PAST LITIGATION
50 Prior to Allianz accepting liability for his claim, Mr Barkla made an interlocutory application in the disputed proceedings then before an arbitrator of WorkCover WA. By that application, Mr Barkla asserted that Allianz was liable to pay weekly payments to him because of the operation of s 57A(5) and its failure to serve him with a Form 3B notice. The arbitrator dismissed Mr Barkla's interlocutory application on 20 January 2012. The arbitrator said:
4. At the nub of the application is the proposition that the insurer, having issued a notice pursuant to the provisions of Section 57A(3) that it was not able to make a decision whether or not liability was to be accepted within the 14 days provided in Section 57A(3), and having stated a number of grounds or reasons for which it was unable to make a decision, should have subsequently issued further notices either accepting or denying liability pursuant to Section 57A(3). In this case, the notice issued by the insurer advised further factual and medical information was required to ascertain if the claimant had sustained an injury in the course of his employment or whilst acting under the employer's instructions and that wages details were being sought from the employer.
5. Mr Barkla says this information subsequently became available, at which point further notices should have issued under Section 57A and that the insurer failed to do so. The legal result of this, Mr Barkla says, is that by Section 57A(5) he is as a matter of law entitled to weekly payments.
6. In my opinion the provisions of Section 57A cannot be interpreted in a manner that gives rise to that result. It seems to me the principle purpose of section 57A(3) is to give a worker notice of where he stands as soon as practicable so that he can make decisions about whether the insurer's decision should be challenged or whether he should bring proceedings for the commencement of weekly payments pursuant to Section 58 of the Act or otherwise.
51 See Attorney General for Western Australia v Barkla [2016] WASC 298 at [13].
52 Before proceeding further, it is necessary to clarify the material upon which this Court relies to summarise the various proceedings pursued by Mr Barkla, the orders made in the proceedings and the reasons for the orders.
53 Section 37AO(6) of the FCA Act expressly permits the Court to have regard to proceedings in other Australian Courts and Tribunals and so implicitly warrants consideration of the fact of the commencement of the proceedings, the orders made in the proceedings and any published reasons for judgment.
54 Mr Barkla submitted that this Court should not have regard to judgments of other courts for the purpose of deciding Allianz' interlocutory application. Mr Barkla objected to the Court reading certain orders and reasons for judgment published by other Courts or Tribunals annexed to an affidavit sworn by Mr Stephen Alan Fong sworn on 12 January 2018, upon which Allianz relied. For the most part, it is not necessary to accept the sworn depositions of Mr Fong to identify the nature and subject matter of the proceedings instituted and pursued by Mr Barkla, the orders made in the proceedings and the reasons given for the orders. Such things may be ascertained from the judgments and orders themselves. The judgments may be read as authorities. They do not require formal proof. The extract from the arbitrator's reasons at [50] above is drawn from an annexure to Mr Fong's affidavit. The fact that the arbitrator gave reasons in those terms is not contentious.
55 Quite apart from s 37AO of the FCA Act, the judgments given in the various proceedings commenced by Mr Barkla are relevant to this Court's determination as to whether the present proceeding should be dismissed under r 26.01 as an abuse of the Court's processes.
56 In narrating the history of litigation, it will be borne in mind that Mr Barkla does not accept that the judgments were correctly decided. Among other things, Mr Barkla complained that he had not been afforded procedural fairness in the various proceedings. He has sought to attack the credit and bona fides of others who participated in the proceedings in various capacities, including members of the judiciary and court staff, particularly registrars.
57 It is, of course, for this Court to satisfy itself that the conditions for making an order pursuant to s 37AO of the FCA Act exist. The orders sought by Allianz should not be made on the basis that the Supreme Court of Western Australia has determined that a similar order should be made against Mr Barkla pursuant to a law of that State. Allianz did not contend otherwise.
58 The long history of litigation pursued by Mr Barkla is conveniently set out in Le Miere J's judgment. With some exceptions (identified at [59] below), this Court has read all of the judgments to which his Honour referred, and is satisfied that the proceedings pursued by Mr Barkla are fairly and correctly summarized in his Honour's reasons at [15] to [61]. The most convenient way of narrating the history is to extract and adopt that summary in full in the following pages of this judgment:
Barkla appeals to the District Court
15 Mr Barkla appealed to the District Court against the arbitrator's decision, pursuant to WCIM Act s 247. On 6 June 2012 Commissioner Gething granted leave to Mr Barkla to appeal but dismissed the appeal: Barkla v G4S Custodial Services [No 2] [2012] WADC 78; (2012) 80 SR (WA) 91. Commissioner Gething's reasons were as follows:
… an insurer complies with WCIM Act s 57A(3) by giving one of the three forms of notice required by that section.
