Barkla v Allianz Insurance
[2013] WASCA 21
•1 FEBRUARY 2013
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 RespondentWORKCOVER WA
Second RespondentG4S 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 he was again verbally abused by the same subordinate. The appellant again raised his concerns with the management of the respondent.
In the course of what appears to have been an extensive series of email correspondence, the appellant advised the respondent of how stressful the situation was becoming. On 8 October 2010 the appellant obtained a medical certificate from this [sic] doctor for that day due to stress.
Over the course of the following week the appellant continued to raise his concerns with his superiors at the respondent. On 13 October 2010 the appellant was notified that his secondment as the supervisor at Geraldton would finish on 22 October 2010 and that he would be transferred to the Perth pool of employees.
The appellant has not worked since 13 October 2010.
A First Medical Certificate was issued in respect of his injury on or about 13 October 2010 by his general practitioner, Dr James-Wallace. The certificate referred to the appellant's description of the injury as 'workplace stress' and contained a diagnosis of 'anxiety'.
On 5 November 2010, the appellant lodged a claim for compensation with the respondent. The nature of the injury cited was 'stress'. It was not in issue in the appeal that the appellant made a claim for compensation by way of weekly payments for a total or partial incapacity in compliance with WCIMA s 57A(1), s 57A(2A) and s 57A(2). WCIMA s 57A sets out the claims procedure to be used when the employer is insured, as in the present case.
By notice dated 8 November 2010, the respondent's insurer Allianz gave the appellant notice 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. This notice was in the form of WCIMR Form 3C.
In response to a section in the Form 3C headed 'the reasons why the decision was not able to be made are as follows', the Allianz stated:
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.
Allianz also stated in the Form 3C that a 'full report has been requested from the treating GP' and that '[p]revious wage earnings to be provided by the Insured'. It reserved the right to have the appellant undergo an independent medical examination with a provider of their choice.
In a covering letter to the 8 November 2010 notice, of the same date, Allianz stated:
Allianz reserves the right to make a decision on liability until further information is obtained, including a medical report from your treating GP as well as a statement from yourself. An assessor will contact you directly to arrange a suitable time to obtain a statement from you in relation to your allegations.
On 17 November 2010, the appellant's general practitioner, Dr James-Wallace provided a report to Allianz in which he confirmed that the appellant was suffering from 'major depression with co-existing anxiety'. Dr James-Wallace stated that, in his view, the appellant's employment 'has contributed significantly to the disability' and that the appellant would not be fit for work for the following three months.
On 31 January 2011, the appellant filed an application pursuant to WCIMA pt XII to the (now defunct) dispute resolution directorate of WorkCover seeking interim weekly payments pursuant to WCIMA s 231 (now repealed). The respondent opposed the grant of interim relief. On 11 February 2011 orders were made in the appellant's favour.
On 23 February 2011 the appellant was reviewed by Dr Mander, a psychiatrist, at the request of the respondent. Dr Mander provided a report dated 24 February 2011 to Allianz.
On 14 March 2011, the appellant filed a second application pursuant to WCIMA pt XII seeking further interim weekly payments. The application was refused. The arbitrator made an order pursuant to WCIMA s 229 (also now repealed) that the matter be dealt with as a substantive dispute, that is, it proceed as if it were a WCIMA pt XI dispute.
The medical information filed by the appellant is to the effect that he presently suffers from an adjustment disorder with associated depression and anxiety, and has done so since the incident in September 2010.
The respondent disputes liability under WCIMA, and has obtained medical evidence supporting its position. Its position is set out in detail in Form 6 Notice of Consent or Dispute pt XII filed 21 March 2011.
Throughout the remainder of 2011 the dispute proceeded through the interlocutory and conciliation processes. The substantive dispute is yet to be determined before a WorkCover arbitrator.
The appellant's application to an arbitrator
By interlocutory application dated 5 January 2012, the appellant sought orders confirming that he had an entitlement to weekly payments pursuant to WCIMA s 57A(5) as a result of the respondent's failure to comply with the notification provisions in WCIMA s 57A(3).
