Barkla v Allianz Australia Insurance Ltd
[2014] WADC 113
•28 AUGUST 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BARKLA -v- ALLIANZ AUSTRALIA INSURANCE LTD [2014] WADC 113
CORAM: STAUDE DCJ
HEARD: 6 AUGUST 2014
DELIVERED : 28 AUGUST 2014
FILE NO/S: APP 54 of 2014
BETWEEN: GEOFF BARKLA
Applicant
AND
ALLIANZ AUSTRALIA INSURANCE LTD
G4S CUSTODIAL SERVICES PTY LTD
Respondents
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram :ARBITRATOR S NUNN
Citation :A13500
Catchwords:
Appeal - WorkCover - Arbitration - Application for reconsideration of arbitrator's decision pursuant to s 217A- Whether appeal should be struck out as an abuse of process - Whether arbitrator erred in conducting the arbitration on the papers - Whether arbitrator erred in refusing application
Legislation:
Worker's Compensation and Injury Management Act 1981
Result:
Appeal notice struck out
Application for leave to appeal dismissed
Representation:
Counsel:
Applicant: In person
Respondents : Mr M J Civitella
Solicitors:
Applicant: Not applicable
Respondents : CCS Insurance Law
Case(s) referred to in judgment(s):
Barkla v Allianz Australia Insurance Ltd [2013] WASCA 21
Barkla v Allianz Australia Insurance Ltd [2014] WADC 23
Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36
Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
STAUDE DCJ:
Introduction
In October 2010 the applicant (Mr Barkla) suffered a disability due to psychiatric disorder in the course of his employment by the first-named respondent (G4S) as a custodial officer. He claimed worker's compensation. The second-named respondent (Allianz) was the insurer of G4S for employers' liability. Liability for the claim was disputed. The claim became the subject of arbitration proceedings in the WorkCover WA Arbitration Service.
Much of the history of the matter is set out in Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78 [5] ‑ [26], a related appeal. I incorporate that history in these reasons and will repeat only so much of it as is necessary. It should be added to that history that in the course of the WorkCover proceedings G4S admitted liability and paid compensation to the full extent of Mr Barkla's statutory entitlements. The arbitration of the substantive dispute as to liability was discontinued.
Despite the acceptance and payment of his claim, Mr Barkla maintains that he is entitled to a ruling that Allianz contravened s 57A of the Worker's Compensation and Injury Management Act 1981 by not giving him, in response to his claim for weekly payments, a notice pursuant to s 57A(3)(b) that it disputed liability. The point has been litigated and decided in other proceedings to which I will refer. Mr Barkla insists that those decisions are wrong and that he has not been given any reasons why his interpretation of s 57A(3) is not correct.
This application for leave to appeal is from a decision of Arbitrator Nunn dismissing an application for reconsideration of the issue on the basis of new information pursuant to s 217A. Leave may not be granted unless a question of law is involved: s 247(2).
Section 57A
Section 57A provides:
Claims procedure — insured employer
(1)This section applies where —
(a)a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 178(1)(b); and
(b)the worker suffering the injury has served on the employer a certificate signed by a medical practitioner —
(i)in or to the effect of the form prescribed containing substantially the information sought in the form; or
(ii)to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as referred to in subparagraph (i) has previously been served,
and the employer is indemnified by a policy of insurance against his liability to pay the compensation claimed.
(2)Where, in the circumstances mentioned in subsection (1), an employer fails to make a claim under and in accordance with his policy of insurance before the expiration of 3 full working days of his insurer after the day on which the circumstances mentioned in subsection (1) arose or, where the making of a claim within that time would not be reasonably practicable, as soon as reasonably practicable thereafter, the insurer may, in the Magistrates Court, sue and recover from the employer, as a debt due, any amount that, under the policy of insurance, he is liable to pay by way of indemnity in respect of the first 3 working days for which weekly payments are claimed by the worker.
(3)Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer —
(a)give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed;
(b)subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c)give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.
Penalty: $1 000.
(3a)If within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made, the insurer has not —
(a)notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,
the claim by the worker shall be deemed to be disputed.
