Barkla v Allianz Australia Insurance Ltd [No 2]
[2014] WASCA 222
•3 DECEMBER 2014
BARKLA -v- ALLIANZ AUSTRALIA INSURANCE LTD [No 2] [2014] WASCA 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 222 | |
| THE COURT OF APPEAL (WA) | 03/12/2014 | ||
| Case No: | CACV:109/2014 | 10 NOVEMBER 2014 | |
| Coram: | NEWNES JA MURPHY JA | 10/11/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEOFF BARKLA ALLIANZ AUSTRALIA INSURANCE LTD G4S CUSTODIAL SERVICES |
Catchwords: | Practice and procedure Application for leave to appeal Workers' Compensation and Injury Management Act 1981 (WA), s 57A and s 254 Whether appeal has reasonable prospect of succeeding Issue on appeal res judicata Proceedings brought for ulterior purpose Application and appeal dismissed |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) Workers' Compensation and Injury Management Act 1981 (WA), s 57A, s 254 |
Case References: | Avsar v Binning [2009] WASCA 219 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 Insurance [2013] WASCA 21 Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36 Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78 Hunter Resources Ltd v Melville (1988) 164 CLR 234 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARKLA -v- ALLIANZ AUSTRALIA INSURANCE LTD [No 2] [2014] WASCA 222 CORAM : NEWNES JA
- MURPHY JA
- Appellant
AND
ALLIANZ AUSTRALIA INSURANCE LTD
First Respondent
G4S CUSTODIAL SERVICES
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAUDE DCJ
Citation : BARKLA -v- ALLIANZ AUSTRALIA INSURANCE LTD [2014] WADC 113
File No : APP 54 of 2014
Catchwords:
Practice and procedure - Application for leave to appeal - Workers' Compensation and Injury Management Act 1981 (WA), s 57A and s 254 - Whether appeal has reasonable prospect of succeeding - Issue on appeal res judicata - Proceedings brought for ulterior purpose - Application and appeal dismissed
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Workers' Compensation and Injury Management Act 1981 (WA), s 57A, s 254
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Mr M J Civitella
Second Respondent : Mr M J Civitella
Solicitors:
Appellant : In person
First Respondent : CCS Insurance Law
Second Respondent : CCS Insurance Law
Case(s) referred to in judgment(s):
Avsar v Binning [2009] WASCA 219
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 Insurance [2013] WASCA 21
Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36
Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78
Hunter Resources Ltd v Melville (1988) 164 CLR 234
1 REASONS OF THE COURT: The appellant has applied for leave, pursuant to s 254 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), to appeal from a decision of Staude DCJ in the District Court dismissing the appellant's appeal from the decision of an arbitrator under the Act. Under s 254 of the Act, an appeal must relate to a question of law.
2 On 16 October 2014, the Court of Appeal registrar issued a notice to the appellant 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 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
3 On 10 November 2014, we ordered that the application for leave to appeal and the appeal be dismissed, and said we would provide reasons for our decision later. These are the reasons.
Background
4 On 13 October 2010, the appellant was working as a custodial services supervisor at the Geraldton court. His employer was the second respondent (G4S). The appellant claimed he had been injured in the course of his employment and, on 5 November 2010, he lodged a claim for workers' compensation for psychiatric injury.
5 Pursuant to s 57A of the Act, where a claim for compensation by weekly payments has been made on an employer and the employer has made a claim under its policy of insurance, the insurer must, within 14 days after the claim was made by the employer:
• give the worker and the employer notice that liability for all or any of the weekly payments is accepted: s 57A(3)(a); or
• give the worker and the employer notice that liability for all or any of the weekly payments is disputed: s 57A(3)(b); or
• give the worker, the employer and the Director of WorkCover notice that a decision as to whether or not liability is to be accepted in respect of the weekly payments is not able to be made within the time allowed by s 57A(3): s 57A(3)(c).
6 Section 57A(3a) provides, in effect, that if within 10 days after the Director is notified under s 57A(3)(c) that a decision is not able to be made, the insurer has not notified the worker, the employer and the Director that liability is accepted, or that liability is disputed and of the reasons it is disputed, the worker's claim is deemed to be disputed.
