then averaging it over the relevant pre-injury period.
10In February 1997 the appellant lodged appeals out of time against the determinations of both Review Officer Lovering and Review Officer Pope. He proceeded with the latter only. An extension of time was granted within which to bring the appeal. The appellant asserted that the calculation of his weekly entitlement was incorrect in that the Review Officer had omitted to include a component equivalent to rent and associated expenses relating to his residing in the premises where he worked (the “accommodation component”). No claim had previously been made for this component.
11Parsons DPJ dismissed the appeal on the basis that the claim for the accommodation component should have been pursued at review and that it was now too late to do so.[11] The appellant then sought to revive his appeal against the determination of Review Officer Lovering on the same grounds, but Parsons DPJ refused to grant an extension of time within which to appeal.[12] Subsequent appeals against this refusal to a Single Judge of the Supreme Court and the Full Court of the Supreme Court were unsuccessful. The Full Court of the Supreme Court heard the matter by way of an application for leave to appeal in private. The learned Judge was one of the members of the Full Court, and wrote the reasons for the decision to refuse leave with which Wicks and Gray JJ agreed.[13]
[11] Moore-McQuillan v WorkCover Corporation (Wolf Air and Dive Shop) [1997] SAWCAT 41
[12] Moore-McQuillan v WorkCover Corporation (Wolf Air and Dive Shop) [1998] SAWCAT 32.
[13] Moore-McQuillan v WorkCover Corporation and Ors [2000] SASC 228
12In the meantime, the appellant had initiated other proceedings which resulted in the Gilchrist order. The order recorded an acknowledgement by the appellant that his average weekly earnings for the relevant period amounted to a figure “of the order of $160,000”. However after deductions for agreed wages received for work performed during the relevant period, and to reflect the reduction in the entitlement to compensation payments to 80 per cent after the first year of incapacity, the actual entitlement was agreed at a figure “of the order of $110,000”. The appellant asserted that he had not received this amount. Thus the order identified that “the main issue in dispute between the parties concerns the amount of payments of income maintenance that the worker has actually received for the relevant period”.[14]
[14] The full terms of the Gilchrist order are set out in par 6 of the decision.
13This issue was referred to Thompson DP for hearing, but the learned Deputy President found that deficiencies in the evidence produced by the respondent as to payments made to the appellant left him unable to reach a conclusion on the issue.[15] Thus he declined to make an order in favour of the appellant. The appellant successfully appealed this decision to a Full Tribunal which determined that the learned Deputy President should have exercised his power to require the respondent to produce accurate statements as to payments made.[16] The Full Tribunal subsequently directed that an independent auditor conduct a search of the respondent’s financial records relating to the appellant, and for this purpose, the respondent engaged the witness Mr Robert Coulter (“Mr Coulter”) to audit its records.
[15] Moore-McQuillan v WorkCover Corporation [1998] SAWCT 1
[16] Moore-McQuillan v WorkCover Corporation – VACC Insurance Worksafe (SA) Pty Ltd (Wolf Air
14At about the same time, the appellant had taken out certain proceedings in the District Court relating to payment of his entitlements. These proceedings were decided against him on jurisdictional grounds. He unsuccessfully sought leave of Nyland J to appeal to the Full Court of the Supreme Court. An appeal against the decision of Nyland J was heard in private and was dismissed by the Full Court, a member of which included the learned Judge. The brief reasons for decision written by Doyle CJ on behalf of the Full Court concluded that the proposed appeal had no reasonably arguable prospects of success.[17]
[17] Moore-McQuillan v WorkCover Corporation [1998] SASC 6919
15Following the successful appeal against the decision of Thompson DP, the issue as to the amount of payments of income maintenance received during the relevant period came before Cawthorne DPJ. He concluded that the application sought an order for enforcement which was beyond the Tribunal’s jurisdiction.[18] The appellant appealed to a Full Tribunal, which in turn stated a case to the Full Court of the Supreme Court on the jurisdictional question. On 6 March 2003 the Full Court held that the proceedings were properly justiciable by the Tribunal.[19] The Full Tribunal subsequently allowed the appeal against the decision of Cawthorne DPJ, and directed that the issue be referred to a single member of the Tribunal to determine what, if any, income maintenance due and payable with respect to the relevant period remained outstanding to the appellant. It is these proceedings which were assigned to the learned Judge, and which are now the subject of appeal.