(4)Where the Director has requested an insurer to do so, the insurer shall cause each notification to the Director under subsection (3)(c) to be accompanied by a means specified by the Director for conveying to the Director, in a machine‑readable form so specified, the information contained in the notification.
Penalty: $1 000.
(5)Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply for a determination under subsection (6).
(6)On an application under subsection (5) an arbitrator may determine the entitlement that the worker would have but for the operation of subsection (5), and thereupon the entitlement of the worker is as so determined but without affecting his entitlement under subsection (5) in respect of the period before that determination.
(7)An employer shall make the first of the weekly payments as soon as practicable after —
(a)he is notified that the insurer accepts the claim or the time prescribed by subsection (3) expires without the employer having received any notification as required by that subsection from the insurer; and
(b)the worker has complied with the requirements of sections 178 and 179 or, on an application made under section 58, an arbitrator has ordered the commencement of weekly payments under this subsection notwithstanding that those requirements have not been complied with,
and subsequent weekly payments shall be made on the employer's usual pay days.
(8)An employer who having received a payment from an insurer in respect of the employer’s liability to make a weekly payment to a worker fails to make that weekly payment to the worker in accordance with subsection (7) commits an offence.
Penalty: $2 000.
Background
Mr Barkla lodged a worker's compensation claim on 5 November 2010. On 8 November 2010 Allianz gave to Mr Barkla and G4S a notice pursuant to s 57A(3)(c) (Form 3C) that it had not decided whether liability was in dispute, rather than Form 3B which would have signified that it was. The Form 3C notice stated that more information was required before Allianz could ascertain whether Mr Barkla had suffered an injury in the course of his employment or whilst acting under the employer's instructions. A covering letter specified the information Allianz required before it would be able to make a decision on liability.
Ten days then elapsed without G4S giving a notice that the claim was accepted or disputed, so, pursuant to s 57A(3a) liability was deemed to be disputed. Mr Barkla applied to WorkCover. His initial claim for interim weekly payments was allowed. The second was ordered to be dealt with as a substantive dispute. The employer's position was set out in a Notice of Consent or Dispute (Form 6) filed 21 March 2011.
On 5 January 2012 Mr Barkla lodged an interlocutory application (A387) for an order for weekly payments pursuant to s 57A(5) on the grounds that Allianz had not complied with s 57A(3). He contended that once Allianz had decided to dispute the claim, it was bound by s 57A(3) to give a further notice in Form 3B to that effect which it did not do.
The arbitrator, Registrar Melville, dismissed the application on 20 January 2012. The learned registrar held that s 57A(3) could not be so interpreted. The purpose of s 57A(3) was to inform the worker of the insurer's position with respect to the claim. Weekly payments could not be ordered when a dispute was deemed to exist by operation of s 57A(3a).
Mr Barkla's appeal to this court was dismissed by Commissioner Gething: Barkla v G4S Custodial Services Pty Ltd [No 2]. At [52] ‑ [56] the learned commissioner gave four reasons for concluding that s 57A(3) could not be interpreted so as to require an insurer who disputes liability to give a Form 3B notice where it has previously given a Form 3C notice.
In summary, the reasons were as follows. First, the natural and ordinary meaning of the words in the section did not create an obligation on an insured to give a notice pursuant to s 57A(3a) or s 57A(3b) once the reasons given in a notice given under s 57A(3c) for being unable to make a decision fell away. Second, s 57A(3a) expressly provides that where an insurer has given a Form 3C notice and does not give a notice accepting or disputing liability within the prescribed time, the claim is deemed to be disputed, thus there is no 'basis, need or justification to imply any additional requirements'. An implied requirement to give a Form 3B notice would be inconsistent with s 57A(3a)(b). Fourth, there was no reason to imply a requirement to give a Form 3B notice for the purpose of providing reasons for dispute because the Worker's Compensation and Injury Management Arbitration Rules 2011 required an employer to file a detailed reply to a claim for weekly payments.
The learned commissioner also found that even if a requirement to give a Form 3B could be implied, the effect of non-compliance would be a deemed dispute, so that Mr Barkla’s position would be no different.