The regime as to what occurs if 'within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made' is governed by WCIM Act s 57A(3)(ca). If there is to be an obligation of the kind contended for by Mr Barkla, the obligation would have to be implied into s 57A(3a). If there is a breach of WCIM Act s 57A(3a), the result is a deemed dispute, not deemed liability within s 57A(5). Thus, even if G4S did breach the implied obligation, Mr Barkla would be in the same position he is now: able to make an application to an arbitrator for determination of the deemed dispute pursuant to WCIM Act s 58(1) [59] - [60].
Barkla appeals to Court of Appeal
16 On 26 September 2012 Mr Barkla filed a notice of appeal to the Court of Appeal from the decision of Commissioner Gething. The notice of appeal was out of time. Mr Barkla sought an extension of time to appeal.
17 On 31 January 2013 the Court of Appeal refused to extend time on the ground that the proposed grounds of appeal have no prospect of success: Barkla v Allianz Insurance [2013] WASCA 21. The Court of Appeal considered that the first proposed ground of appeal challenged the correctness of Commissioner Gething's reasons. The Court of Appeal held that Commissioner Gething's reasons were unimpeachable. The second proposed ground of appeal related to an earlier decision of Commissioner Gething on 1 May 2012 when he dismissed an application by Mr Barkla for leave to adduce evidence at the hearing of the appeal. In reasons for dismissing the application Commissioner Gething said that it was apparent to him that the evidence Mr Barkla sought to adduce was about whether officers of Allianz or WorkCover held particular views about the interpretation of s 57A. Commissioner Gething correctly held that such evidence was entirely irrelevant to the proceedings before the District Court judge. The third proposed ground of appeal alleged that actions of G4S were unlawful and illegal. The Court of Appeal said that the proposed ground of appeal had no reasonable prospect of succeeding.
18 The Court of Appeal held that there was another reason for dismissing the application. The court learned from counsel for Allianz that liability had been accepted, that compensation was being paid to Mr Barkla and that Mr Barkla had discontinued his application for resolution of the dispute. The Court of Appeal said:
That means that this appeal is a waste of time.
[Mr Barkla] has wasted the time of the court, the registry staff and the respondents [23] ¬ [24].
Barkla commences District Court CIV 638 of 2013 against Allianz and WorkCover
19 On 14 February 2013 Mr Barkla filed a writ of summons indorsed with a statement of claim in the District Court against Allianz and WorkCover. Mr Barkla alleged that the defendants failed in their duty of care by denying him medical treatment. WorkCover and Allianz each filed a chamber summons applying for orders to strike out and dismiss the action on the basis that it disclosed no reasonable cause of action. Mr Barkla filed an application for default judgment against WorkCover on the basis that no signature appeared on documents served on Mr Barkla on behalf of WorkCover. Mr Barkla made various procedural applications. On 10 April 2013 the Principal Registrar dismissed Mr Barkla's procedural applications and made programming orders. Mr Barkla filed a notice of appeal from Registrar Gething's programming orders. On 6 May 2013 Scott DCJ dismissed Mr Barkla's appeal.
20 On 20 May 2013 Fenbury DCJ heard the applications by WorkCover and Allianz to strike out Mr Barkla's claim and dismiss the action and Mr Barkla's application for summary judgment. Fenbury DCJ struck out the statement of claim and dismissed Mr Barkla's actions against each defendant: Barkla v Allianz Australia Insurance Ltd [2013] WADC 90.
Barkla attempts to file District Court writ of summons CIVO 121of 2013 against Ms Michelle Reynolds (WorkCover Western Australia Chief Executive Officer)
21 On 10 June 2013 Mr Barkla attempted to file a writ of summons in the District Court against Ms Michelle Reynolds, Chief Executive Officer of WorkCover. On 8 July 2013 Principal Registrar Gething wrote to Mr Barkla stating that the court had refused to accept the writ for filing as it appeared that the allegations made in it and the statement of claim were not materially different from the matters raised in CIV 638 of 2013. Mr Barkla sought leave to file the writ. On 19 August 2013 Birmingham DCJ refused leave to commence proceedings on the basis that the proceedings were not materially different from CIV 638 of 2013.
Barkla appeals to Court of Appeal against decision in CIV 638 of 2013
22 On 1 July 2013 Mr Barkla filed a notice of appeal in the Court of Appeal against the decision of Fenbury DCJ in CIV 638 of 2013. On 31 July 2013 Mr Barkla filed an appellant's case in which he alleged that he was denied procedural fairness by being denied the right to cross examine Mr Rob Moffat, a manager of Allianz Australia, and submitting that the statement of claim disclosed a reasonable cause of action. On 15 October 2013 the Court of Appeal ordered that the appeal be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) because Mr Barkla's grounds of appeal do not disclose any arguable basis for contending that the conclusions reached by Fenbury DCJ were wrong and hence none of the grounds had any reasonable prospect of success. The court held that none of Mr Barkla's grounds of appeal had any reasonable prospect of success.
