FEDERAL COURT OF AUSTRALIA

Barkla v Allianz Australia Insurance Limited [2018] FCA 563

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 19 February 2018 is dismissed.

2.    The Applicant is to pay the costs of the Respondent of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    This is a judgment on an application for leave to appeal against interlocutory orders made by a Judge of the Court.

2    The Applicant, who does not have legal representation, commenced proceedings in the Court on 2 January 2018. He supported his application with a statement of claim. The sole Respondent to the proceedings is Allianz Australia Insurance Limited (Allianz). Allianz did not file a defence to the Applicant’s statement of claim within the 28 days fixed by r 16.32 of the FCR. It did not do so until 15 February 2018.

3    The claims which the Applicant makes are not well articulated but seem to concern, or at least be related to, a claim to an entitlement under an insurance policy or under an insurance or compensation scheme. For reasons which will become apparent, it is not necessary for present purposes to attempt to describe the claims in more detail.

4    On 16 January 2018, Allianz filed an interlocutory application seeking orders pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth), including an order that the Applicant be prohibited from instituting proceedings in any Australian Court or Tribunal without first obtaining the leave of the Court or Tribunal. In addition, Allianz sought by this interlocutory application summary judgment in its favour on the Applicant’s claims.

5    On 29 January 2018, the Applicant filed an interlocutory application by which he sought that judgment be entered in his favour pursuant to r 22.07 of the Federal Court Rules 2011 (Cth) (FCR) on the basis of admissions he claims Allianz is deemed to have made by reason of its failure to respond to a notice to admit facts said to be have been served on it on 15 January 2018. It is apparent that the Applicant sought, in this respect, to rely upon r 22.04 of the FCR.

6    On 6 February 2018, the Applicant filed a second interlocutory application seeking relief as follows:

1. Orders sought are that the Court provide a Court Expert pursuant to section 23.1 of the Federal Court Rules 2011 to have a Court Expert decide and report on the legal definition / meaning of the words “Requiring” & “Required”.

2. The Applicant submits that the legal definition / meaning of the words “Requiring” & “Required” means to impose obligation - binding - compulsory- mandatory.

3. The Applicant seeks orders for a decision on the legal definition / meaning of the words “Requiring” & “Required” before or on the 13th February 2018.

4. Fact is that the Applicant and Respondent dispute the legal definition / meaning of the words “Requiring” & “Required” and this issue is paramount to the Applicants case and must be decided by the Court before any Hearings for the proper administration of Justice.

7    In substance, by that application, the Applicant sought an order that the Court provide a Court expert to report on the meaning of the words, “required” and “requiring”. The Applicant told me today that these words are used in O 30 r 2 of the Rules of the Supreme Court 1971 (WA) of the Supreme Court of Western Australia. That Order, which concerns the subject of notices to admit, provides in r 2(1):

A party to a cause or matter may by notice in writing at any time not later than 7 days before the day for which notice of trial has been given or which has otherwise been appointed for trial serve on any other party a notice requiring him to admit, for the purpose of that cause or matter only, a fact or facts specified in the notice.

8    The primary Judge conducted the first case management hearing in the action on 13 February 2018. During the course of that hearing, the Applicant made an oral application for judgment to be entered against Allianz by reason of its failure to file a defence. The primary Judge set down that oral application and Allianz’ interlocutory application of 16 January 2018, for hearing on 16 April 2018. Her Honour made timetabling orders with respect to the hearing of both those applications.

9    The primary judge also made an order listing the Applicant’s interlocutory application of 29 January 2018 for mention only at the hearing on 16 April 2018.

10    Finally, her Honour dismissed the Applicant’s interlocutory application of 6 February 2018 and made an order that the costs of the hearing on 13 February 2018 be reserved.

11    The Applicant now seeks leave to appeal from “all the judgments” delivered on 13 February 2018. The application for leave to appeal is not well drafted, no doubt reflecting the Applicant’s status as a self-represented litigant.