Mr Barkla applied to the Court of Appeal for an extension of time within which to appeal. The Court of Appeal found Commissioner Gething's reasoning to be unimpeachable and his decision correct: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 21. Accordingly, the application was dismissed.
As I have noted, in the course of the WorkCover proceedings G4S admitted liability and paid worker's compensation to Mr Barkla whereupon the arbitration out of which the interlocutory dispute concerning the construction of s 57A arose was discontinued. It is not in issue that Mr Barkla has been paid worker's compensation weekly payments to the prescribed amount.
Mr Barkla made a further application at WorkCover for arbitration seeking an extension of the prescribed amount pursuant to s 217 (A5558). This application was dismissed. Mr Barkla sought leave to appeal the decision to this court. Those proceedings have been stayed until Mr Barkla files proper grounds of appeal: Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36; Barkla v Allianz Australia Insurance Ltd [2014] WADC 23.
Decision sought to be appealed
In the arbitration proceedings, in respect of which the present application for leave to appeal arises (A13500), Mr Barkla sought to re‑agitate the question of construction that was settled by the Court of Appeal. He did so by seeking a reconsideration of the decision of Registrar Melville pursuant to s 217A which provides:
Arbitrator may reconsider decision if new information
In this section —
new information means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the opinion of the arbitrator, justifies reconsideration of the matter.
If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and —
(a)vary or revoke the decision previously made; or
(b)make any further decision,
as the arbitrator considers appropriate having regard to the new information.
Arbitrator Nunn convened a directions hearing on 17 April 2014 at which, after hearing from the parties (the transcript runs for 57 pages), he ordered that the parties file and serve written submissions, that the appellant have leave to lodge a letter to the employer's insurers' solicitors dated 27 March 2014, and that the application be determined on the papers, the evidence to be confined to the seven documents set out in the application for arbitration (as amended), the letter referred to above and a letter of Mr S O'Reilly, of the employer's insurer, dated 19 July 2013, which had been lodged by the employer. Submissions were duly lodged.
The documents mentioned in the directions were as follows:
(a)Extracts from Hansard (parliamentary debates, Legislative Council, 27 June 2013, 228d and 13 August 2013, 3176c);
(b)Letter from Mr S O'Reilly, Allianz, 7 August 2012;
(c)Email from Mrs T Pearce, WorkCover, 18 August 2013;
(d)Certificate of outcome, WorkCover WA Conciliation Service, 13 March 2014;
(e)Statement of claim, Mr Barkla, 13 March 2014;
(f)Various correspondences between CCS Insurance Corp and Mr Barkla;
(g)Letter from Mr Barkla to CCS Insurance Corp, 27 March 2014;
(h)Letter from Mr S O'Reilly, Allianz, 19 July 2013.
The Hansard extracts record answers given by the Hon. Michael Mischin, then Minister for Commerce, to questions asked on behalf of Mr Barkla by the Hon. Ljiljanna Ravlich on 27 June 2013. In response to questions concerning Mr Barkla's claim, the minister said:
I'm advised that Allianz was not required to issue a notice under section 57A(3b) of the Worker's 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 confirm 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.
It is unnecessary to canvass the remaining documentation. None of it is relevant to the construction of s 57A.
There was no factual issue raised in the application. The employer did not dispute the provenance of the documentary material on which Mr Barkla sought to rely. There was no dispute that s 57A(3)(b) required an insurer to issue a Form 3B notice within 14 days if a claim was disputed. The question remained whether an insurer was required to give a Form 3B if it had previously given a Form 3C.
On 19 May 2014 Arbitrator Nunn dismissed the application. His principal reason for doing so was that Mr Barkla was seeking a declaration that Registrar Melville erred in law in his decision involving the construction of s 51A. No challenge to that decision could be made because it had been upheld on appeal. Further, and in any event, Mr Barkla had received worker's compensation and his entitlement was exhausted.
Arbitrator Nunn went on to give detailed reasons for decision which took account of all of the material identified by Mr Barkla as relevant to his application for arbitration. The arbitrator found that the correspondence sought to be relied upon was not relevant and was therefore not new information (and in any event did not justify reconsideration), but that what was said in Parliament was in the category of extrinsic material to which regard could be had for the purpose of statutory construction. Accordingly the Hansard extracts could be treated as new information for the purposes of s 217A(1).
