| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BARKLA -v- ALLIANZ AUSTRALIA INSURANCE LTD [2014] WADC 23 CORAM : MCCANN DCJ HEARD : 29 JANUARY 2014 DELIVERED : 19 FEBRUARY 2014 FILE NO/S : CIVO 1 of 2014 BETWEEN : GEOFF BARKLA Plaintiff
AND
ALLIANZ AUSTRALIA INSURANCE LTD
Respondent
FILE NO/S : CIVO 4 of 2014 BETWEEN : GEOFF BARKLA Plaintiff
AND
G4S CUSTODIAL SERVICES PTY LTD
Respondent
Catchwords: Practice and procedure - Rejection of writ of summons pursuant to Rules of the Supreme Court 1971 O 67 r 5 - Turns on own facts
Workers' compensation - Application for leave to appeal pursuant to Workers' Compensation and Injury Management Act 1981 - Directions given Legislation: Workers' Compensation and Injury Management Act 1981 s 57A, s 58, s 217, s 265(1)
Rules of the Supreme Court 1971 O 67 r 5
Supreme Court (Court of Appeal) Rules 2005 r 43(2)(g)(i)
District Court Rules 2005 s 51(4A) Result: Leave to file writ of summons in CIVO 1 of 2014 refused
Directions made in CIVO 4 of 2014
Representation: CIVO 1 of 2014 Counsel:
Plaintiff : In person
Respondent : No appearance
Solicitors:
Plaintiff : Not applicable
Respondent : Not applicable
CIVO 4 of 2014 Counsel:
Plaintiff : In person
Respondent : Mr M J Civitella
Solicitors:
Plaintiff : Not applicable
Respondent : CCS Insurance Law
Case(s) referred to in judgment(s):
Andrews v Programmed Maintenance Services [2008] WACC 24-2008
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barkla v Allianz Australia Insurance Ltd [2013] WADC 90
Barkla v Allianz Insurance [2013] WASCA 21
Barkla v G4S Custodial Services [No 2] [2012] WADC 78
Health Department of Western Australia v Prosser [2004] WASCA 83
Ilievska-Dieva v SGIO Insurance Ltd [2000] WASCA 161
In the Marriage of F [2001] FamCA 348, 27 Fam LR 517, (2001) 161 FLR 189
Pedley v West Coast College of TAFE [2006] WACC 21
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186
Introduction 1 I have two separate proceedings before me. I am required to consider and, if necessary, give directions. The hearing took place on 29 January 2014. 2 Mr Barkla wishes to commence proceedings against Allianz Australia Insurance Limited (Allianz). He filed a writ of summons on 6 January 2014 (CIVO 1 of 2014). The principal registrar declined to accept the writ and on 8 January 2014 referred the issue to a judge in chambers pursuant to O67 r 5 of the SupremeCourt Rules 1971. Thus, the writ of summons has not yet been sealed, nor served on Allianz. 3 In the second matter (CIVO 4 of 2014) Mr Barkla seeks leave to appeal from a decision made by an arbitrator of the WorkCover WA Arbitration Service on 13 December 2013. The application is brought pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 (as amended) (the WCIMA). CIVO 4 of 2014 was originally commenced by a Form 6 Notice of Appeal which was filed on 6 January 2014. Mr Barkla subsequently filed an amended application on 10 January 2014 in the form of a Form 8A appeal notice seeking leave to appeal. In other words, he substituted the Form 8A for the Form 6 (and correctly so, having regard to the requirements of r 51(4A) of the District Court Rules2005). 4 It is convenient to mention the following matters about CIVO 4 of 2014: (i) Mr Barkla had been receiving weekly payments from his employer G4S Custodial Services Pty Ltd (G4S) in respect of a work-related stress injury. In WorkCover application A5558 Mr Barkla sought an order pursuant to WCIMA s 217 for an increase in the prescribed amount of weekly payments (i.e. the maximum amount) provided for by cl 7(3) of WCIMA sch 1. An arbitrator dismissed the application on 13 December 2013. Mr Barkla seeks leave to appeal from that decision. (ii) In both the Form 6 and Form 8A notices Allianz was wrongly named as the respondent, as it was in the heading of the arbitrator's decision. As the arbitrator noted in his reasons (pars 7 - 8), the proper respondent should be G4S. Allianz has at all material times been involved in its capacity as G4S's workers' compensation insurer. Mr Barkla recognised this during the hearing before me and the heading in CIVO 4 of 2014 was amended accordingly by consent. (iii) On 8 January 2014 the principal registrar referred CIVO 4 of 2014 to a judge in chambers for an initial directions hearing. (iv) CIVO 4 of 2014 has been served on G4S and Allianz and they were represented at the directions hearing. (v) On 20 January 2014 Mr Barkla applied to the court for subpoenas to be issued to Allianz to produce documents and give evidence in the appeal. The principal registrar declined to issue the subpoenas and that issue falls for determination in the directions hearing. 