Attorney General for Western Australia v Barkla
[2016] WASC 298
•21 SEPTEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- BARKLA [2016] WASC 298
CORAM: LE MIERE J
HEARD: 28 JULY 2016
DELIVERED : 21 SEPTEMBER 2016
FILE NO/S: CIV 1522 of 2016
MATTER :An Application under the Vexatious Proceedings Restriction Act
BETWEEN: ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Plaintiff
AND
GEOFF BARKLA
Defendant
Catchwords:
Vexatious Proceedings Restriction Act 2002 (WA) - Whether person has instituted or conducted vexatious proceedings - Whether appropriate case to exercise discretion and make order - Discretion should be exercised - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 30 r 2
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43
Vexatious Proceedings Restriction Act 2002 (WA), s 3, s 4, s 6
Workers' Compensation and Injury Management Act 1981 (WA), s 57A, s 229, s 231
Result:
Application successful
Category: B
Representation:
Counsel:
Plaintiff: Ms K A T Pedersen
Defendant: In person
Solicitors:
Plaintiff: State Solicitor for Western Australia
Defendant: In person
Case(s) referred to in judgment(s):
Barkla v Allianz Australia [2015] WASCA 210
Barkla v Allianz Australia Insurance Ltd & G4S Custodial Services [2014] WASCA 192
Barkla v Allianz Australia Insurance Ltd [2013] WADC 23
Barkla v Allianz Australia Insurance Ltd [2013] WADC 90
Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240
Barkla v Allianz Australia Insurance Ltd [2014] WADC 113
Barkla v Allianz Australia Insurance Ltd [2014] WADC 23
Barkla v Allianz Australia Insurance Ltd [2014] WADC 36
Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222
Barkla v Allianz Insurance [2013] WASCA 21
Barkla v Bush [2015] WADC 46
Barkla v Civitella [2016] WADC 3
Barkla v Civitella [2016] WASCA 71
Barkla v Civitella [No 2] [2016] WASCA 111
Barkla v G4S Australia Holdings (Unreported, A387, 20 January 2012)
Barkla v G4S Custodial Services [No 2] [2012] WADC 78; (2012) 80 SR (WA) 91
Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36
Barkla v Justice David Wallace Newnes [2015] WASCA 120
Barkla v WorkCover WA [2014] WADC 159
Barkla v WorkCover Western Australia [2014] WASCA 40
Geoff Barkla v Allianz Australia [2015] HCASL 40
Geoff Barkla v Registrar Linda Joyce Bush [2015] HCASL 181
Re Registrar Linda Bush, ex parte Barkla [2014] WASC 488
Re The Hon Justice Newnes, Ex Parte Barkla [2014] WASC 487
LE MIERE J:
Summary
These proceedings were instituted by the Attorney General for Western Australia, the Honourable Michael Mischin MLC (the applicant) against Geoff Barkla (the Respondent). On 1 April 2016 the applicant filed an originating motion under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA) (the Act) for orders that:
1.Mr Geoff Barkla is prohibited from instituting any proceedings, as defined in the Act, unless he first obtains the leave of a Court or Tribunal, as the case requires, under section 6 of the Act; or
2.In the alternative, such other order under the Act as the Court considers to be appropriate; and
3.Costs of and incidental to this application be paid by the Respondent.
The originating motion listed the grounds of this application are:
i.The Respondent has instituted and concluded proceedings as set out in the Affidavit of Gillian Anne Scott Bailey sworn on 17 February 2016, that are vexatious proceedings, as defined in the Act; and
ii.It is likely that the Respondent will institute or conduct vexatious proceedings, as defined in the Act.
The relevant history is set out below.
Barkla suffers injury
Mr Barkla was employed by G4S Custodial Services Pty Ltd as a custodial services officer. On 1 April 2010 whilst working as the Acting Supervisor at the Geraldton Court Mr Barkla says he was verbally abused by one of his subordinates. He made a complaint about this behaviour to G4S. On 24 September 2010 Mr Barkla says he was again verbally abused by the same subordinate. He again raised his concerns with the management of G4S. In the course of an extensive series of emails Mr Barkla advised G4S of how stressful the situation was becoming. On 8 October 2010 Mr Barkla obtained a medical certificate from his doctor that he was suffering from stress. Over the course of the following week Mr Barkla continued to raise his concerns with his superiors at G4S. On 13 October 2010 Mr Barkla was notified that his secondment as the supervisor at Geraldton would finish on 22 October 2010 and that he would be transferred to the Perth pool of employees. Mr Barkla has not worked since 13 October 2010. A first medical certificate was issued in respect of his injury on or about 13 October 2010 by his general practitioner, Dr Wallis. The certificate referred to Mr Barkla's description of the injury as workplace stress and contained a diagnosis of anxiety.
Barkla lodges claim
On 5 November 2010 Mr Barkla lodged a claim for compensation with G4S. He stated the nature of his injury was 'stress'. Mr Barkla made a claim for weekly payments of compensation for total or partial incapacity under s 57A of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act). The WCIM Act s 57A sets out the claims procedure when an employee is injured.
Allianz gives Form 3C notice
By notice dated 8 November 2010, G4S's insurer Allianz gave Mr Barkla notice pursuant to WCIM Act s 57A(3)(c) that it was not able to make a decision as to whether or not to accept liability within the timeframe set out in that subsection. The notice was in the form of Form 3C. In the section of the form headed 'The reasons why the decision was not able to be made are as follows'. Allianz stated:
Further medical and factual information is required to ascertain if the claimant has sustained an injury in the course of his employment or whilst acting under the employer's instructions.