Barkla attempts to file District Court writ CIVO 126 of 2013 against WorkCover
23 On 11 July 2013 Mr Barkla attempted to file a writ of summons in the District Court against WorkCover Western Australia Corporation claiming that he was denied procedural fairness because Arbitrator Samuel Nunn of WorkCover could not answer a question regarding why Mr Barkla was allegedly denied medical treatment for 21 Months. On 19 July 2013 Principal Registrar Gething wrote to Mr Barkla stating that the court had declined to accept the writ for filing as it appeared to be an abuse of process. On 19 August 2013 Birmingham DCJ refused leave to commence proceedings on the basis that the proposed proceedings were not materially different from CIV 638 of 2013.
Barkla attempts to file appeal notice against decision of Arbitrator Nun
24 On 24 September 2013 Mr Barkla attempted to file an appeal notice in the District Court against the decision of Arbitrator Nunn at WorkCover alleging that he was denied the right to have an agreed statement of facts. On 25 September 2013 Principal Registrar Gething wrote to Mr Barkla stating that the court declined to accept the appeal notice for filing as it appeared it was another attempt to aerate issues that had been the subject of previous unsuccessful applications. On 11 October 2013 Bowden DCJ refused leave to file the appeal notice on the grounds that it was an attempt to re litigate matters that had previously come before the court. On 23 October 2013 Mr Barkla emailed Principal Registrar Gething asking why no formal written reasons for decision were published and alleged that the District Court wished to cover up the fact that there was a hearing.
Barkla files appeal notice to Court of Appeal against decision of Bowden DCJ
25 On 15 October 2013 Mr Barkla filed an appeal notice in the Court of Appeal against the decision of Bowden DCJ in CIV 183 of 2013 alleging that Bowden DCJ's denial of his application for a statement of material facts was an abuse of process, vexatious and biased. Mr Barkla filed an appellant's case. The registrar issued a notice listing the matter for hearing to determine whether the appeal should be dismissed on the basis that none of the grounds had a reasonable prospect of success. Mr Barkla then filed an application applying for judgment in his favour. On 17 December 2013 the Court of Appeal dismissed the appeal: Barkla v WorkCover Western Australia [2014] WASCA 40. The court said that none of Mr Barkla's grounds of appeal had any reasonable prospects of success.
Barkla issues writ CIVO 1 of 2014 against Allianz
26 On 6 January 2014 Mr Barkla filed a writ of summons in the District Court against Allianz alleging that he was denied a statement of agreed facts by Arbitrator Nunn of WorkCover. Principal Registrar Gething wrote to Mr Barkla stating that the court would not accept the writ of summons for filing and listed the matter to be heard on 29 January 2014 to consider whether Mr Barkla should have leave to commence the appeal. Principal Registrar Gething stated that over the past 18 months Mr Barkla had sent the court registry over 300 emails which was an abuse of process.
27 Mr Barkla's application for leave was dismissed by McCann DCJ on 19 February 2014: Barkla v Allianz Australia Insurance Ltd [2014] WADC 23. McCann DCJ said that the indorsement of claim did not plead a recognised common law cause of action, was an abuse of process, frivolous and vexatious.
Barkla files appeal notice in District Court against decision by Arbitrator Nun: CIVO 4 of 2014
28 On 7 January 2014 Mr Barkla filed an appeal notice in the District Court against Allianz appealing a decision made by Arbitrator Nunn at WorkCover. The appeal notice alleged that Mr Barkla was denied the right to have an agreed statement of facts, claimed that Allianz had not provided required medical evidence and queried the basis upon which liability was disputed by Allianz. Mr Barkla then filed an amended appeal notice seeking further orders overruling certain procedural decisions made by Arbitrator Nunn in alleging a denial of expert medical evidence for 21 months.
29 In response to an email sent to the court by Mr Barkla Acting Principal Registrar Kingsley wrote to Mr Barkla explaining that the appeal notice must be served personally. In response, Mr Barkla wrote to the court querying why he was not able to serve documents by email. On 20 January 2014 Mr Barkla attempted to file four subpoenas by fax requiring officers of Allianz and their solicitors to attend to give evidence on 29 January 2014 and produce documents. On 21 January the Acting Principal Registrar wrote to Mr Barkla declining to seal and issue the subpoenas faxed to the court. Mr Barkla emailed the court attaching various documents alleging the Acting Principal Registrar's conduct was an abuse of process and a denial of procedural fairness. On 28 January Mr Barkla emailed the court requesting advice as to why the court declined to seal and issue subpoenas.
30 On 19 February 2014 McCann DCJ published reasons ordering that Mr Barkla have leave to amend the substituted grounds of appeal, requiring him to serve a notice of proposed grounds of appeal and dismissed Mr Barkla's application to issue subpoenas with liberty to reapply at a later time and listed the matter for a further directions hearing: Barkla v Allianz Australia Insurance Ltd [2014] WADC 23. At a further directions hearing on 5 March 2014 McCann DCJ extended the time for filing the notice of proposed grounds of appeal and informed Mr Barkla that if he filed arguable grounds of appeal then the matter would proceed to a final hearing but if he did not file grounds of appeal that met the requirements he would be notified to fix it up. Mr Barkla filed proposed grounds of appeal. On 26 March 2013 McCann DCJ published reasons for permanently staying the application for leave to appeal: Barkla v G4S Custodial Services Pty Ltd [2014] WADC 36.