5 One further matter was referred to a judge by the principal registrar. By letter to Mr Barkla dated 8 January 2014 the principal registrar said: Abuse of process Over the past 18 or so months, you have sent over 300 emails to Registry staff and Associates to Judges. In many cases, you have copied an email to the Associate to every District Court Judge. In my view, your continued correspondence with the court has reached the point of being an abuse of the processes of the court. You are on notice that at the hearing on 29 January 2014, the presiding Judge will be invited to make an order against you prohibiting you (unless otherwise ordered) from: (a) communicating with the District Court or any judicial officer or staff member of the District Court by email or facsimile; (b) communicating with any staff member of the District Court by telephone; and (c) corresponding with the Court in relation to any of the matters considered by the Court of Appeal in Barkla v Allianz Insurance [2013] WASCA 21. The effect of these orders would be that if you wish to communicate with the Court in relation to a matter which was not considered in Barkla v Allianz Insurance [2013] WASCA 21, you would need to do so by letter. 6 In essence, the principal registrar wishes me to consider making some form of order restricting Mr Barkla's written communication with the court. During the hearing Mr Barkla explained his actions and their inter-relationship with the stress-related illness from which he suffers (i.e. the compensable work-place injury). I requested Mr Barkla to take two measures. First, until further notice to only communicate with the court through my associate. Second, to refrain from disclosing to whom he had copied any email communications (such being a regular and distracting practice in the past). Mr Barkla readily agreed to my requests and it is not now necessary to consider any order. 7 As such, the hearing on 29 January resolved into an ex parte hearing as to whether CIVO 1 of 2014 should be accepted for filing and an inter partes directions hearing in CIVO 4 of 2014. I saw my role as being, firstly, to gain an understanding of Mr Barkla's grievances with a view to identifying those which are justiciable in this court in either proceeding and, secondly, to provide a 'road map' for the disposition of the justiciable issues. I have endeavoured to do so on an expedited basis and, in my opinion, it is essential that such remain the case in view of Mr Barkla's psychological distress. 8 In accordance with r 52 I have been provided with the WorkCover file in relation to application A5558 and I have acquainted myself with it.
Mr Barkla is self-represented 9 Mr Barkla was once represented by solicitors (Slater & Gordon), but he has mostly represented himself. He is not legally trained and also suffers from the symptoms of his stress-related injury. Indeed, on 9 January 2014 Dr Kate Nielsen issued a medical certificate certifying Mr Barkla unfit for work from 9 January to 6 March 2014 (see page 14 of Mr Barkla's affidavit sworn 15 January 2014). Mr Barkla's distress was noticeable to me on several occasions during the hearing and he told me of his inability to stop obsessing about his claim and the many tribulations along the way. He told me that he has difficulty 'letting go'. I note that a number of health professionals commented on this in their reports. 10 With very great respect to Mr Barkla it is apparent to me that, owing to these problems, he has not always focussed on strategies which are to his advantage. For example, he has relied on contentions which are not presently relevant (i.e. he has raised them prematurely) or relied on contentions which were once relevant but have ceased to be so (i.e. they are now redundant). I shall refer to some examples later. 11 Accordingly, and within the proper bounds of a judge's role (see In the Marriage of F [2001] FamCA 348, 27 Fam LR 517, (2001) 161 FLR 189 [209] – 253]; Andrews v Programmed Maintenance Services [2008] WACC 24-2008 [31] – 34]), I feel that it is desirable to provide Mr Barkla with constructive assistance. Hence this reserved decision. Amongst other things, it is essential to identify matters which he can, and cannot, rely upon.
