Barkla v G4S Custodial Services Pty Ltd
[2014] WADC 36
•26 MARCH 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BARKLA -v- G4S CUSTODIAL SERVICES PTY LTD [2014] WADC 36
CORAM: MCCANN DCJ
HEARD: ON THE PAPERS
DELIVERED : 26 MARCH 2014
FILE NO/S: CIVO 4 of 2014
BETWEEN: GEOFF BARKLA
Appellant
AND
G4S CUSTODIAL SERVICES PTY LTD
Respondent
Catchwords:
Practice and procedure - WICMA appeal - Grounds of appeal failing to address an essential issue - Abuse of process - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 s 57A(3)(b), s 217 A
Result:
Permanent stay ordered
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: CCS Insurance Law
Case(s) referred to in judgment(s):
Barkla v Allianz Australia Insurance Ltd [2014] WADC 23
Lance v Weston [2014] WASCA 62
MCCANN DCJ: On 19 February 2014 I made a number of rulings and gave directions in this matter (Barkla v Allianz Australia Insurance Ltd [2014] WADC 23). Amongst other things, I ordered that Mr Barkla have leave to amend the grounds of appeal by no later than 12 March 2014.
A further directions hearing took place on 5 March 2014 and the date for the filing and service of any proposed grounds of appeal was extended to 17 March 2014.
On 17 March 2014 Mr Barkla filed proposed amended grounds of appeal as follows:
1.Arbitrator findings were contrary to the evidence and unsupported by evidence, by not taking into account current Medical Certificates,
2.Respondent has no Expert Medical Evidence to 'dispute liability' (for 21 months),
3.Respondent failed to issue a Notice (form 3B) pursuant to s 57A(3)(b) WCIMA,
4.The Applicant has an 'Accepted' work‑related injury claim.
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.
In my opinion grounds 1, 2 and 4 at least raise contentions which would merit consideration on appeal, but on the basis that they are consolidated into one ground of appeal supported by three particulars. On that basis the ground could be recast as follows:
The arbitrator's findings were contrary to the evidence and unsupported by evidence in that he:
1. Failed to take into account the current medical certificate.
2. There was no expert medical evidence to support the findings.
3. The applicant had an accepted work‑related injury.
Cast in these terms, the proposed ground of appeal directs attention to the matters referred to at [63] of my earlier decision which related to the first essential issue in the arbitration, namely whether Mr Barkla is permanently and totally incapacitated for work.
However, this is not enough to justify allowing the application for leave to appeal to proceed any further. As I explained in my earlier decision, the arbitrator also found against Mr Barkla in respect of a second essential issue, namely whether Mr Barkla's social and financial circumstances and needs justified the making of an order increasing the prescribed amount.
I invited written submissions from the employer's solicitors who chose to make none.
In summary, and to put matters plainly, the shortcomings in the latest grounds of appeal entail that the appeal will not do Mr Barkla any good and it is pointless allowing the matter to proceed. A great deal of time and cost will be expended for no purpose.
I caused Mr Barkla to be apprised of this and gave him until 4.00 pm on 20 March 2014 (later extended to 24 March 2014) to do something about it, ie, file a ground or grounds of appeal which were directed to the second essential issue and which pointed to alleged errors in the arbitrator's reasons. Mr Barkla made some mention of gathering further evidence, but that will not suffice.
On 24 March 2014 Mr Barkla informed my Associate in writing that he did not intend to 'make any more submissions' and proceeded to reiterate submissions which relate to the s 57A(3)(b) contention.
Mr Barkla has made a fully informed decision not to advance sufficient grounds of appeal to justify a grant of leave.
Clearly this situation cannot continue. In my view it is not appropriate to do nothing. The options are either to dismiss the application for leave to appeal on the papers (as foreshadowed in the hearing on 5 March 2014 ts 100) or permanently stay the matter. The former course would finally foreclose appellate review of the arbitrator's decision and is a serious step (Lance v Weston [2014] WASCA 62 [30]). The latter course would have the advantage of allowing Mr Barkla to apply to the court at a later date to lift the stay for good cause, which would of course require him to remedy the deficiencies in the current grounds of appeal. It must also be remembered that Mr Barkla has another option available to him, namely making an application for the arbitrator's decision to be reconsidered pursuant to WCIMA s 217A. I apprised him of that provision during the hearing on 5 March 2014.
To sum up, based on the present grounds of appeal and Mr Barkla's attitude, nothing is to be achieved by allowing the current proceedings to continue with consequential wastage of time and cost. I am satisfied that it is appropriate to permanently stay the application for leave to appeal and I order accordingly.
Mr Barkla may not proceed any further, or file any documents, without first obtaining an order of a judge lifting the stay.
5
2
1