The appellant's contention was that, in certain circumstances as arise in the present case, an employer who has given a notice under WCIMA s 57A(3)(c) is also obliged to give a notice under WCIMA s 57A(3)(b) if it wishes to dispute liability. The appellant contended that the failure to do so triggered a liability to pay weekly payments pursuant to WCIMA s 57A(5).
Decision of arbitrator
The arbitrator disagreed with the appellant's contention and dismissed the appellant's application dated 5 January 2012: Barkla v G4S Australia Holdings (Unreported, A387 (Registrar Melville), 20 January 2012). His reasons for doing so were as follows:
In my opinion the provisions of Section 57A cannot be interpreted in a manner that gives rise to that result. It seems to me the principle [sic] purpose of Section 57A(3) is to give a worker notice of where he stands as soon as practicable so that he can make decisions about whether the insurer's decision should be challenged or whether he should bring proceedings for the commencement of weekly payments pursuant to Section 58 of the Act or otherwise.
It seems to me the mischief this provision sought to alleviate was to prevent a worker from being left in limbo in anticipation of a decision to accept the claim being made. Historically, and indeed even presently, it is observed that some workers would sit passively awaiting the time at which it was expected the insurer would make a decision on accepting liability. This was not unreasonable given the unpalatable thought of the alternative, namely to litigate.
When the day of anticipated decision arrived it not uncommonly arrived with the advice from the insurer that more time was required before a decision could be made. The reasons could be varied, from an inability to locate a witness, the awaiting of a signed statement or medical report, the need for clarification of information, and so on.
This process could be continued multiple times whilst the worker continued to wait in a state of hopeful anticipation, all the while his financial situation deteriorating to the point where it was irretrievable and even to the point he was unable to muster the resources to pay for a medical report in order to be able to properly litigate his claim.
The introduction of Section 57(3a) by 'deeming' the existance [sic] of a dispute put the worker on notice and was, in my opinion, intended to signal to a worker the time had arrived to lodge an application for resolution of the dispute if that was his desire [6] ‑ [10].
The appellant appeals to the District Court
The appellant appealed to the District Court against the arbitrator's decision, pursuant to s 247 of WCIMA.
Commissioner Gething heard the appeal, granted leave to the appellant to appeal, but dismissed the appeal on 6 June 2012. His reasons for doing so will be referred to later in these reasons.
The right of appeal to this court
Section 79(1) of the District Court of Western Australia Act 1969 (WA) confers the right of appeal on a party to a matter who is dissatisfied with a judgment on the conditions set out in s 79(1). Section 254 of WCIMA provides that:
Under the District Court of Western Australia Act 1969 section 79, an appeal may be made to the Court of Appeal in respect of a judgment, order or determination in proceedings in the District Court under this Part but -
(a)the appeal must relate to a question of law; and
(b)leave to appeal must be obtained from the Court of Appeal.
Section 254 of WCIMA is in the same Part of WCIMA as s 247, Pt XIII, which conferred the right of appeal to the District Court.
The appellant appeals out of time
Rule 26(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that this type of appeal must be commenced within 21 days after the date of the decision appealed against. Commissioner Gething's order dismissing the appeal to the District Court was made on 6 June 2012. Any appeal to this court, to be commenced within time, had to be commenced shortly before the end of June 2012. The appellant filed his appeal notice well out of time on 26 September 2012.
The appellant sought an extension of time and filed an affidavit in support of the application. The appellant deposed that he was late in filing the appeal because:
·The applicant was not aware of the time restraints.
·The applicant is suffering from Depression with Anxiety, due to work place [sic] bullying and negligence of the respondents (Allianz & Workcover WA) the applicant advises that his workcover claim is accepted by the respondent (Allianz).
·The applicant advises that the above can be supported by Expert Medical Evidence if required.
·The applicant's legal representative terminated their services in October 2011 due to questions relating to this appeal leaving the applicant at a huge disadvantage.