Factual background and chronology 12 The following summary is drawn from other judgments referred to herein and from information provided to me during the hearing on 29 January. It is not disputed for present purposes. 13 Mr Barkla was employed by G4S as a custodial services officer. 14 In January 2010 he was appointed acting supervisor in Geraldton where G4S had a contract to provide custodial and court security services. In July 2010 Mr Barkla was offered the position of supervisor in Geraldton until 11 February 2011. 15 On 1 April 2010 he was verbally abused at work by one of his subordinates. He complained about this behaviour to his superiors. 16 On 24 September 2010 he was verbally abused again by the same subordinate. He again raised his concerns with the G4S management. 17 The subordinate was issued with formal warning letters on each occasion. 18 In the course of a lengthy email correspondence Mr Barkla advised his superiors that the situation in Geraldton was becoming very stressful. On 8 October he obtained a medical certificate from his general practitioner which certified him to be unfit for work for one day due to stress. 19 Over the course of the following week, Mr Barkla continued to raise his concerns with his superiors. On 13 October 2010 he was notified that his secondment as the supervisor in Geraldton would finish on 22 October 2010 and that he would be transferred to the pool of employees of Perth. 20 A First Medical Certificate was issued on or about 13 October 2010 by his general practitioner, Dr Jones-Wallace. The certificate described Mr Barkla's injury as 'workplace stress' and the diagnosis as 'anxiety'. Mr Barkla was certified to be totally unfit for work and has not worked since. 21 On 5 November 2010 Mr Barkla made a formal claim to G4S for workers' compensation for a stress-related injury. 22 By notice dated 8 November 2010 Allianz informed Mr Barkla (and WorkCover) pursuant to WCIMA 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 (14 days from the making of the claim). Amongst other things, the notice gave the following reason for pending Mr Barkla's claim: 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. 23 The notice also stated that a 'full report has been requested from the treating GP'. The notice was accompanied by a covering letter which stated, amongst other things, that 'Allianz reserves the right to make a decision on liability until further information is obtained, including medical report from your treating GP as well as [a] statement from yourself'. 24 On 17 November 2010 Dr Jones-Wallace provided a report to Allianz in which he opined that Mr Barkla was suffering from 'major depression with co-existing anxiety'. In his view, Mr Barkla's employment had 'contributed significantly to the disability' and he would not be fit for work for three months. 25 Allianz (on behalf of G4S) did not accept liability within the further period prescribed for that purpose in s 57A(3a)(a), namely 10 days after WorkCover was notified that Mr Barkla's claim was pended. Accordingly, and pursuant to s 57A(3a), the claim was deemed to be disputed. Allianz (on behalf of G4S) was therefore not required to do anything further in terms of rejecting the claim and the onus lay on Mr Barkla to commence proceedings in WorkCover for a determination of G4S's liability to pay him compensation (WCIMA s 58). 26 On 31 January 2011 Mr Barkla filed an application pursuant to WCIMA pt XII (since repealed) seeking interim weekly payments. Allianz opposed the grant of interim relief on G4S's behalf, but orders were made in Mr Barkla's favour on 11 February 2011. 27 On 23 February 2011 Mr Barkla was reviewed by a psychiatrist, Dr Mander, at the request of Allianz. Dr Mander provided a report dated 24 February 2011 to Allianz. I have read that report on the file. It was not favourable to Mr Barkla's claim and Allianz continued to decline to accept liability. 28 Mr Barkla takes bitter exception to some of the terminology in Dr Mander's report. For instance, Dr Mander referred to how Mr Barkla 'perceived' the bullying and other stressors in his workplace. From a legal point of view Dr Mander was correct to do so because the case law makes clear that it is the worker's subjective perception of real (proven) events that must be addressed when determining the cause of a stress-related injury (see Pedley v West Coast College of TAFE [2006] WACC 21 [50] – [54]). Unfortunately, Mr Barkla apprehended that Dr Mander was implying that his (Mr Barkla's) experience of the stress was imagined or not real (i.e. 'perceived'). I endeavoured to explain this misunderstanding to Mr Barkla during the hearing. 29 Returning to the chronology, on 14 March 2011 Mr Barkla filed another pt XII application seeking further interim weekly payments. That application was opposed by Allianz on behalf of G4S. 30 Allianz's attitude (on behalf of G4S) to Mr Barkla's claim could not have been more explicit by this stage. In a Form 6 Notice of Consent or Dispute which it filed in the second pt XII proceedings on 21 March 2011 it disputed liability for payment of compensation under the WCIMA and cited the medical evidence on which it relied. 31 An arbitrator declined to make an order for interim payments and instead made an order pursuant to WCIMA s 229 (since repealed) that the application be dealt with as a substantive dispute as if it had been filed pursuant to WCIMA pt XI. The dispute proceeded through the conciliation and interlocutory processes provided for under the WCIMA. 