Moore-McQuillan v WorkCover SA

[2003] HCATrans 299

[2003] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  Nos A8 and A125 of 2002

B e t w e e n -

M. MOORE-McQUILLAN

Applicant

and

WORKCOVER CORPORATION OF SA

Respondent

Applications for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 12.33 PM

Copyright in the High Court of Australia

MR M. MOORE‑McQUILLAN appeared in person.

MR K.V. BORICK, QC:   I appear with MR T.R. GRACE in the first of the applications.  (instructed by Johnson Winter & Slattery)

MR T.M. McRAE:   If the Court pleases, I appear for the respondent in the second of those two applications.  (instructed by Fountain & Bonig)

GLEESON CJ:   Mr Moore‑McQuillan, we have called and will deal first with your two applications relating to WorkCover Corporation SA.  Yes, go ahead.

MR MOORE‑McQUILLAN:   So, just so I have got it right, we are going to hear both actions like in one?

GLEESON CJ:   Yes, against WorkCover Corporation SA.

MR MOORE‑McQUILLAN:   One is a freedom of information application and the other one is an application from 76A of the consolidated – the Summary Procedure Act 1921 (SA).  I am not sure where to start with this because you have both got the books and whatnot attached to it.  The problem with this – if I deal with the freedom of information first, that side of it.  The freedom of information was not applied.  I gave consent by the Freedom of Information Act for an application for my files to a third party, being a Paul Rodas, and that action was 379 of 1997, I believe, if I am correct.  From that, access was refused by WorkCover for the freedom of information for that action.

Unbeknownst to me, Paul Rodas then applied again for a freedom of information file, another fresh one, which became 417 of 1997.  I was understanding that 379 and 417 were actually the same one and they just got another number because that is just the way things worked out.  I was never actually told that there was a fresh application put in to the freedom of information for my files by Paul Rodas, which I never gave consent for.  I did give consent to 379.

I did from 379 approach – because Paul Rodas applied for my freedom of information, which he is entitled to, I did approach and was refused ‑ I did approach, because I was a person affected by that decision, to the District Court, but at that time I think it was Johnson Winter & Slattery – David Rydon was the lawyer – sent me a letter and said, “You have to discontinue that action because you are not party to 379.  You have got no grounds for a proceeding whatsoever.”  And they said, “We will just hit you for costs left, right and centre.”  So I filed a discontinuance, as they asked me to do, and that was it.

Paul Rodas then went ahead and put in his own application for freedom of information pursuant to section 40, I think, of the Freedom of Information Act for 417, and then that proceeded through it and he asked me if I would be a witness in the matter, because one of the four criteria for a matter that consist of before the – on of the four criteria required for freedom of information is that it cannot be biased, incorrect, incomplete or out of date or misleading.  The only person who would know if it was any one of those persons, would be myself, so I had to come along as a witness for his application.

During the application before Judge Allan, Paul Rodas went – for better words, the stress got to him and he fell to pieces.  We tried to help him out as best we could.  We asked him if he wanted to bail out and everything else, but he said, no, he was going to soldier on and we tried to help him out every way we can.  But as a witness during the trial in the District Court for 417 before Judge Allan, Mark Rice, who is now Master Rice, working for WorkCover, told Mr Allan that I have no right to be in the courtroom.  I am only a witness.  As a witness I have to stand outside until called.  I have no part in that proceedings whatsoever and that the whole matter was Paul Rodas’ matter.  So I was sent out and that was the end of it and that was the last time I ever had anything to do with the matter before Judge Allan.

After I left, I believe that from thereon in they used a precedent where WorkCover were – Rann v South Australia and Baker which means that even the applicant in the District Court has to be removed as well and only I suppose the respondent or WorkCover itself has to go in and prove to the judge whether he is right, whether they should allow it or not allow it.

The problem with that is Judge Allan would never know what is truthful, what is biased, what is correct or incomplete or out of date or misleading, because he has no way of verifying the opposite unless he has other information from somebody else who is a witness.  The witnesses they did call – and I found this out through taxation and this came after the fact as well.  So even to the extension of time evidence has not been really – you have had to really dig for this evidence.  It was only during the taxation of the costs that I was able to find out that, one, witnesses that were called were the South Australian police, which was a man called Sergeant Bob Ford, which comes up in A191 of 2000 and A192 of 2000, which is a matter also before this Court, he was a player in that part of it as well.  He was called.  People like Steve Georgiadis, who was found to be not complying with the WorkCover Act and got the sack from it when he was a boss of one place, he came in and gave evidence, so did Paul Foley.  Paul Foley gave evidence before Judge Allan which has affected A125 of 2000, so it was all intermingled.  So, what Judge Allan got was not the truth but what WorkCover perceived to give a perception.  They could do what they like because there was no one there to challenge it and that is the reason why that matter was wrong.

