Barkla v Allianz Australia Insurance Ltd

[2013] WASCA 240

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BARKLA -v- ALLIANZ AUSTRALIA INSURANCE LTD [2013] WASCA 240

CORAM:   McLURE P

MURPHY JA

HEARD:   7 AUGUST 2013

DELIVERED          :   15 OCTOBER 2013

FILE NO/S:   CACV 76 of 2013

BETWEEN:   GEOFF BARKLA

Appellant

AND

ALLIANZ AUSTRALIA INSURANCE LTD
First Respondent

WORKCOVER WA CORPORATION
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :FENBURY DCJ

Citation  :BARKLA -v- ALLIANZ AUSTRALIA INSURANCE LIMITED [2013] WADC 90

File No  :CIV 638 of 2013

Catchwords:

Practice and procedure - Whether grounds of appeal have reasonable prospects of success - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

First Respondent           :     Mr D R Clyne

Second Respondent      :     Mr T Pontre

Solicitors:

Appellant:     In person

First Respondent           :     CCS Insurance Law

Second Respondent      :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Barkla v Allianz Australia Insurance Ltd [2013] WADC 90

Barkla v Allianz Insurance [2013] WASCA 21

1. JUDGMENT OF THE COURT:    This matter was listed for hearing on 22 August 2013, pursuant to a notice of the Registrar dated 7 August 2013, requiring the appellant to attend:

   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 has a reasonable prospect of succeeding.

2. The appellant filed an appeal notice on 1 July 2013 in respect of the decision of Fenbury DCJ in Barkla v Allianz Australia Insurance Ltd [2013] WADC 90 (primary judge's reasons). By that decision, the primary judge struck out the appellant's statement of claim in the District court pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (Supreme Court Rules), entered judgment for the first defendant (the first respondent to this appeal) pursuant to O 16 r 1(1)(a) of the Supreme Court Rules, and dismissed the action against the second defendant (the second respondent to this appeal).

3. In essence, the appellant, in the court below, had claimed damages against the first respondent (the workers' compensation insurer) and the second respondent (WorkCover) in connection with the conduct of certain workers' compensation claims in respect of a stress‑related injury in the course of his employment in 2010.

4. The relevant history of the appellant's claims for workers' compensation, and the response to those claims by the workers' compensation insurer, is conveniently set out in the reasons of this court in an earlier appeal arising out of these events:  Barkla v Allianz Insurance [2013] WASCA 21 [2] ‑ [5]. The respondents had accepted liability for the appellant's claims, and he had been paid $198,365, being the full prescribed amount of weekly compensation payments payable under the Workers' Compensation and Injury Management Act 1981 (WA), although there had been a 21 month delay prior to an acceptance of liability for the appellant's claims. He had also been paid $9,717.94 for medical treatment expenses and $2,548.78 in vocational rehabilitation provider payments, both of which were ongoing: primary judge's reasons [15] ‑ [16]. The primary judge described the proceedings before him as relating 'to injury allegedly caused to [the appellant] by the delay in negotiation and settlement of that claim' [7].

5. The respondents applied to strike out the appellant's statement of claim.  The workers' compensation insurer also applied for a defendant's summary judgment and WorkCover applied for the action against it to be dismissed as, amongst other things, an abuse of process.

6. The terms of the statement of claim which Fenbury DCJ was required to consider in the proceedings below is set out at [8] of his Honour's reasons.  In substance, the appellant's statement of claim was to the effect that the workers' compensation insurer and WorkCover had denied him medical treatment by breaching their alleged duty of care to him and by fraudulently denying him such treatment, and that he was thereby entitled to damages or compensation in addition to his statutory workers' compensation entitlements.

7. His Honour also had before him an affidavit by the appellant sworn 7 May 2013 said to be in support of the statement of claim, and an affidavit by Mr Moffat, filed on behalf of the workers' compensation insurer, outlining, in substance, the procedural background of the workers' compensation claims and proceedings. 