32 By interlocutory application dated 5 January 2012 Mr Barkla sought a determination that he was entitled to weekly payments pursuant to WCIMA s 57A(5) on the basis, he contended, that G4S (i.e. Allianz) had failed to comply with the claim notification provisions of WCIMA s 57A(3). Mr Barkla contended that when an employer gives a notice pending liability under WCIMA s 57A(3)(c) (as occurred) it is obliged to later give a further notice under WCIMA s 57A(3)(b) if it wishes to dispute liability. He argued that G4S's (i.e. Allianz's) omission to do so triggered a deemed liability to pay weekly payments pursuant to WCIMA s 57A(5). 33 Registrar Melville of the WorkCover Arbitration Service rejected that contention and dismissed the interlocutory application on 20 January 2012. His decision was upheld on appeal in this court on 6 June 2012 (Barkla v G4S Custodial Services [No 2] [2012] WADC 78). On 31 January 2013 the Court of Appeal refused an extension of time to appeal (Barkla v Allianz Insurance [2013] WASCA 21). 34 On 3 July 2012 Allianz accepted liability for Mr Barkla's claim on behalf of G4S and, in particular, accepted that he had suffered a compensable stress-related injury in the course of his employment as he contended. Allianz (on behalf of G4S) also accepted that Mr Barkla had been totally incapacitated for work at all material times. Weekly payments, including all arrears, commenced immediately. 35 So, by the time the above-mentioned appeal was heard by the Court of Appeal (31 January 2013) it was completely redundant and a lot of time of the court and many others was wasted, as the court said ([23] – [24]). Nevertheless, the Court of Appeal still dealt with the merits at some length, and very carefully too if I may respectfully say so. 36 In 2013 Mr Barkla commenced proceedings in the District Court (CIV 638 of 2013) against Allianz and WorkCover claiming damages for breach of a duty of care which he alleged they owed him in respect of the management of his workers' compensation claim. Mr Barkla contended that the acceptance of his claim was unnecessarily delayed and that, as a result, the rehabilitation to which he was entitled under the WCIMA was also delayed. He contended (and still contends) that this permanently exacerbated his injury and that he was therefore entitled to damages. 37 Allianz and WorkCover sought and obtained summary judgment dismissing the proceedings (Barkla v Allianz Australia Insurance Ltd [2013] WADC 90). The court held that the statement of claim disclosed no reasonable cause of action. Fenbury DCJ stated (the intercalation is mine): The claims … disclose no reasonable cause of action and are misconceived. The first defendant which is an insurance company and the second defendant which is a government entity cannot 'deny or fail' to allow medical treatment. An insurance company may decline to provide funding but, in that event, a worker is not denied treatment. The worker, obviously, is entitled to obtain treatment himself. What I think Mr Barkla means is that the defendants failed to fund medical treatment and given Mr Barkla could not afford to pay for it on his own then blame is alleged. Either way the claim is misconceived and no action can arise. That is not to say that it is impossible an injured worker's condition might deteriorate because a claim is delayed in settlement. I have no difficulty in accepting that that can occur. However there is no legal remedy for such an event over and above the remedy sought and obtained through the workers' compensation claim itself. As to that of course Mr Barkla has received all of his entitlements, the maximum, under the Act … [11]. The claim that there is some liability in the defendants for the period alleged [i.e. the 21 months when Mr Barkla's claim was denied] discloses no reasonable cause of action and cannot succeed. … [17]. Sometimes these issues take time to resolve. The assertion that there is some additional legal liability in the defendants' because in Mr Barkla's view it took too long to resolve and that this should be compensated, additionally, by way of damages, cannot succeed [18]. 38 Mr Barkla filed an appeal notice in the Court of Appeal on 1 July 2013. However, his grounds of appeal did not expressly challenge Fenbury DCJ's reasons as set out above. Instead, the grounds of appeal contended that Mr Barkla was wrongly denied the right to cross-examine the deponent of an affidavit that had been filed on behalf of Allianz and that Fenbury DCJ had erred in accepting hearsay evidence in that affidavit. 39 On 7 August 2013 the registrar of the Court of Appeal referred the appeal directly to the court by notice requiring Mr Barkla to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. 40 For reasons given on 15 October 2013 the Court of Appeal held ([2013] WASCA 240) that none of the grounds of appeal had any reasonable prospects of success. The appeal was therefore dismissed pursuant to r 43(2)(g)(i). 41 Ilievska-Dieva v SGIO Insurance Ltd [2000] WASCA 161 was not referred to at first instance or in the appeal. 42 Mr Barkla attempted to commence other proceedings against WorkCover and its chief executive officer (Actions 121 of 2013 and 126 of 2013). The writs were rejected by the principal registrar pursuant to O 67 r 5 on the ground that the proceedings were an abuse of process insofar as they appeared to deal with the same matters that had already been determined in CIV 638 of 2013. The matter therefore came before the court (Birmingham DCJ) on 19 August 2013. After hearing from Mr Barkla his Honour refused leave for the writs to be filed. 43 During 2013 the total of Mr Barkla's weekly payments reached the prescribed amount, namely $198,365. Sums of $9,717.94 and $2,548.78 were also paid for medical treatment expenses and vocational rehabilitation payments. 44 On 8 May 2013 Mr Barkla commenced proceeding A5558 in the WorkCover Arbitration Service seeking an order increasing the prescribed amount pursuant to WCIMA s 217. 