7 Under s 57A(5), where an insurer fails to comply with s 57A(3) the worker is entitled to the weekly payments claimed, but either the employer or the insurer may apply for a determination under s 57A(6). Under s 57A(6), an arbitrator may determine the worker's entitlement as from the date of the determination as if s 57A(5) had no operation, but for the period up to the date of the determination the worker's entitlement under s 57A(5) is unaffected.
8 Within the 14 day period specified in s 57A(3), the first respondent (Allianz), the worker's compensation insurer of G4S, gave to the appellant, G4S and the Director notice pursuant to s 57A(3)(c) that Allianz had not decided whether liability was in dispute. The notice stated that more information was required before Allianz could ascertain whether the appellant 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.
9 Allianz did not give notice under s 57A(3a) within the next 10 days, with the result that liability was deemed to be disputed.
10 On 31 January 2011, the appellant applied for interim weekly payments of compensation under the Act. That was granted by orders made on 11 February 2011.
11 On 14 March 2011, the appellant filed a second application seeking further interim weekly payments. That application was refused. The arbitrator ordered that the matter be dealt with as a substantive dispute.
12 Shortly afterwards, on 21 March 2011, the respondent filed a notice disputing liability and setting out its response to the appellant's claim. Throughout 2011, the dispute proceeded through the interlocutory and conciliation processes under the Act.
13 On 5 January 2012, the appellant lodged an interlocutory application for an order for weekly payments pursuant to s 57A(5), on the ground that Allianz had not complied with s 57A(3)(b). He contended that once Allianz had decided to dispute the claim, it was bound, in addition to the earlier notice it had given under s 57A(3)(c), also to give a notice under s 57A(3)(b). It had not given a notice under s 57A(3)(b). The appellant contended that the failure to do so triggered a liability on the part of Allianz to make weekly payments.
14 An arbitrator appointed under the Act, Registrar Melville, dismissed the appellant's application on 20 January 2012. The arbitrator held that Allianz was not required to give a further notice under s 57A(3)(b) and weekly payments could not be ordered when a dispute was deemed to exist by operation of s 57A(3a).
15 The appellant's appeal to the District Court against the arbitrator's decision was dismissed by Commissioner Gething: Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78. The commissioner found that s 57A did not require an insurer who disputes liability to give a notice under s 57A(3)(b) where it has previously given a notice under s 57A(3)(c) [62].
16 The appellant sought to appeal, out of time, to this court against that decision. His application for an extension of time within which to appeal was dismissed on the ground that his appeal had no reasonable prospect of success. The court held that Commissioner Gething's decision was plainly correct: Barkla v Allianz Insurance [2013] WASCA 21.
17 We digress to mention that in the meantime Allianz had accepted liability and it has paid to the appellant the full prescribed amount of weekly compensation payable under the Act. A subsequent application by the appellant to WorkCover seeking an extension of the prescribed amount, pursuant to s 217 of the Act, was dismissed. The appellant has sought leave to appeal from that decision to the District Court. Those proceedings have been stayed by the District Court pending the filing by the appellant of proper grounds of appeal: Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36; Barkla v Allianz Australia Insurance Ltd [2014] WADC 23.
18 This appeal arises out of separate arbitration proceedings under the Act in which the appellant has sought to re-argue 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). To that end, on 13 March 2014 the appellant applied for a reconsideration of the decision of Registrar Melville of 20 January 2012. He did so under s 217A of the Act, which provides:
Arbitrator may reconsider decision if new information
(1) 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.
(2) 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.
20 It is convenient to turn at this point to the Hansard material, as the appellant places great store by it.
21 On 27 June 2013, the Minister was asked (relevantly) 'why WorkCover allowed non-compliance with s 57A(3)(b) by Allianz [in respect of the appellant's workers' compensation claim] for a period of 21 months.' The Minister replied:
I am advised that Allianz was not required to issue a notice under section 57A(3)(b) of the Workers' Compensation and Injury Management Act 1981 in relation to [the appellant]. This particular matter has been considered by various courts on appeal by [the appellant], which have confirmed the decision of the WorkCover WA arbitrator.