Allianz also stated in the Form 3C that a 'full report has been requested from the treating GP' and that 'previous wage earnings to be provided by the Insured'. Allianz reserved the right to have Mr Barkla undergo an independent medical examination with a provider of their choice. In a covering letter Allianz stated:
Allianz reserves the right to make a decision on liability under further information is obtained, including a medical report from your treating GP as well as a statement from yourself. An assessor will contact you directly to arrange a suitable time to obtain a statement from you in relation to your allegations.
On 17 November 2010 Mr Barkla's general practitioner, Dr Wallis, provided a report to Allianz in which he confirmed that Mr Barkla was suffering from major depression with co‑existing anxiety. Dr Wallis stated that in his view Mr Barkla's employment had contributed significantly to the disability and that Mr Barkla would not be fit for work for the following three months.
Barkla obtains interim weekly payments order
On 31 January 2011 Mr Barkla filed an application pursuant to WCIM Act pt XII to the (now defunct) dispute resolution directorate of WorkCover seeking interim weekly payments pursuant to WCIM Act s 231 (now repealed). G4S opposed the grant of interim relief. On 11 February 2011 orders were made in Mr Barkla's favour. On 23 February 2011 Mr Barkla was reviewed by Dr Mander, a psychiatrist, at the request of G4S. Dr Mander provided a report dated 24 February 2011 to Allianz.
Arbitrator orders application to be dealt with as substantive dispute
On 14 March 2011 Mr Barkla filed an application pursuant to the WCIM Act pt XII seeking further interim weekly payments. The application was refused. The arbitrator made an order pursuant to WCIM Act s 229 (now repealed) that the matter be dealt with as a substantive dispute. The medical information filed by a Mr Barkla was to the effect that he suffers from an adjustment disorder with associated depression and anxiety and has done so since the incident in September 2010. G4S disputed liability under WCIM Act and had obtained medical evidence supporting its position. G4S's position was set out in Form 6 Notice of Consent or Dispute pt XII filed 21 March 2011.
Throughout the remainder of 2011 the dispute proceeded through interlocutory and conciliation processes.
Barkla's application for weekly payments
On 5 January 2012 Mr Barkla made an interlocutory application for orders confirming that he had an entitlement to weekly payments pursuant to WCIM Act s 57A(5) as a result of G4S's failure to comply with the notification provisions in WCIM Act s 57A(3). Mr Barkla's contention was that an employer who has given a notice under WCIM Act s 57A(3)(c) is obliged to give a notice under WCIM Act s 57A(3)(b), a Form 3B form if it wishes to dispute liability. Mr Barkla contended that Allianz's failure to do so triggered a liability to pay weekly payments pursuant to WCIM Act s 57A(5).
The arbitrator disagreed and dismissed Mr Barkla's application: Barkla v G4S Australia Holdings (Unreported, A387, 20 January 2012) (Registrar Melville).
List of Proceedings
It is these circumstances which have been the catalyst for many of the actions brought by Mr Barkla against various respondents. Mr Barkla during the hearing of this matter stated '…and I keep filing, because nobody is answering the Form 3B issue (ts 97). 'I keep filing is because I cannot get an answer to that question - two questions, as to who advised and by what legal authorities is the insurer not required to issue the Form 3B …'(ts 98).
Barkla appeals to the District Court
Mr Barkla appealed to the District Court against the arbitrator's decision, pursuant to WCIM Act s 247. On 6 June 2012 Commissioner Gething granted leave to Mr Barkla to appeal but dismissed the appeal: Barkla v G4S Custodial Services [No 2] [2012] WADC 78; (2012) 80 SR (WA) 91. Commissioner Gething's reasons were as follows:
… an insurer complies with WCIM Act s 57A(3) by giving one of the three forms of notice required by that section.
The regime as to what occurs if 'within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made' is governed by WCIM Act s 57A(3)(ca). If there is to be an obligation of the kind contended for by Mr Barkla, the obligation would have to be implied into s 57A(3a). If there is a breach of WCIM Act s 57A(3a), the result is a deemed dispute, not deemed liability within s 57A(5). Thus, even if G4S did breach the implied obligation, Mr Barkla would be in the same position he is now: able to make an application to an arbitrator for determination of the deemed dispute pursuant to WCIM Act s 58(1) [59] ‑ [60].
Barkla appeals to Court of Appeal
On 26 September 2012 Mr Barkla filed a notice of appeal to the Court of Appeal from the decision of Commissioner Gething. The notice of appeal was out of time. Mr Barkla sought an extension of time to appeal.
On 31 January 2013 the Court of Appeal refused to extend time on the ground that the proposed grounds of appeal have no prospect of success: Barkla v Allianz Insurance [2013] WASCA 21. The Court of Appeal considered that the first proposed ground of appeal challenged the correctness of Commissioner Gething's reasons. The Court of Appeal held that Commissioner Gething's reasons were unimpeachable. The second proposed ground of appeal related to an earlier decision of Commissioner Gething on 1 May 2012 when he dismissed an application by Mr Barkla for leave to adduce evidence at the hearing of the appeal. In reasons for dismissing the application Commissioner Gething said that it was apparent to him that the evidence Mr Barkla sought to adduce was about whether officers of Allianz or WorkCover held particular views about the interpretation of s 57A. Commissioner Gething correctly held that such evidence was entirely irrelevant to the proceedings before the District Court judge. The third proposed ground of appeal alleged that actions of G4S were unlawful and illegal. The Court of Appeal said that the proposed ground of appeal had no reasonable prospect of succeeding.
The Court of Appeal held that there was another reason for dismissing the application. The court learned from counsel for Allianz that liability had been accepted, that compensation was being paid to Mr Barkla and that Mr Barkla had discontinued his application for resolution of the dispute. The Court of Appeal said:
That means that this appeal is a waste of time.
[Mr Barkla] has wasted the time of the court, the registry staff and the respondents [23] [24].