District Court appeal APP 54 of 2014
31 On 9 June 2014 Mr Barkla filed an appeal notice in the District Court against the decision of Arbitrator Nunn of WorkCover naming Allianz and G4S as respondents. The appeal notice alleged that WorkCover denied Mr Barkla an arbitration hearing, denied him right to question witnesses and alleged that Arbitrator Nunn made a misleading statement and was biased.
32 On 3 July 2014 Registrar Kingsley wrote to Mr Barkla in response to an email sent by Mr Barkla to the District Court on 1 July 2014 attaching an application in APP 54 of 2014. The letter informed Mr Barkla that the court declined to accept the application for filing without the leave of a judge and requested that all future correspondence from Mr Barkla to the court be addressed only to Registrar Kingsley and noted that the court had received over 600 emails from Mr Barkla since February 2012. Between 7 July 2014 and 28 July 2014 there was various correspondence and emails between Mr Barkla and the court in which Mr Barkla requested that certain letters and documents be sealed and the court declined. On 28 August 2014 Staude DCJ published reasons for dismissing the appeal: Barkla v Allianz Australia Insurance Ltd [2014] WADC 113. In his application for leave to appeal Mr Barkla maintained that he is entitled to a ruling that Allianz contravened s 57A of the WCIM Act by not giving him, in response to his claim for weekly payments, a notice pursuant to s 57A(3)(b) that had disputed liability. In his reasons for decision Staude DCJ noted that the point has been litigated and decided in earlier proceedings but that Mr Barkla insisted that those decisions were wrong and that he has not been given any reasons why his interpretation of s 57A(3) is not correct. Further, Mr Barkla sought a reconsideration of the issue on the basis of new information. The new material from Mr Barkla included extracts from Hansard of 27 June 2013 and 13 August 2013 in which the Hon Michael Mischin, then Minister for Commerce, in answer to questions asked on behalf of Mr Barkla by the Hon Ljiljanna Ravlich said:
I am advised that Allianz was not required to issue you a notice under section 57A(3b) of the Workers Compensation and Injury Management Act 1981 in respect of Mr Barkla. This particular matter has been considered by various courts on appeal by Mr Barkla, which confirmed the decision of the WorkCover WA Arbitrator.
33 On 13 August 2013 the Minister was asked what form was required to be given to a worker when an insurer disputed a claim for compensation and whether such a form was given to Mr Barkla. The Minister responded that where an insurer disputes a claim for compensation a Form 3B is to be given. The Minister went on to say that he was advised that Mr Barkla's insurer was not required to issue a Form 3B in this matter.
34 Staude DCJ concluded:
The application for leave to appeal amounts to an abuse of process. Moreover, the proposed appeal is without merit. The appeal is struck out and the application for leave dismissed [48].
District Court proceedings CIVO 139 of 2014 against Arbitrator Nunn
35 On 28 August 2014 Mr Barkla filed a writ of summons, an ex parte chamber summons and an affidavit in the District Court against Arbitrator Nunn of WorkCover. Each document set out several questions regarding the statement made by the Attorney General in Hansard pertaining to the construction of WCIM Act s 57A(3). Sleight DCJ published reasons for decision on 21 November 2014: Barkla v WorkCover WA [2014] WADC 159. Sleight DCJ concluded:
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 … The proceedings follow on from multiple earlier proceedings by Mr Barkla seeking to re agitate in a different form the contentions of Mr Barkla that pursuant to section 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 [9].
Appeal CACV 109 of 2014
36 Mr Barkla filed an appeal notice against the decision of Staude DCJ. Mr Barkla applied to deliver interrogatories. The Court of Appeal dismissed the application to administer interrogatories: Barkla v Allianz Australia Insurance Ltd & G4S Custodial Services [2014] WASCA 192. The court held that the application to administer interrogatories was based on a fundamental misunderstanding of the appellate process.
37 On 7 November 2014 Mr Barkla filed an application for special leave to appeal to the High Court from the decision of the Court of Appeal refusing leave to administer interrogatories. Special leave was refused on the ground that the draft notices of appeal for each application for special leave to appeal raised no questions of law that would justify leave being granted, 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 and the appeal to the High Court had no prospects of success: Geoff Barkla v Allianz Australia [2015] HCASL 40 [6].