[18] Moore-McQuillan v WorkCover/Royal and Sun Alliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2002] SAWCT 29
[19] Moore-McQuillan v WorkCover Corporation [2003] SASC 73
16At the directions stage of the proceedings before the learned Judge, upon it becoming apparent that the appellant wished to re-agitate the issue as to the calculation of his income maintenance entitlements, the learned Judge intimated that he had no power to re-open the determinations of Review Officers Lovering and Pope. As a result the appellant lodged fresh appeals against the determinations of the two Review Officers. Those appeals came on for hearing before McCusker DPJ who refused to extend the time for the issue of the appeals and dismissed them.[20] The appellant thereafter made unsuccessful applications for leave to appeal to a Single Judge of the Supreme Court and later to the Full Court of the Supreme Court.[21]
[20] Moore-McQuillan v WorkCover Corporation [2003] SAWCAT 1
[21] Moore McQuillan v WorkCover Corporation [2003] SASC 325 (sure it’s SASC and not SASR? In Olsson J's decision as SASR)
17The decision of McCusker DPJ reveals that in argument before him the appellant re-agitated the claim for the accommodation component, previously dealt with by Parsons DPJ, and also raised a new argument to the effect that the decisions by the Review Officers were in error due to their failure to apply the provisions of s 4(7)(a) of the Act, which provides that the average weekly earnings payable to a disabled worker whose remuneration is covered by an award should not be less than the weekly wage to which the worker was then entitled under the award. I describe this claim as a claim for the “award component”.
18Following the unsuccessful appeals to the Supreme Court with respect to the decisions of McCusker DPJ, the hearing of the issue outlined in the Gilchrist order commenced before the learned Judge on 10 November 2003 and proceeded over some 12 hearing days.
The decision of the learned Judge
19Although the appellant bore the onus of proving that he had not been paid his due entitlements, the learned Judge directed the respondent to be dux litis as it was better able to produce evidence of relevant determinations, payments made and calculation of payments. Such evidence was duly presented, but the quantification process was difficult due to numerous inconsistencies in the material presented by the respondent, and persistent attempts by the appellant to re-open the issue as to the correct calculation of his weekly income maintenance entitlement.
20The principal witness called by the respondent was Mr Coulter, a self‑employed consultant with extensive experience in the insurance industry and a person the learned Judge considered to be well qualified to construct a proper and accurate reconciliation of entitlements and payments made, notwithstanding his not having any formal accountancy or audit qualifications. The learned Judge found him to be a creditworthy and objective witness, who for the most part presented an accurate and meticulous reconstruction of the respondent’s historical records.
21During the lengthy process of Mr Coulter giving evidence and details of his calculations, the learned Judge and his Associate conducted their own analysis upon the basis of the material presented which allowed for cross checking and verification of material presented. The outcome of this exercise was put to the parties during the hearing for their input and comment, with the result that certain issues were resolved or clarified. Ultimately a version of the final edited spreadsheet incorporating all matters to which specific attention had been drawn was compiled. The learned Judge considered the spreadsheet to be a “useful and generally accurate source document”, and received it into evidence.[22]
[22] Exhibit WC 8A
22The reasons for decision of the learned Judge contain a detailed explanation of the features of the spreadsheet, and of the process whereby various issues affecting the calculation of the appellant’s entitlements were accommodated. The schedule details the entitlements of the appellant for the relevant period, the payments actually made in respect of that period, and the degree of any discrepancy between the two after making due allowance for interest payable and actually paid. The learned Judge produced a simplified summary of the schedule which was annexed to his reasons for decision. The calculations set out in the summary show that the appellant was not underpaid, but rather received a small overpayment of $589.85. Accordingly, the claim was dismissed.
Consideration
23The appeal proceeded on 8 June 2006 by way of oral submissions of the parties in support of outlines of submissions previously filed. At the close of the hearing of those submissions, leave was given to the appellant to provide further written submissions by 10 July 2006 (later extended to 31 July 2006). Further submissions were received from the appellant in a series of emails from 4 July 2006 to 31 July 2006. A copy of the submissions was forwarded to the respondent’s solicitors who filed their response on 7 August 2006. The appellant emailed a rejoinder to that response on 10 August 2006, and a response to that rejoinder was received from the respondent on 16 August 2006. I have taken into account all of the oral and written submissions. I now address the various topics raised by the appellant.
