Moore-McQuillan v Workcover No. Scciv-01-1324

[2001] SASC 446

MOORE-MCQUILLAN v WORKCOVER
[2001] SASC 446

1. WILLIAMS J         This is an application by Mr Moore-McQuillan for leave to appeal to the Full Supreme Court against a decision of the Workers Compensation Tribunal dated 6 September 2001 and a decision of the Tribunal dated 27 March 2001.  The application also appears to raise (or seek to raise) a complaint about a costs order which I identify as an order dated 13 September 2001.

2. On 6 September 2001 the Full Bench of the Workers Compensation Tribunal dealt with an appeal to it against the decision by a single presidential member of 27 March 2001.  On 13 September 2001 a single presidential member made a costs order.  The reasons for the decision of 6 September 2001 are contained in annexure MMM6 to the applicant’s affidavit of 3 October 2001; the reasons for decision of 27 March 2001 are contained in annexure MMM5 to that affidavit.  The reasons for the order for costs dated 13 September 2001 are contained in Exhibit HML 3 to the affidavit of Mr Lutterus sworn 26 September 2001.  These decisions may also be identified in par 3 of the applicant’s affidavit of 19 September 2001.

3. The applicant (a diving instructor) was injured in September 1990 when he fell down some stairs; this has led to disputes as to his entitlements pursuant to Workers Rehabilitation and Compensation Act 1986. The most recent aspect of the matter involved an appeal to the Full Bench of the Workers Compensation Tribunal by Mr Moore-McQuillan against a determination of a Deputy President with respect to a review of the applicant’s weekly payments of income maintenance pursuant to s 38 of the Workers Rehabilitation and Compensation Act. The Full Bench held that upon the review of a decision to reduce weekly payments it is not open to the Tribunal to authorise the discontinuance of weekly payments.  (By his decision of 27 March 2001 - par 154 a Deputy President had confirmed the determination of Workcover “save that [Mr Moore-McQuillan’s] new entitlement is fixed at nil”).  The effect of the decision of the Full Bench was to affirm Workcover’s determination fixing the worker’s entitlement to weekly payments of income maintenance at $220-70 gross per week.

4. Section 88I of the Workers Rehabilitation and Compensation Act reads as follows:

   “No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except-

   (a)as provided in this Act; or

   (b)in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction.”

5. In my opinion the Workers Rehabilitation and Compensation Act makes no provision for an appeal such as that which the applicant is now seeking to pursue.  Section 86A enables the Full Bench of the Tribunal to state a case on a question of law to the Full Court of the Supreme Court but that procedure has not been used.  The Supreme Court also has power upon judicial review to deal with excess or want of jurisdiction.

6. The applicant’s affidavit of 3 October 2001 (par 4) alleges excess and want of jurisdiction and denial of natural justice but I have been unable to identify anything in the affidavit which would lead me to conclude that there is any arguable ground of complaint which might justify an order to authorise service of a summons for judicial review.  However, bearing in mind that the applicant is self represented I have considered whether I should treat the application (despite its deficiencies) as one made pursuant to SCR 98.03 for leave to serve a summons for judicial review or as an application for direction in accordance with SCR 98.04A.  There is no case disclosed which is fit for argument.

7. For these reasons I decline to make any order upon the application.  I will hear the parties upon the question of costs.