Barkla v Justice David Wallace Newnes
[2015] WASCA 120
•12 JUNE 2015
BARKLA -v- JUSTICE DAVID WALLACE NEWNES [2015] WASCA 120
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 120 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:10/2015 | 8 APRIL 2015 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 12/06/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | CACV 10 of 2015 Appellant's application for review of Registrar Davies' order is dismissed Appeal dismissed CACV 11 of 2015 Appellant's application for review of Registrar Davies' order is dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GEOFF BARKLA JUSTICE DAVID WALLACE NEWNES JUSTICE GRAEME HAROLD MURPHY REGISTRAR LINDA JOYCE BUSH |
Catchwords: | Practice and procedure Grounds of appeal having no reasonable prospect of succeeding Review of registrar's orders deferring the filing and service of the respondents' answers to the appellant's cases Applications to review the registrar's orders dismissed Appeals dismissed |
Legislation: | Rules of the Supreme Court 1971 (WA), O 20 r 12, O 67 r 5 Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 67 |
Case References: | Barkla v Allianz Australia [2015] HCASL 40 Barkla v Allianz Australia Insurance Ltd & G4S Custodial Services [2014] WASCA 192 Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222 Re Registrar Linda Bush; Ex parte Barkla [2014] WASC 488 Re The Hon Justice Newnes; Ex parte Barkla [2014] WASC 487 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARKLA -v- JUSTICE DAVID WALLACE NEWNES [2015] WASCA 120 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
JUSTICE DAVID WALLACE NEWNES
First Respondent
JUSTICE GRAEME HAROLD MURPHY
Second Respondent
- Appellant
AND
REGISTRAR LINDA JOYCE BUSH
Respondent
ON APPEAL FROM:
For File No : CACV 10 of 2015
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
Citation : RE THE HON JUSTICE NEWNES; EX PARTE BARKLA [2014] WASC 487
File No : CIV 2666 of 2014
For File No : CACV 11 of 2015
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
Citation : RE REGISTRAR LINDA BUSH; EX PARTE BARKLA [2014] WASC 488
File No : CIV 2664 of 2014
Catchwords:
Practice and procedure - Grounds of appeal having no reasonable prospect of succeeding - Review of registrar's orders deferring the filing and service of the respondents' answers to the appellant's cases - Applications to review the registrar's orders dismissed - Appeals dismissed
Legislation:
Rules of the Supreme Court 1971 (WA), O 20 r 12, O 67 r 5
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i), r 67
Result:
CACV 10 of 2015
Appellant's application for review of Registrar Davies' order is dismissed
Appeal dismissed
CACV 11 of 2015
Appellant's application for review of Registrar Davies' order is dismissed
Appeal dismissed
Category: B
Representation:
CACV 10 of 2015
Counsel:
Appellant : In person
First Respondent : Ms C J Thatcher
Second Respondent : Ms C J Thatcher
Solicitors:
Appellant : In person
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
CACV 11 of 2015
Counsel:
Appellant : In person
Respondent : Ms C J Thatcher
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Barkla v Allianz Australia [2015] HCASL 40
Barkla v Allianz Australia Insurance Ltd & G4S Custodial Services [2014] WASCA 192
Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222
Re Registrar Linda Bush; Ex parte Barkla [2014] WASC 488
Re The Hon Justice Newnes; Ex parte Barkla [2014] WASC 487
1 JUDGMENT OF THE COURT: By registrar's notices to attend dated 13 February 2015, these appeals were listed before the court for the appellant to show cause why the appeals should not be dismissed, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
Appeal CACV 10 of 2015
2 In appeal CACV 10 of 2015, the appellant seeks to appeal from the decision of McKechnie J to refuse the appellant leave to file a writ of summons naming the Honourable Justice Newnes and the Honourable Justice Murphy as proposed defendants. On 17 December 2014, McKechnie J published written reasons for his decision to refuse the appellant leave. See Re The Hon Justice Newnes; Ex parte Barkla [2014] WASC 487.
3 On 20 October 2014, the appellant had attempted to file the writ of summons. A registrar ordered that the writ not be accepted for filing without the leave of a judge having first been obtained. See O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (the Supreme Court Rules).
4 The appellant attempted to file the writ of summons against Newnes and Murphy JJA after their Honours delivered a judgment which was adverse to him. See Barkla v Allianz Australia Insurance Ltd & G4S Custodial Services [2014] WASCA 192. The judgment dealt with an application by the appellant in a pending appeal, CACV 109 of 2014, for leave to administer interrogatories. On 8 October 2014, Newnes and Murphy JJA published joint reasons for their decision to dismiss the application. The joint reasons read:
The appellant has appealed against an order of Staude J in the District Court, dismissing the appellant's application for leave to appeal from a decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA).
