Barkla v WorkCover WA
[2014] WADC 159
•21/11/14
BARKLA -v- WORKCOVER WA [2014] WADC 159
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 159 | |
| 21/11/2014 | |||
| Case No: | CIVO:139/2014 | 17 OCTOBER 2014 | |
| Coram: | SLEIGHT DCJ | 21/11/14 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to commence proceedings refused | ||
| PDF Version |
| Parties: | GEOFF BARKLA WORKCOVER WA |
Catchwords: | Practice and procedure Application for leave to commence proceedings No reasonable cause of action within the jurisdiction of the court Proposed action re-agitation of previous proceedings Proposed proceedings vexatious and an abuse of process |
Legislation: | Rules of the Supreme Court 1971 (WA) O 67 r 5 |
Case References: | Barkla v Allianz Australia Insurance Ltd [2013] WADC 90 Barkla v Allianz Australia Insurance Ltd [2013] WASCA 21 Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240 Barkla v Allianz Australian Insurance Ltd [2014] WADC 113 Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78 Barkla v WorkCover WA [2014] WASCA 40 Burrell v The Queen [2008] HCA 32; (2008) 82 ALJR 1221 Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270 Commercial Developments Pty Ltd (t/as John Roger's Motors Pty Ltd) v Mercantile Mutual (Worker's Compensation) Ltd (1991) 5 WAR 208 Commissioner for Consumer Protection v Armstrong [2012] WASC 706 (S) Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
WORKCOVER WA
Defendant
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram : ARBITRATOR S NUNN
Citation : AI3500 of 2014
Catchwords:
Practice and procedure - Application for leave to commence proceedings - No reasonable cause of action within the jurisdiction of the court - Proposed action re-agitation of previous proceedings - Proposed proceedings vexatious and an abuse of process
Legislation:
Rules of the Supreme Court 1971 (WA) O 67 r 5
Result:
Leave to commence proceedings refused
Representation:
Counsel:
Plaintiff : In person
Defendant : No appearance
Solicitors:
Plaintiff : Not applicable
Defendant : Not applicable
Case(s) referred to in judgment(s):
Barkla v Allianz Australia Insurance Ltd [2013] WADC 90
Barkla v Allianz Australia Insurance Ltd [2013] WASCA 21
Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240
Barkla v Allianz Australian Insurance Ltd [2014] WADC 113
Barkla v G4S Custodial Services Pty Ltd [No 2] [2012] WADC 78
Barkla v WorkCover WA [2014] WASCA 40
Burrell v The Queen [2008] HCA 32; (2008) 82 ALJR 1221
Chianti Pty Ltd v Leume Pty Ltd [2007] WASCA 270
Commercial Developments Pty Ltd (t/as John Roger's Motors Pty Ltd) v Mercantile Mutual (Worker's Compensation) Ltd (1991) 5 WAR 208
Commissioner for Consumer Protection v Armstrong [2012] WASC 706 (S)
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53
1 SLEIGHT DCJ: The applicant, Mr Barkla, seeks leave of a judge under O 67 r 5 of the Rules of the Supreme Court 1971 (RSC) to commence proceedings by way of a writ of summons against Samuel Nunn, an arbitrator under the Worker's Compensation and Injury Management Act 1981 (the Act).
2 Order 67 r 5 of the RSC provides that if any writ of summons which is presented for filing appears to the registrar to be an abuse of process of the court, the registrar shall refuse to issue such writ without leave of a judge first had and obtained by the party seeking to file the writ. Registrar Kingsley took the view that a writ of summons dated 19 August 2014, which Mr Barkla sought to file in the District Court of Western Australia, was an abuse of process of the court and notified Mr Barkla that leave of a judge was required.
3 Mr Barkla filed an ex parte chamber summons as a result of this notification. The chamber summons does not expressly seek leave but I take that to be Mr Barkla's intention. An application for leave ought to have been made by way of an originating summons to be heard in chambers not by a chamber summons. However, I will put this procedural question aside and deal with the substantive issue of whether Mr Barkla should be given leave to commence proceedings against Mr Nunn as per the writ of summons which Mr Barkla sought to file.
4 The proposed writ of summons contained an indorsement of claim which reads as follows:
1. Please see 1st attached Workcover WA Arbitrator Samuel Nunn's Decision page 11 point 52 I quote '… Accordingly, in my view at least, the extracts from Hansard are on their face relevant to the decision in question and are sufficient to qualify that information as "new information" of the kind contemplated by s271A(1).'