22 On 13 August 2013, the Minister was asked:
(1) What is the name and/or number of the Western Australian legislative regulations form that an insurer is required to issue to a worker when the insurer disputes a worker's claim for compensation?
(2) Was this form ever issued to [the appellant]; and, if so, when was it issued and who issued it?
23 He replied:
(1) When an insurer disputes liability for a worker's compensation claim under the Workers' Compensation and Injury Management Act 1981, they are required to issue a form 3B—insurer's notice that liability is disputed.
(2) No. I am advised that [the appellant's] insurer was not required to issue a form 3B in relation to his claim.
24 The questions were no doubt asked at the instigation of the appellant, in the mistaken belief that the answers would assist him in the present proceedings under the Act. As it turned out, the views expressed by the Minister, read in their entirety, were completely contrary to the appellant's contention. However, it is evident that the appellant has seized upon the Minister's answer to the first question on 13 August 2013, without regard to any of the other answers given by the Minister.
25 On 19 May 2014, Arbitrator Nunn dismissed the appellant's application. The arbitrator concluded that only the Hansard extract was new information for the purposes of s 217A. He considered that the Hansard extract was in the nature of extrinsic material to which regard could be had for the purposes of construing the Act. However, the arbitrator considered that the question which the appellant sought to argue had been settled by the decision of this court in Barkla v Allianz Insurance [2013] WASCA 21, and it was not open to the appellant to challenge that construction in fresh proceedings under the Act.
26 The arbitrator also observed that the application for arbitration may bean abuse of process as it appeared to be for the purpose of grounding an action in negligence against Allianz, rather than for the purpose of the appellant's claim for workers' compensation. The arbitrator noted that the appellant had already received his full statutory entitlement and his claim was exhausted.
27 The appellant sought leave to appeal to the District Court against the arbitrator's decision. The application for leave to appeal was dismissed by the primary judge: Barkla v Allianz Australia Insurance Ltd [2014] WADC 113.
The reasons of the primary judge
28 The primary judge found that the appellant's application for a reconsideration of the decision of Registrar Melville, in circumstances where liability for workers' compensation has been accepted, and compensation paid in full, served no legitimate purpose [41]. His Honour observed that it appeared from what the appellant had said to the arbitrator and on the appeal that he wanted a declaratory finding in his favour on the construction issue to ground a separate legal action against Allianz. The primary judge found that such a purpose was improper and that the application for arbitration and the application for leave to appeal constituted an abuse of process [41]. In addition, the primary judge found that the proposed appeal, which primarily related to issues of procedural fairness, was without merit [48]. He accordingly struck out the appeal notice and dismissed the application for leave to appeal.
29 The primary judge took a different view, however, to the arbitrator on the relevance of the material from Hansard, being of the opinion that a question asked of the responsible minister about the operation of an statute in relation to a particular case, and the answer to it, was not capable of constituting extrinsic material for the purposes of s 19 of the Interpretation Act 1984 (WA)[25].
The grounds of appeal
30 The grounds of appeal are as follows:
1 Arbitrator Sam Nunn said on record in his Decision Application No. A13500 Published 19 May 2014 … at point 52 and I quote '…Accordingly in my view at least, the extracts from Hansard are on their face RELEVANT to the Decision in Question and are Sufficient to Qualify that information as 'New Information' of the kind contemplated by s 217A(1). [original emphasis]'
2 Judge Staude in the District Court of WA eroded [sic] by omitting to address the above point 52 in Arbitrator Sam Nunn's Decision (A13500) and in fact provided No Statutes of Law for his Decision to Dismiss the Appellant's case.
Questions of Law
1 By what prescribed means and or Statutes can a Judge ignore Relevant Statutes of Law and Rule against an Application without providing Statute/s of Law that support his Decision?