The appellant has filed an interim application in the appeal seeking orders that three named persons each answer four interrogatories. Two of those to whom the interrogatories are sought to be directed appear to be employees of the first respondent and the other appears to be a solicitor.
The application to administer interrogatories is based on a fundamental misunderstanding of the appellate process and the function of this court. It proceeds on the false premise that the function of this court is to conduct a fresh factual enquiry into matters said to be relevant to the decision below. That is not the function of this court. The application is entirely misconceived and is dismissed [1] - [3].
5 On 10 November 2014, Newnes and Murphy JJA heard the pending appeal, CACV 109 of 2014. After receiving submissions from the appellant and counsel for the respondents, their Honours dismissed the appellant's application for leave to appeal, and his appeal, from a decision of Staude DCJ dismissing the appellant's appeal against the decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA). See Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222.
6 On 25 November 2014, the appellant sought to file a notice of originating motion. The document was accepted for filing. The notice did not, however, seek leave to file the writ of summons but, instead, sought orders that:
Judge [sic] Newnes and Judge [sic] Murphy provide Statute/s of Law as to why the Plaintiff is NOT permitted to ask Alliance [sic] 4 Questions, pursuant to the Rules of the Supreme Court 1971 Order 27 - Interrogatories.
7 McKechnie J dismissed the appellant's application for leave to file the writ for two reasons. First, in the circumstances, the doctrine of judicial immunity precluded personal actions against Newnes and Murphy JJA [10]. Secondly, each of the proposed writ and the notice of originating motion was vexatious and an abuse of process [11].
8 The appellant applied to the High Court for special leave to appeal from the decision of Newnes and Murphy JJA to dismiss his application in the pending appeal, CACV 109 of 2014, for leave to administer interrogatories and, also, for special leave to appeal from their Honours' decision to dismiss his application for leave to appeal, and his appeal, in CACV 109 of 2014. On 9 April 2015, Kiefel and Keane JJ refused special leave in both matters. See Barkla v Allianz Australia [2015] HCASL 40. Their Honours said:
The decision of the Court of Appeal to refuse to issue interrogatories was clearly correct, as was the Court of Appeal's decision to dismiss the applicant's appeal from the decision of Staude DCJ [6].
9 The appellant's case filed in CACV 10 of 2015 includes five purported grounds of appeal.
10 The grounds appear, in substance, to allege errors by McKechnie J in failing to hold that:
(a) the appellant was entitled/permitted to ask a question of law pursuant to r 67 of the Court of Appeal Rules;
(b) the appellant was entitled/permitted to plead points of law pursuant to O 20 r 12 of the Supreme Court Rules;
(c) Newnes and Murphy JJA had breached the Commonwealth Constitution, covering cl 5; and
(d) Newnes and Murphy JJA had erred in failing to cite 'Legal Authorities and or Written Laws' in their reasons for dismissing the appellant's application for leave to administer interrogatories.
11 Rule 67 is a procedural provision governing the process of referring a question of law to the Court of Appeal. Rule 67 does not operate unless there is a written law that enables a legal issue to be referred to the Court of Appeal: r 67(2). The appellant's reliance on r 67 is misconceived.
12 Order 20 r 12 modifies the traditional requirement that pleadings should only plead material facts and should not plead law. Rules relating to pleadings do not create substantive rights. The object of these rules is to enable matters in issue between the parties to litigation to be identified with precision. The appellant's reliance on O 20 r 12 is misconceived.
13 Covering cl 5 has no application in the present case and the appellant's reliance on it is misconceived.
14 The decision of Newnes and Murphy JJA to dismiss the application for leave to administer interrogatories was plainly correct and it was unnecessary, in the circumstances, for their Honours to deliver more specific or extensive reasons.
15 None of the appellant's grounds of appeal has a reasonable prospect of succeeding.
16 Further and in any event, the orders sought by the appellant before McKechnie J related to the decision of Newnes and Murphy JJA on an interlocutory application in CACV 109 of 2014. However, as we have mentioned, Newnes and Murphy JJA decided, at a later hearing, that the appellant's application for leave to appeal, and his appeal, in CACV 109 of 2014 should be dismissed, and the High Court has refused to grant the appellant special leave to appeal. The matters raised by the appellant in CACV 10 of 2015 are therefore moot.
17 McKechnie J was correct in concluding that, in the circumstances, the doctrine of judicial immunity precluded personal actions against Newnes and Murphy JJA and that each of the proposed writ and the notice of originating motion was vexatious and an abuse of process.