Barkla commences District Court CIV 638 of 2013 against Allianz and WorkCover
On 14 February 2013 Mr Barkla filed a writ of summons indorsed with a statement of claim in the District Court against Allianz and WorkCover. Mr Barkla alleged that the defendants failed in their duty of care by denying him medical treatment. WorkCover and Allianz each filed a chamber summons applying for orders to strike out and dismiss the action on the basis that it disclosed no reasonable cause of action. Mr Barkla filed an application for default judgment against WorkCover on the basis that no signature appeared on documents served on Mr Barkla on behalf of WorkCover. Mr Barkla made various procedural applications. On 10 April 2013 the Principal Registrar dismissed Mr Barkla's procedural applications and made programming orders. Mr Barkla filed a notice of appeal from Registrar Gething's programming orders. On 6 May 2013 Scott DCJ dismissed Mr Barkla's appeal.
On 20 May 2013 Fenbury DCJ heard the applications by WorkCover and Allianz to strike out Mr Barkla's claim and dismiss the action and Mr Barkla's application for summary judgment. Fenbury DCJ struck out the statement of claim and dismissed Mr Barkla's actions against each defendant: Barkla v Allianz Australia Insurance Ltd [2013] WADC 90.
Barkla attempts to file District Court writ of summons CIVO 121of 2013 against Ms Michelle Reynolds (WorkCover Western Australia Chief Executive Officer)
On 10 June 2013 Mr Barkla attempted to file a writ of summons in the District Court against Ms Michelle Reynolds, Chief Executive Officer of WorkCover. On 8 July 2013 Principal Registrar Gething wrote to Mr Barkla stating that the court had refused to accept the writ for filing as it appeared that the allegations made in it and the statement of claim were not materially different from the matters raised in CIV 638 of 2013. Mr Barkla sought leave to file the writ. On 19 August 2013 Birmingham DCJ refused leave to commence proceedings on the basis that the proceedings were not materially different from CIV 638 of 2013.
Barkla appeals to Court of Appeal against decision in CIV 638 of 2013
On 1 July 2013 Mr Barkla filed a notice of appeal in the Court of Appeal against the decision of Fenbury DCJ in CIV 638 of 2013. On 31 July 2013 Mr Barkla filed an appellant's case in which he alleged that he was denied procedural fairness by being denied the right to cross examine Mr Rob Moffat, a manager of Allianz Australia, and submitting that the statement of claim disclosed a reasonable cause of action. On 15 October 2013 the Court of Appeal ordered that the appeal be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) because Mr Barkla's grounds of appeal do not disclose any arguable basis for contending that the conclusions reached by Fenbury DCJ were wrong and hence none of the grounds had any reasonable prospect of success. The court held that none of Mr Barkla's grounds of appeal had any reasonable prospect of success.
Barkla attempts to file District Court writ CIVO 126 of 2013 against WorkCover
On 11 July 2013 Mr Barkla attempted to file a writ of summons in the District Court against WorkCover Western Australia Corporation claiming that he was denied procedural fairness because Arbitrator Samuel Nunn of WorkCover could not answer a question regarding why Mr Barkla was allegedly denied medical treatment for 21 Months. On 19 July 2013 Principal Registrar Gething wrote to Mr Barkla stating that the court had declined to accept the writ for filing as it appeared to be an abuse of process. On 19 August 2013 Birmingham DCJ refused leave to commence proceedings on the basis that the proposed proceedings were not materially different from CIV 638 of 2013.
Barkla attempts to file appeal notice against decision of Arbitrator Nun
On 24 September 2013 Mr Barkla attempted to file an appeal notice in the District Court against the decision of Arbitrator Nunn at WorkCover alleging that he was denied the right to have an agreed statement of facts. On 25 September 2013 Principal Registrar Gething wrote to Mr Barkla stating that the court declined to accept the appeal notice for filing as it appeared it was another attempt to aerate issues that had been the subject of previous unsuccessful applications. On 11 October 2013 Bowden DCJ refused leave to file the appeal notice on the grounds that it was an attempt to re litigate matters that had previously come before the court. On 23 October 2013 Mr Barkla emailed Principal Registrar Gething asking why no formal written reasons for decision were published and alleged that the District Court wished to cover up the fact that there was a hearing.
Barkla files appeal notice to Court of Appeal against decision of Bowden DCJ
On 15 October 2013 Mr Barkla filed an appeal notice in the Court of Appeal against the decision of Bowden DCJ in CIV 183 of 2013 alleging that Bowden DCJ's denial of his application for a statement of material facts was an abuse of process, vexatious and biased. Mr Barkla filed an appellant's case. The registrar issued a notice listing the matter for hearing to determine whether the appeal should be dismissed on the basis that none of the grounds had a reasonable prospect of success. Mr Barkla then filed an application applying for judgment in his favour. On 17 December 2013 the Court of Appeal dismissed the appeal: Barkla v WorkCover Western Australia [2014] WASCA 40. The court said that none of Mr Barkla's grounds of appeal had any reasonable prospects of success.
Barkla issues writ CIVO 1 of 2014 against Allianz
On 6 January 2014 Mr Barkla filed a writ of summons in the District Court against Allianz alleging that he was denied a statement of agreed facts by Arbitrator Nunn of WorkCover. Principal Registrar Gething wrote to Mr Barkla stating that the court would not accept the writ of summons for filing and listed the matter to be heard on 29 January 2014 to consider whether Mr Barkla should have leave to commence the appeal. Principal Registrar Gething stated that over the past 18 months Mr Barkla had sent the court registry over 300 emails which was an abuse of process.
Mr Barkla's application for leave was dismissed by McCann DCJ on 19 February 2014: Barkla v Allianz Australia Insurance Ltd [2014] WADC 23. McCann DCJ said that the indorsement of claim did not plead a recognised common law cause of action, was an abuse of process, frivolous and vexatious.