I would, with respect, take a different view. Questions of the responsible minister about the operation of a statute in a particular case, and the answers to them, are not capable in my opinion of being extrinsic materials for the purposes of s 19 of the Interpretation Act 1984. This point, however, does not bear on the present application for leave.
In relation to the issue of re-consideration, the learned arbitrator held, correctly in my respectful opinion, at [46] ‑ [47]:
This is a question of the construction of the Act. The question of statutory construction might be informed by case law, the consistency (or inconsistency) of a statute, its stated objects, the ability with which it can be complied with, reference to extrinsic material, similar use of terms and phrases in other legislation and all the other myriad tools to be employed when attempting to discern Parliament's intent in enacting the words of a statute.
The correspondence and commentary of laypersons, their comprehension (or miscomprehension) of an Act or their compliance with it are not recognised or reliable tools of statutory interpretation. Whilst they may reveal or justify a person's actions in issuing or not issuing a form at any given time, it cannot be reasoned backwards from a layperson's actions or opinions (or even a solicitor's) that any particular interpretation of the Act is correct or not.
Arbitrator Nunn observed that there were no facts before him that were not available to Registrar Melville, the District Court or the Court of Appeal and there had been no amendment to the legislation.
Arbitrator Nunn went on further to find that the relief sought by Mr Barkla was declaratory in nature. It did not bear on any claim that he had for worker's compensation of any kind under the Act. His entitlement to worker's compensation, subject to any decision that may be made with respect to his appeal from the dismissal of his application for an extension of the prescribed amount, was exhausted. He held that Mr Barkla was effectively seeking a declaration of legal error on the part of Registrar Melville in order to ground an action in negligence against Allianz. Accordingly, he considered that the application for arbitration may be an abuse of process as it appeared to be for a purpose other than the resolution of the initial dispute with respect to his claim for worker's compensation.
Arbitrator Nunn also observed that if Mr Barkla wished to sue Allianz in negligence he would not be assisted by any declaration, as he would have to prove the elements of the cause of action in the court in which he sued.
Grounds of appeal
The grounds set out in the appeal notice are as follows:
1.Arbitrator Sam Nunn misled the Appellant by denying him an arbitration hearing.
2.Arbitrator Sam Nunn misled the Appellant by denying his right [to] question witnesses and statements.
3.Arbitrator Sam Nunn made a misleading statement that the Appellant [sic – application] is amenable to determination on the papers. See directions orders 17 April 2014.
4.Bias conduct [sic] towards the Respondent by Arbitrator Sam Nunn.
The decision sought by Mr Barkla is as follows:
Appellant be allowed his right to an arbitration hearing and his right to call and question witnesses and statements.
When in the course of oral submissions Mr Barkla argued that the learned arbitrator's decision on the merits of his application was wrong, I pointed out that his grounds of appeal were directed only at the process by which the arbitration was conducted, not at the outcome, and that he was merely seeking another hearing before the arbitrator. Mr Barkla then directed me to the questions of law which were pleaded in the appeal notice as follows:
1.Once an application has been officially accepted for arbitration by a Registrar, does WorkCover WA have a right to dismiss the application via email?
2.Arbitrator Sam Nunn issued a notice of listing of directions hearing 20 March 2014 directing and advising of a directions hearing, however the applicant has been denied due process.
3.Arbitrator Sam Nunn in point 52 of his decision accepts 'new information' is relevant to section 217(1) of the WCIMA and yet dismisses the application?
These points, if they are construed as grounds, merely allege procedural errors as the basis for a finding of procedural unfairness. Mr Barkla was unable to demonstrate any errors or any procedural unfairness. His points may be dealt with briefly. First, notification by WorkCover WA of an 'acceptance' of an application for arbitration does not, and did not in this case, mean that the application is granted, and there is nothing wrong with the decision of the arbitrator being communicated to the parties by email. Second, the procedure by which the directions hearing was appointed and heard was regular: a standard form letter was issued appointing the hearing and indicating what matters the parties should be prepared to discuss. Third, the acceptance of 'new information' (albeit, in my view, erroneous) did not mean that the sought reconsideration is warranted.