8. His Honour examined the material allegations in the statement of claim in detail and concluded that the statement of claim did not disclose any reasonable cause of action and could not succeed. In relation to the 21 month period prior to acceptance of liability, his Honour accepted that an 'injured worker's condition might deteriorate because a claim is delayed in settlement'. However, his Honour said that 'there is no legal remedy for such an event over and above the remedy sought and obtained through the workers' compensation claim itself' [11]. His Honour went on to say:

   The claim that there is some liability in the defendants for the period alleged discloses no reasonable cause of action and cannot succeed. 

   Claims for workers' compensation can be disputed by defendants on various grounds.  Sometimes of course the claim is fraudulent.  But in other cases, and this would appear to be the situation in this case, there can be real dispute about what is the cause of a psychiatric or psychological condition.  It is not just a question of whether a worker has a psychiatric or psychological condition.  There is also often an issue about how it was caused and whether it was caused as the result of events in the workplace.

   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 [11], [17] ‑ [18].  (original emphasis)

9. It is evident that his Honour also considered that the inherent defects in the pleading were so fundamental that there would be no proper basis upon which to grant the appellant leave to re‑plead, and that the proceedings were inherently an abuse of process or vexatious.

10. In the appeal to this court, the appellant does not allege any error in his Honour's reasoning with respect to the nature and effect of the appellant's pleading.  Rather, the appellant's grounds of appeal are to the effect that:

    (1)the appellant was denied procedural fairness by 'being denied the right' to cross‑examine the 'hearsay' evidence of Mr Moffat;

    (2)the denial of the appellant's 'right' to cross‑examine Mr Moffat constituted an abuse of process by the District Court;

    (3)the primary judge's findings are erroneous in that his Honour, in effect, relied upon the 'hearsay' evidence of Mr Moffat, rather than the relevant  'factual evidence' (there are two grounds to this effect).

11. As explained by the appellant in his oral and written submissions to this court, the gravamen of the appellant's complaint with respect to each ground is that:

    (a)there was medical evidence to support his claim for workers' compensation payments;

    (b)the workers' compensation insurer had no medical evidence available which could justify a delay in the acceptance of his claim and the delay exacerbated his stress and thereby caused further injury; and

    (c)the primary judge, in striking out his statement of claim and making consequential orders in favour of the respondents, acted upon medical opinion purportedly given by Mr Moffat, the first respondent's insurance manager, when Mr Moffat had no medical expertise and was unqualified to give medical opinion evidence.

12. The appellant's characterisation both of Mr Moffat's evidence and the primary judge's approach to the strike‑out applications is incorrect.  Mr Moffat gave an account of the procedural history of the matter.  In the course of giving that account he annexed certain medical reports obtained from medical practitioners (annexures RM 5 and RM 37), but he did not purport directly to give any medical evidence himself.  Insofar as the appellant suggests that Mr Moffat was directly giving medical opinion evidence in the applications before his Honour, the appellant's assertion is misconceived and mistaken.  Moreover, his Honour did not approach the respondents' applications on the basis that Mr Moffat was giving medical evidence.  Rather, his Honour properly approached the applications on the basis of whether the appellant's statement of claim disclosed any arguable cause of action and whether the proceedings were, in substance, an abuse of process or vexatious.  As noted above, the appellant's grounds do not contend any error with respect to the primary judge's reasoning on these matters.

13. The first two grounds also suffer the deficiency that there was no 'right' to cross‑examine Mr Moffat, and there is no indication in the transcript of the hearing before Fenbury DCJ that the appellant ever applied to cross‑examine him. Insofar as the first and third grounds might also be taken as alleging error on the part of the master in receiving hearsay evidence, O 14 r 2(2) of the Supreme Court Rules permitted evidence to be given of information or belief with the sources and grounds identified.

14. The appellant's grounds of appeal do not disclose any arguable basis for contending that the conclusions reached by his Honour, and the orders that he made, were wrong.  None of the grounds has any reasonable prospects of success. 

15. For these reasons, the appeal should be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).