Barkla files appeal notice in District Court against decision by Arbitrator Nun: CIVO 4 of 2014
On 7 January 2014 Mr Barkla filed an appeal notice in the District Court against Allianz appealing a decision made by Arbitrator Nunn at WorkCover. The appeal notice alleged that Mr Barkla was denied the right to have an agreed statement of facts, claimed that Allianz had not provided required medical evidence and queried the basis upon which liability was disputed by Allianz. Mr Barkla then filed an amended appeal notice seeking further orders overruling certain procedural decisions made by Arbitrator Nunn in alleging a denial of expert medical evidence for 21 months.
In response to an email sent to the court by Mr Barkla Acting Principal Registrar Kingsley wrote to Mr Barkla explaining that the appeal notice must be served personally. In response, Mr Barkla wrote to the court querying why he was not able to serve documents by email. On 20 January 2014 Mr Barkla attempted to file four subpoenas by fax requiring officers of Allianz and their solicitors to attend to give evidence on 29 January 2014 and produce documents. On 21 January the Acting Principal Registrar wrote to Mr Barkla declining to seal and issue the subpoenas faxed to the court. Mr Barkla emailed the court attaching various documents alleging the Acting Principal Registrar's conduct was an abuse of process and a denial of procedural fairness. On 28 January Mr Barkla emailed the court requesting advice as to why the court declined to seal and issue subpoenas.
On 19 February 2014 McCann DCJ published reasons ordering that Mr Barkla have leave to amend the substituted grounds of appeal, requiring him to serve a notice of proposed grounds of appeal and dismissed Mr Barkla's application to issue subpoenas with liberty to reapply at a later time and listed the matter for a further directions hearing: Barkla v Allianz Australia Insurance Ltd [2014] WADC 23. At a further directions hearing on 5 March 2014 McCann DCJ extended the time for filing the notice of proposed grounds of appeal and informed Mr Barkla that if he filed arguable grounds of appeal then the matter would proceed to a final hearing but if he did not file grounds of appeal that met the requirements he would be notified to fix it up. Mr Barkla filed proposed grounds of appeal. On 26 March 2013 McCann DCJ published reasons for permanently staying the application for leave to appeal: Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36.
District Court appeal APP 54 of 2014
On 9 June 2014 Mr Barkla filed an appeal notice in the District Court against the decision of Arbitrator Nunn of WorkCover naming Allianz and G4S as respondents. The appeal notice alleged that WorkCover denied Mr Barkla an arbitration hearing, denied him right to question witnesses and alleged that Arbitrator Nunn made a misleading statement and was biased.
On 3 July 2014 Registrar Kingsley wrote to Mr Barkla in response to an email sent by Mr Barkla to the District Court on 1 July 2014 attaching an application in APP 54 of 2014. The letter informed Mr Barkla that the court declined to accept the application for filing without the leave of a judge and requested that all future correspondence from Mr Barkla to the court be addressed only to Registrar Kingsley and noted that the court had received over 600 emails from Mr Barkla since February 2012. Between 7 July 2014 and 28 July 2014 there was various correspondence and emails between Mr Barkla and the court in which Mr Barkla requested that certain letters and documents be sealed and the court declined. On 28 August 2014 Staude DCJ published reasons for dismissing the appeal: Barkla v Allianz Australia Insurance Ltd [2014] WADC 113. In his application for leave to appeal Mr Barkla maintained that he is entitled to a ruling that Allianz contravened s 57A of the WCIM Act by not giving him, in response to his claim for weekly payments, a notice pursuant to s 57A(3)(b) that had disputed liability. In his reasons for decision Staude DCJ noted that the point has been litigated and decided in earlier proceedings but that Mr Barkla insisted that those decisions were wrong and that he has not been given any reasons why his interpretation of s 57A(3) is not correct. Further, Mr Barkla sought a reconsideration of the issue on the basis of new information. The new material from Mr Barkla included extracts from Hansard of 27 June 2013 and 13 August 2013 in which the Hon Michael Mischin, then Minister for Commerce, in answer to questions asked on behalf of Mr Barkla by the Hon Ljiljanna Ravlich said:
I am advised that Allianz was not required to issue you a notice under section 57A(3b) of the Workers Compensation and Injury Management Act 1981 in respect of Mr Barkla. This particular matter has been considered by various courts on appeal by Mr Barkla, which confirmed the decision of the WorkCover WA Arbitrator.
On 13 August 2013 the Minister was asked what form was required to be given to a worker when an insurer disputed a claim for compensation and whether such a form was given to Mr Barkla. The Minister responded that where an insurer disputes a claim for compensation a Form 3B is to be given. The Minister went on to say that he was advised that Mr Barkla's insurer was not required to issue a Form 3B in this matter.
Staude DCJ concluded:
The application for leave to appeal amounts to an abuse of process. Moreover, the proposed appeal is without merit. The appeal is struck out and the application for leave dismissed [48].
District Court proceedings CIVO 139 of 2014 against Arbitrator Nunn
On 28 August 2014 Mr Barkla filed a writ of summons, an ex parte chamber summons and an affidavit in the District Court against Arbitrator Nunn of WorkCover. Each document set out several questions regarding the statement made by the Attorney General in Hansard pertaining to the construction of WCIM Act s 57A(3). Sleight DCJ published reasons for decision on 21 November 2014: Barkla v WorkCover WA [2014] WADC 159. Sleight DCJ concluded:
I have no hesitation in concluding that the writ of summons Mr Barkla seeks to file is an abuse of process in that the claim it makes is manifestly groundless or without foundation, it will serve no useful purpose and it is a part of a multiple or successive set of proceedings which if continued will cause improper vexation and oppression … The proceedings follow on from multiple earlier proceedings by Mr Barkla seeking to re agitate in a different form the contentions of Mr Barkla that pursuant to section 57A(3) of the Act Allianz was required to file a notice disputing liability. This issue has been raised repeatedly before this court and the Court of Appeal and the contention rejected [9].