·The applicant now has evidence from the first respondent (Allianz) supporting the applicant's claim that the Insurer is in fact obligated under the Worker's Compensation and Injury Management Act 1981 to lodge the Regulations form 3B INSURER'S NOTICE THAT LIABILITY IS DISPUTED, something which disproves both the findings of Workcover WA and the District Court.
Principles governing an application for an extension of time
The power to extend time in which to appeal is to avoid injustice. Matters to be considered in deciding whether an extension of time to institute an appeal should be granted include that the respondent has a vested right to retain the judgment, the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal and the extent of any prejudice to the respondent: Girando v Girando (1997) 18 WAR 450, 454; Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [5] ‑ [9]; Simonsen v Legge [2010] WASCA 238 [8]. In determining whether there is an arguable case, the matter should be approached on the basis of an inquiry about whether there was any reasonable prospect of success, as explained in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473: see Raczka v Department of Housing and Works [2008] WASCA 76 [6]. If an appeal has no reasonable prospect of succeeding, then that alone will justify the dismissal of an application to extend time in which to appeal: Jackamarra [7].
Preliminary issue
Before this application was heard, it was necessary to list the matter for directions because the appellant had joined as respondents only Allianz Insurance and WorkCover WA, and not his employer, G4S Custodial Services.
A registrar of this court made determined efforts to persuade the appellant to joint G4S Custodial Services as a respondent, but the appellant steadfastly refused to do so, sending numerous emails to registry. I should record that the appellant has continued to pepper registry with emails - he has sent over 70 emails. Registry is not under any obligation to respond.
Having declined to join his employer as a respondent, the matter came on for directions on 20 December 2012 before the Court of Appeal. The appellant was asked whether he wanted to join G4S Custodial Services as the third respondent. The appellant said that he did move for such an order. As a result, an order was made granting leave to join G4S Custodial Services as the third respondent. It was appropriate that G4S Custodial Services be joined as a party. It was the appellant's employer. It is the employer who is obliged to pay weekly compensation once liability is established: see WCIMA s 18, s 57A(5) and (7).
An order was also made that the appellant serve all three respondents with the amended appeal notice by 4 pm on 7 January 2013, later extended to 16 January 2013. Despite emails from registry, the appellant has still not complied with the orders and thus has not filed the amended notice of appeal. Nevertheless, G4S Custodial Services is the third respondent as a result of the order of 20 December 2012 and the appeal notice has been endorsed by the court to show G4S Custodial Services as the third respondent.
The reasons why an extension of time should not be granted
The appellant wishes to argue that Commissioner Gething erred in dismissing the appeal. Consideration therefore has to be given to whether there is any reasonable prospect that Commissioner Gething erred in his reasons. It is necessary to observe that the appellant confirmed at the hearing that he wished to allege error on Commissioner Gething's part in dismissing the appeal to the District Court. If a charitable view is taken of the first proposed ground of appeal, it can be read as challenging the correctness of Commissioner Gething's reasons. Whether that proposed ground has any reasonable prospect of succeeding is considered below.
The second proposed ground relates to an earlier decision of Commissioner Gething on 1 May 2012, when he dismissed an application by the appellant for leave to adduce evidence at the hearing of the appeal in the District Court. In reasons for dismissing the application (Barkla v G4S Custodial Services [2012] WADC 67), Commissioner Gething said that it was apparent to him that the evidence the appellant sought to adduce was about whether officers of Allianz or WorkCover held particular views about the interpretation of s 57A [21]. Commissioner Gething correctly held that such evidence was 'entirely irrelevant' to the proceedings before the District Court judge [22]. Thus the second proposed ground of appeal has no reasonable prospect of succeeding.
The third proposed ground of appeal alleges that the 'actions of both the respondents are as a matter of fact unlawful and Illeagal [sic]'. That proposed ground of appeal has no reasonable prospect of succeeding.