18 Appeal CACV 10 of 2015 must be dismissed.
Appeal CACV 11 of 2015
19 In appeal CACV 11 of 2015, the appellant seeks to appeal from the decision of McKechnie J to refuse the appellant leave to file a writ of summons naming Court of Appeal Registrar Bush as proposed defendant. On 17 December 2014, McKechnie J published written reasons for his decision to refuse the appellant leave. See Re Registrar Linda Bush; Ex parte Barkla [2014] WASC 488.
20 On 27 October 2014, the appellant had attempted to file the writ of summons. Another registrar ordered that the writ not be accepted for filing without the leave of a judge having first been obtained. See O 67 r 5 of the Supreme Court Rules.
21 The appellant attempted to file the writ of summons against Registrar Bush in reaction to her decision to refuse to accept for filing an affidavit sworn by the appellant in the pending appeal, CACV 109 of 2014. By letter dated 21 October 2014, Registrar Bush's associate wrote to the parties to the pending appeal, as follows:
Dear Parties
RE: CACV 109/2014 - Barkla v Allianz Australia & Anor
I refer to the applicant's 'affidavit verifying list of documents' which was sworn on 16 October 2014.
The Registrar has not accepted the documents for filing as it is neither required nor permitted by the Rules and, in any event, serves no purpose.
22 As McKechnie J noted in his reasons:
(a) although the affidavit in question was entitled, 'Affidavit verifying list of documents', it was manifestly not an affidavit of that kind [6];
(b) rather, the affidavit raised questions of law which, it was asserted, required answers [6];
(c) the affidavit had no relevance or evidential value in the pending appeal, CACV 109 of 2014 [7]; and
(d) the affidavit was largely incomprehensible [7].
23 On 25 November 2014, the appellant sought to file a notice of originating motion. The document was accepted for filing. The notice did not, however, give any reasons why leave to file the writ of summons should be granted. The notice asserted breaches of the Criminal Code1995 (Cth). None of the asserted breaches was applicable to Registrar Bush.
24 McKechnie J dismissed the appellant's application for leave to file the writ. His Honour held that:
(a) Registrar Bush was correct, for the reasons she gave, to refuse to accept the affidavit for filing [13]; and
(b) the proposed writ of summons was hopeless and did not plead any legally identifiable cause of action [14].
25 The appellant's case filed in CACV 11 of 2015 includes 15 purported grounds of appeal. Most of the grounds are not proper grounds of appeal. Some of them are argumentative and others are incomprehensible.
26 The grounds appear, in substance, to allege errors by McKechnie J similar to those alleged in appeal CACV 10 of 2015.
27 Generally for the reasons we have given in dealing with CACV 10 of 2015, we are of the opinion that none of the appellant's grounds of appeal has a reasonable prospect of succeeding.
28 Further and any event, as we have noted, Newnes and Murphy JJA decided, at a later hearing, that the appellant's application for leave to appeal, and his appeal, in CACV 109 of 2014 should be dismissed, and the High Court has refused to grant the appellant special leave to appeal. The matters raised by the appellant in CACV 11 of 2015 are therefore moot.
29 McKechnie J was correct in concluding that, in the circumstances, Registrar Bush rightly refused to accept the affidavit for filing and that the proposed writ of summons was hopeless.
30 Appeal CACV 11 of 2015 must be dismissed.
The appellant's applications for review of Registrar Davies' orders
31 On 11 February 2015, Registrar Davies ordered, in CACV 10 of 2015 and CACV 11 of 2015, that the respondents not be required to file and serve the respondents' answers to the appellant's cases within the time specified in the Court of Appeal Rules.
32 On 12 February 2015, the parties were informed by email of the registrar's orders.
33 Registrar Davies made the orders contemporaneously with her decision to list CACV 10 of 2015 and CACV 11 of 2015 before the court for the appellant to show cause why the appeals should not be dismissed pursuant to r 43(2)(g)(i) of the Court of Appeal Rules.
34 The registrar's orders were a sensible and correct exercise of her discretion. It was appropriate, in the circumstances, to defer the filing and service of the respondents' answers to the appellant's cases until after the registrar's notices to attend had been dealt with by the court. The deferral ensured that, in the event of the appeals being dismissed pursuant to r 43(2)(g)(i), the respondents' solicitors would not perform unnecessary work.
35 There is no reasonable basis for impugning the registrar's orders. The applications for review must be dismissed.
Conclusion
36 The court will make orders in each of CACV 10 of 2015 and CACV 11 of 2015 as follows:
(a) The appeal is dismissed.
(b) The appellant's application for review of Registrar Davies' order is dismissed.
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