Barkla v WorkCover Western Australia

[2014] WASCA 40

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BARKLA -v- WORKCOVER WESTERN AUSTRALIA [2014] WASCA 40

CORAM:   PULLIN JA

NEWNES JA

HEARD:   17 DECEMBER 2013

DELIVERED          :   17 DECEMBER 2013

PUBLISHED           :  21 FEBRUARY 2014

FILE NO/S:   CACV 114 of 2013

BETWEEN:   GEOFF BARKLA

Appellant

AND

WORKCOVER WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BOWDEN DCJ

File No  :CIVO 183 of 2013

Catchwords:

Appeal - Practice and procedure - Whether appeal has any reasonable prospect of succeeding - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 22 r 7
Supreme Court (Court of Appeal) Rules 2005 (WA), r 42(g)(i)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     No appearance

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

Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240

Barkla v Allianz Insurance [2013] WASCA 21

1. REASONS OF THE COURT:  The appellant appealed against an order of Bowden DCJ in the District Court.  The order refused the appellant leave to commence an appeal against a WorkCover WA arbitrator's decision refusing to make an order that a statement of agreed facts be filed by the parties.

2. This appeal was listed 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) on the basis that none of the grounds of appeal had any reasonable prospect of succeeding. After hearing the submissions from the appellant, the court decided that the appeal should be dismissed with reasons to follow. These are the reasons of the court.

3. It is necessary to begin by relating the history of some earlier litigation.  On 13 October 2010, the appellant was working as a custodial services supervisor at the Geraldton court.  His employer was G4S Custodial Services.  He claimed that he had been injured in the course of his employment and on 5 November 2010 he lodged a claim for workers' compensation.

4. On 5 January 2012, the appellant sought orders to the effect that he had an entitlement to weekly payments pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA), s 57A(5), as a result of Allianz Australia Insurance Ltd's (Allianz) (the employer's insurer's) failure to comply with the notification provisions in the WCIMA, s 57A(3). The appellant's contention was that an employer who had given notice under s 57A(3)(c) was also obliged to give notice under s 57A(3)(b) if it wished to dispute liability. The appellant contended the failure to do so triggered a liability to pay weekly payments. An arbitrator appointed under the WCIMA disagreed with the appellant's contention and dismissed the appellant's application.

5. The appellant appealed to the District Court against the arbitrator's decision.  Commissioner Gething in the District Court heard the appeal and dismissed it on 6 June 2012.  The appellant appealed to this court out of time.  He applied for an extension of time.  The court refused to grant the extension and the appeal was dismissed:  Barkla v Allianz Insurance [2013] WASCA 21. Only at the end of that hearing in the Court of Appeal was it revealed that there was no ongoing dispute between the parties. The appellant misled the court during that hearing by stating that the dispute about the appellant's entitlement to compensation had not yet been resolved. At [23] ‑ [24] in the decision just referred to, this court said:

   The appellant was asked during oral submissions in this hearing whether the dispute had yet been resolved by an arbitrator.  The appellant said that it had not.  This misled the court into believing that there was still a dispute between the parties which had to be resolved by arbitration.  Counsel for the first and third respondent then intervened and informed the court that liability had been accepted, that compensation was being paid to the appellant and that the appellant had discontinued his application for resolution of the dispute.  That means that this appeal is a waste of time. 

   The appellant has wasted the time of the court, the registry staff and the respondents.  There will be no injustice as a result of the dismissal of the application for [any] extension of time.  The application for an extension of time having been dismissed, it follows that the appeal is no longer on foot.  It is dismissed. 

6. At some stage, either while these events were taking place or subsequently, the appellant sued Allianz and WorkCover WA for damages, claiming that, in relation to his injury, they had denied him medical treatment and thereby breached a duty of care he alleged was owed by them.  He claimed that he was entitled to damages or compensation in addition to his statutory workers' compensation entitlements.  Fenbury DCJ in the District Court held that the statement of claim did not disclose any reasonable cause of action and could not succeed, that the defects in the pleading were so fundamental that there was no proper basis upon which to grant the appellant leave to re‑plead, and that the pleadings were an abuse of process or vexatious.  The action was therefore dismissed. 

7. The appellant appealed to this court against that decision.  That appeal was dismissed:  see Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240.

8. It then appears that another application was made by the appellant under the WCIMA.  According to some material before this court and confirmed by the appellant in oral submissions to this court, that was an application under s 217 of the WCIMA.  During the course of that matter, the appellant asked for an order that there be a statement of agreed facts.  An arbitrator - Arbitrator Nunn - refused to make such an order.

9. The appellant then attempted to file a notice of appeal in the District Court against that refusal. The principal registrar of the District Court refused to accept the notice for filing pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA), which applies to proceedings in the District Court and which gives the registrar of the court the power to decline to accept a court proceeding that appears to be an abuse of process of the court or a frivolous or vexatious proceeding. The registrar determined that there appeared to be no right of appeal and that the proposed appeal which related to 'denied right to have agreed statement of facts', was frivolous. The registrar therefore refused to accept the appeal notice for filing without the leave of a judge. Bowden DCJ considered whether such leave should be granted on 11 October 2013. Bowden DCJ's order was that the appellant should be refused leave to commence the appeal.