Appeal CACV 109 of 2014
Mr Barkla filed an appeal notice against the decision of Staude DCJ. Mr Barkla applied to deliver interrogatories. The Court of Appeal dismissed the application to administer interrogatories: Barkla v Allianz Australia Insurance Ltd & G4S Custodial Services [2014] WASCA 192. The court held that the application to administer interrogatories was based on a fundamental misunderstanding of the appellate process.
On 7 November 2014 Mr Barkla filed an application for special leave to appeal to the High Court from the decision of the Court of Appeal refusing leave to administer interrogatories. Special leave was refused on the ground that the draft notices of appeal for each application for special leave to appeal raised no questions of law that would justify leave being granted, the decision of the Court of Appeal to refuse to issue interrogatories was clearly correct, as was the Court of Appeal's decision to dismiss the applicant's appeal from the decision of Staude DCJ and the appeal to the High Court had no prospects of success: Geoff Barkla v Allianz Australia [2015] HCASL 40 [6].
On 10 November 2014 Mr Barkla's application for leave to appeal and the appeal were heard and dismissed by the Court of Appeal: Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222. The Court of Appeal said that the appeal arises out of arbitration proceedings in which Mr Barkla has sought to reargue the question whether Allianz was required to give a notice under s 57A(3)(b) in addition to the notice it gave under s 57A(3)(c). The court said:
[Mr Barkla] is plainly casting around for a basis upon which to bring an action for damages in relation to the alleged delay by Allianz in accepting liability to pay compensation under the Act. He obviously believes that his prospects of bringing such an action would be enhanced by a finding that Allianz was required to give a notice under s 57A(3)(b). It is unnecessary to comment on whether that belief is well founded. The insurmountable difficulty, which it appears the appellant will not accept, is that the issue was resolved against him in Barkla v Allianz Insurance [2013] WASCA 21. It was not (and is not) open to [Mr Barkla] to re agitate it in fresh proceedings under the Act in the hope of attaining a different result, much less to do so for a purpose unconnected with the purposes of the Act [38].
The court dismissed the application for leave to appeal and the appeal.
Appeal 116 of 2014 to District Court
On 23 October 2014 Mr Barkla filed an appeal notice in the District Court against the decision of Arbitrator Paparone of WorkCover. The grounds of appeal claimed a requirement for an insurer to issue a Form 3B and stated the cause of action as being a breach of legal obligation to uphold a statute. In the course of the appeal Mr Barkla emailed the request for the issue of subpoenas in an application for a question of law. Mr Barkla filed other motions and submissions.
On 23 February 2015 Goetze DCJ dismissed the application in the appeal and refused leave to appeal. Goetze DCJ gave ex tempore reasons dismissing the appeal on the basis that the appeal had no reasonable prospect of succeeding.
Originating motion CIV 2664 of 2014 to Supreme Court
On 3 December 2014 Mr Barkla filed a notice of originating motion in the Supreme Court naming Registrar Bush as the defendant. The originating process alleged an abuse of public office and requested the court answer a question of law. The matter was heard by McKechnie J on 15 December 2014 together with CIV 2666 of 2014. McKechnie J published reasons for dismissing the motion: Re Registrar Linda Bush, ex parte Barkla [2014] WASC 488. In his reasons McKechnie J stated that the proposed writ of summons is hopeless and does not plead any legally identifiable cause of action.
Proceeding CIV 2666 of 2014
This proceeding was a notice of originating motion naming Justices of Appeal Newnes and Murphy as defendants. The motion sought an order that Newnes and Murphy JJA provide an answer as to why Mr Barkla was allegedly not permitted to ask certain questions of Allianz. McKechnie J held that the proposed writ of summons and originating motion were each vexatious and an abuse of the processes of the court: Re The Hon Justice Newnes, Ex Parte Barkla [2014] WASC 487.
Proceeding CIVO 23 of 2015
On 27 February 2015 Mr Barkla filed an originating summons in the District Court naming WorkCover as respondent claiming that WorkCover had breached its legal duty by use of deceit, falsehood and trickery and depriving Mr Barkla of his rights to fair hearings and answers to questions. On 17 March 2015 Herron DCJ struck out the originating summons as an abuse of process.
Proceeding CIVO 29 of 2015
On 11 March 2015 Mr Barkla faxed an originating summons in the District Court naming Registrar Bush as the respondent and alleging that the registrar caused the tort of defamation and libel and alleged obstruction of justice, abuse of public office and harm to Mr Barkla. Levy DCJ struck out the originating summons on the grounds that it is vexatious and an abuse of process: Barkla v Bush [2015] WADC 46.
CACV 10 of 2015
On 12 January 2015 Mr Barkla filed an appeal notice in the Court of Appeal naming Newnes and Murphy JJA as respondents. The appeal notice stated that Mr Barkla was appealing against the decision of McKechnie J in CIV 2666 of 2014 or CIV 2664 of 2014 stating that his Honour erred in fact and in law in that he failed to provide any statutes of law by which Mr Barkla is not entitled or permitted to ask a question of law. The Court of Appeal dismissed the appeal stating that none of the grounds of appeal had a reasonable prospect of succeeding.
CACV 11 of 2015
On 12 January 2015 Mr Barkla filed an appeal notice in the Court of Appeal appealing from CIV 2666 of 2014 or CIV 2664 of 2014 and naming Registrar Linda Joyce Bush (COA) WA as the first respondent. The appeal notice stated Mr Barkla was appealing against the decision of McKechnie J in CIV 2666 of 2014 or CIV 2664 of 2014 stating that his Honour erred in fact and in law as he failed to provide any statutes of law by which Mr Barkla is not entitled/permitted to ask a question of law and alleging that McKechnie J breached the Constitution and his oath of office.