2 If the Extract Hansards by the Attorney General and Hon: Ljiljanna Ravlich are RELEVANT to the Decision in Question and are Sufficient to Qualify as 'New Information' the kind Contemplated by section 217A(1), then by what prescribed means and or Statutes are these Hansards NOT Relevant to Statute/s of Law namely Section 217A(1) (WCIMA) when Arbitrator Sam Nunn advises that the Hansards ARE RELEVANT to Statute/s of Law namely Section 217A(1) of the Workers Compensation and Injury management Act 1981? [original emphasis]
1 Are Judges Bound By Statutes of Law?
31 The orders sought by the appellant on the appeal are as follows:
The appellant is requesting Orders that the Appellant be permitted to file an Application in WorkCover and or [sic] the Supreme Court WA and have the Extracts from Hansard Heard and Examined, as Arbitrator Nunn advised the Extracts from Hansard are relevant to the decision in question and are sufficient to qualify as 'New Information' of the kind contemplated by s 271A(1).
The disposition of the notice to show cause
32 As Owen JA pointed out in Avsar v Binning [2009] WASCA 219 [37], on an appeal to this court an appellant must demonstrate that there has been error on the part of the court below of a recognised genre that falls to be corrected and which entitles the appellant to the orders sought.
33 In this case, the grounds of appeal are not in conventional form and are not easy to understand. However, to the extent it is possible to discern in them an assertion of error by the primary judge, the appeal has no prospect of success. The only contention of error appears to be an allegation that his Honour erred in dismissing the appeal without having regard to the finding of the arbitrator that the Hansard material was relevant to the proper construction of s 57A of the Act. It seems to be asserted, in effect, that the primary judge should have found that in light of that finding the arbitrator erred in dismissing the appellant's application for reconsideration of Registrar Melville's decision, and his Honour should have allowed the appeal and remitted the application for rehearing.
34 There is no substance in that. It is clear the primary judge did consider the arbitrator's finding that the Hansard material was relevant to the proper construction of s 57A of the Act. His Honour concluded that the finding was erroneous and that the material was irrelevant to that issue. In so concluding, the primary judge, in our respectful view, was plainly correct. The answers the Minister gave in response to the questions in Parliament were not extrinsic material which might be called in aid on the proper construction of s 57A. They were simply statements by the Minister, based on advice he had received, as to the effect of the relevant provisions of the Act, and are of no assistance on the issue of its proper construction: see Hunter Resources Ltd v Melville (1988) 164 CLR 234, 241.
35 The meaning of an Act is a matter to be determined, not by soliciting opinions as to its meaning, but by the application by the court of the principles of statutory construction. The issue in this case, whether on the proper construction of s 57A of the Act Allianz was required to give the appellant a notice under s 57A(3)(b), has already been determined. That issue was determined by this court in Barkla v Allianz Insurance [2013] WASCA 21, where the court upheld the finding of the District Court that Allianz was not required to give such a notice. The issue is res judicata. It is not now open to the appellant to debate it in fresh proceedings under the Act.
36 In addition, it is clear that the proceedings before the arbitrator were not for any legitimate purpose under the Act but for an alien purpose. The appellant expressly acknowledged that the application for reconsideration of Registrar Melville's decision was not for the purpose of any claim to workers' compensation. He said in the course of his submissions on the appeal that he sought a finding that Allianz was required to give a notice under s 57A(3)(b) in order to enable him to bring a claim for damages against it under the Criminal Code (WA) for delay in paying workers' compensation to him (ts 14). How an action for damages might lie under the Criminal Code was not satisfactorily explained and is not evident.
37 We note, however, that the appellant previously sued Allianz and WorkCover in the District Court for delay in the negotiation and settlement of his claim, which he alleged breached a duty of care owed to him. He claimed he was entitled to damages or compensation in addition to his statutory workers' compensation entitlements. The statement of claim was struck out on the ground that it disclosed no reasonable cause of action and was an abuse of process or vexatious, and the action was dismissed. An appeal by the appellant from that decision was dismissed by this court: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240.
38 The appellant 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 the appellant to re-agitate it in fresh proceedings under the Act in the hope of obtaining a different result, much less to do so for a purpose unconnected with the purposes of the Act.
39 It was for those reasons that we dismissed the application for leave to appeal and the appeal.
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