12    It is not easy to identify in the documents coherent grounds of appeal. At the hearing today, the Applicant confirmed that he seeks leave to appeal against all the orders, although as will become apparent, the submissions which he made were of a more focused kind.

13    By reason of the interlocutory nature of the orders made on 13 February 2018, an appeal can be brought against them only with the leave of the Court. Such leave is not readily granted. The underlying principle is that the time and resources of the Court and of the parties should not lightly be taken up with appeals about decisions in connection with the proceedings which do not finally determine the rights of the parties: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [42].

14    When the decision sought to be appealed against involves a matter of practice and procedure, these considerations apply with even greater force and the Court exercises considerable restraint before granting leave: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176.

15    More generally, in applications for leave to appeal, the Court considers whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave is refused, supposing the decision to be wrong: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

16    The Applicant submitted today that he has matters of substance which he wishes to agitate in the underlying proceedings commenced on 2 January 2018 and that it would be unjust if he is precluded from doing so by the Court acceding to the interlocutory application of Allianz. He submits that he should instead be permitted to proceed to trial on his filed statement of claim. This submission of the Applicant involved the supposition that the effect of the Judge’s orders on 13 February 2018 had been to preclude him from proceeding to trial.

17    That is not the effect of the orders. Instead what the primary Judge did was to list for hearing the interlocutory application of Allianz filed on 16 January 2018, as well as the oral application by the Applicant for summary judgment to be entered in his favour. That is to say, her Honour put in place arrangements for a proper hearing of the contentions which each party wished to make to the Court on each of those applications. The primary Judge did not decide on 13 February 2018 that the Applicant should not be permitted to proceed to trial. Whether that would be so would depend upon the result of the hearing on 16 April 2018.

18    In my view, a number of matters point against a grant of leave to appeal. First, there are considerations of utility. The Applicant did not seek any stay of the orders made on 13 February 2018 and the hearing by the primary Judge of the oral application for entry of judgment in default of the filing of a defence and of Allianz’ interlocutory application of 16 January 2018 proceeded on 16 April 2018. Judgment has now been reserved on those two applications. The Applicant had the opportunity on 16 April 2018 to make submissions at that hearing as to why the interlocutory application of Allianz should be refused.

19    Secondly, and in any event, the arrangements which the Judge made for the hearing of the interlocutory application and the associated timetabling orders were plainly matters of practice in respect of which is I have already indicated, the Court rarely grants leave. Decisions of that kind involve the exercise of a discretionary judgment by the primary Judge. The Court on appeal would interfere with orders of that kind only in exceptional circumstances. As I explained to the Applicant at the commencement of the hearing, the Court allows an appeal against discretionary decisions only in the limited range of circumstances discussed in House v The King (1936) 55 CLR 499. On my assessment, the Applicant did not identify any arguable basis for intervention by an appellate court in accordance with the established principles with the discretionary decisions made by the Judge.

20    Thirdly, I do not consider that the correctness of the Judge’s decision dismissing the interlocutory application of 6 February 2018 is attended by any doubt. In my view, the Judge’s decision on that application was plainly correct. The proper construction of words in a statute or rules of court is not a matter for expert evidence. It is a matter for a Court properly seized of a matter to address. Accordingly, for that reason alone, the interlocutory application which the Applicant filed on 16 February 2018 was inappropriate and it is understandable that it was dismissed.

21    Further, and in any event, the Applicant did not show that the content of O 30 r 2(1) of the Rules the Supreme Court of Western Australia arises as an incident to any issue in his litigation in this Court. I accept that the words “required” and “requiring” do appear in some of the rules of this Court, but no occasion for the construction of those words has yet arisen in the proceedings. It would be inappropriate for this Court to be pronouncing upon the proper construction of the rules of another court when there is no issue before the Court warranting such a pronouncement.

22    For these reasons, I dismiss the application for leave to appeal against the “judgments” made by the primary Judge on 13 February 2018.

Associate:

Dated:    23 April 2018