Barkla v Bush
[2015] WADC 46
•1 MAY 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BARKLA -v- BUSH [2015] WADC 46
CORAM: LEVY DCJ
HEARD: 22 APRIL 2015
DELIVERED : 1 MAY 2015
FILE NO/S: CIVO 29 of 2015
BETWEEN: GEOFF BARKLA
Plaintiff
AND
REGISTRAR LINDA BUSH
Defendant
Catchwords:
Proposed action against registrar of Supreme Court - Originating summons - Commencement of proceedings in District Court - Judicial immunity from suit - Vexatious applications and abuse of process
Legislation:
District Court (Fees) Regulations 2002 reg 7(1d)
Rules of the Supreme Court 1971 O 4 r 1
Result:
Originating summons struck out
Representation:
Counsel:
Plaintiff: In person
Defendant: No appearance
Solicitors:
Plaintiff: Not applicable
Defendant: Not applicable
Case(s) referred to in judgment(s):
Barkla v Allianz Australia & Anor [2015] HCASL 40
Barkla v Allianz Australia & G4S Custodial Services [2014] WASCA 192
Barkla v Allianz Insurance & G4S Custodial Services [No 2] [2014] WASCA 222
Ninan v All Registrars of the Supreme Court & Court of Appeal [2015] WASC 99
Re Newnes; Ex parte Barkla [2014] WASC 487
LEVY DCJ: Mr Geoff Barkla (the applicant) filed an originating summons in this court seeking damages ('for non-economic loss of $250,000 (Plus)') against Registrar Linda Bush (the respondent), who is a registrar of the Court of Appeal, Supreme Court of Western Australia (the Court of Appeal).
The action in this court is said to arise in circumstances where the respondent, the learned registrar, refused to accept documents for filing in an appeal that was then before the Court of Appeal, namely the matter of Barkla v Allianz Australia & G4S Custodial Services [2014] WASCA 192 (the appeal proceedings). The wording of the applicant's originating summons includes claims that:
1.The Respondent caused Tort of Defamation by Default
2.The Respondent caused Defamation of Character by Default
3.The Respondent caused Libel of Defamation
4.Obstruction of Justice
5.Abuse of Public Office
6.The Respondent caused Harm to the Plaintiff and the Plaintiff's case in CACV 109 of 2014 due to the above points and the Fact the Respondent Denied the Plaintiff his right to refer a Legal issue to the Court of Appeal, pursuant to the Supreme Court (Court of Appeal) Rules 2005 rule 67 – Referring a Legal issue to the Court of Appeal.
On 22 April 2015 the applicant appeared at a special appointment in relation to the originating summons. In addition, an application was brought by the applicant to have his filing fees remitted.
There was no appearance by the respondent. This was not surprising since the applicant had not served any papers on the respondent.
In advance of the special appointment the applicant provided to the court via email a document entitled 'AFFIDAVIT VERIFYING LIST OF DOCUMENTS' dated 16 October 2014 attaching various annexures (A ‑ D). Although the document is called an affidavit verifying a list of documents, it is no such document. The document sets out six separate paragraphs which include what are referenced to be two questions of law.
In addition to the above document with annexures, the applicant provided to the court a copy of a letter from the associate to Registrar Bush which was addressed to him and dated 21 October 2014. The letter advised the applicant that Registrar Bush had refused to accept documents for filing in the Court of Appeal in relation to the appeal proceedings because they were 'neither required nor permitted by the Rules and, in any event, serve[d] no purpose'. The documents that were not permitted to be filed in the appeal proceedings were the materials entitled 'AFFIDAVIT VERIFYING LIST OF DOCUMENTS' dated 16 October 2014 attaching various annexures (A - D).
Originating summons in the District Court
During the course of the special appointment, notwithstanding the absence of the respondent, the applicant was permitted to make submissions to the court to enable the court to understand the nature of his proposed action against the respondent. In essence the applicant claims the following:
1.The respondent, by refusing to accept the affidavit and annexures for filing in the Court of Appeal had, by default, called him a liar and therefore -
(a)defamed him; and
(b)caused 'libel of defamation'.
2.The respondent, by refusing to accept the documents for filing in the appeal proceedings, had obstructed justice.
3.The respondent, by failing to point out or advise him of what rules the learned registrar relied upon to refuse to accept the documents, had in fact abused her role as a public officer.
4.The respondent, by failing to accept the documents, prevented him from having them considered by the Court of Appeal which caused him harm. The harm is said to be the defamation of his character and psychological harm.