Being unable to advance his pleaded grounds of appeal, Mr Barkla reverted to his arguments with respect to s 57A(3) which he accepted were the same arguments he had put to Registrar Melville, Commissioner Gething, and the Court of Appeal. His written outline of submissions dated 9 July 2014 and his further written submissions by letter dated 5 August 2014 were also directed solely at the statutory interpretation issue.
The respondents took no issue with the form of the appeal notice or the written submissions. Their outline of submissions dated 18 July 2014 contended that the appeal was frivolous and vexatious, yet no application to strike out the appeal was made. At the hearing counsel for the respondents submitted that the appeal was an abuse of process.
Mr Barkla's submissions acknowledge that the relief sought in the application for arbitration is merely declaratory. It does not affect his entitlement to compensation or the liability of G4S.
At the hearing before me, I put Mr Barkla on notice that his application for reconsideration of Registrar Melville's decision appeared to be an abuse of process and invited him to make submissions on point. He merely submitted that the other decisions were wrong and that I should decide the issue in his favour. He insisted that the answers given to the questions asked on his behalf in the Legislative Council settled the point. Mr Barkla appeared unable to comprehend the reasoning of Registrar Melville and Commissioner Gething and did not appreciate the significance of the Court of Appeal decision.
Should the appeal notice be struck out?
As I have noted, Mr Barkla was put on notice by the learned arbitrator's findings and expressly by the court during the hearing of this matter that his application for re-consideration could be seen to be an abuse of process.
Rule 57(2) of the District Court Rules 2005 empowers the court to strike out a notice of appeal. The rule provides that it may do so before or during the hearing of an appeal, on application, or, after notifying the parties, on its own initiative. The grounds are not specified, but by necessary implication are those which may justify the striking out of a pleading, including that it is an abuse of the process of the court: Rules of the Supreme Court 1971, O 20 r 19(1)(d).
The categories of conduct that may constitute an abuse of process were set out in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 at [27]:
(a)Proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b)Proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c)Proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d)Multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.
In my view Mr Barkla's application to the WorkCover WA Arbitration Service for a reconsideration of the decision of Registrar Melville, in circumstances where liability for worker's compensation has been accepted, and compensation paid in full, serves no legitimate purpose. Moreover, it would seem from what Mr Barkla told Arbitrator Nunn and me that he wants a declaratory finding in his favour on the construction issue to ground a separate legal action against Allianz. This purpose is improper.
Accordingly, the application for arbitration and this application for leave to appeal constitute abuses of process.
Observations on the merits
Notwithstanding my finding that the appeal and the application from which it arises constitute an abuse of process, the application for leave to appeal should, in any event, be dismissed for the following reasons.
First, dealing with the grounds as pleaded, it is within the discretion of the arbitrator to conduct an arbitration without a hearing. Section 98(3) provides:
If an arbitrator thinks it appropriate, the arbitrator may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in the hearing.
In this matter there was no issue of fact on which evidence could be led. Moreover, there was no issue with respect to the provenance of the documents on which Mr Barkla relied as new information. Mr Barkla was unable to indicate any relevant question that he would have asked any witness had the arbitration proceeded by way of a hearing. There was no evidence that any witness could give that would be relevant to the issue of statutory construction raised by Mr Barkla's application.
I am satisfied, having had regard to the transcript of the directions hearing, that Mr Barkla was afforded a hearing with respect to the course which the learned arbitrator proposed to take. He was given the opportunity to make submissions. I find no basis whatsoever for the contention that Mr Barkla suffered, in some way, procedural unfairness, in the way in which the arbitration was conducted.
Mr Barkla was pressed to support his contention that the learned arbitrator misled him. He was unable to make out his grounds in this respect. He was invited to point to any evidence of bias. He did not do so.
Conclusion
The application for leave to appeal amounts to an abuse of process. Moreover, the proposed appeal is without merit. The appeal notice is struck out and the application for leave dismissed.
6
6
1