10. It became clear during the appellant's oral submissions to Bowden DCJ that the appellant wanted to have a statement of facts that 'refer to the 21 months that Allianz took to make a decision on liability' (11 October 2013, ts 5).  Bowden DCJ, in the course of his reasons for decision, said:

    Mr Barkla's basic argument is that if the insurance company, Allianz, hadn't disputed liability for 21 months and had have issued a 3B notice, then he wouldn't have been in the position that he is today, simply saying that during that course of the period of time of the 21 months he was in requirement … [of] medical treatment, and if an admission of liability had been made earlier or the 3B notice filed earlier, the matters would have been resolved.  He says that a statement of agreed facts to identify the issue is required so the parties can, in essence, ascertain where they are to go (11 October 2013, ts 14).

11. Bowden DCJ related the history of the proceedings, including the decisions of Commissioner Gething and Fenbury DCJ and the first appeal to this court.  His Honour said:

    [W]hat in fact is occurring is that the same issue is endeavouring to be relitigated under a different name by way of making a different application.  It does seem to me that in those circumstances … the proceedings can truly be described as frivolous or vexatious or an abuse of process (11 October 2013, ts 16).

12. His Honour also added that the arbitrator had a discretion about whether to make an order that there be a statement of agreed facts, but there was no 'right' to such an order.  Bowden DCJ also agreed with the principal registrar's view that the appeal was not permitted by s 247 of the WCIMA.

13. The appellant then appealed to this court against Bowden DCJ's order refusing leave to commence the District Court appeal. 

14. The appellant's grounds of appeal in this court read:

    1.The Appellant is self‑represented and Appeals to the Supreme Court WA - Court of Appeal on the grounds of fairness and a fair go, to deny the Appellant a statement of agreed facts is to muddy the waters and provide the Respondent/s in the dispute before Workcover WA, Allianz pathway to avoid and evade answering questions and avoid their responsibilities under the Act and to the community.

    2.This denial of procedural fairness by Workcover WA places the Insurer Allianz at an unfair advantage and the Appellant at a significant disadvantage.

    3.To deny the Appellant orders for a statement of agreed facts is to deny the Appellant due process and natural justice.

15. None of the proposed grounds revealed that any error was made by Bowden DCJ.  The appellant is not prevented by the order of Bowden DCJ from pursuing his application to WorkCover WA under s 217 of the WCIMA.  There was no denial of procedural fairness and there is no denial of 'due process'.  None of the grounds of appeal had any reasonable prospect of succeeding.

16. It is necessary to record that some of the oral submissions made by the appellant in this court referred, again, to his claim that the alleged 21 month delay by Allianz was a breach of duty by the insurer which denied the appellant medical treatment.  That harks back to the complaint made in the action that was previously dismissed by Fenbury DCJ.  As mentioned above, the appeal against Fenbury DCJ's order was dismissed by this court.  The appellant seems intent on ignoring the fact that that action and his appeal were dismissed.

17. It is also necessary to record that, as in other proceedings - see Barkla v Allianz Insurance [2013] WASCA 21 [14] - the appellant did not join the employer which is the protagonist in the litigation. No orders affecting orders made by the arbitrator could be made in the absence of the employer.

18. In view of the decision to dismiss the appeal, it is not strictly necessary to deal with two other applications made in the appeal by the appellant.  However, it should be recorded that if the appeal had not been dismissed, the two applications would have been dismissed.  The applications were an application dated 3 December 2013 and filed on 10 December 2013 by the appellant for a 'certificate stating that no defence has been filed', and an application filed on 25 November 2013 for 'judgment in favour of the appellant on the grounds that the respondent has made no objections to this application and has advised … that the respondent will not be taking part in this dispute.  The respondent is in fact in default of defence'.

19. The appellant referred to the fact that the respondent first filed a notice of intention indicating that it intended to take part in the appeal, and then, subsequently, filed an amended notice stating that it did not intend to take part in the appeal and would accept any order made by the court in the appeal other than as to costs.

20. This prompted the two applications. The application for the certificate was said by the appellant to be based on O 22 r 7(1A) of the Rules of the Supreme Court 1971 (WA). Order 22 r 7 provides, in effect, that if a defendant, in relation to claims described in O 22 r 7, fails to serve a defence, a plaintiff may apply to the court for judgment and on the hearing of that application, 'the applicant or his solicitor must produce a certificate issued by the proper officer on the day of the hearing stating that no defence has been filed by the defendant against whom it is sought to enter judgment'.

21. The appellant sent some emails to the Court of Appeal demanding the certificate.  One was copied to the associate to the Chief Justice of the Supreme Court, the associate to the Chief Judge of the District Court, the associates to most if not all of the judges of the District Court, the State Solicitors Office, the Auditor General, the Attorney General of Western Australia, the Corruption and Crime Commission, the Governor, Premier and Deputy Premier of Western Australia, various government ministers, the Legal Practice Board, and press organisations.  Some contained aggressive, offensive and scandalous content.  Another was copied to a smaller, but equally diverse, group.

22. Order 22 r 7 has no application to an appeal. There is no requirement for a defence to be filed. If the appeal had not been dismissed, the appellant's two applications would have been dismissed.

23. For those reasons set out above, the appeal was dismissed.  These reasons will be sent to the Attorney General for him to consider whether an application should be made under the Vexatious Proceedings Restriction Act 2002 (WA).