38 On 10 November 2014 Mr Barkla's application for leave to appeal and the appeal were heard and dismissed by the Court of Appeal: Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222. The Court of Appeal said that the appeal arises out of arbitration proceedings in which Mr Barkla has sought to reargue the question whether Allianz was required to give a notice under s 57A(3)(b) in addition to the notice it gave under s 57A(3)(c). The court said:
[Mr Barkla] is plainly casting around for a basis upon which to bring an action for damages in relation to the alleged delay by Allianz in accepting liability to pay compensation under the Act. He obviously believes that his prospects of bringing such an action would be enhanced by a finding that Allianz was required to give a notice under s 57A(3)(b). It is unnecessary to comment on whether that belief is well founded. The insurmountable difficulty, which it appears the appellant will not accept, is that the issue was resolved against him in Barkla v Allianz Insurance [2013] WASCA 21. It was not (and is not) open to [Mr Barkla] to re agitate it in fresh proceedings under the Act in the hope of attaining a different result, much less to do so for a purpose unconnected with the purposes of the Act [38].
39 The court dismissed the application for leave to appeal and the appeal.
Appeal 116 of 2014 to District Court
40 On 23 October 2014 Mr Barkla filed an appeal notice in the District Court against the decision of Arbitrator Paparone of WorkCover. The grounds of appeal claimed a requirement for an insurer to issue a Form 3B and stated the cause of action as being a breach of legal obligation to uphold a statute. In the course of the appeal Mr Barkla emailed the request for the issue of subpoenas in an application for a question of law. Mr Barkla filed other motions and submissions.
41 On 23 February 2015 Goetze DCJ dismissed the application in the appeal and refused leave to appeal. Goetze DCJ gave ex tempore reasons dismissing the appeal on the basis that the appeal had no reasonable prospect of succeeding.
Originating motion CIV 2664 of 2014 to Supreme Court
42 On 3 December 2014 Mr Barkla filed a notice of originating motion in the Supreme Court naming Registrar Bush as the defendant. The originating process alleged an abuse of public office and requested the court answer a question of law. The matter was heard by McKechnie J on 15 December 2014 together with CIV 2666 of 2014. McKechnie J published reasons for dismissing the motion: Re Registrar Linda Bush, ex parte Barkla [2014] WASC 488. In his reasons McKechnie J stated that the proposed writ of summons is hopeless and does not plead any legally identifiable cause of action.
Proceeding CIV 2666 of 2014
43 This proceeding was a notice of originating motion naming Justices of Appeal Newnes and Murphy as defendants. The motion sought an order that Newnes and Murphy JJA provide an answer as to why Mr Barkla was allegedly not permitted to ask certain questions of Allianz. McKechnie J held that the proposed writ of summons and originating motion were each vexatious and an abuse of the processes of the court: Re The Hon Justice Newnes, Ex Parte Barkla [2014] WASC 487.
Proceeding CIVO 23 of 2015
44 On 27 February 2015 Mr Barkla filed an originating summons in the District Court naming WorkCover as respondent claiming that WorkCover had breached its legal duty by use of deceit, falsehood and trickery and depriving Mr Barkla of his rights to fair hearings and answers to questions. On 17 March 2015 Herron DCJ struck out the originating summons as an abuse of process.
Proceeding CIVO 29 of 2015
45 On 11 March 2015 Mr Barkla faxed an originating summons in the District Court naming Registrar Bush as the respondent and alleging that the registrar caused the tort of defamation and libel and alleged obstruction of justice, abuse of public office and harm to Mr Barkla. Levy DCJ struck out the originating summons on the grounds that it is vexatious and an abuse of process: Barkla v Bush [2015] WADC 46.
CACV 10 of 2015
46 On 12 January 2015 Mr Barkla filed an appeal notice in the Court of Appeal naming Newnes and Murphy JJA as respondents. The appeal notice stated that Mr Barkla was appealing against the decision of McKechnie J in CIV 2666 of 2014 or CIV 2664 of 2014 stating that his Honour erred in fact and in law in that he failed to provide any statutes of law by which Mr Barkla is not entitled or permitted to ask a question of law. The Court of Appeal dismissed the appeal stating that none of the grounds of appeal had a reasonable prospect of succeeding.
CACV 11 of 2015
47 On 12 January 2015 Mr Barkla filed an appeal notice in the Court of Appeal appealing from CIV 2666 of 2014 or CIV 2664 of 2014 and naming Registrar Linda Joyce Bush (COA) WA as the first respondent. The appeal notice stated Mr Barkla was appealing against the decision of McKechnie J in CIV 2666 of 2014 or CIV 2664 of 2014 stating that his Honour erred in fact and in law as he failed to provide any statutes of law by which Mr Barkla is not entitled/permitted to ask a question of law and alleging that McKechnie J breached the Constitution and his oath of office.
48 On 12 June 2015 the Court of Appeal dismissed the appeal: Barkla v Justice David Wallace Newnes [2015] WASCA 120.
49 On 15 July 2015 Mr Barkla filed a summons in the High Court against Registrar Bush seeking orders that the defendant answer a question as to why Mr Barkla was not entitled to refer a legal issue to the Court of Appeal. Special leave was refused on the ground that the application raised no question of law which would warrant a grant of special leave to appeal and the draft appeal was bound to fail: Geoff Barkla v Registrar Linda Joyce Bush [2015] HCASL 181 [4].
