Barkla v Civitella - [2016] WADC 3

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BARKLA -v- CIVITELLA [2016] WADC 3

CORAM: DAVIS DCJ

HEARD: 2 NOVEMBER 2015

DELIVERED : 20 JANUARY 2016

FILE NO/S: CIV 1717 of 2015

BETWEEN: GEOFF BARKLA
Plaintiff
AND
MARK CIVITELLA
Defendant

Catchwords:

Practice and Procedure - Application by defendant for summary judgment - Application to strike out indorsement of claim - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 O 16 r 1, O 20 r 19 and O 30 r 2(1)
Workers' Compensation and Injury Management Act 1981 s 57A

Result:

Indorsement of claim struck out
Action dismissed
Judgment for defendant

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr C S Gough

Solicitors:

Plaintiff: Not applicable
Defendant: Mills Oakley

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

Barkla v Allianz Australia [2015] WASCA 210
Barkla v Allianz Australia Insurance Ltd [2013] WADC 90
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 Australia Insurance Ltd [No 2] [2014] WASCA 222
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
Barkla v WorkCover WA [2014] WADC 159
Barkla v WorkCover WA [2014] WASCA 40
Bebonis v Angelos (2003) 56 NSWLR 127
Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221
Burton v Shire of Bairnsdale (1908) 7 CLR 76
Commercial Developments Pty Ltd v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208
Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (a firm) [2006] WASC 24
Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92
Peruvian Guano Company v Bockwoldt (1883) 23 Ch D 225
Sinclair v Bickford [2011] WACC C5-2011
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Spalla v St George Motor Finance Ltd [No 6] [2004] FCA 1699

DAVIS DCJ: On 12 May 2015 Mr Barkla, the plaintiff in this action, filed a writ of summons against Mr Civitella, the defendant.
This action is one of a long list of proceedings commenced by Mr Barkla, who is self-represented, arising from Mr Barkla's workers' compensation claim against his employer and his construction of s 57A(3) of the Workers' Compensation and Injury Management Act 1981 (WCIMA).
Mr Civitella represented the employer, G4S Custodial Services Pty Ltd, and its insurer, Allianz Australia Insurance Ltd, in a number of workers' compensation proceedings, appeals and other actions brought by Mr Barkla against his employer and Allianz, all of which have been unsuccessful.
Mr Civitella has applied for orders that the whole of the indorsement of claim in the writ be struck out pursuant to O 20 r 19(1)(a), r 19(1)(b), r 19(1)(c) and r 19(1)(d) of Rules of the Supreme Court 1971 (RSC) and for summary judgment against Mr Barkla pursuant to RSC O 16 r 1(1)(a).
For the reasons set out in this judgment, I have concluded the indorsement of claim should be struck out and that Mr Civitella is entitled to judgment.
There are a number of reasons why I have come to this conclusion, all of which I address in these reasons, however, I need to mention two reasons in particular.
The first is that Mr Barkla's claim is based on the Australian Human Rights Commission Act1986 (Cth). The District Court of Western Australia has no jurisdiction in relation to this Act or the declaratory relief which is claimed in the indorsement.
The second is that this writ is clearly another attempt by Mr Barkla to re‑litigate his construction of WCIMA s 57A(3), despite all of the decisions against him.
It is obvious from the submissions that Mr Barkla made to me during the hearing of this application that he is convinced that his construction of s 57A(3) is correct and that he feels aggrieved by the decisions against him. He submitted that all of the court decisions against him were wrong, that 'the courts are misleading and dishonest' (ts 61) and that he was being denied justice.
None of the court decisions against him was wrong. None of the judicial officers hearing his arguments has either misled him or been dishonest. Mr Barkla has not been denied justice.
The District Court cannot entertain any further proceedings by Mr Barkla which are in any way connected with the construction of WCIMA s 57A(3). His attempts to re-litigate this matter are an abuse of process, vexatious, and a waste of the court's resources, and must end.