The refusal to permit the appellant to re-open the issue as to the quantum of his notional weekly earnings
24The primary complaint of the appellant, reiterated repeatedly throughout the proceedings before the learned Judge and on appeal, was that his weekly income maintenance entitlement from the onset of his incapacity had not been correctly calculated, and that if it was adjusted to take into account the accommodation component and the award component the cause of the dispute between the parties over the last 15 years would largely be resolved. The importance of this from the appellant’s viewpoint can be seen by the fact that his calculation of the shortfall said to be due to him since 1991 with respect to the award component (plus interest) is $1.3 million. The appellant suggested that it was a simple task for the Tribunal to recognise that these issues had not been addressed, and that there was no reason it should not now do so. The failure of the learned Judge to accede to this request, and the failure of the Tribunal to do so on previous occasions, was said by the appellant to be indicative of a general bias towards him held by various members of the Tribunal who have presided over cases in which he has been involved.
25There is no basis for a complaint about the refusal of the learned Judge to allow these matters to be revisited. There are two reasons why this plainly could not occur. First, the submission by the appellant to the effect that the issue before the Tribunal is “was the worker paid the correct rates of income benefits pursuant to the Act?”[23] is simply wrong. Under the terms of the Gilchrist order to which the appellant consented, the issue before the learned Judge was specifically confined to the question as to whether there was a discrepancy between the quantum of the appellant’s entitlement to weekly payments of income maintenance during the relevant period, and the actual amount received. True it is that in the course of many of the proceedings before the Tribunal and other Courts in the almost seven years between the date of the Gilchrist order on 14 August 1997 and the decision under appeal (23 August 2004), the appellant repeatedly asserted that the question as to the correct calculation of his weekly income maintenance entitlement should be heard and determined. However, the enquiry had to proceed within the parameters of both the previous determinations as to the level of the appellant’s weekly income maintenance entitlement, and the matters agreed as a basis for the Gilchrist order. The enquiry upon which the learned Judge embarked was not the proper forum for an attempt to revisit previously determined entitlements.
[23] Email submission 4 July 2006
26I note that in the appellant’s further written submission of 4 July 2006, he asserted that in previous proceedings before the Full Tribunal on appeal from the decision of Thompson DP and before Cawthorne DPJ the Tribunal had accepted that the setting of the initial rate of income maintenance could be revisited in these proceedings, and that the scope of the inquiry in terms of the time parameters of the Gilchrist order (1 January 1993 to 31 October 1995) could be widened so as to start from the date of injury being 9 September 1990. A perusal of these decisions shows such assertions to be clearly wrong.
27The appellant also implies that the Full Supreme Court in dealing with a case stated by the Full Tribunal following Cawthorne DPJ’s decision that he had no jurisdiction to make a determination as to the issues raised in the Gilchrist order, criticised the Tribunal for not addressing the claim for the award component. This assertion is wrong. Whilst properly and understandably lamenting the sorry history of the litigation over a question that should have been capable of a simple and straight forward resolution, Bleby J (Perry and Nyland JJ agreeing), said:-
“The worker filed a notice of dispute sometime in 1997. In it he asserted that he was entitled to payment of weekly payments of compensation pursuant to the provisions of the Act because WorkCover Corporation (‘the Corporation’) had underpaid him an amount of up to $10,000 for the period 1 January 1993 to 31 October 1995. As I understand it, he was not disputing determinations made by the Corporation as to his entitlement to weekly payments of compensation, but whether various amounts of compensation had been paid in accordance with those determinations.”[24]
[24] Moore-McQuillan v WorkCover Corporation [2003] SASC 73 at par 5
28Perry J also said:-
“In my opinion the Tribunal should proceed to determine the amount payable under the existing determinations and it has jurisdiction to do that …”.[25]
[25] [2003] SASC 73 at par 1
29These comments show that the Supreme Court considered the issue to be confined to the amount payable under “existing determinations” for the period 1 January 1993 to 31 October 1995. The appellant’s submissions indicate he either repeatedly misunderstands or misrepresents what has been said in various proceedings about the scope of the issues able to be dealt with.
30The second reason that there can be no complaint about the refusal of the learned Judge to allow the issue as to the correct quantum of the income maintenance entitlement to be revisited is that the appellant has unsuccessfully attempted to do so through the proper process available under the Act. The reason he has been unsuccessful is that he failed to raise the issues as to the accommodation and award components in a timely way. The matter would have been “capable of simple and straight forward resolution”, to use the words of Bleby J, had he done so.
