WorkCover v Moore-McQuillan No. Scgrg-97-1556 Judgment No. S6570
[1998] SASC 6570
•5 March 1998
WORKCOVER v MOORE-McQUILLAN
(Respondent) (Appellant)
Miscellaneous Appeal
Nyland J
This appeal is against the order of a District Court judge made on 11 June 1997. The judge dismissed an appeal against a determination by the respondent (WorkCover) with respect to an application made pursuant to the provisions of the Freedom of Information Act 1991 (the Act), that access to certain documents be refused as they were exempt documents. The learned trial judge upheld the decision that the documents were restricted documents within the meaning of clause 4(c) of Schedule 1 of the Act in that disclosure of the documents "could reasonably be expected ... to endanger the life or physical safety of a person". The original determination also included a reference to other grounds of exemption including an exemption under section 21(b), that is, that the documents were available through the dispute resolution processes of the Workers Rehabilitation and Compensation Act 1986.
Before turning to the issues which were ventilated at the hearing before me, I propose to set out some of the prior history of this matter. On 12 May 1997, an application under the Act was made by Paul Rodas (Rodas) for access to documents held by WorkCover, relating to Mark Moore-McQuillan (Moore-McQuillan), the appellant in this appeal. Rodas’ application was given the number FOI reference 417. On 2 June 1997, access to the documents was refused. On 5 June 1997, Moore-McQuillan lodged a notice of appeal pursuant to s40 of the Act which provides:
A person-
(a) who is dissatisfied with a determination of an agency that is liable to internal review and remains dissatisfied following an internal review; or
(b) who is dissatisfied with a determination that is not subject to internal review,
may appeal against the determination to a District Court."
The notice of appeal purported to be against that refusal, but his notice referred to FOI file number 379. That file was apparently a different application which related to an external review of Moore-McQuillan’s files conducted at another time.
On 17 June 1997, the respondent’s solicitors wrote to Moore-McQuillan to advise that the procedure he had adopted was not correct as the applicant was Rodas. Accordingly, only Rodas could lodge the appeal to the District Court.
On 19 June 1997, Moore-McQuillan filed a notice of discontinuance stating:
The action was for FOI 379; and
The condition of restraint order forced him to withdraw."
On the same day Rodas filed a notice of appeal with respect to the refusal by WorkCover of application FOI 417. On 6 August 1997, Rodas took out an application seeking a review of the decision of WorkCover. The District Court judge treated the second application as an amendment to the first notice of appeal. Those documents indicated that Rodas was applying for FOI file 417 on behalf of Moore-McQuillan "who can’t apply or direct himself because of restraint orders from WorkCover". In an affidavit included with the relevant documents he stated:
WorkCover have refused access to FOI ref file 417 and all documents, files and videos collected by WorkCover, VACC and their professional agencys (sic) since 9 September 1990 to present. These files, documents and videos all concern Mr M Moore-McQuillan and the FOI reference number at WorkCover is 417.
I seek the complete files, documents and videos held by WorkCover, VACC and their professional agencys (sic) concerning Mr M Moore-McQuillan to ensure that these are not incomplete, incorrect, misleding (sic) or out of date.
I do not know the number of documents, files and videos held by WorkCover, VACC and their professional agencys (sic) or their reference numbers, as WorkCover have refused to supply these. However, I do beleive (sic) there are many volumes in existance (sic) - which are known to the defendant anyway"
The matter eventually came on for hearing before the District Court judge on 14 October 1997. When the matter was called on, Rodas appeared and Moore-McQuillan was also present. WorkCover was represented by Mr Rice of counsel. Before any evidence was called in the matter, Mr Rice made an application pursuant to s43(2) of the Act, that the judge receive evidence and hear argument in the absence of the public and the appellant (that is, Rodas). Section 43(2) of the Act states:
"In any proceedings under this section, the District Court must, on the application of -
(a) the Minister administering this Act; or
(b) the agency concerned,
receive evidence and hear argument in the absence of the public, the appellant and, where in the opinion of the District Court it is necessary to do so in order to prevent the disclosure of any exempt matter, the appellant’s representative." (emphasis added)
The judge directed Rodas’ attention to the section and asked him whether he wished to consider his position in relation to the matter. Nothing specific was put by Rodas to the judge. His Honour then proceeded to receive evidence and hear argument in the absence of Rodas, Moore-McQuillan or any other members of the public.