Background

Much of the relevant background is set out in related decisions which I discuss below, in particular Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78 [5] ‑ [26], and Barkla v Allianz Australia Insurance Ltd [2014] WADC 23. I incorporate those histories in these reasons, but it is necessary for the determination of this matter to set out the background in some detail, as well as developments since those two decisions, as set out in Mr Civitella's affidavit sworn 7 October 2015 in support of his application for summary judgment, alternatively to strike out the writ.
In 2010 Mr Barkla was employed as a custodial services supervisor by G4S Custodial Services.
Following an incident at work in September 2010, on 5 November 2010 Mr Barkla lodged a claim for workers' compensation for 'stress'.
Section 57A of the WCIMA sets out the procedures when an employee (worker) makes a claim for compensation on an employer and the employer then claims from its insurer. As at 5 November 2010, s 57A(3) and s 57A(3a) provided:
(3)Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer -
(a)give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed;
(b)subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c)give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.
Penalty: $1 000.
(3a)If within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made, the insurer has not -
(a)notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,
the claim by the worker shall be deemed to be disputed.
The form used to give notice of acceptance of liability is referred to as a Form 3A. The form used to give notice that liability is disputed is a Form 3B. A Form 3C is used where the insurer is not able to make a decision as to whether to accept or dispute liability within the 14 days allowed in s 57A(3).
On 8 November 2010 Mr Barkla's employer's insurer, Allianz, gave Mr Barkla a Form 3C notice. This stated that further medical and factual information was required before Allianz could ascertain whether Mr Barkla had suffered an injury in the course of his employment or whilst acting under the employer's instruction, and a full report had been requested by the treating GP (general practitioner). Allianz also reserved the right to have Mr Barkla undergo an independent medical examination with a provider of its choice.
On 17 November 2010 Mr Barkla's general practitioner provided a report to Allianz in which he confirmed that Mr Barkla was suffering from major depression with co-existing anxiety. In the general practitioner's opinion Mr Barkla's employment had contributed significantly to this.
After giving the Form 3C notice, Allianz did not notify Mr Barkla, within the further 10‑day period under s 57A(3a), either that it accepted or disputed liability for his claim. As specifically provided for in s 57A(3a), liability for Mr Barkla's claim was deemed to be disputed.
Allianz (on behalf of the employer) was not required to do anything further in terms of rejecting the claim. It was up to Mr Barkla to commence proceedings, pursuant to WCIMA s 58, for a determination of the employer's liability to pay him compensation. In other words, he had the right to prove his entitlement to workers' compensation pursuant to s 58: see Sinclair v Bickford [2011] WACC C5-2011 [32]; Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78 [50], [59] and [60]; Barkla v Allianz Insurance [2013] WASCA 21 [19], [20] and [22].
On 31 January 2011 Mr Barkla applied for interim weekly payments of compensation. That application was opposed by Allianz but orders in Mr Barkla's favour were made on 11 February 2011.
On 23 February 2011 Mr Barkla was reviewed by a psychiatrist, Dr Mander, at Allianz's request. Dr Mander provided a report dated 24 February 2011 to Allianz.
On 14 March 2011 Mr Barkla filed a second application seeking further interim weekly payments. That application was again opposed by Allianz. The arbitrator hearing the application declined to make the order for interim payments and ordered that the matter be dealt with as a substantive dispute.
On 5 January 2012 Mr Barkla lodged another application for an order for weekly payments pursuant to WCIMA s 57A(5) on the ground that Allianz had not complied with s 57A(3)(b). He argued that once Allianz had decided to dispute his claim, it was bound to give another notice (Form 3B) under s 57A(3)(b). It had not given him such a notice and Mr Barkla contended that the failure to do so triggered a liability on the part of Allianz to make weekly payments.
The application lodged by Mr Barkla was heard by a WorkCover arbitrator, Registrar Melville, who dismissed Mr Barkla's application on 20 January 2012. In written reasons for decision, Registrar Melville held that Allianz was not required to give a further notice under s 57A(3)(b). Weekly payments could not be ordered when a dispute was deemed to exist by the operation of s 57A(3a).
Mr Barkla took this matter on appeal to the District Court. Leave to appeal was required pursuant to WCIMA s 247. Both the issue of leave to appeal and the appeal were heard by Commissioner Gething. At this appeal hearing Mr Barkla argued in effect that once Allianz had received the information it required, which it had set out in its Form 3C notice, Allianz should have, within a reasonable period, either filed a Form 3A notice accepting liability or a Form 3B notice disputing liability. Mr Barkla submitted that a reasonable period was 21 days and the failure to file one of these two notices within that time period meant that there had been a failure to comply with s 57A(3). This gave him an entitlement to weekly payments.
Mr Barkla also argued that he had been denied natural justice in relation to the dispute proceeding to arbitration because he had not been provided with information which would have been provided had a Form 3B notice been given to him i.e. why liability was disputed.
On 6 June 2012 Commissioner Gething dismissed Mr Barkla's appeal. In written reasons he carefully went through all of the reasons why Mr Barkla's arguments had no foundation: Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78 [51] ‑ [64]. Commissioner Gething held that s 57A did not contain a requirement for an insurer to give a Form 3B notice where it has initially given a Form 3C notice and subsequently wishes to dispute liability. In summary, the reasons for this were as follows:
(a)first, the natural and ordinary meaning of the words in the section created no obligation on an insurer to give a notice pursuant to s 57A(3)(a) (Form 3A) or s 57A(3b) (Form 3B) once the reasons given in a Form 3C notice fell away;
(b)secondly, s 57A(3a) expressly provided what was to happen where an insurer has given a Form 3C notice and then does not give a notice accepting or disputing liability within the prescribed time. The claim is deemed to be disputed. Thus there is no 'basis, need or justification to imply any additional requirements';
