Barkla v G4S Custodial Services - [2012] WADC 67

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BARKLA -v- G4S CUSTODIAL SERVICES [2012] WADC 67

CORAM: COMMISSIONER GETHING

HEARD: 1 MAY 2012

DELIVERED : 1 MAY 2012

FILE NO/S: APP 6 of 2012

BETWEEN: GEOFF BARKLA
Appellant
AND
G4S CUSTODIAL SERVICES
Respondent

Catchwords:

WorkCover appeal - Application for leave to adduce evidence and examine witnesses

Legislation:

District Court Rules 2005
Rules of the Supreme Court 1971 (WA)
Workers Compensation and Injury Management Act 1981 (WA)
Workers Compensation and Injury Management Regulations 1982 (WA)

Result:

Application dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr M J Civitella

Solicitors:

Appellant: Not applicable
Respondent: CCS Insurance Law

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

Nil

COMMISSIONER GETHING:
[This judgment has been delivered extemporaneously on 1 May 2012 and has been edited from the transcript.]

Introduction

By appeal notice dated 25 January 2012, the appellant commenced an appeal from a decision of Arbitrator Melville on 20 January 2012. The appellant contends that the arbitrator 'Erred in Judgement of Law', failed to address the appellant's submissions and 'failed to address the Act and Regulations'.
On 28 February 2012, the respondent lodged a notice of respondent's intention in which it stated that it would argue that the arbitrator's decision should be upheld on the grounds relied by the arbitrator.
On 13 March 2012, the registrar directed that the appeal and the issue of leave to appeal be listed before a judge for hearing. The hearing of the appeal has been listed for 21 May 2012.
On 16 April 2012, the appellant filed an application in the appeal seeking orders that the following people give evidence at the hearing of the appeal: Robb Moffat, Elisha Alker, Jaqui Clark, Joe Isherwood, Mr York, Ross Paprone and Paul Brooks. The first three of these people appear to be employees of Allianz. Allianz is the respondent's insurer. The remaining four people appear to be employees of WorkCover Western Australia.

Background

By interlocutory application dated 5 January 2012, the appellant sought orders that the respondent make weekly payments due to an alleged failure to comply with Workers Compensation and Injury Management Act 1981 (WCIMA) s 57A(3). WCIMA s 57A sets out the claims procedure to be used when the employer is insured, as in the present case.
It is not in dispute 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). The dispute centres on the adequacy of the reasons provided by the respondent as required by WCIMA s 57A(3). That subsection provides:
(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; or
(b)subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WADC 67
Decision Date: 1 MAY 2012

CaseChat Overview and Summary

Barkla v G4S Custodial Services concerned an appeal against a decision made by the Workers' Compensation Commission of Victoria. The appellant, Barkla, sought to adduce evidence and examine witnesses in relation to an injury claim that was dismissed by the Commission. The respondents, G4S Custodial Services, opposed the application, arguing that the proposed evidence was irrelevant and that the witnesses had no material knowledge of the events in question.

The primary legal issue was whether the appellant was entitled to adduce evidence and examine witnesses that were not considered by the Commission in its original decision. The court had to determine whether the proposed evidence was relevant, whether the witnesses had material knowledge, and whether the application was made within a reasonable time. Additionally, the court had to consider whether the evidence could potentially alter the outcome of the original decision.

The court examined the evidence and submissions made by both parties and concluded that the proposed evidence and witnesses were not relevant to the original decision. The court found that the appellant had failed to demonstrate that the proposed evidence was necessary to address a material issue that was not considered by the Commission. The court also found that the application was made outside the reasonable time frame, and the appellant had not demonstrated any exceptional circumstances that warranted an extension of time. Consequently, the court dismissed the application for leave to adduce evidence and examine witnesses.

The court's decision was final, and no further appeals were possible. The original decision of the Workers' Compensation Commission of Victoria remained in place, and the appellant's claim for compensation was dismissed.

Orders