45 Prior to the arbitration hearing Mr Barkla endeavoured to get Allianz (on behalf of G4S) to agree to a statement of facts. Those facts were as follows: 1. Allianz have no Expert Medical Evidence that advises that the Applicant (Me) did not suffer a Work-Related Injury. (Agree or Disagree) 2. All the Expert Medical Evidence advised that the Applicant suffered a Work-Related Injury. (Agree or Disagree) 3. Between 9thNovember 2010 and 2ndJuly 2012 No Regulation Notices under the WCIMA were issued by the Insurer Allianz (Agree or Disagree). 4. Allianz the Insurer did in Fact dispute liability in relation to the Applicant's Workers' Compensation Claim. (Agree or Disagree) 5. Allianz did not issue the Regulations Form 3B INSURERS NOTICE THAT LIABILITY IS DISPUTED. (Agree or Disagree) 6. The Insurer Allianz issued a Notice pursuant to Section 57A(3)(c) of the WCIMA on the 8thNovember 2010 and did not issue another Notice pursuant to Section 57A(3) of the WCIMA until 3rdJuly 2012 when Allianz issued a Notice pursuant to Section 57A(3)(a). (Agree or Disagree) 7. It was in Fact Allianz who did not make a formal decision under the WCIMA until the 3rdJuly 2012 for approx. 21 months as to whether or not liability was to be Accepted or Disputed by the Insurer Allianz in relation to the Applicants Workers' Compensation claim. (Agree or Disagree) 46 Through its solicitors, Allianz declined to entertain these matters save, in effect, for agreeing that Mr Barkla had made a claim, that it had been accepted and that he had received the full prescribed amount of weekly payments. Mr Barkla has a grievance about Allianz's attitude about this. He believes that Allianz should have agreed to everything that he requested. He wishes to continue to ventilate that grievance in the appeal in CIVO 4 of 2014. He cannot do so for the following reason. Obviously, there is forensic desirability in getting parties to agree facts or issues where they can, but they cannot be forced to do so. The only possible sanction where a party is eventually shown to have acted unreasonably is an adverse costs order (WCIMA s 265(1)). So, the issue of the proposed statement of agreed facts is closed and redundant unless Mr Barkla wins the appeal, when the reasonableness of Allianz's position could be considered by the arbitrator solely in the context of determining costs orders in the arbitration. 47 The arbitration took place on 6 December 2013. There were two essential issues. First, whether Mr Barkla was permanently and totally incapacitated (s 217(1)(a)). Obviously there was no dispute that he had been totally incapacitated for work at all material times until the prescribed amount was reached. The issue for the arbitrator was whether such would remain the case permanently. The second essential issue was whether, having regard to Mr Barkla's social and financial circumstances and his reasonable financial needs, an order ought to be made increasing the prescribed amount (s 217(3)). 48 In his written reasons the arbitrator accepted that the fact that Mr Barkla had been totally incapacitated for three years supported an inference that his incapacity was permanent. However, he declined to accept that such an inference was determinative of the question [26]. 49 He then proceeded to summarise the medical evidence which Mr Barkla adduced [27] – [36]. He pointed to difficulties which he apprehended in that evidence and, in short, was unpersuaded that a finding was open that Mr Barkla was permanently incapacitated for work in a labour market that was reasonably open to him [43]. It would appear from the arbitrator's reasons that he was to some extent led to the making of that conclusion by a causation issue. He said [42] (emphasis in the original): Furthermore, this evidence does not unequivocally link such incapacity (if any) to the initial injury. Rather, it suggests that any present incapacity is a result of Mr Barkla's pre-occupation with the delay in G4S' admission of liability. Mr Barkla's views on this were confirmed when he was asked what caused his present unfitness for work (as opposed to his initial unfitness for work). 50 The arbitrator continued to state [43] that, if he was wrong in the above reasoning, then there was 'nothing in the evidence … that establishes that such incapacity is permanent or likely to remain the same for the foreseeable future'. 51 The arbitrator then considered the second essential issue, namely Mr Barkla's social and financial circumstances and his reasonable financial needs. The arbitrator summarised the evidence, including the facts that Mr Barkla was not working, held a Centrelink card, received $509 per fortnight and was struggling to live. But he also noted a lack of evidence as to Mr Barkla's debts, any other income, insurances, annuities, obligations, assets, living arrangements and so on [48]. The arbitrator held [45]: … the evidence of Mr Barkla's social and financial circumstances and his reasonable financial needs is incomplete at best. I am unable to arrive at any firm view as to Mr Barkla's financial circumstances. I note that I am not to make an order under s 217(2) unless I consider an order ought to be made having regard to Mr Barkla's social and financial circumstances and his reasonable financial needs (s 217(3)). Although each case may differ, I consider that this prohibition requires a comprehensive exploration of the applicant's financial circumstances. 52 Against this background I turn now to consider CIVO 1 of 2014 and CIVO 4 of 2014 in more detail. It is convenient to commence with the latter (i.e. the application for leave to appeal from the WorkCover decision).