(c)thirdly, an implied requirement to give a Form 3B notice would be inconsistent with WCIMA pt 11 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;
(d)fourthly, there was no reason to imply a requirement to give a Form 3B notice for the purpose of providing reasons for dispute because the Worker's Compensation and Injury Management Arbitration Rules 2011 required an employer to file a detailed reply to a claim for weekly payments; and
(e)finally, even if there was an implied obligation on an insurer who served a Form 3C notice to subsequently serve a Form 3B notice if it wished to dispute liability, the failure to file the second Form 3B notice would not give rise to a deemed liability for the purpose of WCIMA s 57A(5).
Mr Barkla sought to appeal this decision, out of time, to the Court of Appeal. On 1 February 2013 his application for an extension of time within which to appeal was dismissed because the Court of Appeal held his appeal had no reasonable prospect of success: Barkla v Allianz Insurance [2013] WASCA 21 (Pullin and Murphy JJA). It was held that Commissioner Gething's decision was correct and his reasons 'unimpeachable': [20]. For that reason alone the Court of Appeal determined that Mr Barkla's application for an extension of time should be dismissed.
However, there was another reason for dismissing Mr Barkla's application for an extension of time within which to appeal. After Commissioner Gething's decision - in fact on 3 July 2012 – Allianz accepted liability for Mr Barkla's claim and made payments of workers' compensation, including back payments. As explained by the Court of Appeal:
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. [22] – [24]
During 2013 the total of Mr Barkla's weekly payments reached the prescribed (maximum) amount under the WCIMA, which was $198,365.
In 2013 Mr Barkla commenced proceedings in the District Court (CIV 638 of 2013) against Allianz and WorkCover claiming damages for breach of a duty of care which he alleged each of them owed him in relation to the management of his workers' compensation claim. He contended that the acceptance of his claim was unnecessarily delayed and that this permanently exacerbated his injury and that he was entitled to damages. Allianz and WorkCover applied to strike out the statement of claim. Allianz also applied for summary judgment and WorkCover applied for the action against it to be dismissed as, amongst other things, an abuse of process.
Allianz's and WorkCover's applications were heard by Fenbury DCJ, who on 12 June 2013 ordered that, in respect of both Allianz and WorkCover, the whole of the statement of claim be struck out pursuant to RSC O 20 r 19(1) on the basis that it disclosed no reasonable cause of action, that judgment be entered for Allianz pursuant to RSC O 16 r 1(1)(a) and that the claim against WorkCover be dismissed: Barkla v Allianz Australia Insurance Ltd [2013] WADC 90.
On 1 July 2013 Mr Barkla filed an appeal against his Honour Judge Fenbury's decision. On 15 October 2013 Mr Barkla's appeal was dismissed by the Court of Appeal in Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240 (McLure P and Murphy JA).
Mr Barkla also made an application at WorkCover pursuant to s 217 of the WCIMA for an increase in the prescribed amount of weekly payments. An arbitrator dismissed that application on 13 December 2013 and Mr Barkla sought leave to appeal from that decision.
On 6 January 2014 Mr Barkla attempted to file another writ in the District Court against Allianz, in CIVO 1 of 2014. The principal registrar declined to accept the writ and referred the issue to a judge pursuant to RSC O 67 r 5.
The judge who heard both of these matters was McCann DCJ who delivered written reasons on 19 February 2014: Barkla v Allianz Australia Insurance Ltd [2014] WADC 23. His Honour Judge McCann:
(a)made directions in relation to Mr Barkla's appeal from the arbitrator's decision of 13 December 2013 which directions included, among other things, that Mr Barkla have leave to amend his grounds of appeal by no later than 12 March 2014; and
(b)held that the writ did not plead a recognised common law cause of action and also that because of the dismissal of CIV 638 of 2013, Mr Barkla was prevented by the law of estoppel and res judicata from re-litigating the same action: [69], [74] - [76]. His Honour found that the principal registrar was correct in finding that CIVO 1 of 2014 was an abuse of process, frivolous and vexatious because it did not disclose any recognisable right to sue Allianz. As his Honour described it, the claim was 'untenable': [77].
His Honour also stated:
The District Court no longer has any jurisdiction to entertain any proceedings against Allianz and Mr Barkla must focus on the appellate jurisdictions if he wishes to proceed with CIV 638 of 2013 against Allianz. I therefore order that the writ of summons in CIVO 1 of 2014 not be accepted for filing [81].
Mr Barkla's appeal from the arbitrator's decision of 13 November 2013 came back before his Honour Judge McCann for further directions. When Mr Barkla filed his amended appeal grounds they included ground 3 which read 'Respondent failed to issue a Notice (form 3B) pursuant to s 57A(3)(b) WCIMA'. On 26 March 2014 His Honour Judge McCann ordered a permanent stay of the appeal: Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36. In the course of his reasons his Honour addressed ground 3, noting:
I made it clear in my earlier decision and during the directions hearing on 5 March 2014 that Mr Barkla could not, and would not, be given leave to appeal unless his grounds of appeal addressed all of the essential issues in the arbitration (including Mr Barkla's social and financial circumstances and needs) and which pointed to alleged errors in the arbitrator's reasoning about those issues.
I identified a number of matters which would not meet those requirements. Proposed ground 3 above is one of them. This is the case for a number of reasons which have been explained to Mr Barkla on several occasions by numerous courts. Put shortly, the contention on which he relies (namely that the employer is liable to compensate him because of its failure to issue a notice pursuant to s 57A(3)(b) of the Workers' Compensation and Injury Management Act 1981 (WCIMA)) has been rejected on many occasions (see my earlier decision at [33]). Moreover, the contention is entirely redundant and irrelevant to this application for leave to appeal because on 3 July 2012 the employer ultimately accepted liability and commenced weekly payments (including all arrears).
So, Mr Barkla's continued attempt to rely on ground 3 amounts to an abuse of the process of the court. Leave to appeal is refused in respect of that ground. [4] ‑ [6]

