Barkla v Civitella [No 2]
[2016] WASCA 111
•1 JULY 2016
BARKLA -v- CIVITELLA [No 2] [2016] WASCA 111
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 111 | |
| THE COURT OF APPEAL (WA) | 01/07/2016 | ||
| Case No: | CACV:7/2016 | 23 JUNE 2016 | |
| Coram: | BUSS JA NEWNES JA | 23/06/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEOFF BARKLA MARK CIVITELLA |
Catchwords: | Practice and procedure Appellant's action in District Court dismissed as disclosing no reasonable cause of action and abuse of process Action sought determination of legal issue Issue res judicata Turns on own facts |
Legislation: | Nil |
Case References: | Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222 Barkla v Allianz Insurance [2013] WASCA 21 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARKLA -v- CIVITELLA [No 2] [2016] WASCA 111 CORAM : BUSS JA
- NEWNES JA
- 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 - Appellant's action in District Court dismissed as disclosing no reasonable cause of action and abuse of process - Action sought determination of legal issue - Issue res judicata - Turns on own facts
Legislation:
Nil
Result:
Appeal 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 Insurance Ltd [No 2] [2014] WASCA 222
Barkla v Allianz Insurance [2013] WASCA 21
1 REASONS OF THE COURT: On 23 June 2016, we dismissed the appellant's appeal on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. We said we would publish reasons for our decision. These are the reasons.
2 The matter came before the court on a registrar's notice to attend, dated 9 June 2016, for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. After that notice was issued, the appellant filed an interim application alleging, in effect, that the appellant was being denied procedural fairness by the notice.
3 It is necessary before dealing with those issues to set out briefly the relevant background.
Background
4 The appellant claimed workers' compensation in respect of a stress-related injury that occurred in the course of his employment in 2010. His employer's workers' compensation insurer, Allianz Australia Insurance Ltd (Allianz), accepted liability for the appellant's claim and paid the appellant the full prescribed amount of weekly compensation payments payable under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), although there was a delay of some 20 months before liability for the appellant's claim was accepted. The relevant history of the appellant's claim for workers' compensation, and the response to that claim by Allianz, are set out in the reasons of this court in Barkla v Allianz Insurance [2013] WASCA 21 [2] - [5].
5 The appellant has, however, repeatedly instituted proceedings in which he has sought to obtain admissions by Allianz, or one of its representatives, to the effect that, in breach of the Act, Allianz failed to give the appellant a notice under s 57A(3)(b) of the Act (a Form 3B). In Barkla v Allianz Insurance, this court upheld the finding of the District Court that Allianz was not required to give such a notice. In subsequent proceedings by the appellant on the same issue,this court pointed out that the issue was res judicata: Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222. The appellant has remained undeterred.
6 On 12 May 2015, the appellant commenced proceedings in the District Court against the respondent by a generally indorsed writ of summons. The respondent is a lawyer who has appeared for Allianz and the appellant's employer in a number of proceedings brought by the appellant. It is not evident why the appellant considered the respondent to be an appropriate defendant to the proceedings.
7 The indorsement of claim was 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). (original emphasis)
8 The letter dated 28 April 2015 was annexed to the writ. The two questions referred to in the indorsement as contained in the letter were:
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)? (original emphasis)
9 The indorsement of the writ then continued, as it did in an additional 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? (original emphasis)
10 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. (original emphasis)
11 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) or 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).
12 Before the primary judge, the appellant confirmed that the two questions referred to in the writ were for the purpose of establishing his construction of s 57A(3)(b) of the Act; that is, that Allianz was required to give him notice under that section. The action was, as the primary judge observed, one in a long list of proceedings commenced by the appellant arising from his workers' compensation claim against his employer and his construction of s 57A(3).
13 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.
14 On 12 February 2016, the appellant filed an appeal notice in this court.
The grounds of appeal
15 The grounds of appeal do not comply with the Court of Appeal Rules, but as they appear in the appellant's case are as follows:
1. The Appellant has every legal right to ask two (2) relevant questions of a Respondent to a dispute, including but not limited to, in a Court of law.
2. The Respondent has a legal and moral obligation to answer the two (2) relevant questions that were presented to him in writing on the 28th April 2015.
3. Why is the Respondent so afraid to answer two (2) relevant questions?
4. I refer the Court to the attached letter sent to the Respondent on the 28th April 2015 in which the following two (2) questions were asked:
1. Do you agree with me that Nothing in section 57A(3a) 'Deemed to be Disputed' of the WCIMA eradicatesan 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)? (original emphasis)
16 Turning first to the appellant's interim application, the contention that the notice to attend denies him procedural fairness is nonsense. It is evident that underlying that contention is the appellant’s belief that upon the filing and service of his appellant's case, the respondent should have been required to file and serve the respondent’s answer. Instead, the notice to the appellant to attend to show cause was issued by the registrar. How that denies the appellant procedural fairness is not apparent.
17 The obvious purpose of the registrar's notice was to provide the appellant with an opportunity to persuade the court that the appeal had a reasonable prospect of succeeding and that the respondent was not being put to unnecessary cost, and the resources of the court were not being wasted, by the continuation of a hopeless appeal. The appellant availed himself of that opportunity. As he is living in South Australia, the appellant elected to attend the hearing by video-link. At the hearing, he had the opportunity to make, and made, oral submissions. There was no denial of procedural fairness. Moreover, notwithstanding the appellant's forcefully expressed submissions, it is plain beyond argument that the appeal is utterly devoid of any merit.
18 The indorsement on the writ was meaningless, with the result that it disclosed no reasonable cause of action. Nor was there anything in the writ that might suggest the appellant has any cause of action against the respondent. However, the obvious purpose of the proceedings was to establish that, on the proper construction of the Act, Allianz was required to give the appellant notice under s 57A(3)(b). As we have said, that issue was determined by this court, adversely to the appellant, in Barkla v Allianz Insurance. In subsequent proceedings by the appellant, the court pointed out that the issue was res judicata: Barkla v Allianz Australia Insurance Ltd [No 2].In the latter case, the court said:
35 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.
36 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.
37 We note, however, that the appellant previously sued Allianz and WorkCover in the District Court for delay in the negotiation and settlement of his claim, which he alleged breached a duty of care owed to him. He claimed he was entitled to damages or compensation in addition to his statutory workers' compensation entitlements. The statement of claim was struck out on the ground that it disclosed no reasonable cause of action and was an abuse of process or vexatious, and the action was dismissed. An appeal by the appellant from that decision was dismissed by this court: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240.
38 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.
19 In this case, the proceedings below were simply yet another attempt to litigate that very issue and therefore were an abuse of the process of the court.
20 The decision of the primary judge was plainly correct. None of the grounds of appeal (such as they are) have any reasonable prospect of succeeding. The appeal must be dismissed.
21 There is no reason to depart from the usual rule that the successful party is entitled to recover their costs: O 66 r 1, Rules of the Supreme Court 1971 (WA). The appellant must pay the respondent’s costs of the appeal and the interim application filed by the appellant, to be taxed.
22 Finally, regrettably it is apparently necessary to repeat, clearly and emphatically, that the issue whether Allianz was required to give the appellant notice under s 57A(3)(b) has already been decided and it is not open for further debate. Any further proceedings by the appellant seeking a determination of that issue will, like these proceedings, constitute an abuse of the process of the court and be liable to summary dismissal.
Conclusion
23 It was for those reasons that we dismissed the appeal and the appellant's interim application, and ordered the appellant to pay the respondent's costs.
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