Barkla v Allianz Insurance - [2013] WASCA 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BARKLA -v- ALLIANZ INSURANCE [2013] WASCA 21

CORAM: PULLIN JA
MURPHY JA

HEARD: 31 JANUARY 2013

DELIVERED : 31 JANUARY 2013

PUBLISHED : 1 FEBRUARY 2013

FILE NO/S: CACV 117 of 2012

BETWEEN: GEOFF BARKLA
Appellant
AND
ALLIANZ INSURANCE
First Respondent
WORKCOVER WA
Second Respondent
G4S CUSTODIAL SERVICES
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER GETHING
Citation  :BARKLA -v- G4S CUSTODIAL SERVICES [No 2] [2012] WADC 78
File No  :APP 6 of 2012

Catchwords:

Appeal - Application for extension of time - No reasonable prospect of success - Appeal futile

Legislation:

District Court of Western Australia Act 1969 (WA)
Workers' Compensation and Injury Management Act 1981 (WA), s 18, s 57A

Result:

Application for extension of time to appeal dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
First Respondent           :     Mr M J Civitella
Second Respondent       :     No appearance
Third Respondent         :     Mr M J Civitella

Solicitors:

Appellant:     In person
First Respondent           :     CCS Insurance Law
Second Respondent       :     No appearance
Third Respondent         :     CCS Insurance Law

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

Barkla v G4S Australia Holdings (Unreported, A387 (Registrar Melville), 20 January 2012)
Barkla v G4S Custodial Services [2012] WADC 67
Barkla v G4S Custodial Services [No 2] [2012] WADC 78
Girando v Girando (1997) 18 WAR 450
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Raczka v Department of Housing and Works [2008] WASCA 76
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Simonsen v Legge [2010] WASCA 238

REASONS OF THE COURT: The appellant applied for an extension of time in which to appeal against the decision of Commissioner Gething in the District Court. Commissioner Gething ordered the dismissal of the appellant's appeal against the decision of an arbitrator exercising jurisdiction pursuant to Pt XI of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). This court ordered that the application for an extension of time be dismissed and that the appellant pay the first and third respondents' costs to be taxed. These are the reasons for those orders.
The background to the dispute is set out in Commissioner Gething's reasons: Barkla v G4S Custodial Services[No 2] [2012] WADC 78 [5] ‑ [25]:
The appellant was employed by the respondent as a custodial services officer.
In January 2010 the appellant was asked by one of his superiors to go to Geraldton as the acting supervisor. The respondent had a contract to provide custodial and court security services for the Geraldton Court.
On 1 April 2010 whilst working the appellant says he was verbally abused by one of his subordinates. He made a complaint about this behaviour to the respondent.
In July 2010 the appellant was offered a contract position as the supervisor in Geraldton until 11 February 2011.
On 24 September 2010 the appellant says…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] WASCA 21
Decision Date: 1 FEBRUARY 2013

CaseChat Overview and Summary

The appeal was brought by Barkla against Allianz Insurance, focusing on the rejection of his application for an extension of time to lodge an appeal against a lower court's decision. The primary dispute was whether the primary judge had correctly exercised their discretion in denying the extension. The matter was heard in the Supreme Court of New South Wales.

The court needed to determine if the lower court had erred in its discretion by refusing the extension of time. The issue also involved whether there was a reasonable prospect of success if the extension was granted, and if the appeal was futile without the extension. The court had to assess the justification for the delay in lodging the appeal and whether there were any exceptional circumstances that warranted the extension.

The court held that the lower judge had not erred in refusing the extension of time. It was determined that there was no reasonable prospect of success on the appeal and that the appeal was effectively futile. The justification provided for the delay was insufficient, and there were no exceptional circumstances to warrant the extension. The court found that the appeal did not meet the necessary threshold for being considered.

The appeal was dismissed with costs. The court determined that the appeal was without merit and that the lower court's decision should stand.

Orders