CIV 4 of 2014 53 The amended notice of appeal states under a heading which requires the question of law which is involved in the proposed appeal (see s 247(2)) to be stated: If an insurer has No Expert Medical Evidence that advises that the Appellant did Not suffer a work-related injury, by what prescribed means and/or statutes can insure a dispute liability for 21 months without ANY Expert Medical Evidence? 54 Under the heading 'Amount in issue' the notice states: 55 The proposed grounds of appeal are stated: 56 Under the heading 'Decision sought' the notice states: Overule the decision of Arbitrator Sam Nunn in order support a return to work program. 57 In his oral submissions Mr Barkla confirmed that he also seeks an order increasing the prescribed amount. Hence the amount in issue is said to be in order of $60,000. 58 Under the heading 'Other orders' the notice states: The appellant also seeks orders that: Overule Arbitrator Sam Nunn or Orders for a statement of Agreed Facts. The Respondent produce Expert Medical Evidence that advises that the Appellant did Not suffer a work-related injury. The Appellant be granted his Right to call and question witnesses in relation to Expert Medical Evidence and the law. 59 After making due allowance for Mr Barkla's lack of experience in this area, for the reasons that follow I consider that the grounds of appeal are not adequate in their present form and cannot be allowed to stand. Mr Barkla should be given an opportunity to reconsider them with a view to filing another document. My reasons are as follows. 60 Ground 1 relates to Mr Barkla's grievance about the 21 month hiatus between the making of his claim and the acceptance of liability. The arbitrator dealt with the argument at [42] (see above) and earlier as follows: 22. Mr Barkla submitted that G4S' initial denial of liability (as it was entitled to do) and the period between this denial and the date when liability was ultimately admitted is relevant to the present s 217 application. His submission is essentially that had liability been admitted Mr Barkla would have had the necessary treatment at an earlier time and the prescribed amount would not have been exhausted as he would be fit for work and would have returned to work. Accordingly, he asserts that the need for him to access compensation beyond the prescribed amount has been caused by the time taken for G4S to admit liability for his initial injury. 23. None of this addresses any aspect of the elements Mr Barkla is required to prove under s 217. 24. Mr Barkla's evidence was that he believes he is entitled to compensation and that he has suffered a 'serious injury'. He gave evidence that he has lost focus and considers that he is pre-occupied with the injustice done to him. He does not believe that given this loss of focus that he would be able to retain employment. 25. When queried about this 'injustice' Mr Barkla returns to the issues surrounding G4S' initial denial of liability and matters he has subsequently unsuccessfully alleged and litigated. Although Mr Barkla has some insight into the correlation between his incapacity and the initial workplace events that caused his injury in the first place it is not clear that this remains the cause of any ongoing unfitness for work. Rather, Mr Barkla's evidence suggests that the cause of this current unfitness for work has more to do with his pre-occupation with correcting the wrongs he perceives have been done to him. 61 The proposed ground of appeal does not explain why Mr Barkla contends that these reasons are wrong. The ground of appeal simply re-states the contention that was made to the arbitrator (and rejected). It cannot be allowed in its present form. 62 I stress that I do not mean to discount the significance of Mr Barkla's contention in terms of the aetiology (causal factors) of his psychiatric disorder and, thus, its likely permanence. It is very clear that Mr Barkla harbours a very strong grievance about the delay in accepting his claim and he contends that it has permanently exacerbated his condition. There was expert evidence before the arbitrator to support that contention (see, for example, the report of Dr Michelle Atchison dated 23 August 2011 and Dr Kate Nielsen dated 27 March 2013). That evidence formed the basis of Mr Barkla's common law claim against Allianz, and he relied on it in support of his case in the s 217 proceedings. It was dealt with by the arbitrator as above, but can only be considered in the application for leave to appeal if a ground of appeal is formulated which properly outlines the arbitrator's alleged error. That is not presently the case. 63 Proposed ground of appeal 2 should be read with the first of the 'other orders' (i.e. the issue about the statement of agreed facts) and could be construed to contend, in effect, that Mr Barkla should have succeeded in the arbitration, and the appeal should be allowed, because the medical evidence in relation to his incapacity to work was all one way and therefore only supported one finding, namely that he was permanently and totally incapacitated for work. A contention of that kind would involve a question of law insofar as it relies on the assertion that