31As can be seen by reference to the reasons for the decisions of Parsons DPJ and McCusker DPJ referred to above, when they dismissed the various appeals initiated by the appellant against the Review Officer determinations, neither of the claims for the accommodation or award component were raised or pursued at the Review Officer level. Indeed, the argument for the award component, which comprises by far the major aspect of the appellant’s claim to an increased entitlement, does not appear to have been ventilated until at least 2001, when the appellant, according to his written submissions of 4 July 2006, says he became aware of the provisions of s 4(7) through Master Kelly of the Supreme Court.
32The tenor of the appellant’s submissions to the Tribunal indicate that he appears to labour under a perception of inequitable treatment in relation to the claim for the award component in light of the service upon him by the respondent of a notice under s 38(7) of the Act dated 1 December 1999, which sought to reduce his weekly payments of income maintenance. Among other things, that notice asserted that the respondent was of the view that the appellant was capable of earning $968.71 gross per week from employment as a diving supervisor “pursuant to the Ports Corp South Australian Enterprise Bargaining Agreement 1997 - 2000” (“the Enterprise Agreement”). In accordance with the s 38 review process, it was open to the respondent to seek to reduce or discontinue the appellant’s weekly payments of income maintenance by reference to the weekly earnings the respondent asserted the appellant could earn in suitable employment, which under s 35(2)(c) of the Act must in this case be assumed to be available to the appellant.
33However, the Enterprise Agreement had no application to the appellant’s employer at the time of the injury, and the fact that it was referred to for the purposes of the s 38 notice does not lead to the conclusion that it, or any other award or industrial agreement applicable to work as a diving instructor, covered the employment of the appellant at the time of his injury. As was noted by McCusker DPJ in the appeal before him, there was no evidence as to any applicable industrial instrument which demonstrated that the amount of average weekly earnings set by Review Officer Pope was “less than the weekly wage to which the worker was then entitled under the Award or Industrial Agreement”.[26] He noted that the claim for the award component had not been referred to in the determination of Review Officer Pope, in the decisions of Parsons DPJ on appeal, or in the decision of the Full Supreme Court.[27]
[26] S 4(7)(a) of the Act – par 8 of decision at [2003] SAWCAT 1
[27] Moore-McQuillan v WorkCover and Ors [2000] SASC 228 – par 9 of McCusker DPJ’s decision
34When it was pointed out to the appellant during his oral submissions on this appeal that the Enterprise Agreement could not have applied to him at the time of his injury, he suggested that there was an award rate in Queensland that might be applicable. I have seen no material and heard no submission which would suggest that there would be any prospect of the appellant succeeding in his claim for the award component relating to his work as a diving instructor even if he had taken the opportunity when it was available to him to have his claim heard on the merits.
35Applications for extensions of time to revisit these issues have been fully considered and refused. The learned Judge was correct to reject the further attempt to raise these matters in the proceedings before him.
36In his written submissions of 4 July 2006, the appellant asserted that a writ of certiorari is required to correct the question of the claim for the award component. I make no comment as to whether that is possible, except to say that this Tribunal has no jurisdiction in that regard and that any such remedy will have to be pursued by the appellant through the ordinary courts.
The application of s 39 of the Act
37It is convenient at this stage to address the appellant’s complaint that the learned Judge erred in his interpretation of the effect of s 39 of the Act. The appellant contended that a proper application of the power to review weekly payments under that section for the purpose of making an adjustment would permit the incorporation of the asserted accommodation and award components into the entitlement on a backdated basis.
38The submission put by the appellant to the learned Judge was that, notwithstanding the basis of the determination of the quantum of his entitlement by Review Officer Pope on 13 October 1995, the respondent was bound, on each s 39 adjustment, to reassess the rate of compensation by reference to entitlements derived from the awards or industrial instruments said to be applicable to the two distinct sets of duties carried out by him. The learned Judge dismissed the appellant’s contention.
39In the first place, the learned Judge observed that there was no claim before Review Officer Pope for the award component. Secondly, with respect to s 39, the learned Judge rejected the appellant’s argument to the effect that s 39(2)(a)(ii), in both the terms in which it stood up to 17 August 1995, and after amendment on that date, required the respondent to review rates of compensation ab initio at the end of each annual period, and to fix an amount equivalent to the then prevailing award rates asserted to be applicable to the work in question.