On 29 October 1997, judgment was delivered in the District Court. The District Court judge stated that he was satisfied that reasonable grounds existed for the claim that the documents for which access was sought were exempt documents. He mentioned that there were documents in the possession of WorkCover to which Moore-McQuillan would have access in the normal course of litigation conducted between himself and WorkCover in relation to his claim or claims for compensation. He declared that the documents to which access was sought were restricted documents by virtue of Clause 4(c) of Schedule 1 of the Act and confirmed the determination to which the appeal related. He further directed that the transcript and exhibits be sealed in an envelope which was not to be opened without an order of the court.
On 12 November 1997, Moore-McQuillan lodged a notice of appeal against the judgment of the District Court judge. He is designated as the person bringing that appeal. The grounds for the appeal are stated to be:
Abuse of process by the prosecution;
The judgment does prejudice the appellant;
The grounds in s 43(1) and (2) of the Freedom of Information Act 1991 did allow incorrect, out-of-date, misleading and incomplete information to be presented by the respondent unchallenged by the appellant;
The appellant did not have the opportunity to inform the Court of the incorrect, out-of-date, misleading and incomplete information being presented to the Court."
The orders sought by Moore-McQuillan are:
Appeal be allowed.
All the documents in the possession of the respondent relating to Mark Moore-McQuillan be given to the appellant.
The declaration that reasonable grounds exist for the claim sought and documents to which access is sought are not exempt documents.
Costs."
That appeal was then listed for hearing before me. Moore-McQuillan appeared in person and Mr Rice again appeared as counsel for WorkCover.
At the commencement of the hearing Mr Rice raised two preliminary matters of procedure. He submitted that the appeal was a nullity or incompetent as Moore-McQuillan was not the applicant/appellant with respect to the relevant District Court proceedings. The applicant was Rodas and the right of appeal provided by s45 of the Act could only be exercised by him.
He further submitted s45 provided that the appeal be heard and determined by the Full Court, subject to leave to appeal having first been obtained within 14 days of the judgment. As the appellant had not complied with the appropriate rules, the appeal should be struck out. For convenience I will deal with the second point first.
Section 45 of the Act states:
"Subject to the rules of the Supreme Court, an appeal lies against a decision of the District Court under this Part."
Rule 96.03A of the Supreme Court Rules requires that an appeal under s45 of the Act is to be determined by the Full Court subject to leave obtained under Rule 94.01A. That rule requires the application to be made within 14 days of the making of the judgment or order complained of.
Rule 94.01A(2) requires the application for leave to be heard by a judge in chambers.
In this case, no application for leave has been made within the time prescribed by the Rules. I am mindful, however, of the fact that Moore-McQuillan is unrepresented. In order to expedite the resolution of the substantive issues which arise for determination, I indicated in the course of the hearing that I would treat the appeal lodged by the appellant as an application for leave. The application is nevertheless out of time. I order therefore that the time for making the application be extended to 12 November 1997, that being the date on which the notice of appeal was lodged.
That leaves the issue as to Moore-McQuillan’s standing to bring the application. This is more difficult to resolve. The circumstances in this case are somewhat unusual in that the documents sought to be inspected by Rodas in his application, and now by Moore-McQuillan in these proceedings, in fact relate to Moore-McQuillan. In the course of the hearing before me, Moore-McQuillan maintained that he had only relied upon Rodas to take out the application by reason of the existence of certain restraint orders which precluded him from contacting the respondent and/or various employees thereof. He said, however, that Rodas was not in a position to deal with the appeal. I have not sighted copies of any of those orders although I was informed that the validity thereof were the subject of other proceedings before another judge of this court. It would surprise me, however, if the order of restraint was sufficiently broad to preclude Moore-McQuillan from exercising his legal rights unless, for example, he had been declared a vexatious litigant. Nevertheless, whatever the reason, the application was made by Rodas and he would therefore appear to be the person aggrieved by the decision of WorkCover and of the District Court judge. Accordingly, he would seem to be the appropriate party to have locus to bring the present application, notwithstanding that the documents relate to Moore-McQuillan.