2. Question of Law. If an Arbitrator views 'new information' as relevant to the kind contemplated by s217A(1) then how can an Arbitrator Rules against that Statute of Law?
3. Please see 2nd attached Workcover WA Question to Arbitrator Samuel Nunn at Direction Hearing 17 April 2014 and I quote – G. Barkla – 'May I just ask you this, when the Attorney General said, When an insurer disputes liability for worker compensation claim under the Workers' Compensation and Injury Management Act 1981, they are required to issue a Form 3B – Do you agree with that statement or not Sir?'(Question to Arbitrator Sam Nunn).
4. Arbitrator Sam Nunn – 'I don't think Mr Civitella disagrees with that, it's a correct statement of law.'
5. Question of Law. If Arbitrator Samuel Nunn Agrees with the Attorney General that is to say that when an Insurer Disputes Liability for a Workers claim, the Insurer IS REQUIRED to issue a Form 3B and that is a 'Correct Statement of Law' – Statute of Law. Then how can an Arbitrator Rule against Statutes of Law made by Parliament? – PERJURY?
PERJURY – Known as false swearing perjury is the violation of any oath or a vow, that is violated by swearing to what is untrue
PERJURY is considered a serious offence as it usurps the order created by the Courts. It results in miscarriages of justice
Background
5 The nature of the relief claimed by Mr Barkla in the proposed writ of summons is in the nature of declaratory relief which has been unsuccessfully sought by Mr Barkla on repeated occasions in this court. The details of these decisions will be provided later in this decision.
6 The declaratory relief sought by Mr Barkla concerns the interpretation of s 57A of the Act. The section provides as follows:
Claims procedure where employer insured
(1) This section applies where —
(a) a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with section 178(1)(b); and
(ba) the employer is indemnified by a policy of insurance against liability to pay the compensation claimed; and
(b) the worker suffering the injury serves on the employer a certificate signed by a medical practitioner —
(i) in or to the effect of the form prescribed containing substantially the information sought in the form; or
(ii) to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as referred to in subparagraph (i) has previously been served.
Penalty: a fine of $1,000.
(2) Where, in the circumstances mentioned in subsection (1), an employer fails to make a claim under and in accordance with his policy of insurance before the expiration of 5 full working days of his insurer after the day on which the circumstances mentioned in subsection (1) arose or, where the making of a claim within that time would not be reasonably practicable, as soon as reasonably practicable thereafter, the insurer may, in the Magistrates Court, sue and recover from the employer, as a debt due, any amount that, under the policy of insurance, he is liable to pay by way of indemnity in respect of the first 5 working days for which weekly payments are claimed by the worker.
(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 to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c) give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.
Penalty: $1,000.
(3a) If within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made, the insurer has not —
(a) notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or
(b) subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,
the claim by the worker shall be deemed to be disputed.
(4) Where the Director has requested an insurer to do so, the insurer shall cause each notification to the Director under subsection (3)(c) to be accompanied by a means specified by the Director for conveying to the Director, in a machine readable form so specified, the information contained in the notification.
Penalty: $1,000.
(5) Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply for a determination under subsection (6).
(6) On an application under subsection (5) an arbitrator may determine the entitlement that the worker would have but for the operation of subsection (5), and thereupon the entitlement of the worker is as so determined but without affecting his entitlement under subsection (5) in respect of the period before that determination.
(7) An employer shall make the first of the weekly payments not later than 14 days after —
(a) he is notified that the insurer accepts the claim or the time prescribed by subsection (3) expires without the employer having received any notification as required by that subsection from the insurer; or
(b) on an application made under section 58, an arbitrator has ordered the commencement of weekly payments under this subsection,
and subsequent weekly payments shall be made on the employer's usual pay days.
(8A) An employer who fails to make a weekly payment by the due date under subsection (7) commits an offence.
Penalty for each weekly payment not made when due: a fine of $2,000.
(8) An employer who having received a payment from an insurer in respect of the employer's liability to make a weekly payment to a worker fails to make that weekly payment to the worker in accordance with subsection (7) commits an offence.
Penalty: $2,000.