But that is one side of it that I have been lumbered with because I have been hit with the costs of it as well, but the fact is that this was not my application.  I gave consent to 379.  I did not realise that by giving consent once I could have a person then put multiple applications in and there is no safeguards to stop you from that.  If someone puts in an application for your consent, you would know about it.  But if someone else does it, like in this case in 417 which I had no control over and thinking I have already given consent to the first one and not knowing about the second and that person continues on, then I have been hit with the cost for that action for him taking things into his own hands.

There was no duress given to Mr Rodas to take the action to the Supreme Court – sorry, to the District Court.  There was no duress.  He was not under any pressure.  No one twisted his arm.  No one forced him.  He did that of his own volition and his own freewill.

The fact is that as the matter proceeded – 417 is an action, like I said, that had nothing – had I known that there was two, I would have stopped it and brought it up to attention right away because I never gave my consent to the first one – if that had been kept on going with 379.  The only way I found out that there was two different actual applications made was after it went to Judge Bleby, after it had already gone to the Full Bench, because that was only when I found out then, through hook and by crook, documentation was released and I was able to find out that there was two applications.

During the taxation of the matter, WorkCover gave – there was documents brought back and forth before them to justify the taxation.  On the side of those notes there was notes that quite clearly show that – they actually said, “This is 417.  Do not let the applicant know that it is different to 379”, and I brought this to the attention of Judge Kelly, who was doing the taxation, and he said it has nothing to do with me, it is just back luck, it is just the way it works and that is the end of it.  So it was clear – from my perception and from the files that was presented in the taxation, it was clear – and I am not exactly allowed to have a copy of them either – it was clear that WorkCover knew that there was two different numbers of 417 and 379.

When the matter went into the Supreme Court to Judge Debelle, it never was answered why – it was never answered that the two ‑ because I never gave consent to the second one, it was not consented.  What actually has gone through is that he never actually looked at 417 as a separate issue to 379.  He has accepted it all as one and they have let it go at that.  All the way along they have said, you said this and there is a lot of transcript and everything else, but I understood it all the way along to be 379.  No one actually stopped and said, “Whoa, hold up, it is two different actions here.  You are talking and acting on 379, which was the same thing as 417”, but 417 never had my consent with it. 

So, I have been going along and thinking it was the same action but I would have to draw the line at finding that 417 is a different action to 379, considering that, even with the application of 417, the reasons he gave for wanting the file were completely different to 379 as well and the wording was completely different and even the handwriting showed up to be completely different.  But I was not part of that and WorkCover should have had a procedure in there. 

There should have been a safeguard where if someone writes in for consent of your freedom of information, then they should have wrote to me and confirmed that I had given consent before they go ahead, but in this case there was no safeguards.  This time they just went straight ahead and because of the actions that are brought up in the other matters I have brought up with the police and that, WorkCover were not forthcoming in actually following procedure.  They were more intent on being the other way and vindictive, even to the point where ‑ I think in the book of documents I gave you – I think it was called – in my affidavit, the annexure marked “MM1”, and that is the letter that Paul Rodas actually sent out on 12 September 1998, which would have been after Judge Allan I suppose and probably around the same time he got his costs ‑ ‑ ‑

GLEESON CJ:   Now, just excuse me.  We are going to adjourn now and we will hear the rest of what you have to say after lunch.  We are going to adjourn until 2.00 pm.

MR MOORE‑McQUILLAN:   2.00 pm, all right, thank you.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ:   Yes, Mr Moore‑McQuillan.

MR MOORE‑McQUILLAN:   Your Honour, I had better apologise for not standing.

GLEESON CJ:   That is all right, I understand.

MR MOORE‑McQUILLAN:   I had not asked you before.  I just assumed and ‑ ‑ ‑

GLEESON CJ:   That is all right.