In the course of argument before me, Moore-McQuillan said that the restraining orders had been discharged. If that is so, regardless of the prior terms thereof, there would now appear to be no impediment with respect to an application being made by him personally for access to the relevant documents. The end result, however, is likely to be the same, that is, that access would be refused upon the same grounds.
In any event, pursuant to Rules 3.04(b) and (c) of the Supreme Court Rules, the Court has power to -
"act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks just to do so…
(b) give leave to any party to amend, alter or withdraw any step in a proceeding;
(c) validate any proceeding or document which is invalid or informal."
It would therefore be open to Moore-McQuillan to apply to amend the present application and substitute Rodas as the appellant. In order to avoid a proliferation of litigation in a matter which has already had an extensive history, I propose to deal with the application for leave on the basis that Moore-McQuillan has the locus to be heard.
Moore-McQuillan made submissions to me in support of the application. Essentially, his complaint appeared to be firstly, that he was disadvantaged with respect to other litigation, and also with respect to his continuing treatment, as a result of being precluded from access to the subject documents. Secondly, that by reason of the procedure adopted by the District Court judge in hearing the matter in his absence, he had been deprived of the right to challenge the determination made by WorkCover and was not able, either personally or through Rodas, to put appropriate submissions to the judge.
Case law relevant to an application for leave to appeal sets out stringent requirements that must be met before leave to appeal to the Full Court is granted. It has been established that leave to appeal will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify the cost of an appeal: Mick Lucas Pty Ltd v Licensing Commissioner. Further in R v Burgess, it was held that the appeal must raise matters of substantial importance. Finally, the applicant must identify accurately the relevant issues so as to make clear their true nature: Ortlepp v Le Cornu Furniture Centre.
It is unusual for proceedings by way of appeal to take place in the absence of a person aggrieved who wishes to be present. In this case, however, the District Court judge made the order directing that the evidence and argument take place in the absence of the public and Rodas, pursuant to s43(2) of the Act (supra). The operation of ss43(1) and (2) was discussed in Rann v SA Water & Baker (No 2). In that case, it was noted by Chief Judge Brebner at p439 that:
"…there is no discretion in subsection (2) in so far as the exclusion of the public and the appellant are concerned. The subsection is mandatory in its discretion that, once application is made by the Minister or the agency concerned, the Court must proceed to take evidence and hear submissions in the absence of the public and the appellant. …(I)f the opinion is formed that it is necessary to exclude the appellant’s representative to prevent the disclosure of exempt matter, the court is left with no discretion to exercise. The hearing must proceed in the absence of the appellant’s representative."
In my opinion, the Chief Judge correctly stated the position relating to this matter. The District Court judge was referred to Rann before he made the relevant order. Moore-McQuillan was present when the case was discussed. On the hearing of this application, Moore-McQuillan sought to distinguish Rann on basis that the information sought in that case related to government planning and matters of Cabinet, whereas all that he sought was information pertaining to himself as an individual. The legislation, however, does not draw any such distinction. Once the application is made, the section is mandatory in its effect. The District Court judge had no option but to assume that the documents were exempt under Schedule 1 of the Act as claimed by WorkCover and then to consider them himself in the absence of the appellant and his representative or any other member of the public. Although, on the face of it, this may seem to be draconian, Parliament has prescribed the procedure. As a matter of common sense, to adopt a course other than this would be to pre-emptively disclose the information concerning the allegedly exempt subject matter. In my opinion, therefore, the District Court judge correctly proceeded to consider the evidence relating to these matters in the absence of Moore-McQuillan and/or his advisers.
Similarly, on this application, it was necessary for the relevant documents to remain undisclosed to the appellant, notwithstanding the obvious difficulties for him in presenting his argument on appeal. In order to finalise this matter, subsequent to the reservation of my decision, I inspected the documents. In my opinion, none of the exempted documents are relevant to reasons given by Moore-McQuillan as to his need to inspect them. I consider that the procedure adopted by the District Court judge was correct. There has been nothing put before me to show that the District Court judge erred in upholding WorkCover’s claim as to exemption.
I am not persuaded, therefore, that the appeal is reasonably arguable, nor that there are any matters raised which would justify the matter being considered by the Full Court. In all of the circumstances, the application for leave is refused.
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