The applicant also submitted that the respondent
is using trickery to advance and deny [him his] rights under the Australian law, namely, the Supreme Court (Court of Appeal) Rules 2005, rule 67 … It's all trickery. It's all falsehood. It's misfeasance, your Honour. (see ts 24 of the hearing of the special appointment on 22 April 2015)
During the course of the hearing I asked the applicant whether, at the time that he sought to file the document called an 'affidavit verifying list of documents' and annexures, the matter in the Court of Appeal had already been dealt with. He advised the court that there had been judgments in the Supreme Court and said: 'I believe there's even a judgment – may have been a judgment in the High Court' (see ts 20 of the hearing of the special appointment on 22 April 2015).
After the hearing concluded the applicant forwarded to the court numerous documents via email relating to applications for special leave to appeal to the High Court from the appeal proceedings in the Court of Appeal. Relevantly, there were two judgments in the appeal proceedings. The first was from a decision of Newnes and Murphy JJA wherein the appellant had filed an interim application in the appeal seeking orders that three named persons each answer four interrogatories. The Court of Appeal delivered its judgment on 8 October 2014 and dismissed the application (Barkla v Allianz Insurance & G4S Custodial Services [No 2] [2014] WASCA 222). In doing so, the court said that:
[T]he application to administer interrogatories is based on a fundamental misunderstanding of the appellate process and the function of this court.
The second judgment in the appeal proceedings was the substantive decision of the Court of Appeal comprising Newnes and Murphy JJA wherein the court dismissed the applicant's appeal. The judgment was delivered on 10 November 2014 (Barkla v Allianz Insurance [No 2]).
The applicant then sought to institute proceedings against Newnes and Murphy JJA as named defendants. Those proceedings were dismissed by McKechnie J on 17 December 2014 on the basis that the proceedings were vexatious and an abuse of process (Re Newnes; Ex parte Barkla [2014] WASC 487 [11]).
The applicant applied for Special Leave to appeal to the High Court in relation to both of the Court of Appeal decisions (Barkla v Allianz Australia & Anor [2015] HCASL 40 P47/2014 and P52/2014). Special leave to appeal was refused by the High Court on 15 April 2015 in relation to both applications.
The applicant, having failed at every stage outlined above, now seeks to institute proceedings against the respondent.
During the hearing of the special appointment on 22 April 2015 the court raised a number of matters for the applicant's consideration. They were:
1.That the proceedings had been brought by way of a originating summons when the Rules of the Supreme Court 1971 (RSC) (O 4 r 1) required the proceedings to be commenced by writ;
2.That the originating summons had not been served on the respondent;
3.That in any event, even if he had commenced the action properly by way of writ and had served it on the learned registrar, he would need to overcome the doctrine of judicial immunity since he was seeking to bring an action against a judicial officer acting in her capacity as a registrar of the Supreme Court.
In relation to the first two issues, the applicant did not seek to apply for an adjournment of the matter or seek any remedy to cure the defects.
In relation to the third issue raised by the court, the applicant submitted that the Constitution overrode the principle of judicial immunity. The applicant claims that in this case there had been a violation of his rights and he had been denied 'freedom of speech'.
The proceedings were brought by way of an originating summons. Proceedings for defamation are required, pursuant to O 4 r 1 the RSC, to be commenced by way of writ. Consequently, these proceedings have been irregularly brought.
Furthermore, the originating summons has not been served on the respondent.
Leaving aside the irregularities and the applicant's failure to serve the respondent, the originating summons is doomed to fail.
Neither the originating summons nor any of the materials provided by the applicant discloses any reasonable cause of action. There was no evidence before the court that could support any reasonable cause of action.
Even if there was a reasonable cause of action, the applicant could never succeed against the respondent who was acting in her capacity as a Registrar of the Court of Appeal. The doctrine of judicial immunity prevents actions against not only judges, but also registrars acting in their official capacity (Ninan v All Registrars of the Supreme Court & Court of Appeal [2015] WASC 99 [4]).
Conclusion
The originating summons is vexatious and an abuse of process. Consequently, the order of the court is that the originating summons is struck out.
Finally, it should be noted that at the time of the special appointment there was also an application before the court for the filing fees to be remitted. Whilst the District Court (Fees) Regulations 2002 reg 7(1d) seem to require that the filing fees in this matter be waived, it is unnecessary to do so in light of the order that the originating summons be struck out.
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