40The learned Judge rejected this argument because s 39, as it now stands, is directed to a requirement to make annual adjustments in accordance with either of subsections (i) or (ii) of s 39(2)(a) of the Act. Under (2)(a)(i), the adjustment is in recognition of global movements in relevant wage rates applicable either to workers generally or to workers engaged in the kind of employment from which the worker’s disability arose. Under (2)(a)(ii), “if the worker applies”, the required adjustment is to be made on the basis of changes in rates of remuneration prescribed in an award or enterprise agreement over the relevant period. In neither case does the review process permit or require an adjustment in accordance with “fresh, ab initio, weekly benefit calculations each year”.[28]
[28] Par 121 of the decision – the result is the same whether one has regard to the pre or post 17 August 1995 version of s 39
41The learned Judge went on to say that the short answer to the appellant’s contention was that there was no evidence that, in respect of the relevant period, the appellant ever made an application in accordance with the regulations[29] so as to enliven either form of subsection (2)(a)(ii). Further, he noted the impossibility of applying the adjustment provisions to circumstances where it was contended that the hybrid nature of the duties gave rise to two separate award entitlements. Finally, the learned Judge noted that s 39 adjustments had been made by the respondent during the relevant period, and had never been challenged by the appellant in accordance with the Act, such that it was not open to the appellant to raise an issue as to the invalidity of such adjustments in these proceedings.
[29] Regulation 10 of Workers Rehabilitation and Compensation (General) Regulations 1999
42On appeal, the appellant merely repeated the submission put to the learned Judge. There was no argument articulating any ground upon which it could be considered that the learned Judge erred in his decision. I consider that the reasoning of the learned Judge with respect to the application of s 39 is correct, and that his approach is also in accord with the well accepted principle that a s 39 review cannot be used as a vehicle for the resetting of the rate of average weekly earnings.[30]
[30] O’Brien v WorkCover/MMI Workers Compensation (SA) Ltd [2000] SAWCT 72 at pars 9-10; Royal Adelaide Hospital v Khammash [2001] SAWCT 66 at par 11
Actual and apprehended bias
43The appellant contended that the Judge demonstrated bias against him in a number of ways. It was contended that the learned Judge made procedural rulings prejudicial to the appellant on account of bias, that he appeared not to be listening to the submissions of the worker during the closing addresses, and “appeared distracted”. It was submitted that the learned Judge prejudiced the appellant by subjecting him to “economical duress”, in that the appellant said he was required to conduct a hearing when he did not have the income to pay for an expert accountant witness, or to procure other witnesses, was exposed to expense in travelling to and from trial, and was required to produce documentation despite his being in a disabled condition. It was further contended that the learned Judge prejudiced the worker by not directing that an independent accountant/auditor review the respondent’s calculations with respect to the relevant period.
44As to the last point, I observe that the appellant had every opportunity to seek the assistance of a qualified accountant to check the calculations put forward by the respondent. An adjournment for this purpose was allowed by the learned Judge. The appellant was unable to engage an accountant because he could not afford it. He asked the learned Judge to direct that the respondent pay the cost of engaging an accountant. There was extensive debate over the issue. The learned Judge rightly indicated he had no power to do so. There is no merit in the appellant’s complaint.
45Nor was it necessary for the learned Judge to direct that an accountant investigate the issue, whatever might have been said by the Tribunal in the course of earlier decisions. The appellant repeatedly complained that Mr Coulter’s evidence was deficient because he was not a qualified accountant or auditor. However, the learned Judge did not consider that the engagement of such expertise was necessary and considered Mr Coulter to be well qualified for the relevant task. The appellant’s complaint that the learned Judge should have directed an independent accountant or auditor to review the calculations has no merit.
46On the issue of bias, the appellant was requested to advise the Full Tribunal whether, at any stage during the proceedings, he formally requested that the judge disqualify himself on account of actual or apprehended bias. The Tribunal’s attention was not drawn to any such submission, although it is certainly the case that throughout the proceedings the appellant attacked the learned Judge on numerous occasions with allegations of bias, prejudice and pre-judgment.
47The complaints of bias made by the appellant are very similar to complaints he made to the Full Tribunal which heard his appeal against the decision of McCouaig DP in relation to the s 38 determination, which complaints were rejected by the Full Tribunal (“the s 38 appeal”).[31]
[31] Moore-McQuillan v WorkCover/Royal and Sun Alliance (Wolf Air and Dive Shop) [2001] SAWCT 99
48As to the complaint of actual bias I adopt the approach taken by the Full Tribunal on the s 38 appeal by referring to the observations of Doyle CJ in IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd and Another.[32] There it was noted that courts rarely find actual bias exists, and that the reasonable apprehension of bias test is of such a broad and general application that it is unnecessary and inappropriate for an allegation of actual bias to be raised before or determined by an appellate Court.