It appears from another Court of Appeal decision, Barkla v WorkCover WA [2014] WASCA 40, that in WCIMA s 217 proceedings, Mr Barkla asked Arbitrator Nunn to order that there be a statement of agreed facts. (It is not clear to me whether this took place in a further application under WCIMA s 217 for an increase of the prescribed amount, or in the same s 217 proceedings determined on 13 December 2013). The arbitrator refused to make such an order. Mr Barkla then attempted to file a notice of appeal to the District Court of Western Australia against this refusal. The principal registrar of the District Court refused to accept the notice of appeal for filing pursuant to RSC O 67 r 5 without leave being obtained from a judge.
Mr Barkla then brought an application for leave which was heard by Bowden DCJ. The application for leave was refused. His Honour Judge Bowden stated that in his opinion the contentions of Mr Barkla sought to re‑agitate the issue of whether Allianz was required to file a notice under s 57A(3) disputing liability and that the appeal was frivolous, or vexatious or an abuse of process. Mr Barkla appealed to the Court of Appeal and on 21 February 2014 his appeal was dismissed: Barkla v WorkCover WA [2014] WASCA 40.
After this, Mr Barkla sought a reconsideration of Registrar Melville's original decision. An application for a reconsideration may be made if new information becomes available after an arbitrator makes a decision: see s 217A of the WCIMA. 'New information' is defined in that 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.
The 'new information' which Mr Barkla relied upon were extracts from Hansard, correspondence received by Mr Barkla from Allianz and WorkCover WA, a statement of claim dated 13 March 2014 and various correspondences between Mr Civitella's firm and Mr Barkla. The Hansard extracts (which I have taken from Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222, a decision I will return to later in these reasons) were:
(a)Answers given by the Hon. Michael Mischin, then Minister for Commerce, to questions asked on behalf of Mr Barkla by the Hon. Ljiljanna Ravlich on 27 June 2013. These were questions concerning Mr Barkla's worker's compensation claim and why WorkCover 'allowed non-compliance with s 57A(3)(b) by Allianz for a period of 21 months.' The Minister said:
I'm advised that Allianz was not required to issue a notice under section 57A(3b) of the Worker's Compensation and Injury Management Act 1981 in respect of Mr Barkla. This particular matter has been considered by various courts on appeal by Mr Barkla, which confirm the decision of the WorkCover WA arbitrator.
(b)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 [Mr Barkla]; and, if so, when was it issued and who issued it?
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 insurer was not required to issue a form 3B in relation to his claim.
Mr Barkla's application for reconsideration was dismissed by Arbitrator Nunn on 19 May 2014. In written reasons for decision Arbitrator Nunn considered that the extracts from Hansard was 'new information' but the other correspondence was not. Arbitrator Nunn was of the view that parliamentary debates were extrinsic material that might assist in statutory interpretation. However, he held that the new information did not justify a reconsideration of Registrar Melville's decision and that he was bound by the appeal decisions from that decision. In addition Arbitrator Nunn noted that:
(a)Mr Barkla had received his entire entitlement to workers' compensation under the WCIMA and:
… as Mr Barkla's entitlement to compensation is exhausted, I am at a loss to see how a contrary view affords Mr Barkla any further remedy under s 271A. [10]
(b)Mr Barkla suggested that he was seeking a declaration that Registrar Melville erred in order to ground an action in negligence against the insurer. Arbitrator Nunn stated that:
… I consider this action may be an abuse of process as that appears to be using these proceedings for a purpose other than resolution of the initial dispute under this Act [63].
Mr Barkla applied to the District Court for leave to appeal this decision of Arbitrator Nunn. On 28 August 2014 Staude DCJ struck out the appeal notice and dismissed Mr Barkla's application for leave to appeal: Barkla v Allianz Australia Insurance Ltd [2014] WADC 113.
His Honour Judge Staude held that Mr Barkla's appeal was a reconsideration of the question of construction that had been settled by the Court of Appeal in its earlier decision, Barkla v Allianz Australia Insurance Ltd [2013] WASCA 21. His Honour found that Arbitrator Nunn's decision to dismiss the application for a reconsideration was correct and that the appeal should be struck out as an abuse of process, with his Honour stating:
In my view Mr Barkla's application to the WorkCover WA Arbitration Service for a reconsideration of the decision of Registrar Melville, in circumstances where liability for workers' compensation have been accepted, and compensation paid in full, serves no legitimate purpose. Moreover, it would seem from what Mr Barkla told Arbitrator Nunn and me that he wants the declaratory finding in his favour on the construction issue to ground a separate legal action against Allianz. This purpose is improper [41].
I should also observe that his Honour Judge Staude took a different view from Arbitrator Nunn about the use of Hansard as a tool of statutory construction, holding at [25] that questions of the responsible minister about the operation of a statute in a particular case, and the answers to them, are not capable of being extrinsic materials for the purposes of s 19 of the Interpretation Act 1984.
Mr Barkla took this decision on appeal to the Court of Appeal. This appeal was dismissed by Newnes and Murphy JJA in Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222. Mr Barkla's appeal was held to have no prospect of success. The Court of Appeal noted:
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.
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.
…
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 [35], [36], [38].
(bold my emphasis)
In relation to Mr Barkla's reliance on the extracts from Hansard, the Court of Appeal noted that Mr Barkla obviously placed great store on this and that the questions were no doubt asked at his instigation, in the mistaken belief that the answers would assist him. It was evident that Mr Barkla had seized upon the Minister's answer to the first question on 13 August 2013, without regard to any of the other answers. The Court of Appeal stated that read in their entirety, the views expressed by the Minister were completely contrary to Mr Barkla's contention: Barkla v Allianz [No 2] [2014] WASCA 222 [24].
After this decision Mr Barkla took the matter to the High Court. His application for special leave to appeal was dismissed on 9 April 2015.
On 12 May 2015 Mr Barkla then issued the current writ in these proceedings and another writ against Allianz in District Court action number 1719 of 2015. In the indorsement of claim in the writ in the action against Allianz he claimed as follows:
The plaintiff's claims and CAUSE OF ACTION is Deprivation of Liberty, Denied Freedom of Speech, Malfeasance, and Victimisation by the Defendant Allianz Australia. The Defendant Allianz Australia actions are inconsistence [sic] with and contrary to the Human Rights of 'Freedom of Speech' and constitutes unlawful discrimination, pursuant to the Australian Human Rights Commission Act 1986. (Please refer to the letter from the Plaintiff to the Defendant dated 28 April 2015 in which the Defendant refuses and has failed to answer two questions)
1.Deprivation of Liberty by the Defendant Allianz Australia, unjust and wrongful acts of omissions to answer relevant questions is in fact and in truth violations of "Freedom of Speech" pursuant to the Australian Human Rights Commission Act 1986 and of the Australian Constitution in which High Court Chief Justice Robert French refers to "Freedom of Speech" as the ultimate constitutional foundation in Australia
2.Denied Freedom of Speech by the Defendant Allianz Australia, wrongful and unjust acts of omissions to answer questions that are in fact and in truth an act which the Respondent is required to perform, causing harm and miscarriage of Justice.
3.Malfeasance by the Defendant Allianz Australia, wrongful and unjust acts of omissions to answer questions is in fact and in truth an act which the Defendant has no legal right to perform, causing harm and perverting the course of Justice.
4.Victimization by the Defendant Allianz Australia, who refuses to answer legitimate questions in order to pervert the course of justice, causing harm to the Plaintiff.
5.By what Legal Authorities and or Written Laws, provides for a Defendant to refuse to answer legitimate questions of a Plaintiff?
Under a heading 'Legal Authorities' Mr Barkla set out the definition of 'human rights', certain articles from the International Covenant on Civil and Political Rights (set out in Sch 2 of the Australian Human Rights Commission Act 1986 (Cth), an extract from Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92) and a reference to the 'Commonwealth of Australia Constitution Act – clause 5'. The writ concluded:
Question of Law
One Question of Law to the District Court WA – By what Legal Authorities and or Written Laws, provides for a Defendant to deny a Plaintiff his Human Rights to ask questions and Receive answers? (FREEDOM OF SPEECH) – (ABUSE OF PUBLIC OFFICE)
I note that a Registrar is NOT legally qualified to deal with a Question of Law, pursuant to the District Court Rules 2005 Rule 8(1)(b)(i) a question of law.
In action CIV 1719 of 2015 Allianz applied for summary judgment and to strike out the writ. Judgment was granted in favour of Allianz and the writ struck out by his Honour Judge Stone on 31 July 2015. Written reasons were not provided but oral reasons were recorded and transcribed.
Mr Barkla has filed an Appeal Notice in the Court of Appeal, appealing Judge Stone's decision.