the arbitrator ignored relevant evidence, or made a finding which was not supported by the evidence. (Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321; Health Department of Western Australia v Prosser [2004] WASCA 83.) If such is the case then the ground of appeal should be clearly stated in those terms. If such is not the case then the ground of appeal cannot be allowed to stand. Again, I will give Mr Barkla an opportunity to consider his position and clearly state the ground of appeal that he relies on. 64 There is another even more fundamental difficulty with the proposed grounds of appeal, which Mr Barkla must address. At the moment the two grounds of appeal are confined to challenging the arbitrator's findings on the first essential issue, namely permanent and total incapacity. There is no challenge at all to the arbitrator's finding on the second essential issue, namely that Mr Barkla had failed to prove that his social and financial circumstances and his reasonable financial needs justified the making of an order increasing the prescribed amount. Mr Barkla's application for leave to appeal cannot succeed unless a challenge is made by proper grounds of appeal against that ruling. 65 Returning to the 'other orders' section of the amended notice of appeal, Mr Barkla asserts that he be granted his 'right' to adduce evidence in the appeal. However, there is no such right in the appeal since it is not a re-hearing of the arbitration. It is a 'review' of the arbitrator's decision and a question of law must be involved (subsections (2)(a) and (5)). The review is limited to the evidence that was tendered and received in the arbitration unless leave is given by the District Court (subsection (6)). 66 It follows that it is premature at the moment to deal with the issue of subpoenas and such will remain the case unless and until the grounds of appeal are in order. Once that has occurred Mr Barkla will be at liberty to apply for leave to adduce fresh or additional evidence pursuant to WICMA s 247(6) and for leave to issue subpoenas, if he believes that he has grounds to do so. Any applications of that kind will be considered by the judge who has the case management of the matter having regard to the grounds of appeal. 67 For the avoidance of doubt, I reiterate, that Mr Barkla must now reconsider his proposed grounds of appeal having regard to what I have said above. It is absolutely essential that any grounds of appeal and arguments relied on by Mr Barkla relate to both of the two essential issues in the arbitration and identify alleged errors in the arbitrator's reasons.
CIVO 1 of 2014 68 The writ of summons in CIVO 1 of 2014 was filed with a copy of the Form 6 appeal notice in CIVO 4 of 2014. The endorsement of claim states as follows (the intercalation is mine): The Plaintiff was denied procedural fairness by WorkCover WA Arbitrator Mr Sam Nunn for the following reasons: (1) Denied a Statement of agreed facts. (2) Arbitrator Nunn accepted the Plaintiff's ASoF letters of 24 September 2013 and 30 September 2013 [ie correspondence in relation to the proposed statement of agreed facts] as evidence in which the Plaintiff advised in point 1 'Allianz have no expert medical evidence that advises that the Applicant (me) did not suffer a Work-related Injury (Agree or Disagree)'. (3) Arbitrator Sam Nunn, accepted the Defendant's response to the Plaintiffs' letters in the above point 2 as evidence and even though the Defendant Mr Civitella disagreed with the Applicants point 1 (see above) Arbitrator Sam Nunn failed to request Mr Civitella to produce evidence that proved that the Applicant did not suffer a Work-related injury. (4) Clearly the above omission by Arbitrator Sam Nunn is Bias towards the Defendant because if the Defendant has/had no medical expert evidence that advises that the plaintiff did not suffer a Work-Related Injury, then by what prescribed means and/or statutes did the defendant 'dispute' liability for 21 months without ANY medical support? (5)The plaintiff requests that the District Court of Western Australia provide the Plaintiff with a case manager and seal this document. The plaintiff seeks Justice from The District court of Western Australia by overruling the Bias Abuse of process and a denial of procedural fairness of WorkCover WA Arbitrator Sam Nunn. 69 A writ of summons should be employed in proceedings for common law damages, as occurred in CIV 638 of 2013. The above endorsement of claim does not plead a recognised common law cause of action. At best it sheds some light on the grounds of appeal in CIVO 4 of 2014. 70 The principal registrar refused to accept the writ of summons pursuant to O 67 r 5 of the Rules of the Supreme Court which provides as follows (my emphasis): [67.5] Abuse of process etc, procedure in case of 5(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the Registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a Judge or a Master first had and obtained by the party seeking to file or issue it. (2) In the case of a motion or an application ordinarily returnable before a Master in chambers, an application for leave to file or issue such motion or application shall be made to a Master in chambers. (3) In all other cases, an application or commission shall be made to a Judge in chambers. (4) Application for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit. 71 Mr Barkla made written and oral submissions to the effect that action CIVO 1 of 2014 is not an abuse, or frivolous or vexatious. In doing so he relied upon the dictionary definitions of those terms. 