1. On 5 November 2010 Mr Barkla lodged a claim for compensation for a psychiatric disorder suffered in the course of his employment as a custodial officer with G4S.
2. On 8 November 2010 Allianz, as insurer for the employer, gave a notice pursuant to s 57A(3c) that it had not decided whether liability was in dispute. The form lodged by Allianz stated that more information was required before Allianz could ascertain whether Mr Barkla had suffered an injury in the course of his employment or whilst acting under his employer's instructions.
3. Ten days then elapsed without Allianz giving a notice that the claim was accepted or disputed so that pursuant to s 57A(3a) liability was deemed to be disputed.
4. On 5 January 2012 Mr Barkla lodged an interlocutory application for an order for weekly payments pursuant to s 57A(5) of the Act on the grounds that Allianz had not complied with s 57A(3) by filing a notice that liability was in dispute. Mr Barkla contended that once Allianz had decided to dispute the claim, it was bound by s 57A(3) to give further notice to that effect, which it did not do.
5. On 20 January 2012 the arbitrator, Registrar Melville, dismissed the application ruling that weekly payments could not be ordered when a dispute was deemed to exist by operation of s 57A(3a) of the Act.
6. Mr Barkla appealed against the decision of Registrar Melville but his appeal was dismissed by Commissioner Gething: Barkla v G4S Custodial ServicesPty Ltd [No 2] [2012] WADC 78. Mr Barkla applied to the Court of Appeal for an extension of time within which to appeal. The Court of Appeal found Commissioner Gething's decision to be correct and dismissed the application: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 21.
7. In the proceedings under the Act, Allianz subsequently admitted liability and paid compensation to the full extent of Mr Barkla's statutory entitlements. Accordingly, the arbitration of the substantive dispute as to liability was discontinued.
8. Mr Barkla at some point commenced an action in the District Court of Western Australia against Allianz and WorkCover WA, claiming they had been in breach of a duty of care denying him medical treatment as a result of Allianz failing to admit liability earlier or delaying the assessment of the claim by failing to file a notice disputing liability. Fenbury DCJ struck out Mr Barkla's claim on the basis that it failed to disclose any reasonable cause of action and the pleadings were an abuse of process or vexatious: Barkla v Allianz Australia Insurance Ltd [2013] WADC 90. Mr Barkla appealed against that decision and the appeal was dismissed: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240.
9. Mr Barkla made a further application under s 217 of the Act for an extension of the prescribed amount. As a part of those proceedings Mr Barkla asked the arbitrator, Mr Nunn, to order that there be a statement of agreed facts. The arbitrator refused to make such an order. Mr Barkla then attempted to file a notice of appeal to the District Court of Western Australia against the refusal. The principal registrar of the District Court refused to accept the notice of appeal for filing pursuant to O 67 r 5 of RSC without leave being obtained from a judge. Mr Barkla brought an application for leave which was heard by Bowden DCJ. The application for leave was refused. His Honour stated that in his opinion the contentions of Mr Barkla sought to re-agitate the issue of whether Allianz was required to file a notice under s 57A(3) disputing liability and that the appeal was frivolous, or vexatious or an abuse of process. Mr Barkla appealed to the Court of Appeal and his appeal was dismissed: Barkla v WorkCover WA [2014] WASCA 40.
10. Mr Barkla again sought to re-agitate the question of the statutory construction of s 57A(3) of the Act by seeking a reconsideration under s 217A of the Act. Section 217A enables an arbitrator who has made a decision to reconsider the decision if new information becomes available. The application by Mr Barkla was based upon alleged new material in the form of comments made by the Hon Michael Mischin, the Minister for Commerce, in Parliament in response to questions asked on behalf of Mr Barkla by the Hon Ljiljanna Ravlich. The comments made by the Hon Michael Mischin were reported in Hansard. The application for reconsideration came before Arbitrator Nunn, who on 19 May 2014 dismissed the application. His principal reason for doing so was that Mr Barkla was seeking a declaration that Registrar Melville erred in law in his decision concerning the construction of s 57A(3). Arbitrator Nunn concluded that no challenge to that decision could be made because it had been upheld on appeal. Further, in any event, Mr Barkla had received worker's compensation and his entitlements were exhausted. Mr Barkla made an application for leave to appeal from the decision of Arbitrator Nunn dismissing the application for reconsideration but his application was dismissed by Staude DCJ on the basis that it amounted to an abuse of process and the proposed appeal was without merit: Barkla v Allianz Australian Insurance Ltd [2014] WADC 113.