Mr Barkla's claim in this action

The indorsement of claim in this writ commences in almost exactly the same terms as the claim against Allianz, as follows:
The plaintiff's claims and Cause of Action is Deprivation of Liberty, Denied Freedom of Speech, Malfeasance, and Victimisation by the Defendant. The Defendants actions are inconsistence [sic] with and contrary to the Human Rights of 'Freedom of Speech' and constitutes unlawful discrimination, pursuant to the Australian Human Rights Commission Act 1986. (Please refer to the letter from the Plaintiff to the Defendant dated 28 April 2015 in which the Defendant refuses and has failed to answer two (2) questions).
The letter dated 28 April 2015 is annexed to the writ. The two questions referred to in the indorsement as contained in the letter are (with original emphasis by Mr Barkla):
1.Do you agree with me that Nothing in section 57A(3a) 'Deemed to be Disputed' of the WCIMA eradicates an insurer's requirement to issue to a Worker a Statutory Regulations Form 3B (insurer's notice that liability is disputed) when an insurer disputes liability for a workers' compensation claim?
2.By what Legal Authorities and or Written Laws, pursuant to the Written Law of the WCIMA, provide for an insurer to dispute liability for a Workers Compensation claim and Not issue to a Worker a Statutory Regulations Form 3B (insurer's notice that liability is disputed)?
The indorsement of the writ then continues, as it did in the writ against Allianz, as follows:
1.Deprivation of Liberty by the Defendant Mark Civitella, unjust and wrongful acts of omissions to answer relevant questions is in fact and in truth violations of 'Freedom of Speech' pursuant to the Australian Human Rights Commission Act 1986 and of the Australian Constitution in which High Court Chief Justice Robert French refers to 'Freedom of Speech' as the ultimate constitutional foundation in Australia
2.Denied Freedom of Speech by the Defendant Mark Civitella, wrongful and unjust acts of omissions to answer questions that are in fact and in truth an act which the Respondent is required to perform, causing harm and miscarriage of justice.
3.Malfeasance by the Defendant Mark Civitella, wrongful and unjust acts of omissions to answer questions is in fact and in truth an act which the Defendant has no legal right to perform, causing harm and perverting the course of Justice.
4.Victimization by the Defendant Mark Civitella, who refuses to answer legitimate questions in order to pervert the course of justice, causing harm to the Plaintiff.
5.By what Legal Authorities and or Written Laws, provides for a Defendant to refuse to answer legitimate questions of a Plaintiff?
The writ then goes on to include, under the heading 'Legal Authorities' the same matters as in the writ against Allianz – the definition of 'human rights', certain articles from the International Covenant on Civil and Political Rights, an extract from Monis v The Queen and reference to the 'Commonwealth of Australia Constitution Act – clause 5'. The writ concludes (as it did in the writ against Allianz):
Question of Law
One Question of Law to the District Court WA – By what Legal Authorities and or Written Laws, provides for a Defendant to deny a Plaintiff his Human Rights to ask questions and Receive answers? (FREEDOM OF SPEECH) – (ABUSE OF PUBLIC OFFICE)
I note that a Registrar is NOT legally qualified to deal with a Question of Law, pursuant to the District Court Rules 2005 Rule 8(1)(b)(i) a question of law.
As Mr Barkla confirmed in the hearing before me (ts 55) the claim against Mr Civitella arises out of an alleged failure by Mr Civitella to answer the two questions which focus on Mr Barkla's construction of WCIMA s 57A(3).
The two questions are also contained in a Notice to Admit Facts which Mr Barkla subsequently attempted to file in this action on 13 August 2015. He also attempted to file a chamber summons dated 24 September 2015 seeking default judgment and orders that the Notice to Admit Facts be answered by Mr Civitella, and then a further Chamber summons in similar terms dated 27 October 2015. I will address the issue of the Notice to Admit Facts later in these reasons.