Returning then to the decision which is appealed against and proposed ground 1, Commissioner Gething gave the following reasons for dismissing the appeal in Barkla [No 2]. His reasons read:
The general principles of statutory construction are summarised in the judgment of Martin CJ (with whom Newnes and Murphy JJA agreed) in Attorney-General (WA) v Schoombee[2012] WASCA 29 [29] ‑ [30]:
The objective of statutory construction is to give to the words of the statutory provision the meaning which the legislature is taken to have intended them to have: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [78] (McHugh, Gummow, Kirby & Hayne JJ); Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The legislative intention to which reference is made in this context is not the ascertainment of the mental state of the legislators at the time the legislation was passed, either collectively or individually: see Zheng v Cai [2009] HCA 32; (2009) 239 CLR 446, [28]; Lacy [43]. Rather, the ascertainment of legislative intention is a statement of compliance with the established rules of construction known to parliamentary drafters and to the courts and which govern the relationships between the arms of government in a system of representative democracy (see Zheng v Cai and Lacy).
The Chief Justice continued that 'one of the well-established rules of statutory construction requires primary regard to be given to the natural and ordinary meaning of the words used in the statute' [31].
The interpretation of WCIMA s 57A was considered by Wheeler JA (with whom Steytler P and Pullin JA agreed) in McGowan v Castrum Pty Ltd [2005] WASCA 198 [4]. Her Honour stated that the purpose of WCIMA s 57A 'in broad terms appears to be to ensure that there is speedy processing of workers' compensation claims'. Her Honour also accepted a concession by the respondent that WCIMA s 57A should simply be construed according to its terms, without adopting either a beneficial or a penal approach [28].
In Sinclair v Bickford WA C5-2011, 11 March 2011, unreported, Commissioner McCann stated of WCIMA s 57A [32]:
The primary purpose of the giving of notices contemplated by WCIMA s 57A(3) (such as the form 3A) is to create certainty and expedition in respect of the handling of a worker's claim. It is irrelevant for that purpose what kind of notice is given to the worker provided that one of the three forms of notice contemplated by subs(3) is given. Once that is done the worker has the right to prove his entitlement pursuant to s 58(1) provided that 17 days have elapsed since the making of a claim.
In my view there are four reasons why the interpretation of WCIMA s 57A(3) proposed by the respondent is to be preferred.
The first is that the natural and ordinary meaning of the words in WCIMA s 57A does not expressly create an obligation on an insurer (or an employer) to file a notice pursuant to WCIMA s 57A(3)(a) or WCIMA s 57A(3)(b) once the reasons preventing a decision being made identified in the Form 3C filed pursuant to WCIMA s 57A(3)(c) have been attended to. If there is an obligation is [sic] would need to be implied.
The second reason is that WCIMA s 57A(3a) expressly deals with the scenario in which an insurer has filed a notice WCIMA s 57A(3)(c) and subsequently decides to either accept or dispute liability. It is to notify the worker of its decision pursuant to WCIMA s 57A(3a)(a) (if it accepts liability) or WCIMA s 57A(3a)(b) (if it disputes liability). Where it disputes liability, there is no prescribed form for notification pursuant to WCIMA s 57A(3a)(b). In particular, there is no requirement on the insurer in WCIMA s 57A(3a)(b) to file a Form 3B, though the insurer has to notify the worker, the employer and the director of the reasons why it disputes liability. If the insurer does not notify the worker of whether it accepts or disputes liability within 10 days after notifying the director within WCIMA s 57A(3)(c), then liability is deemed to be disputed.
The fact that WCIMA s 57A(3a) expressly provides what is to happen once an insurer files a notice pursuant to WCIMA s 57A(3)(c) means that there is no basis, need or justification to imply any additional requirements. Indeed the requirement sought to be implied is contrary to WCIMA s 57A(3a)(b). The requirement sought to be implied would require an insurer who wished to dispute liability to file a notice in the form of Form 3B where there is no specified format in WCIMA s 57A(3a)(b).
The third reason is that the interpretation proposed by the appellant would undermine the certainty and expedition of the regime in WCIMA s 57A. This is because the obligation sought to be imposed is for the insurer to file a Form 3B (or Form 3A if it accepts liability) within a reasonable time of completing the inquiries set out in the Form 3C. The imposition of a requirement to respond within a reasonable time is inconsistent with the overall regime in WCIMA pt II Div 5 which sets out precise timetables in which various steps must be taken, with consequences such as the deeming of a dispute or liability if steps are not taken within the time allowed.