Abuse of process
8 Central to Mr Barkla's application for leave to commence proceedings against Arbitrator Nunn by way of a writ of summons is whether such proceedings would constitute an abuse of process. In Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 [27], the High Court set out the categories of conduct which may constitute an abuse of process. These were as follows:
(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.
Conclusion
9 I have no hesitation in concluding that the writ of summons Mr Barkla seeks to file is an abuse of process in that the claim it makes is manifestly groundless or without foundation, it will serve no useful purpose and it is a part of a multiple or successive set of proceedings which if continued will cause improper vexation and oppression. My reasons for reaching this conclusion are as follows:
1. Firstly, the proceedings follow on from multiple earlier proceedings by MrBarkla seeking to re-agitate in a different form the contentions of Mr Barkla that pursuant to s 57A(3) of the Act Allianz was required to file a notice disputing liability. This issue has been raised repeatedly before this court and the Court of Appeal and the contention rejected. It is an important tenet of law that once a decision is given it cannot be re-opened by means of new proceedings. The principle of finality serves to protect persons from pointless litigation in the form of re-agitating issues that have already been decided: Burrell v The Queen [2008] HCA 32; (2008) 82 ALJR 1221.
2. Secondly, the nature of the relief sought by Mr Barkla is in the nature of a declaratory judgment. This court does not have jurisdiction to hear applications for purely declaratory judgments. The civil jurisdiction of the District Court of Western Australia is contained in s 50(1) of the District Court of Western Australia Act 1969 which states as follows:
Civil jurisdiction
(1) Subject to section 51 the Court has the same jurisdiction to hear and determine and may exercise all the powers and authority that the Supreme Court has and may exercise from time to time, in relation to —
(a) all personal actions, other than those of the kind referred to in subsection (2), where the amount, value or damages sought to be recovered is not more than the jurisdictional limit, whether on the original claim or demand or a balance after allowing payment on account, or the amount of any set off admitted by the plaintiff;
(aa) an action brought claiming an indemnity where the action arises from or relates to another action that is before the Court or that has been heard and determined by the Court;
(b) an action brought to recover a sum of not more than the jurisdictional limit which is the whole or part of the unliquidated balance of a partnership account, including in any such action jurisdiction, powers and authority relating to declaration of partnership or dissolution of partnership;
(ba) an action brought to recover a sum of not more than the jurisdictional limit which is the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will;
(bb) an action for specific performance of or for the rectifying, delivering up, or cancelling of any agreement whatever, where the amount in dispute or the value of the property affected is not more than the jurisdictional limit;
(c) an action of replevin where the value of the goods seized is not more than the jurisdictional limit;
(d) an action of ejectment to recover possession of any land, where the value of the land does not exceed one half of the jurisdictional limit by the year or where the rent exclusive of ground rent, if any, payable in respect of the land does not exceed one half of the jurisdictional limit by the year;
(e) any action, whether commenced in the Court or the Supreme Court, in which the amount, value or damages sought to be recovered exceeds the jurisdictional limit in which the parties thereto agree by a memorandum signed by them or by their respective solicitors, that the Court has power to hear and determine;
(f) all other actions or matters in respect of which jurisdiction is given to the Court by or under this or any other Act.
Further, even if the court had such a jurisdiction, the declaratory orders sought must give rise to a real issue so there is some utility granting the relief: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 [95]; Commissioner for Consumer Protection v Armstrong [2012] WASC 706 (S) [14]. In this matter Mr Barkla has already received his full entitlement under the Act and any declaratory relief against Mr Nunn would be pointless.
3. Thirdly, an action cannot be commenced against Mr Nunn personally to review his functions performed under the Act. Section 217B(1) of the Act provides that a decision of an arbitrator is final and binding on the parties and not subject to an appeal except as provided for under the Act. Further s 217B(2) provides that a decision of an arbitrator or anything done under the Act in the process of coming to a decision of an arbitrator is not amenable to judicial review The rights of appeal are limited to questions of law and Mr Barkla has exhausted his rights of appeal in previous proceedings.
10 For the above reasons, the application by Mr Barkla for leave to commence proceedings against Mr Nunn is dismissed.
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