This court has no jurisdiction

Returning to the writ which has been filed by Mr Barkla, the cause of action is said to arise from the Australian Human Rights Commission Act1986 (Cth).
As set out in the short title to the Act, it is an Act to establish the Australian Human Rights Commission, to make provision in relation to human rights and in relation to equal opportunity in employment, and for related purposes. The District Court of Western Australia has no jurisdiction in relation to this Act: see s 49B; see also Barkla v Allianz Australia [2015] WASCA 210 [9].
In addition, Mr Barkla's claim is not a recognised cause of action which falls within any of the categories of jurisdiction listed in s 50 of the District Court Act 1969. It is clear from the two questions and also the 'Question of Law' which Mr Barkla has asked the District Court to answer in his writ, as well as his arguments raised at the hearing of this application, that Mr Barkla is seeking purely declaratory relief. That relief is beyond the jurisdiction of the District Court: Barkla v WorkCover WA [2014] WADC 159 [9]; Commercial Developments Pty Ltd v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208, 219.

The claim is unsustainable

Mr Barkla's claim is based on an alleged requirement for Mr Civitella to answer the two questions. Mr Barkla admitted (ts 57) that both questions relate to WCIMA s 57A(3).
In his submissions, Mr Barkla placed reliance on Hansard, the same extracts which I have set out in [43], relying only on the first answer given by the Attorney General on 13 August 2013 - as he did in the Court of Appeal in Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222 - and then posing the question (ts 57):
Now, how can the courts, the Court of Appeal and the District Court, rule against statutes of law that the Attorney General says this is the law?
When I raised the appeal decision with Mr Barkla during the hearing his response to me was:
But the Court of Appeal is wrong, your Honour.
Mr Barkla then stated (ts 58):
… It may have been decided but it was unlawfully decided because I put to you today that the Attorney General said on Hansard, in writing – who's right? Is the Attorney General right or is the court right, your Honour?
Later, when I told Mr Barkla that the two questions the subject of his writ had been answered by the Court of Appeal, he answered (ts 59 and ts 61):
No, No, they haven't, because if the Attorney General says it's different then something's not right, your Honour….
… how can the Attorney General say against what the law says? What – what – sorry – what the court says. The law say they're required to. How can the Attorney General honestly, on Hansard, on record, say that Allianz are required to issue the form 3B and then no – and then the courts say, 'No, they're not'. And why have the courts allowed Allianz to fail to comply with the law?