[32] (1999) 78 SASR 151
49There are no circumstances here which provide any basis for an allegation of actual bias on the ground of the conduct of the proceedings by the learned Judge. Nor is there any basis for a complaint of apprehended bias.
50As indicated by the Full Tribunal in the decision on the s 38 appeal, the context of the case is critical, and indeed, the following comment of the Full Tribunal applies precisely to the proceedings before the learned Judge:-
“An examination of the transcript does reveal that at times the learned Deputy President found it necessary to rebuke the appellant. But this was entirely of the appellant’s making. Throughout the hearing, he often behaved in a thoroughly obnoxious manner. From the very commencement of the hearing, the applicant seemed to go out of his way to disrupt the proceedings and to insult the learned Deputy President.”
51The Full Tribunal then set out, at length, extracts from the transcript which illustrated the point made. I could do the same with respect to the transcript of the proceedings before the learned Judge. The transcript, some 1,559 pages in length, is replete with a record of insulting, abusive, intemperate and obstinate behaviour towards the learned Judge, counsel for the respondent and others. It is of the same tenor as the extracts from the transcript of the proceedings before McCouaig DP, if not more extreme. I see no need to set out examples to demonstrate the point.
52In the circumstances, it is my view that the learned Judge showed remarkable restraint in enduring the appellant’s frequent tirades, and displayed admirable fortitude in retaining his composure and conducting the proceedings to their conclusion in an even handed manner. It is my view that the only conclusion a reasonable observer of the proceedings could come to is that the appellant received a fair hearing, despite his persistently provocative and disruptive conduct.
53A further submission put by the appellant was that the learned Judge should have disqualified himself on account of his involvement in previous decisions concerning the appellant which I have referred to above. In the two cases referred to, the learned Judge was a member of a Full Supreme Court which dismissed an application for leave to appeal, such application being dealt with in private on the documents. The applications were dismissed on the basis that the appellant was seeking to prosecute a matter which had previously been determined against him and in relation to which there had been gross delay. No findings or comments were made in those decisions which adversely reflected on the credibility of the appellant, or revealed any reason for supposing that the learned Judge might not bring an impartial mind to the proceedings which are now under appeal. In any event, no issue relevant to the credibility of the appellant arises in the present proceedings.
54As it happens, the learned Judge is now presiding over further proceedings in which the appellant is involved. In the course of those proceedings, the appellant raised the same issue, namely that by reason of the learned Judge’s earlier involvement as a member of the Full Court of the Supreme Court in Moore-McQuillan v WorkCover,[33] he should disqualify himself from further dealing with the matter now before him on the ground of apprehended bias. Only a few days before the oral submissions on this appeal, the learned Judge published reasons for decision explaining why he declined to disqualify himself from continuing with those proceedings.[34] He said the following:-
[33] [1998] SASC 6919
[34] Moore-McQuillan v WorkCover Corporation/Vero Workers Compensation (SA) Ltd [2006] SAWCT
“57 A judicial officer who has previously been involved in dealing with litigation relating to a party, in some way, should only disqualify himself or herself if, in all the circumstances viewed objectively, the parties or the public might entertain a reasonable apprehension that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the matter then before that person.
58 As appears from the reasoning of the Court of Appeal in Australian National Industries Ltd v Spedley Securities Ltd (in liq) and others (1992) 26 NSWLR 411, the classic case in which apprehended bias arises is where, in prior proceedings involving the litigant, the judge has made findings critical of the recollection, credit or commercial conduct of the party. (See also the reasoning of the court in Southern Equities Corporation Ltd (in liq) v Bond and others (2000) 78 SASR 339).
59 It is at once apparent that the situation adverted to by the applicant in this case does not fall within the principle emerging from the above authorities. The sole focus of the Full Court was on whether Millhouse J had correctly assessed that the appellate jurisdiction had not been enlivened, because no question of law had been identified. There was simply no issue as to the applicant’s credibility or conduct and no consideration of the merits of his original claims was relevant or arose.
60     Accordingly, there is no basis upon which it could fairly be said that any reasonable person could properly entertain an apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the present matters, by reason of my involvement in the earlier Full Court proceeding.