Proceeding CIV 1717 of 2015
50 On 12 May 2015 Mr Barkla filed a writ of summons in the District Court naming Mr Civitella as the defendant. The indorsement of claim described the cause of action as deprivation of liberty, denied freedom of speech, malfeasance and victimisation by the defendant. Mr Barkla filed applications to serve the defendant documents by fax or email. The application was listed for a special appointment before Stone DCJ. The matter was heard with CIV 1719 of 2015, to which I will refer later in these reasons. CIV 717 of 2015 was not heard because Mr Barkla informed the court that he did not wish for that matter to be called on until after CIV 1719 of 2015 had been heard. On 13 August 2015 Mr Barkla emailed or faxed to the District Court a document entitled 'Notice to admit facts pursuant to the written laws of the Rules of the Supreme Court 1971 Order 30 rule 2(1)'. Registrar Kingsley wrote to Mr Barkla stating that the purported notice was incompetent. Mr Barkla emailed the District Court registry attaching a subpoena to produce addressed to Mr Civitella for the production of written reasons in response to certain questions. Registrar Kingsley wrote to Mr Barkla informing him that the subpoena would not be issued. Mr Barkla faxed to the District Court a document entitled 'chamber summons the plaintiff motions for judgment as the defendant has failed to comply with the written laws of the rules of the Supreme Court 1971 Order 30 rule 2(1) to admit facts'. Registrar Kingsley wrote to Mr Barkla notifying him that the chamber summons would not be listed for hearing.
51 On 31 August 2015 Stavrianou DCJ heard the chamber summons 'for orders to serve the defendant's documents by fax and/or email'. Stavrianou DCJ adjourned the proceedings to enable Mr Barkla to write to the defendant to request that service be by way of email. On 24 September 2015 Mr Barkla filed a document entitled 'chamber summons for default judgment for the plaintiff and orders that the defendant file an affidavit answering the two questions herein and at fact nine (9) of the notice to admit facts as served on the defendant 16 September 2015'. The Deputy Registrar wrote to Mr Barkla declining to accept the chamber summons. Mr Barkla emailed the court and others attaching a document entitled
chamber summons for judgment for the plaintiff in that the defendant failed to comply with the statutory written laws of the Rules of the Supreme Court 1971 (WA) O 30 r 2(1) causing harm, damage and loss to the plaintiff and the plaintiff's case. Please refer to attached 'notice to admit facts' as served on the defendant on the 19th October 2015.
Registrar Kingsley wrote to Mr Barkla advising him that the chamber summons would not be listed. On 7 December 2015 McCann DCJ heard the matter and made orders granting Mr Barkla leave to serve the writ of summons on the defendant by certified post. Mr Civitella filed a memorandum of appearance. Mr Civitella filed a chamber summons to strike out the indorsement of claim and for summary judgment.
52 The matter was heard on 2 November 2015 and judgment was delivered by Davis DCJ on 20 January 2016: Barkla v Civitella [2016] WADC 3. Her Honour described this matter as one of a long list of proceedings commenced by Mr Barkla, who is self-represented, arising from Mr Barkla's workers' compensation claim against his employer and his construction of s 57A(3) of the WCIM Act.
53 Davis DCJ found, at [97] of that decision that the current writ follows on from multiple earlier proceedings in which Mr Barkla has sought to re-agitate in various ways his contention that pursuant to the WCIM Act s 57A(3), Allianz was required to give a form 3B notice disputing liability. Her Honour found that Mr Barkla's attempts to re litigate this matter are an abuse of process, vexatious, and a waste of the court's resources, and must end [11]. Further:
The District Court cannot entertain any more proceedings by Mr Barkla which are in any way connected with his construction of s 57A(3). His attempts to re-litigate this matter by attempting to sue the solicitor for Allianz and G4S Custodial Services is an abuse of process.
Because Mr Barkla's claim is obviously unsustainable and an abuse of the process of the court, it is frivolous or vexatious pursuant to RSC O 20 r 19(1)(b) [100] - [101].
Proceeding CIV 1719 of 2015
54 On 12 May 2015 Mr Barkla filed a writ of summons in the District Court against Allianz Australia. The indorsement of claim describes the cause of action as deprivation of liberty, denied freedom of speech, malfeasance and victimisation by the defendant. Mr Barkla then filed a document entitled 'chamber summons for orders to identify the issues in dispute more clearly in obtaining information from the respondent as to the case it has to meet at trial'. Mr Barkla then filed an affidavit attaching a chamber summons seeking 'summary judgment against the defendant on grounds that the defendant has no defence to the plaintiff's writ served on 26 May 2015'.
55 On 9 June 2015 the defendant filed a chamber summons to strike out the indorsement of claim and for summary judgment and an affidavit in support. Mr Barkla then filed a statement of claim describing the cause of action as human rights abuses and deprivation of liberty, denied freedom of speech, malfeasance and victimisation by the defendant.