There are a number of difficulties with Mr Barkla's submissions about the extracts from Hansard. The first difficulty is that Mr Barkla seems to be under the impression that a statement by the Attorney General in response to a question from another member of Parliament during question time has the status of law. This is not so. The only law which emanates from Parliament is in the form of Acts and subsidiary legislation. The definition of 'written law' in the Interpretation Act is 'all Acts for the time being in force and all subsidiary legislation for the time being in force'.
The second difficulty is that Mr Barkla seems to be under the impression that an opinion expressed by a member of Parliament on a matter of construction of an Act can assist him. It cannot. As stated by the Court of Appeal in Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222 the construction of an Act is determined by the court applying the principles of statutory construction. While s 19 of the Interpretation Act does set out limited circumstances where extrinsic material, such as Hansard, may be used by the court in the interpretation of an Act, those circumstances do not apply in this case.
The third difficulty with Mr Barkla's submissions about the extracts from Hansard is that he relies only on the first answer given by the Attorney General on 13 August 2013. Mr Barkla cannot do this. As explained to him by the Court of Appeal in Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222 and as I have set out in [49] above, the answers by the Attorney General to the parliamentary questions when read as a whole, are contrary to Mr Barkla's contention.
Finally, the construction of WCIMA s 57A has been determined by the Court of Appeal in Barkla v Allianz Insurance Ltd [2013] WASCA 240. The issue of this writ based on the two questions is another attempt by Mr Barkla to challenge that Court of Appeal decision and re‑agitate a question of law which has already been decided.
The extracts from Hansard relied upon by Mr Barkla cannot be used by him in the way in which he has attempted to use them in support of his claim in the current writ based on the two questions.
When I asked Mr Barkla why did he say Mr Civitella has to answer the two questions, Mr Barkla (ts 61) relied on RSC O30 r 2(1) and the Notice to Admit Facts which he has attempted to file, which includes the same two questions as in the writ. Mr Barkla argued that 'the defendant has failed to comply with statutory written laws of the Rules of the Supreme Court 1971 Order 30 Rule 1(1)' (ts 64, and see also ts 65).
This is based on a fundamental misunderstanding of what RSC O 30 r 2(1) provides.
A Notice to Admit facts is a method which can be used by a party in an action, before trial, to request an admission as to facts from the other party.
A Notice to Admit Facts issued by one party does not have to be answered by the other party. It is not a legally enforceable demand. The court cannot compel a party to answer a Notice to Admit Facts.
The consequence if a party chooses not to answer a Notice to Admit Facts is one relating to costs, as set out in RSC O 66 r 3(2). This provides that if a party refuses or neglects to admit the facts the subject of the Notice, then the costs of proving the facts shall be paid by him, unless the court otherwise orders.
Contrary to Mr Barkla's submissions and claims in his chamber summons dated 27 October 2015, O 30 R 2(1) is not a 'Written Law' which requires a defendant to 'perform an act'. There is no legal basis for the determination of a proceeding on a failure to admit a fact in a Notice to Admit Facts.
Returning to the indorsement of claim on the writ and the 'One Question of Law to the District Court, WA', there is no 'Legal Authorities' or 'Written Law' which required Mr Civitella to answer the two questions. Neither Hansard nor RSC 30 r 2(1) can be used to argue that the law required Mr Civitella to answer the two questions.
An alleged failure to respond to Mr Barkla's questions on the construction of WCIMA s 57A, a matter of law which has already been determined by the Court of Appeal, does not give rise to any cause of action for breach of 'human rights', or 'deprivation of liberty', malfeasance, or 'victimisation' as set out in the indorsement in the writ.
As to Mr Barkla's claim in relation to 'freedom of speech', as it has been set out in the indorsement of claim and his submissions, this is based on a right not only to ask questions, but also an alleged right to receive answers. This appears to be based on the Australian Human Rights Commission Act Schedule 2 Article 19(2) which states that everyone shall have the right to freedom of expression, which includes the right to seek, receive and impart information and ideas of all kinds. That right does not give rise to a cause of action against Mr Civitella to require him to answer the two questions on a matter of law which has been determined by the Court of Appeal. Such a claim against Mr Civitella is nonsensical. The case of Monis v The Queen does not assist Mr Barkla.
In any event, Mr Barkla has previously posed other questions to Mr Civitella which have addressed the same subject matter as the two questions, (namely the construction of WCIMA s 57A), and Mr Barkla has received Mr Civitella's answers to those questions.
In a letter dated 30 August 2013 from Mr Civitella to Mr Barkla (MJC24 to Mr Civitella's affidavit sworn 7 October 2015), Mr Civitella set out the text of an email from Mr Barkla in which he asked:
Can you both please advise, (Keeping in mind the Form 3C INSURER'S NOTICES WHERE NO DECISION ABOUT LIABILITY from Allianz). Why the Insurer Allianz was NOT Required to issue a Form 3B in relation to my claim??????????????????????????
I look forward to your expedient response.
Mr Civitella responded as follows:
This has been answered many times over. The above mentioned decisions that Registrar Melville, Commissioner Gething, and the Full Court of the Court of Appeal all dealt with it. If you do not understand the point of law that was decided in those cases you are at liberty to obtain legal advice, however, not from us.
The same letter dated 30 August 2013 addressed a further email which had been sent that day from Mr Barkla addressed to Mr Civitella in which Mr Barkla had stated:
Sir, any reason that you are refusing to answer my questions?
Mr Civitella set out that there was several reasons why there had been no response, including:
1.The questions had been answered already;
2.The questions serve no useful purpose; and
3.The questions concern a point of law that is the subject of binding judicial termination.
In a further letter dated 21 August 2014 (MJC26 to Mr Civitella's affidavit) Mr Civitella wrote as follows to Mr Barkla:
We refer to your email sent 19 and 20 August 2014 posing further questions related to s 57A of the Workers' Compensation and Injury Management Act 1981.
The questions that you have put forward in your latest email are questions that have been answered countless times over the past 2½ years in correspondence, submissions and court judgments. You seem to choose not to accept those answers. Your response has invariably been to ask what are essentially the same questions, addressing the same issue, just worded differently.
Enclosed is a copy of our insurer clients letter to you dated 31 October 2012 where our clients position was very clearly explained to you. It sets out when a Form 3B notice is and isn't required.
In case you couldn't comprehend those answers, we have set out below the three questions from your email sent 20 August 2014 and respond to each of them individually. The bolded words your questions, and the answers follow.
1.By what prescribed means and or statutes is an insurer not required to issue a Form 3B in my case, when the insurer Allianz made a decision to dispute liability in my case?
The relevant statute is the Workers' Compensation and Injury Management Act 1981. The relevant section of that Act is s 57A(3)(a). In your case Allianz made a decision to pend the claim and it issued a Form 3C pursuant to s 57A(3)(c). Your claim became a disputed one on 19 November 2010, 10 days after the Form 3C was issued. This was due to the deeming provision in subsection (3A). Once there is deemed to be a dispute, the Act does not require any notice to be given to say there is a dispute.
2.When Allianz made the decision to accept liability in my case, Allianz returned to s 57A(3) and issued a Form 3A notice? (Agree or Disagree)?
Yes, you were issued with a Form 3A notice. This was to advise you that liability had been accepted as the situation had existed prior to notifying you of acceptance was that the claim was in dispute.
3.When Allianz made the decision to dispute liability in my case, Allianz did not return to s 57A(3) and issue a Form 3B? (Agree or Disagree)?
Allianz did not 'return' to s 57A(3) and did not issue a Form 3B notice. As explained in answer to Question 1, once the further 10 days had passed from the issuing of a Form 3C, the claim is deemed to be in dispute. The Act imposes no requirement for a notice to be sent advising of a dispute in a situation where the claim is already deemed by operation of law to be disputed.
On 12 August 2015 (MJC27) Mr Barkla wrote another letter to Mr Civitella by email:
Re One Legal Question
Dear Mr Civitella
1.By what Legal Authorities and or Written Laws, pursuant to the Workers' Compensation Injury Management Act 1981 and the Workers' Compensation Injury Management Regulations 1982, provide for an Insurer to Dispute Liability for a Workers' Compensation claim and Not issue a statutory regulations Form 3B Insurers Notice that Liability is Disputed?
Sir, legal reasons I require you to answer this one legal question by COB 19 August 2015 and should you fail to comply with my requirement then I will file in the District Court of Western Australia against you for violations of Human Rights, the Human Right to 'Freedom of Expression' the Right to seek and receive information.
Thank you for your time,
I look forward to your expedient response.
Mr Civitella responded by email dated 14 August 2015 (MJC28):
Dear Sir,
It is not a Human Right to be able to force other people to answer your questions.
Further, it is not our obligation to answer your questions of law. We do not act for you. You have the right to seek independent legal advice and to ask that lawyer a question. Nevertheless, since it is a straight forward question that you ask, the answer to the 'One Legal Question' that you pose in your letter of 12 August 2015 is as follows:
The relevant written law is s 57A(3)(a) of the Workers' Compensation and Injury Management Act 1981 and the relevant legal authorities are the decisions in the multiple actions and appeals that you have brought in respect of the same question.
We recognise that you disagree with our view and that of our client, and that you disagree with the decisions of WorkCover and the Court. It is your prerogative to hold your own view, but that is not one that we or our client must adhere to, particularly in circumstances where your view is contrary to binding judicial authority.
It appears that the writ against Mr Civitella has been filed because Mr Barkla does not agree with Mr Civitella's answers to his questions. It also appears that the right to 'receive answers' as claimed by Mr Barkla in the indorsement in the writ is the right to receive the answers which Mr Barkla wants, as opposed to receiving no answer at all.
In fact, in his submissions at the hearing of this matter Mr Barkla, again relying on the extracts from Hansard, asserted that Mr Civitella 'has in writing committed perjury' (ts 58). Mr Barkla later submitted in relation to the two questions (ts 66):
(a)in relation to the first question, that Mr Civitella 'knows that if he is to answer that truthfully he would agree with that'; and
(b)in relation to the second question, that 'there are no laws because when an insurer disputes liability they're required by law to issue the Form 3B', relying once again on the extracts from Hansard.
Thus we get back to the issue of Mr Barkla's construction of WCIMA s 57A(3), which simply has no prospect of success in light of the decision in Barkla v Allianz Australia [2013] WASCA 240.
Further, Mr Civitella was the legal representative for Allianz and G4S Custodial Services in all litigation with Mr Barkla. He has not assumed any responsibility to Mr Barkla, something which Mr Civitella made very clear in his correspondence to Mr Barkla. In the circumstances Mr Civitella owed no duty to Mr Barkla: Bebonis v Angelos (2003) 56 NSWLR 127 [42].
Mr Barkla's claim against Mr Civitella is unsustainable. To put this in another way, and applying the test on an application for summary judgment pursuant to SCR O 16, there is a high degree of certainty that if the proceedings went to trial, Mr Barkla's claim could not succeed: SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20].