61     It is to be remembered that the High Court made the point in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 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. This point was re-iterated by the High Court in Ebner v Official Receiver in Bankruptcy (2000) 176 ALR 644 at 650.”
55It is my view that the approach taken by the learned Judge in that matter is precisely applicable to the complaint which has been made in these proceedings, and I respectfully endorse and adopt the approach he has taken.
Complaints as to the calculations adopted by the learned Judge
56The learned Judge posed and answered the following questions:-
1.      What were the entitlements for the closed period?
2.      What payments were actually made in respect of that period, however they may have been computed?
3.      Is there a discrepancy between the two after due allowance is also made for the interest payable and actually paid?[35]
[35] Par 104 of the decision
57The learned Judge described the process by which the simplified, consolidated schedule attached to his reasons for decision had been compiled. First he independently calculated entitlements for the whole closed period derived from Review Officer Pope’s determination and annual economic adjustments to the base figures struck in it. He then extracted weekly deficits or surpluses, having regard to the benefits that were actually paid from week to week by way of income maintenance. The totals were then carried forward into an associated adjustment sheet which brought into account all amounts which had been paid subsequently by way of “backpay”, credits due to the applicant for repayments made by him, and all interest entitlements correctly computed and all actual payments made.
58The learned Judge rejected the appellant’s complaint that Mr Coulter’s schedules simply accepted the accuracy of the possibly incorrect data supplied by the respondent. Whilst that possibility was acknowledged, the learned Judge noted that during the course of the hearing the figures submitted had been “subjected to exhaustive scrutiny and checked against bank reconciliation records” and that there was nothing in them that suggested omission of any relevant payment data. He said “certainly the applicant has not demonstrated any error or omission that is of significance for present purposes”.
59The learned Judge concluded:-
“94 Both the detail of the schedule and the calculations in the adjustment sheet have been independently constructed, given that the interest figures have been accepted as shown in the final edition of the Coulter spreadsheet. All materials placed before the Tribunal at various stages have been scrutinised in the process and regard had to the whole of the evidence. In the result the net figures arrived at are consistent with those
ultimately produced by Coulter. I am satisfied that they are accurate. At the end of the day they indicate that, in respect of the closed period, the applicant has actually been overpaid in the sum of $589.95.”
60In his written submissions the appellant reiterated various arguments which had been put to the learned Judge and considered by him, and for the most part, rejected. The appellant complained of various aspects of the primary calculations, and of certain aspects of the calculations in the associated adjustment sheet, including, in particular, the calculations as to certain items of backpay and interest.
61The complaints raised by the appellant do not give rise to questions of law in relation to which an appeal is permitted under s 86 of the Act. I summarised the relevant principles recently in my decision in Rigney v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Ngarrindjeri Land and Progress Association):-[36]
[36] [2006] SAWCT 59 at par 92 per Hannon DPJ
“The Full Tribunal in South Australian Police Department v Barber gave detailed consideration to the circumstances in which an error of law might be said to arise from what are asserted to be errors in the fact finding process, and considered that the circumstances in which it was entitled to intervene were narrowly confined. The following propositions drawn from cases decided subsequently, albeit in different statutory contexts, are consistent with that view as to the confined role of the Full Tribunal on appeal:-
• A finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it, and an inference will only be open to challenge as being erroneous in law if it is not reasonably open on the facts. So long as there is some basis for an inference, even if drawn as a result of illogical reasoning, no error of law will be established.
• A Tribunal hearing a challenge to a finding of fact should exercise restraint and intervene only in exceptional circumstances – if the fact finding Tribunal gave rational consideration to probative evidence, the fact that this Tribunal on appeal may have come to a different conclusion on reviewing the same material is not to the point.
• A Tribunal does not commit an error of law merely because it finds facts wrongly, or upon a doubtful basis, or because it adopts unsound reasoning – if there is any evidence rationally or legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law. That is so even if there is a significant body of evidence pointing to a contrary finding of fact.”
62The learned Judge arrived at his factual conclusions after painstaking scrutiny, cross referencing and revision of the calculations, and after hearing and taking into account the submissions of the parties at all stages of the process. The learned Judge gave detailed and rational consideration to the evidence as to entitlements payable under relevant determinations and amounts received. The appellant has been unable to demonstrate that there was no probative evidence before the learned Judge to support the findings he made. The evidence before the learned Judge was rationally and legally capable of supporting his findings. There is no error in the fact finding process which raises an error of law.