MR MOORE-McQUILLAN:   ‑ ‑ ‑ .....climbing up those stairs twice already; it is not worth anything else.  We have a point of housekeeping to sort out, please.  I have just been made aware by the respondents here that they couriered out some documents to me yesterday, which I have not got – I never received ‑ ‑ ‑

GLEESON CJ:   I have not got them either.  You just go ahead with your argument.

MR MOORE‑McQUILLAN:   The other thing is, I am just handing up some documents now.

GLEESON CJ:   No, we will worry about that if they ever get to handing up any documents.

MR MOORE‑McQUILLAN:   All right.  I have just handed up some documents behind you that I am going to refer to.

GLEESON CJ:   Yes.

MR MOORE‑McQUILLAN:   The only reason for that is I have only just got hold of some of this stuff as late as yesterday anyway and I do not think any of it is prejudicial to them whatsoever.  The only problem is that – I may as well go right through them.  We are talking about the freedom of information and the lack of documentation and the way that has affected on that and I went – before we adjourned I took you to page 35 of the application book where it was Paul Rodas’ fax out that he did and not in there anywhere does he say in that fax out that he was doing this application for me and that this was my application, my freedom of information.  In fact, the theme all the way through this was that he did the freedom of information, he has been lumbered with the cost and he is suffering from it.

When this was done on 12 September 1998 – so it was just after I imagine he had received the costs or was notified that there was costs.  In the respondent’s summary of argument they make reference at point 4 and point 5, and particularly at point 5 where it says:

The Applicant admits that he signed the consent form enabling Mr Rodas to apply on his behalf.

Now, all the way through this freedom of information application the respondent has never ever distinguished the difference between 379 and 417.  They have assumed that 379 and 417, even though they are two different applications, are one, and they have kept those two applications as one, where, in actual fact, 379 was the one with the consent, 417 was not of the consent, and not one time through their response did they outline the point that there is two applications – that there was one with consent from me and one without – and that the application that they dealt with was 417, which had no consent from myself.

So basically, freedom of information comes up in all the other matters as well as I go along, so I will leave that aside just for the second and I will go on to the 76A application I made, which is A125 of 2002, as we are marrying these both together.  The fact of the matter is that I was convicted – I actually pleaded guilty to a situation where I was held in the Adelaide Remand Centre for a month.  I had a magistrate who went to sleep during the hearing, to the point that counsel was actually dancing around the courtroom while the prosecution was giving his opening and the magistrate was asleep and I do not think I was going to get a fair hearing at the best of times.  Then I was told by the magistrate to plead guilty and we will resolve all the matters and we can go home and get this over and done with and that is it, which never, ever happened.

The fact of the matter is that if we look at what Perry J actually said in his decision – that is at the back of that book, 830 of – it is on page 89 and goes right through to the end of the book to 95.  Perry J said when he heard the evidence and even at the end of the evidence he said and he let me know straightaway, he said, “Any time you find new evidence, then I will let you bring it forward and I will rehear this appeal”.  At no time has that actually happened.

If we just go to the evidence that was – the circumstances that was around back then in 1996.  One, they had a restraint order.  The restraint order they used, which comes up in A191 of 2002 as well today, that is also mingled into it, this restraint order was used by WorkCover, even though it was overturned eventually two years later by Fred Field and by Duggan himself – Duggan J overturned it and it went back to the magistrates and they could not consent to have the thing – not ordered, confirmed or made.

The fact is that WorkCover used it to, one, not produce any documentation.  They did not have to give any discovery of documentation because of the restraint order.  They did not have to do anything because the freedom of information also limited them to – they did not have to produce that as well.  So I was not given any documentation whatsoever.  However, Parliament in this State has corrected that problem and taken the freedom of information access out of that area and put it into the Workers Rehabilitation and Compensation Act, which becomes section 107B of the Workers Compensation Act.  So subsequently to section 107B, I have been given my freedom of information. 

When you open up the freedom of information, and it goes back from 1990 to present, you will find that there was documentation that should have been made available to me.  There was documentation that showed that they were not paying me the correct rate, that I was declaring an income that they said I was not, that I was abiding by the rules, and that the parts that they also charged me for, for fraudulent – was in actual fact –I have got five minutes to finish this all up?

GLEESON CJ:   Yes.

MR MOORE‑McQUILLAN:   Both of them?

GLEESON CJ:   The two matters against WorkCover South Australia, yes.

MR MOORE‑McQUILLAN:   Only five minutes?