On 12 June 2015 the Court of Appeal dismissed the appeal: Barkla v Justice David Wallace Newnes [2015] WASCA 120.
On 15 July 2015 Mr Barkla filed a summons in the High Court against Registrar Bush seeking orders that the defendant answer a question as to why Mr Barkla was not entitled to refer a legal issue to the Court of Appeal. Special leave was refused on the ground that the application raised no question of law which would warrant a grant of special leave to appeal and the draft appeal was bound to fail: Geoff Barkla v Registrar Linda Joyce Bush [2015] HCASL 181 [4].
Proceeding CIV 1717 of 2015
On 12 May 2015 Mr Barkla filed a writ of summons in the District Court naming Mr Civitella as the defendant. The indorsement of claim described the cause of action as deprivation of liberty, denied freedom of speech, malfeasance and victimisation by the defendant. Mr Barkla filed applications to serve the defendant documents by fax or email. The application was listed for a special appointment before Stone DCJ. The matter was heard with CIV 1719 of 2015, to which I will refer later in these reasons. CIV 1717 of 2015 was not heard because Mr Barkla informed the court that he did not wish for that matter to be called on until after CIV 1719 of 2015 had been heard. On 13 August 2015 Mr Barkla emailed or faxed to the District Court a document entitled 'Notice to admit facts pursuant to the written laws of the Rules of the Supreme Court 1971 Order 30 rule 2(1)'. Registrar Kingsley wrote to Mr Barkla stating that the purported notice was incompetent. Mr Barkla emailed the District Court registry attaching a subpoena to produce addressed to Mr Civitella for the production of written reasons in response to certain questions. Registrar Kingsley wrote to Mr Barkla informing him that the subpoena would not be issued. Mr Barkla faxed to the District Court a document entitled 'chamber summons the plaintiff motions for judgment as the defendant has failed to comply with the written laws of the rules of the Supreme Court 1971 Order 30 rule 2(1) to admit facts'. Registrar Kingsley wrote to Mr Barkla notifying him that the chamber summons would not be listed for hearing.
On 31 August 2015 Stavrianou DCJ heard the chamber summons 'for orders to serve the defendant's documents by fax and/or email'. Stavrianou DCJ adjourned the proceedings to enable Mr Barkla to write to the defendant to request that service be by way of email. On 24 September 2015 Mr Barkla filed a document entitled 'chamber summons for default judgment for the plaintiff and orders that the defendant file an affidavit answering the two questions herein and at fact nine (9) of the notice to admit facts as served on the defendant 16 September 2015'. The Deputy Registrar wrote to Mr Barkla declining to accept the chamber summons. Mr Barkla emailed the court and others attaching a document entitled
chamber summons for judgment for the plaintiff in that the defendant failed to comply with the statutory written laws of the Rules of the Supreme Court 1971 (WA) O 30 r 2(1) causing harm, damage and loss to the plaintiff and the plaintiff's case. Please refer to attached 'notice to admit facts' as served on the defendant on the 19th October 2015.
Registrar Kingsley wrote to Mr Barkla advising him that the chamber summons would not be listed. On 7 December 2015 McCann DCJ heard the matter and made orders granting Mr Barkla leave to serve the writ of summons on the defendant by certified post. Mr Civitella filed a memorandum of appearance. Mr Civitella filed a chamber summons to strike out the indorsement of claim and for summary judgment.
The matter was heard on 2 November 2015 and judgment was delivered by Davis DCJ on 20 January 2016: Barkla v Civitella [2016] WADC 3. Her Honour described this matter as one of a long list of proceedings commenced by Mr Barkla, who is self‑represented, arising from Mr Barkla's workers' compensation claim against his employer and his construction of s 57A(3) of the WCIM Act.
Davis DCJ found, at [97] of that decision that the current writ follows on from multiple earlier proceedings in which Mr Barkla has sought to re-agitate in various ways his contention that pursuant to the WCIM Act s 57A(3), Allianz was required to give a form 3B notice disputing liability. Her Honour found that Mr Barkla's attempts to re‑litigate this matter are an abuse of process, vexatious, and a waste of the court's resources, and must end [11]. Further:
The District Court cannot entertain any more proceedings by Mr Barkla which are in any way connected with his construction of s 57A(3). His attempts to re-litigate this matter by attempting to sue the solicitor for Allianz and G4S Custodial Services is an abuse of process.
Because Mr Barkla's claim is obviously unsustainable and an abuse of the process of the court, it is frivolous or vexatious pursuant to RSC O 20 r 19(1)(b) [100] ‑ [101].
Proceeding CIV 1719 of 2015
On 12 May 2015 Mr Barkla filed a writ of summons in the District Court against Allianz Australia. The indorsement of claim describes the cause of action as deprivation of liberty, denied freedom of speech, malfeasance and victimisation by the defendant. Mr Barkla then filed a document entitled 'chamber summons for orders to identify the issues in dispute more clearly in obtaining information from the respondent as to the case it has to meet at trial'. Mr Barkla then filed an affidavit attaching a chamber summons seeking 'summary judgment against the defendant on grounds that the defendant has no defence to the plaintiff's writ served on 26 May 2015'.
On 9 June 2015 the defendant filed a chamber summons to strike out the indorsement of claim and for summary judgment and an affidavit in support. Mr Barkla then filed a statement of claim describing the cause of action as human rights abuses and deprivation of liberty, denied freedom of speech, malfeasance and victimisation by the defendant.