72 However, the relevant terms have gained overlapping legal meanings over a considerable period of time which do not necessarily correspond with the dictionary meanings. So, an action will be regarded as frivolous or vexatious 'if it is obviously unsustainable and an abuse of the process of the court'. An action is prima facie unsustainable and an abuse of the process of the court if the plaintiff brings two actions against the same defendant where one will lie, a fortiori where a previous proceeding has been finally disposed of. (See Seaman, Civil Procedure in Western Australia, vol 1 (at Service 152) [20.19.9] and also [20.19.12].) The tests to be applied can be satisfied on objective grounds. 73 Having regard to par 4 of the endorsement of claim, I wondered at one stage during the hearing whether CIVO 1 of 2014 is intended to plead a common law cause of action against Allianz. I was not then aware that Mr Barkla had litigated a common law action against Allianz in CIV 638 of 2013 and that the proceedings had been dismissed. 74 Mr Barkla is prevented by the law of estoppel from re-litigating that same action. The doctrine of estoppel has many forms and applications, but relevantly the doctrine of Anshun-estoppel applies with respect to any action which Mr Barkla may have had against Allianz. Pursuant to that doctrine (Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589) a litigant is barred from litigating a claim which ought reasonably have been raised in other proceedings that have been finally determined, but was not raised. 75 The doctrine of res judicata is also relevant. That doctrine bars a plaintiff from re-litigating a cause of action which has already been finally determined in a court (QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186). 76 In layman's terms, both doctrines predicate that a litigant is only entitled to one bite at the cherry, the objective being to achieve finality in litigation. 77 Therefore, the principal registrar was correct in finding that proceeding CIVO 1 of 2014 is an abuse of process, frivolous and vexatious because it does not disclose any recognisable right to sue Allianz and it cannot succeed. It is untenable. 78 Mr Barkla must consider whatever steps are legally open to him to overturn the decision of the Court of Appeal in CIV 638 of 2013. It is not for me to advise him as to the means of doing so, but he is aware of his options in the High Court of Australia (ts 83). 79 In conclusion in relation to CIV 1 of 2014: (i) The endorsement of claim raises no legally justiciable claim and the writ is not an appropriate way of supporting CIVO 4 of 2014; (ii) The endorsement of claim cannot be amended to plead a common law action and no fresh action can be commenced for that purpose whilst the judgment in CIV 638 of 2013 (and on appeal) still stands; (iii) The writ of summons cannot be accepted for filing by the court as it would be frivolous and vexatious and an abuse of process to do so as those terms are used in the rules of the court. I stress that I am making no personal criticism of Mr Barkla for filing the writ, but it cannot be accepted. 80 I turn now to make formal directions.
Directions and other matters 81 The District Court no longer has any jurisdiction to entertain any proceedings against Allianz and Mr Barkla must focus on the appellate jurisdictions if he wishes to proceed with CIV 638 of 2013 against Allianz. I therefore order that the writ of summons in CIVO 1 of 2014 not be accepted for filing. 82 In matter CIVO 4 of 2014, I order as follows: (1) Mr Barkla have leave to amend the substituted grounds of appeal. (2) To that end, he must file and serve a notice of proposed grounds of appeal by no later than 12 March 2014. (3) The matter is to be listed for a further directions hearing before myself in the week commencing 24 February 2014. (4) Mr Barkla's application to issue subpoenas is dismissed, with liberty to reapply at a later time. 83 The purpose of these orders is to ensure that grounds of appeal are filed which address all of the essential issues in the arbitration (including Mr Barkla's social and financial needs) and which point to alleged errors in the arbitrator's reasoning about those issues. Grounds of appeal which amount to no more than bare contentions as to why Mr Barkla was entitled to succeed in arbitration A5558, or raisingallegations of malpractice against Allianz or anyone else, or about the proposed statement of agreed facts, cannot be allowed. 84 I shall publish this decision today and furnish an electronic copy to the parties. The purpose of the directions hearing referred to at order (3) above is to ensure that the parties can comply with the timetable that I have ordered and schedule a further directions hearing in April.
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