63Notwithstanding the above I briefly address some of the complaints made by the appellant.
64First he presented a schedule purporting to calculate his arrears of income maintenance plus interest compiled by reference to the award rates to which he asserts he was entitled as from 1 August 1991 to 6 March 2003. He asserts an entitlement to a sum of approximately $1.3 million. This claim is clearly misconceived as the appellant has no lawful entitlement to arrears of income maintenance on this basis.
65A complaint was made as to the use by the learned Judge in the adjustment schedule of a sum of $3,091.00 repaid by the worker to WorkCover. The appellant purports, by a mystifying arithmetical analysis, to relate that item back to calculations in the primary schedule, so as to produce a sum which should be taken into account in his favour of $618.20. There is simply no comprehensible basis for this calculation.
66The appellant raised a number of queries with respect to the accuracy of the eight separate payments of “backpay” set out in the adjustment annexure. As he had been informed repeatedly by the learned Judge, the accuracy or otherwise of the calculations of backpay made at various times was not the issue. The learned Judge said in relation to one such complaint:-
“106 The applicant could not seem to appreciate that Coulter merely relied on the material in question in substantiation of his determinations of what amounts had actually been paid at given points in time and how they had been arrived at. The fact that specific amounts may have been erroneously calculated is automatically taken account of when the total of all amounts paid in fact is compared with total entitlements properly calculated in accordance with the statute, for the same period.”
67Similarly, the appellant reiterated a submission which he had put to the learned Judge to the effect that there had been an error in the manner in which the return by the appellant of certain cheques paid with respect to periods when he had been able to earn income had been taken into account. Although he received and returned cheques in amounts calculated at 80 per cent of notional weekly earnings, the appellant asserted that the “true value” of each returned cheque was really 100 per cent of notional weekly earnings, and that the calculations accordingly fell into error. The learned Judge said:-
“100 In the annexed schedule I set out the correct mathematical approach. This reflects no payment at all in situations where a cheque was returned or cancelled and no entitlement, except where the Pope based figures warrant one, having regard to the quantum of earnings during the period in question.
101As a matter of basic logic, the true situation is arrived at by calculating the total correct entitlements of the applicant over the period on a week by week basis and then subtracting from them all monies actually received by him. This has been done by me. In the periods in question, which all had to be considered on a week by week basis having regard to any earnings in respect of the week in question, the question was – What income maintenance entitlement did the applicant have (if any), given his earnings in that week, on the footing that, because the cheque had been returned, he had been paid nothing for that week?”
There is no substance or logic to the appellant’s complaint.
68The appellant asserted that there were a series of errors in calculations with respect to interest payable on several of the backpay items which should result in a total variance in his favour of $1,011.04.
69The issue of the interest calculations was addressed extensively and indeed Mr Coulter was recalled at the appellant’s request and further cross-examined as to the interest calculations. As a result Mr Coulter produced a revised spreadsheet which the learned Judge accepted as accurately showing all amounts of interest properly payable on the evidence, and as applying a consistent method of calculation, and utilising software developed by the respondent for the purpose of interest calculations generally.
70The learned Judge doubted that the adoption of a compound interest approach was mandated by the legislation but noted that such an approach would favour the appellant in any event.
71The appellant has not demonstrated there to be any appealable error in relation to the interest calculations or any other complaints he made as to the calculations, including those I have not specifically referred to above.
Conclusion
72I consider that the appeal must fail.
73The learned Judge was bound to reject the appellant’s attempt in these proceedings to re-visit the issue as to his entitlement to the accommodation and award components. The appellant has already unsuccessfully sought to raise these matters in the proper context of an appeal against the relevant Review Officer determinations.
74The learned Judge correctly applied s 39 of the Act.
75Grounds for disqualification of the learned Judge for actual or apprehended bias are not made out.
76There is no demonstrated basis upon which it can be found that there was an erroneous finding of fact with respect to the overpayment issue, and even if there is, it would not be such as to give rise to an error of law entitling the Tribunal to intervene.
77I would dismiss the appeal.
FARRELL DPJ
78I agree that the appeal should be dismissed for the reasons given by His Honour Deputy President Judge Hannon.
LIESCHKE DP

I agree that the appeal should be dismissed for the reasons given by His Honour Deputy President Judge Hannon.

and Dive Shop) [1998] SAWCT 50

47