On 18 June 2015 Mr Barkla filed a notice to admit facts. On 22 June 2015 Mr Barkla filed a chamber summons for orders to strike out the defendant's application filed 9 June 2015 and an affidavit in support. Mr Barkla also filed a reply to the defence. On 26 June 2015 Mr Barkla filed a document entitled 'notice to admit facts re defendant's chamber summons (9 June 2015) to strike out plaintiff's statement of claim'. On 21 July Mr Barkla filed a document entitled 'chamber summons orders for judgment for the plaintiff due to the fact that the defendant has failed to comply with the Rules of the Supreme Court 1971 (WA) O 30 r 2(1) to admit facts as required to the plaintiff's notice to admit facts'. On 29 July 2015 Mr Barkla filed a document entitled 'Chamber summons for orders for default judgment as the defendant has failed to admit facts as sent to the defendant 26 June 2015'. On 30 July 2015 Mr Barkla filed a document entitled 'Further submissions and legal authorities and written laws that require the defendant to admit to facts and the defendant has failed to comply with the legal authorities and written laws of the Rules of the Supreme Court 1971 O 30 r 2(1) notice to admit facts'.
On 31 July 2015 Stone DCJ heard the matter and made orders that the claim be struck out and that the plaintiff pay the defendant's costs of the application.
CACV 125 of 2015
On 10 August 2015 Mr Barkla filed an appeal notice in the Court of Appeal against the decision of Stone DCJ that the claim in CIV 1719 of 2015 be struck out. On 20 August 2015 Registrar Davies wrote to Mr Barkla referring to several documents attempted to be filed by Mr Barkla that were not accepted for filing. On 25 August 2015 Mr Barkla filed an application for a review of a judge's or registrar's decision claiming that Registrar Davies is denying the appellant his rights to notice to admit facts filed 12 August 2015 and referring to a legal issue to the Court of Appeal Form 18 filed 12 August 2015.
The matter was heard before the Court of Appeal on 14 October 2015 who dismissed the appellant's application: Barkla v Allianz Australia [2015] WASCA 210. The Court of Appeal said that the decision of the Registrar to refuse to accept the documents for filing was plainly correct and that the documents were an abuse of the process of the court.
CACV 7 of 2016
On 12 February 2016, the appellant filed an appeal notice in the Court of Appeal against the decision of Davis DCJ in CIV 1717 of 2015. In this decision the Court of Appeal dismissed an application to set aside a decision of the Court of Appeal Registrar to refuse, pursuant to r 10(1) of the Supreme Court (Court of Appeal) Rules, to accept for filing two documents the appellant sought to file in the appeal the Court of Appeal: Barkla v Civitella [2016] WASCA 71. The Court found that:
The documents, which are meaningless, were rightly rejected, and in the light of the history of that ‑ we have outlined above, the application for review is itself an abuse of the process of the court. The inescapable inference is that the appellant has sought to file the documents and has applied to review the registrar's decision to reject them for filing for the sole purpose of vexing the respondent and wasting the time of this court [10].
The decision in this matter was published on 1 July 2016 after the decision was delivered ex tempore at the hearing of the matter on 23 June 2016: Barkla v Civitella [No 2] [2016] WASCA 111. The court dismissed the appellant's appeal on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. In coming to that conclusion the court noted that:
The appellant has, however, repeatedly instituted proceedings in which he has sought to obtain admissions by Allianz, or one of its representatives, to the effect that, in breach of the Act, Allianz failed to give the appellant a notice under s 57A(3)(b) of the Act (a Form 3B). In Barkla v Allianz Insurance, this court upheld the finding of the District Court that Allianz was not required to give such a notice. In subsequent proceedings by the appellant on the same issue, this court pointed out that the issue was res judicata: Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222. The appellant has remained undeterred [5].
Buss and Newnes JJ observed:
In this case, the proceedings below were simply yet another attempt to litigate that very issue and therefore were an abuse of the process of the court [19].
Vexatious Proceedings Restriction Act 2002
Section 3 of the Act defines vexatious proceedings as meaning any proceedings:
(a)which are an abuse of the process of a court or a tribunal; or
(b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose; or
(c)instituted or pursued without reasonable ground; or
(d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
Proceedings instituted or pursued without reasonable ground may be vexatious regardless of the subjective intention, motive or state of mind of the litigant. Section 4 of the Act states that if a Court is satisfied that:
(a)a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b)it is likely that the person will institute or conduct vexatious proceedings, the Court may make either or both of the following orders ‑
(c)an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d)an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
I must therefore decide whether Mr Barkla has instituted or conducted vexatious proceedings or is likely to institute or conduct vexatious proceedings if not restrained from doing so by an order of this court. I will then consider whether this is an appropriate case to exercise my discretion to make the order proposed by the Attorney General in his originating motion or some other order.
Mr Barkla has commenced vexatious proceedings
I find that the respondent has instituted and conducted vexatious proceedings. Mr Barkla has repeatedly been found to have commenced proceedings which are an abuse of the process of a court: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240 [9], [12]; Barkla v WorkCover Western Australia [2014] WASCA 40 [6]; Barkla v Allianz Australia Insurance Ltd [2013] WADC 23 [77]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 36 [6] ; Barkla v Allianz Australia Insurance Ltd [2014] WADC 113 [42]; Barkla v WorkCover WA [2014] WADC 159 [9]; Re The Hon Justice Newnes, Ex Parte Barkla [2014] WASC 487 [11]; Barkla v Bush [2015] WADC 46 [23]; Barkla v Justice David Wallace Newnes [2015] WASCA 120 [17]; Barkla v Civitella [2016] WADC 3 [11]; Barkla v Allianz Australia [2015] WASCA 210 [10]; Barkla v Civitella [No 2] [2016] WASCA 111 [22]; Barkla v Civitella [2016] WADC 3 [11]. The respondent has also repeatedly been found to have instituted proceedings to harass or annoy, to cause delay or detriment and other wrongful purposes: Barkla v Allianz Insurance [2013] WASCA 21; Barkla v WorkCover WA [2014] WADC 159 [9]; Barkla v Civitella [2016] WASCA 71 [10].