56 On 18 June 2015 Mr Barkla filed a notice to admit facts. On 22 June 2015 Mr Barkla filed a chamber summons for orders to strike out the defendant's application filed 9 June 2015 and an affidavit in support. Mr Barkla also filed a reply to the defence. On 26 June 2015 Mr Barkla filed a document entitled 'notice to admit facts re defendant's chamber summons (9 June 2015) to strike out plaintiff's statement of claim'. On 21 July Mr Barkla filed a document entitled 'chamber summons orders for judgment for the plaintiff due to the fact that the defendant has failed to comply with the Rules of the Supreme Court 1971 (WA) O 30 r 2(1) to admit facts as required to the plaintiff's notice to admit facts'. On 29 July 2015 Mr Barkla filed a document entitled 'Chamber summons for orders for default judgment as the defendant has failed to admit facts as sent to the defendant 26 June 2015'. On 30 July 2015 Mr Barkla filed a document entitled 'Further submissions and legal authorities and written laws that require the defendant to admit to facts and the defendant has failed to comply with the legal authorities and written laws of the Rules of the Supreme Court 1971 O 30 r 2(1) notice to admit facts'.
57 On 31 July 2015 Stone DCJ heard the matter and made orders that the claim be struck out and that the plaintiff pay the defendant's costs of the application.
CACV 125 of 2015
58 On 10 August 2015 Mr Barkla filed an appeal notice in the Court of Appeal against the decision of Stone DCJ that the claim in CIV 1719 of 2015 be struck out. On 20 August 2015 Registrar Davies wrote to Mr Barkla referring to several documents attempted to be filed by Mr Barkla that were not accepted for filing. On 25 August 2015 Mr Barkla filed an application for a review of a judge's or registrar's decision claiming that Registrar Davies is denying the appellant his rights to notice to admit facts filed 12 August 2015 and referring to a legal issue to the Court of Appeal Form 18 filed 12 August 2015.
59 The matter was heard before the Court of Appeal on 14 October 2015 who dismissed the appellant's application: Barkla v Allianz Australia [2015] WASCA 210. The Court of Appeal said that the decision of the Registrar to refuse to accept the documents for filing was plainly correct and that the documents were an abuse of the process of the court.
CACV 7 of 2016
60 On 12 February 2016, the appellant filed an appeal notice in the Court of Appeal against the decision of Davis DCJ in CIV 1717 of 2015. In this decision the Court of Appeal dismissed an application to set aside a decision of the Court of Appeal Registrar to refuse, pursuant to r 10(1) of the Supreme Court (Court of Appeal) Rules, to accept for filing two documents the appellant sought to file in the appeal the Court of Appeal: Barkla v Civitella [2016] WASCA 71. The Court found that:
The documents, which are meaningless, were rightly rejected, and in the light of the history of that - we have outlined above, the application for review is itself an abuse of the process of the court. The inescapable inference is that the appellant has sought to file the documents and has applied to review the registrar's decision to reject them for filing for the sole purpose of vexing the respondent and wasting the time of this court [10].
61 The decision in this matter was published on 1 July 2016 after the decision was delivered ex tempore at the hearing of the matter on 23 June 2016: Barkla v Civitella [No 2] [2016] WASCA 111. The court dismissed the appellant's appeal on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. In coming to that conclusion the court noted that:
The appellant has, however, repeatedly instituted proceedings in which he has sought to obtain admissions by Allianz, or one of its representatives, to the effect that, in breach of the Act, Allianz failed to give the appellant a notice under s 57A(3)(b) of the Act (a Form 3B). In Barkla v Allianz Insurance, this court upheld the finding of the District Court that Allianz was not required to give such a notice. In subsequent proceedings by the appellant on the same issue, this court pointed out that the issue was res judicata: Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222. The appellant has remained undeterred [5].
Buss and Newnes JJ observed:
In this case, the proceedings below were simply yet another attempt to litigate that very issue and therefore were an abuse of the process of the court [19].
59 Of the judgments referred to in these passages, this Court does not have the judgment of Birmingham DCJ of 19 August 2013 (referred to at [21] and [23] the reasons), the judgment of Bowden DCJ of 11 October 2013 (referred to at [24] of the reasons), the judgment of Goetze DCJ of 23 February 2015 (referred to at [41] of the reasons), the judgment of Herron DCJ of 17 March 2015 (referred to at [44] of the reasons) and the judgment of Stone DCJ of 31 July 2015 (referred to at [57] of the reasons).
