Moore-McQuillan v WorkCover & Ors No. Scgrg-98-1512

[2000] SASC 228

MOORE-McQUILLAN v WORKCOVER, ROYAL SUN ALLIANCE
INSURANCE, WOLF AIR AND DIVE SHOP
[2000] SASC 228

Full Court: Olsson, Wicks and Gray JJ

1................ OLSSON J....... This is an application to the Full Court for leave to appeal against a decision of Millhouse J, on 27 November 1998, refusing leave to appeal against a decision of a presidential member of the Workers Compensation Appeal Tribunal, pronounced as long ago as 6 November 1998. It has been considered in private in accordance with the SCR by a Full Court as presently constituted.  The applicant filed the requisite documentation to initiate the present proceeding on 10 December 1998, but the matter has only just come before the Full Court.  This very considerable delay appears to be the consequence of the fact that the applicant has not taken steps to prosecute his application in a timely manner, by lodging all of the documentation required by the Supreme Court Rules.  He seeks to explain that situation by reference to what he says is a continuing psychiatric condition which he has suffered since late 1997.

1. The relevant history is summarised in detail in the decision sought to be appealed against.  A copy of this is attached.

2. In essence, a dispute arose concerning a claim for workers compensation arising from a disability which the applicant alleged that he had sustained to his left knee on 9 September 1990, in the course of his employment.  This related to what was contended to be the correct rate of income maintenance having regard to certain benefits said to have been provided to the applicant, in addition to the money component of his remuneration, as an employee of Wolf Air and Dive Shop.

3. The matter came before Review Officers, as to the correct rate of income maintenance payable to the applicant, on two occasions.  This resulted in the publication of two decisions, the first being on 27 August 1991; and the second being some time in 1995.

4. Early in 1997 the applicant sought to lodge appeals to the Tribunal against the decisions of both Review Officers, on the ground that each had a omitted a component of his earnings, namely accommodation expenses said to be worth $120 a week in addition to his monetary wage.  Both appeals were grossly out of time.  An extension of time was refused in relation to the 1991 decision, but an extension was granted in relation to the 1995 decision.

5. The appeal against the latter decision was duly heard by the Tribunal which, on 2 May 1997, dismissed it.  The basis of such dismissal was that the issue of the accommodation component had never before been raised by the applicant and had not been in issue before the Review Officer.  The Tribunal pointed out that even the transcript of the proceedings in relation to the 1991 decision was totally devoid of any reference to such an issue.

6. In 1998, after a further gross delay, the applicant sought to appeal against the 1991 decision in relation to the same topic.  On 6 November 1998, Deputy President Parsons refused an extension of time in relation to that attempted appeal.  In the course of her detailed reasons, she pointed out that, in reality, the applicant was seeking to re-litigate an aspect which had already been determined adversely to him by the Tribunal on 2 May 1997.  She particularly commented:-

   “The decision sought to be impugned was made 6 years ago, it did not determine the issue of the calculation of notional weekly earnings, the worker has had an opportunity to put his case in relation to that issue, and a determination has been made and unsuccessfully challenged by an appeal.  In that context the worker' s explanation for delay, at least until 1995, namely that he could not get information from the Corporation as to the calculation of his weekly payments, only serves to reinforce that the purpose of Review Officer Pope's decision was to resolve once and for all the issue of the calculation of the worker's notional weekly earnings and hence the explanation for delay is not persuasive.  Since 1995 the worker said that he has been prevented from taking action to appeal Review Officers Lovering's 1991 decision because of his involvement with the Corporation in other proceedings and because there have been restraining orders against him.  That explanation is unsatisfactory.  Any such orders have not prevented him from issuing proceedings in this Tribunal either personally or by instructing a solicitor.

   In addition the background set out above demonstrates that this is not the first appeal that the worker has lodged against the 1991 determination of Review Officer Lovering.  On 24 April 1997 he withdrew appeal number 16W of 1997, in which the same grounds were relied upon.  He now says that he was misled in doing so, but the transcript of the hearing on 24 April 1997 (pp 4 -- 8) discloses that he did so freely after consideration of the consequences, and following a concession by Mr Stanley, counsel for the Corporation, that the worker was entitled to rely on whatever parts of the determination of Review Officer Lovering which were relied upon by Review Officer Pope.  In the circumstances the worker must take responsibility for his decision to withdraw the appeal at that time and any consequent delay....”

7. On 9 November 1998 the applicant sought leave of this court to appeal against the decision of Deputy President Parsons pursuant to section 100 of the Worker's Rehabilitation and Compensation Act 1986, in the form in which that legislation stood at the relevant time.  The section expressly provided that an appeal to this court was to be limited to a question of law.

8. For some reason the application was not formally filed until 10 December 1998.  It initially came before Millhouse J on 20 November 1998, at which point it was adjourned to 27 November 1998.  On the lastmentioned date, having heard the applicant, Millhouse J refused leave.  He expressed the view that the applicant was seeking to impugn what was essentially the exercise of the Deputy President's discretion, based upon the merits of the case.  It was his opinion that there was no question of law which the applicant was seeking to agitate.

9. It is from that decision that the applicant now seeks to prosecute his application for leave to appeal, some nineteen months after the event.  My enquiries reveal that senior registry officers have told the applicant on a number of occasions what was required to progress the matter, following lodgement of his initial application, but that he has simply never attended to their requirements until recently.  He seems to have sought to rely upon his medical state as an excuse for inaction.  However, that has not prevented him from engaging in wholesale litigation in this and other courts over the period in question.

10. Quite apart from any question of delay, it seems to me that Millhouse J was quite correct in assessing that there was nothing fit to occupy the attention of the Full Court.  Deputy President Parsons disposed of this matter on the merits, given the factual evidence before her.  I fail to discern any question of law which could possibly warrant the grant of leave.  As the learned Deputy President pointed out, the applicant is merely seeking to re-litigate something that was canvassed a long time ago.  He has had his day in Court and there is no warrant for re-visiting the matter.

11. I would refuse leave.

13.............. WICKS J........................ I agree.

14.............. GRAY J.......................... I agree with the reasons of Olsson J and have nothing to add.