The writ discloses no reasonable cause of action

For the reasons I have discussed in [64] – [82], [94] and [95] above, the indorsement on the writ discloses no reasonable cause of action and even making allowance for the fact that Mr Barkla is self‑represented, no amendment could cure it.

The writ is an abuse of process

As I have already outlined, the current writ follows on from multiple earlier proceedings in which Mr Barkla has sought to re-agitate, in various ways, his contention that pursuant to WCIMA s 57A(3) Allianz was required to give a Form 3B notice disputing liability.
This writ is another attempt by Mr Barkla to re-litigate his construction of s 57A(3), despite a number of decisions, including Court of Appeal and High Court decisions, against him. That is clear from the two questions and also the 'Question of Law' which Mr Barkla has asked the District Court to answer in his writ, as well as his arguments raised and admissions made at the hearing of this application, as I have discussed when looking at the sustainability of his claim.
The writ in this action is pointless litigation in the form of re‑agitating a question of law which has already been decided: Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221; Spalla v St George Motor Finance Ltd [No 6] [2004] FCA 1699 [58] ‑ [63].
The District Court cannot entertain any more proceedings by Mr Barkla which are in any way connected with his construction of s 57A(3). His attempts to re-litigate this matter by attempting to sue the solicitor for Allianz and G4S Custodial Services is an abuse of process.

The indorsement on the writ is scandalous, frivolous, vexatious and embarrassing

Because Mr Barkla's claim is obviously unsustainable and an abuse of the process of the court, it is frivolous or vexatious pursuant to RSC O 20 r 19(1)(b): Peruvian Guano Company v Bockwoldt (1883) 23 Ch D 225, 230; Burton v Shire of Bairnsdale (1908) 7 CLR 76, 91 ‑ 92.
It is also likely to prejudice, embarrass or delay the fair trial of the action pursuant to RSC O 20 r 19(1)(c), because it is vague and embarrassing, leaving Mr Civitella not knowing how to respond to the claim. There are significant deficiencies in the indorsement of claim which in my view cannot be overcome by any means: Frank Jasper Pty Ltd v Deloitte Touche Tohmatsu (a firm) [2006] WASC 24 [11] ‑ [13].

Conclusion

For these reasons, Mr Barkla's action against Mr Civitella cannot be permitted to continue. Mr Civitella is entitled to judgment and Mr Barkla's action must be dismissed. The orders I propose to make are:
1.The indorsement of claim be struck out pursuant to the Rules of the Supreme Court 1971 (RSC) O 20 r 19(1)(a), r 19(1)(b), r 19(1)(c) and r 19(1)(d).
2.The action be dismissed and judgment entered for the defendant against the plaintiff pursuant to RSC O 16 r 1(1).
3.The plaintiff do pay the defendant's costs of this application and of the action, to be taxed.