Barkla v Civitella

[2016] WASCA 71

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   BARKLA -v- CIVITELLA [2016] WASCA 71

CORAM:   NEWNES JA

MURPHY JA

HEARD:   22 APRIL 2016

DELIVERED          :   22 APRIL 2016

PUBLISHED           :  4 MAY 2016

FILE NO/S:   CACV 7 of 2016

BETWEEN:   GEOFF BARKLA

Applicant

AND

MARK CIVITELLA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :DAVIS DCJ

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

File No  :CIV 1717 of 2015

Catchwords:

Practice and procedure - Application for review of decision of Court of Appeal registrar to refuse to accept 'notice to admit facts' for filing - Similar document previously rejected - Application an abuse of process

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     In person

Respondent:     Mr S G Daniells

Solicitors:

Applicant:     In person

Respondent:     Mills Oakley Lawyers

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

Barkla v Allianz Australia [2015] HCASL 40

Barkla v Allianz Australia [2015] WASCA 210

Barkla v Allianz Australia Insurance Ltd [2014] WASCA 192

1. JUDGMENT OF THE COURT: On 22 April 2016, we dismissed an application by the appellant to set aside a decision of the Court of Appeal Registrar to refuse, pursuant to r 10(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), to accept for filing two documents the appellant sought to file in the appeal. We said we would give reasons for our decision. These are the reasons.

2. The application came about in the following way. On 12 May 2015, the appellant commenced proceedings in the District Court against the respondent by a generally indorsed writ of summons. The action was, as the primary judge observed, one in the long list of proceedings commenced by the appellant arising from his workers' compensation claim against his employer and his construction of s 57A(3) of the Workers' Compensation and Injury Management Act 1981 (WA).

3. The respondent applied for the indorsement of claim to 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 the Rules of the Supreme Court 1971 (WA) and for summary judgment against the appellant pursuant to O 16 r 1(1)(a).

4. On 20 January 2016, the primary judge found that the writ disclosed no reasonable cause of action. Her Honour also concluded that it was an abuse of the process of the court, observing that the writ was another attempt by the appellant to re‑litigate his construction of s 57A(3) of the Act, despite a number of decisions, including decisions of this court and the High Court, against him [98], [100]. The appellant's action was dismissed and judgment entered for the respondent.

5. On 12 February 2016, the appellant filed an appeal notice in this court. On 24 February 2016, he sought to file two documents in the appeal. One document was headed 'Request for Hearing' and the other was headed 'Notice to admit facts pursuant to the written laws of the Rules of the Supreme Court 1971 Order 30 Rule 2(1)'. The 'Request for Hearing' contained 'Request[s]' as follows:

   The appellant requests a hearing of the matter that the Respondent 'Admits the Facts' of this case and therefore is in Default of Defence.

   The appellant requests for judgement by default, pursuant to the Rules of the Supreme Court 1971 Order 22 Rule 7(1)

   [O 22 r 7(1), which deals with judgment in default of defence in an action, is then set out]

6. The document also contains, oddly under a part headed 'Requesting Party's address for service', the following assertion:

   The Respondent is Deemed to Admit the nine (9) Facts of this case by 'Failing' to respond to the 'Rules' - the Rules of the Supreme Court 1971 Order 30 Rule 2(1)

   [O 30 r 2(1), which deals with a notice to admit facts in an action, is then set out]

7. The 'notice to admit facts', in essence, sought admissions by the respondent (a) that the appellant wrote a letter to the respondent asking two legal questions; (b) as to the terms and effect of O 30 r 2(1) of the Rules of the Supreme Court 1971 (WA); (c) of a right of the appellant, pursuant to the Australian Human Rights Commission Act 1986 (Cth), to seek and receive information; (d) that a particular dictionary contains a certain definition; and (e) that the Australian Constitution contains a provision in terms of part of s 5 of the Commonwealth of Australia Constitution Act.  It is in all material respects the same as the document which, in Barkla v Allianz Australia [2015] WASCA 210, this court held was an abuse of process and properly rejected for filing by the Court of Appeal Registrar. On that occasion, the 'notice to admit facts' was accompanied by a meaningless document headed 'Referral of legal issue to Court of Appeal'.

8. The proceedings on this occasion followed precisely the same course as on the previous occasion.

9. Both documents were again rejected by the Court of Appeal Registrar on the ground that they were neither required nor permitted by the Court of Appeal Rules. Again, the Court of Appeal Registrar wrote to the appellant explaining her reasons for rejecting the documents. In relation to the 'notice to admit facts', the registrar pointed out that O 22 r 7(1) has no application in the Court of Appeal and it is not the function of this court to conduct a fresh factual enquiry into the matters before the court below. The registrar again referred the appellant to the decision of this court in Barkla v Allianz Australia Insurance Ltd [2014] WASCA 192 [3], where that point was made in relation to interrogatories the appellant had sought to file in a previous appeal. (An application by the appellant for special leave to appeal to the High Court against that decision was dismissed: Barkla v Allianz Australia [2015] HCASL 40).

10. As on the previous occasion, the appellant seeks to have the court set aside the decision of the registrar to reject the documents for filing.  The appellant cannot have expected a different result.  The documents, which are meaningless, were rightly rejected and in the light of the history we have outlined above the application for review is itself an abuse of the process of the court.  The inescapable inference is that the appellant has sought to file the documents and has applied to review the registrar's decision to reject them for filing for the sole purpose of vexing the respondent and wasting the time of this court.

11. The respondent did not seek indemnity costs on this occasion but any further applications by the appellant on the same or similar grounds would prima facie attract such an order.