The fourth reason is that there is no need to imply the requirement to file a Form 3B in order to give a worker notice of the reasons why his or her claim may be disputed. This is because as part of the procedure in the WCIMA pt XI application the worker will be given notice of the claim he or she has to meet. Specifically, in the usual course, an employer opposing a claim for weekly payments under WCIMA pt XI would have to file a reply to the application pursuant to Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) r 27 (replacing Workers' Compensation (DRD) Rules 2005 (WA) r 59). This rule provides that the respondent must file a reply:
(a)stating concisely, but with full particularity what parts of the application, if any, are admitted by the party;
(b)stating concisely, but with full particularity, what parts of the application, if any, are disputed by the party; and
(c)giving full particulars of the grounds on which the relevant parts of the application are disputed by the party and the issues for determination by the arbitrator.
This was not done in the present case as the substantive application was commenced as a WCIMA pt XII application. As a WCIMA pt XII application, the respondent was required to, and did, file a Form 6 Notice of Consent or Dispute which set out the basis on which it opposed the payment of weekly payments.
There is a second reason why the appeal must fail. This is because even if there was an implied obligation on an insurer who served a Form 3C to subsequently serve a Form 3B if it wished to dispute liability, the failure to file the second Form 3B would not give rise to a deemed liability for the purposes of WCIMA s 57A(5).
The respondent's insurer did not 'fail.. to comply with subsection (3)' as required by WCIMA s 57(5). It complied by giving notice in the form of a Form 3C dated 8 November 2010. Consistent with the comments of Commissioner McCann in Sinclair (see above par [50]), an insurer complies with WCIMA s 57A(3) by giving one of the three forms of notice required by that section.
The regime as to what occurs if 'within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made' is governed by WCIMA s 57A(3)(ca). If there is to be an obligation of the kind sought to be implied by the appellant, the obligation would need to be implied into s 57A(3a). If there is a breach of WCIMA s 57A(3a), the result is a deemed dispute, not deemed liability within s 57A(5). Thus, even if the respondent did breach the implied obligation, the appellant would be in the same position he is in now: able to make an application to an arbitrator for determination of the deemed dispute pursuant to WCIMA s 58(1) [47] ‑ [60].
Those reasons are unimpeachable. The fact that the appeal has no reasonable prospect of succeeding is sufficient to support the decision to dismiss the application for an extension of time.
However, there was another reason for dismissing the application which only emerged at the hearing of the application as explained below.
Section 57A of WCIMA was complied with when the insurer gave notice under s 57A(3)(c). Ten days later there was a deemed dispute: see s 57A(3a) of WCIMA. After 19 days had elapsed, the appellant had the right to have an arbitrator determine the dispute: see s 58(1). Commissioner Gething said in his reasons that the appellant was in a position to make an application to an arbitrator for a determination of the deemed dispute pursuant to s 58(1) of WCIMA. This suggested that the dispute was ongoing and still unresolved.
It appears that the appellant did make an application. The appellant was asked during oral submissions in this hearing whether the dispute had yet been resolved by an arbitrator. The appellant said that it had not. This misled the court into believing that there was still a dispute between the parties which had to be resolved by arbitration. Counsel for the first and third respondent then intervened and informed the court that liability had been accepted, that compensation was being paid to the appellant and that the appellant had discontinued his application for resolution of the dispute. That means that this appeal is a waste of time.
The appellant has wasted the time of the court, the registry staff and the respondents. There will be no injustice as a result of the dismissal of the application for extension of time. The application for an extension of time having been dismissed, it follows that the appeal is no longer on foot. It is dismissed.
Orders made
The orders made were:
(a)the appellant's application for an extension of time be dismissed;
(b)the appellant pay the first and third respondents' costs of the appeal to be taxed.
The consequential order is that the appeal be dismissed. The reasons above are the reasons why the cost order was made against the appellant.
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