The respondent has also instituted proceedings without reasonable ground: Barkla v Allianz Insurance [2013] WASCA 21; Barkla v Allianz Australia Insurance Ltd [2013] WADC 90; Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240 [14]; Barkla v WorkCover Western Australia [2014] WASCA 40; Barkla v Allianz Australia Insurance Ltd [2014] WADC 23 [77]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 113 [48]; Barkla v WorkCover WA [2014] WADC 159 [9]; Barkla v Allianz Australia Insurance Ltd & G4S Custodial Services [2014] WASCA 192; Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222; Re Registrar Linda Bush, ex parte Barkla [2014] WASC 488 [14]; Barkla v Bush [2015] WADC 46 [21]; Barkla v Justice David Wallace Newnes [2015] WASCA 120 [35]; Barkla v Civitella [2016] WADC 3 [11]; Barkla v Allianz Australia [2015] WASCA 210 [10]; Barkla v Civitella [No 2] [2016] WASCA 111 [18]; Barkla v Civitella [2016] WADC 3 [96]. The respondent has also conducted proceedings in a manner so as to harass or annoy, cause delay or detriment: Barkla v Civitella [2016] WASCA 71 [10]. Actions by the respondent have also repeatedly been labelled as vexatious: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240 [12]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 23 [77]; Re The Hon Justice Newnes, Ex Parte Barkla [2014] WASC 487 [11]; Barkla v Bush [2015] WADC 46 [23]; Barkla v Justice David Wallace Newnes [2015] WASCA 120 [17]; Barkla v Civitella [2016] WASCA 71 [10]; Barkla v Civitella [2016] WADC 3 [11]. I am satisfied after a consideration of the proceedings brought by the respondent that he has instituted and conducted vexatious proceedings within the meaning of s 3 of the Act.
Exercise of discretion
In exercising my discretion I must weigh up several considerations. First, the right of a person to commence proceedings to enforce or defend their rights is one of the fundamental rights in a free society. An order under this Act still allows a person to bring actions, but only after the additional step in the process of obtaining the permission of the court prior to any claims being issued. This restriction on such a fundamental right means my discretion must be exercised with caution. Secondly, the Act makes it clear that the court must consider the damage that vexatious litigants can wreak. First, vexatious litigants waste large amounts of scarce judicial resources. Secondly, they cause worry and expense to a litigant's opponents in vexatious proceedings.
It is apparent from the decisions considered above that the respondent continuously re-litigates matters that have already been settled and does so absent any legal grounds. This evidences an unwillingness to take into account and respect the finality of court decisions. During the hearings of this application the respondent foreshadowed that regardless of the result of this application he would continue to bring similar actions and attempt to file documents that have been continuously rejected by the courts. In regards to the notice to admit facts Mr Barkla said 'This is what I keep filing, because nobody is answering the questions, your Honour' (ts 94). In relation to the repeated litigation Mr Barkla said 'And every ‑ and I keep filing, because nobody is answering the form 3(b) issue' (ts 97). He continued 'And I keep filing and I keep filing. Because I'm outraged at the discrimination and the deviation from the law …' Further, Mr Barkla said:
So I submit if this is successful, your Honour, I will be absolutely outraged, because again, the only reason that I keep filing is because I cannot get an answer to that question ‑ two questions, as to who advised and by what legal authorities is the insurer not required to issue the form 3B, when the Attorney General says they are (ts 97, 98).
He also stated 'Your Honour, the Hansards are the key and the Hansards are the reason I keep filing' (ts 106). The 3B issue to which Mr Barkla refers is his construction of the WCIM Act. Mr Barkla explained
I would say if the Attorney-General would produce one document and explain to me, 'Mr Barkla, this is why the insurer did not have to this is why the insurer was not required to issue the form 3B,' and provide legislative written law, then it would easy for me to say - to accept and say, 'You know what? Maybe, yes ‑ maybe I've got it wrong '(ts 96).
His statements during the hearing of this application show a refusal to accept the rulings of this state's courts.
At the conclusion of the hearing the respondent said
And if the application by the Attorney General be successful, then, your Honour, I'm not responsible for my actions' (ts 106).
And then added
So all I say is: you know what? This ain't - this is not going to be over, because if I'm falsely accused of being a vexatious litigant, then I'm not responsible for my conduct - for my actions (106).
The respondent's refusal to accept responsibility for his actions and his attempts to continue to litigate leads to the necessary inference that absent a court ruling in his favour, the respondent is likely to bring further vexatious proceedings. This is an appropriate case to exercise my discretion under s 4 of the Act.
The applicant has stated that it is not the case that an order under the Act can be limited to protect only certain respondents as Mr Barkla has continually brought actions against new parties. The respondent has repeatedly attempted to bring and has brought proceedings against registrars and judges of several of this State's courts in relation to unsuccessful proceedings I am satisfied that an order restricted only to certain respondents would not curtail the mischief caused by the respondent's vexatious proceedings and that Mr Barkla is unlikely to restrict future litigation to opponents from previous vexatious proceedings. The appropriate order is that Mr Barkla be prohibited from instituting any proceedings, as defined in the Act, unless he first obtains the leave of a court or tribunal, as the case requires, under s 6 of the Act.
In their submissions the applicant has also foreshadowed that any application under s 4 of the Act to stay any current proceedings would be considered at the time of the hearing. No such application has been made. The applicant also sought an order that the costs of and incidental to this application be paid by the respondent. In this case there is no reason to depart from the general rule regarding costs and I will order that the applicant's costs of and incidental to this application be paid by the respondent.
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