GLEESON CJ:   Yes.

MR MOORE‑McQUILLAN:   I did not realise it was that quick.  I thought I had more than 20 minutes for that, your Honour.

GLEESON CJ:   No, the order of the Court is that these two matters be heard together and you have 20 minutes to put your argument.

MR MOORE‑McQUILLAN:   All right then, I will have to cut it real short.  Basically, they have not replied to that.  I have harped too long on the freedom of information.  If I take you to the documents that I have handed up behind you – I think you have already got them – there was an undertaking given by WorkCover in 1998, which was in – now, in their response they have said that there is no undertaking.  Evidence in the Magistrates Court at the moment and on an e‑mail copy, page 1 of 1, dated – to Mr Haig, CAA, it shows that transcript of Fred Morris and Mark Caligoros who both were around at that time, did give consent to have the matter before the High Court.  They were not going to oppose it, they wished it to go back to a lower court, and when it came here Mr McRae down the end there did not even do what he was told to do or what he was instructed to do, and from that moment on they then tried to cover it up and say, “We have won, so we don’t have to worry about it”.

There was an undertaking given.  They have admitted that under oath and to have a copy of that transcript made available for you, I tried to get that from the Magistrates Court, and Mr Haig said that it is not available until – the end of September 2003 I will be able to get hold of it.  However, on Monday this week I do know that Fountain & Bonig, who Mr McRae represents, do have copies of the transcript in question and that will show quite clearly that there was consent given, that the matter was supposed to be sent to a lower court.

In the Workers Compensation Tribunal, where the matter was dealt with WorkCover, in JD1 it was found that WorkCover produced five inaccurate figures for that period of time to show that and they said – even to show that there is any fraud whatsoever.  That then went to an appeal to the Full Bench of the Workers Compensation Tribunal in JD50, which I have also sent up to you just a minute ago.  They found that there was no way possible that you could even find civil or criminal activities on it from what they presented.  The matter is now before Olsson J and it is a matter that has been going since 1997 and they still have not completed it.

Another thing I have sent up to you is the Full Bench decision this year, SASC 73, done on 6 March this year.  In the first paragraph it states quite clearly, and Bleby J says:

The background presents a sorry history of in excess of five years’ litigation over a question that should have been capable of simple and straight‑forward resolution.

And the reason for that being is that there was no fraud in the first place and that I actually did everything and WorkCover cannot produce documents to show that I was fraudulent.  They cannot produce any documents that show that I was erroneous, but what they can do, is they have shown, is that they deleted a section of the Act called 35(1)(b)(ii) which shows the calculation – you are allowed to earn an income while you are on WorkCover, you are allowed to declare your income and there is a mathematical formula for it, and they did not comply with it.

GLEESON CJ:   All right.  Thank you, Mr Moore‑McQuillan.

MR MOORE‑McQUILLAN:   Can I just say one thing though, your Honour, just winding it up.  This matter between the freedom of information and of – I have not got onto A125 exactly as I wanted to, but apart from not being able to give you consent from the Magistrates Court because I cannot get any copies from it, the other thing is that I did not mention there is that the transcript that is in the manual and the book of documents is a transcript of the event that did not occur from the

magistrates, because there is also another e‑mail I sent up to you where the transcript was given to us by WorkCover but there is no magistrate transcript of the events before Deegan, which surprisingly enough WorkCover can supply a transcript and they could not.

The other thing is that this matter for fraud and everything else has got legs in the sense that it has gone before Olsson J and all we need to do is get all this sent back down lower and it can get resolved because they have got all the evidence sitting on the table, it is just what part of it they are going to start looking at, and that occurs on the next week, on Thursday the 27^th of this month.

GLEESON CJ:   Thank you.

These are two applications for special leave to appeal against decisions of the Full Court of the Supreme Court of South Australia given on 2 June 2000 and 17 July 2000 respectively.

In the first matter the Full Court refused leave to appeal from a decision of Justice Debelle.  In the second matter the Full Court refused to grant an extension of time for leave to appeal from a decision of Justice Lander.

We have listened to arguments advanced orally by Mr Moore‑McQuillan and we have read the written material that he has put before the Court, but the question that we have to address is whether any error has been shown in the decision of the Full Court in either case.  In both cases no error has been shown in the decision of the Full Court and both applications are dismissed with costs.

AT 2.14 PM THE MATTERS WERE CONCLUDED