60 Justice Le Miere went on (at [64]) to state that:
(1) the following proceedings constituted an abuse of process: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240 at [9], [12]; Barkla v WorkCover Western Australia [2014] WASCA 40 at [6]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 23 at [77]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 36 at [6]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 113 at [42], [48]; Barkla v WorkCover WA [2014] WADC 159 at [9]; Re The Hon Justice Newnes, Ex Parte Barkla [2014] WASC 487 at [11]; Barkla v Bush [2015] WADC 46 at [23]; Barkla v Justice David Wallace Newnes [2015] WASCA 120 at [17]; Barkla v Civitella [2016] WADC 3 at [11]; Barkla v Allianz Australia [2015] WASCA 210 at [10]; Barkla v Civitella [No 2] [2016] WASCA 111 at [22].
(2) the following proceedings had been instituted to harass or annoy, to cause delay or detriment or for other wrongful purposes: Barkla v Allianz Insurance [2013] WASCA 21 at [24]; Barkla v WorkCover WA [2014] WADC 159 at [9]; Barkla v Civitella [2016] WASCA 71 at [10].
(3) the following proceedings had been instituted without reasonable ground: Barkla v Allianz Insurance [2013] WASCA 21 at [23], [24]; Barkla v Allianz Australia Insurance Limited [2013] WADC 90 at [17]; Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240 at [14]; Barkla v WorkCover Western Australia [2014] WASCA 40 at [6]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 23 at [77]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 113 at [48]; Barkla v WorkCover WA [2014] WADC 159 at [9]; Barkla v Allianz Australia Insurance Ltd & G4S Custodial Services [2014] WASCA 192 at [3]; Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222 at [38]; Re Registrar Linda Bush, ex parte Barkla [2014] WASC 488 at [14]; Barkla v Bush [2015] WADC 46 at [21]; Barkla v Justice David Wallace Newnes [2015] WASCA 120 at [35]; Barkla v Allianz Australia [2015] WASCA 210 at [9], [10]; Barkla v Civitella [No 2] [2016] WASCA 111 at [18]; Barkla v Civitella [2016] WADC 3 at [96].
61 His Honour also stated that the actions of Mr Barkla had also been characterized as "vexatious" in the following judgments: Barkla v Allianz Australia Insurance Ltd [2013] WASCA 240 at [12]; Barkla v Allianz Australia Insurance Ltd [2014] WADC 23 at [77]; Re The Hon Justice Newnes, Ex Parte Barkla [2014] WASC 487 at [11]; Barkla v Bush [2015] WADC 46 at [23]; Barkla v Justice David Wallace Newnes [2015] WASCA 120 at [17]; Barkla v Civitella [2016] WASCA 71 at [10]; Barkla v Civitella [2016] WADC 3 [11].
62 To this history may be added three proceedings commenced in this Court by Mr Barkla in 2015, each naming as the respondent the South Australia District Registrar. In SAD 403 of 2015, Mr Barkla sought judicial review of a decision of the District Registrar to refuse to accept for filing in this Court an originating application and affidavit. Those documents purported to be a claim by Mr Barkla against the Acting Registrar of the Supreme Court of Western Australia (WA Registrar). The WA Registrar had, in turn, refused to accept two documents Mr Barkla had sought to file in that Court, titled "Notice to Admit Facts" and "Referral of a legal issue". By his initiating documents, Mr Barkla sought to commence a claim in this Court alleging contraventions by the WA Registrar of the Criminal Code Act 1995 (Cth). The District Registrar refused to accept the documents on the basis that this Court did not have jurisdiction to hear the matters. On his application for judicial review, Mr Barkla alleged that the District Registrar had acted fraudulently, dishonestly and in abuse of public office.
63 In SAD 410 of 2015, Mr Barkla sought judicial review of a decision of the District Registrar to refuse to accept for filing an information and summons naming as a respondent two justices of the Supreme Court of Western Australia. By those documents Mr Barkla sought to allege that the justices had acted dishonestly in connection with a "Notice to Admit Facts" and a "Referral of a legal issue". The District Registrar refused to accept the documents for filing on the basis that this Court did not have jurisdiction to hear and determine the allegations.
64 SAD 416 of 2015 was commenced by information and summons, each of which was accepted for filing. By those documents, Mr Barkla alleged that the District Registrar contravened the Criminal Code Act 1995 (Cth) in providing written reasons for the two decisions I have just described.
65 These three proceedings were heard and determined concurrently by Besanko J. His Honour dismissed SAD 416 of 2015 on the basis that the Court did not have jurisdiction to hear and determine it: Barkla v Colbran [2015] FCA 1470 at [18]. His Honour dismissed SAD 403 of 2015 and SAD 410 of 2015 on the basis that the District Registrar was correct to refuse to accept Mr Barkla's documents for filing: Barkla v Colbran [2015] FCA 1470 at [10], [14].
66 In respect of SAD 416 of 2015, his Honour said (at 19]):
There is an alternative basis upon which the proceeding should be dismissed. In view of my conclusions in SAD 403 of 2015 and SAD 410 of 2015, the proceeding is wholly without merit and is an abuse of process and vexatious. It is open to the Court to proceed under r 26.01 on its own initiative (r 1.40) and I would do so to the extent necessary.