FEDERAL COURT OF AUSTRALIA

Barkla v Allianz Australia Insurance Limited [2018] FCA 2070

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s oral application for judgment in default is dismissed.

2.    The time for the respondent to file a defence is extended, then as now, to 15 February 2018.

3.    The statement of claim is struck out.

4.    The originating application is dismissed as an abuse of process.

5.    Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), the applicant, Mr Geoff Barkla, is prohibited from instituting proceedings in the Court.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    There are two interlocutory applications before the Court.

2    The first is that filed by the respondent, Allianz Australia Insurance Limited dated 15 January 2018 seeking, among other things, a vexatious proceedings order against the applicant, Mr Geoff Barkla.

3    The second is an oral application made by Mr Barkla on 13 February 2018 for judgment in default of Allianz filing a defence.

4    It is Mr Barkla’s position that the Court should not proceed to hear Allianz’ application unless notices are first issued pursuant to s 78B of the Judiciary Act 1903 (Cth) in relation to an issue he contends arises under the Constitution. For reasons given at [118] – [125] below, there is no issue arising under the Constitution or involving its interpretation.

5    It is convenient to deal first with Mr Barkla’s application for judgment in default.

MR BARKLA’S APPLICATION

6    Mr Barkla served his statement of claim on Allianz on 11 January 2018. The time for Allianz to file a defence expired on 8 February 2018: Federal Court Rules 2011 (Cth), r 16.32; Acts Interpretation Act 1901 (Cth), s 36. As Allianz had not filed a defence by that date, it was a party “in default” within the meaning of r 5.22(a) of the Rules.

7    If a respondent is in default, an applicant may apply to the Court for an order giving judgment against the respondent for such relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled, or an order giving judgment against the respondent for damages to be assessed, or any other order: r 5.23(2)(c) and (d) respectively.

8    The power to make an order pursuant to r 5.23 of the Rules is to be exercised in a manner that best promotes the overarching purpose of the Court’s civil practice and procedure provisions: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37M (as to which, see [24] below).

9    Without being exhaustive, consideration should be given to the seriousness of the default, any explanation provided for it, its impact upon the proper case management of the action and any prejudice suffered by a party as a result of it.

10    A failure by a party to meet a deadline prescribed in the Rules is serious in the sense that the efficient case management of the proceeding depends upon compliance with the prescribed time frames. A party who is unable to comply with a time frame specified in the Rules should make a prompt application for the time specified in the Rules to be extended. The Court may dispense with the requirements of the Rules either before or after the occasion for compliance arises (r 1.34).

11    Although Allianz did not file a pleading by the time specified in the Rules, it did file its interlocutory application and an accompanying affidavit by reference to which Mr Barkla could be under no misapprehension as to the position adopted by Allianz in response to his statement of claim. Allianz did not, before the date for filing its defence had arrived, make an application for an order dispensing with the requirement until its own interlocutory application had been determined. A defence was filed by Allianz on 15 February 2018, being seven days after the date prescribed in the Rules.

12    The circumstances do not warrant the making of an order pursuant to r 5.23. The delay was neither long, nor did it form a pattern of non-compliance by Allianz with the Rules or orders of the Court. The default occurred in circumstances where Allianz had sought to have the statement of claim struck out and the whole of Mr Barkla’s claim summarily dismissed. Allianz promptly put Mr Barkla on notice of that position by filing its interlocutory application. By the time of the hearing of that application, Mr Barkla had been served with the defence and so was not disadvantaged in the presentation of his arguments. It has not been shown that Mr Barkla has suffered any real prejudice as a result of the delay in filing the defence.

13    Mr Barkla strongly opposed the Court excusing Allianz for its non-compliance with the Rules. However, for the most part, Mr Barkla’s submissions were founded upon his firm belief that he is entitled as of right to judgment in default. He is not.

14    Whether or not an order under r 5.23 should be made is a matter for the Court’s discretion. In all of the circumstances I do not consider it appropriate to make the order sought by Mr Barkla. The time for the filing of a defence will be extended nunc pro tunc to 15 February 2018, that is, one week after it was due to be filed under the Rules.

ORDERS SOUGHT BY ALLIANZ

15    Allianz seeks orders in the following terms:

1.    Pursuant to section 37AO of the Federal Court of Australia Act 1976, the Applicant is prohibited from instituting proceedings in any Australian Court or Tribunal unless he first obtains leave of the Court or Tribunal, as the case requires.

2.    In the alternative, such other order under section 37AO of the Federal Court of Australia Act 1976 as the Court considers to be appropriate.

3.    Summary judgment be entered in favour of the Respondent against the Applicant.

4.    The Applicant’s Application by Originating Application dated 2 January 2018 be dismissed and the Applicant’s Statement of Claim dated 2 January 2018 be struck out.

5.    The Applicant do pay the Respondent’s costs of the Application and this Interlocutory Application in any event to be taxed.

16    The asserted grounds for the orders are expressed as follows:

1.    The Applicant has instituted proceedings previously, as set out in the affidavit of Stephen Alan Fong sworn 15 January 2018, that were vexatious and an abuse of process.

2.    The Applicant is the subject of an order of the Supreme Court of Western Australia made on 21 September 2016 pursuant to the Vexatious Proceedings Restrictions Act 2002 (WA).

3.    The present Application of the Applicant is vexatious, an abuse of process, beyond jurisdiction and discloses no reasonable cause of action.

4.    It is likely that the Applicant will continue to seek to institute vexatious proceedings.

Legislation

17    Section s 37AO of the FCA Act provides:

37AO Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

Note:    Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)    the Attorney General of the Commonwealth or of a State or Territory;

(b)    the Chief Executive Officer;

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

(d)    a person who has a sufficient interest in the matter.

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) or (b) is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

18    The effect of the first order sought by Allianz is that Mr Barkla would be prohibited from instituting a proceeding of any kind in this Court without first obtaining leave to do so: ss 37AQ, 37AR and 37AT of the FCA Act.

19    Section 37AM defines the term “vexatious proceeding” to include:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

20    Read together with para (a) of that definition, s 37AO(2)(a) confers power on the Court to stay or dismiss a particular proceeding as an abuse of process. An order pursuant to s 37AO(2)(a) may only be made if the Court is satisfied of one of the matters prescribed in s 37AO(1)(a) or (b).

21    Section 37AO(2)(a) is not the only source of power to dismiss a particular proceeding as an abuse of process. Rule 26.01(1) relevantly provides:

A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

22    The dismissal of a proceeding under r 26.01(1) is not preconditioned with a requirement that the Court be satisfied that the person against whom judgment is given has “frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”.

23    This Court also has an implied power to prevent an abuse of its processes, equivalent to the inherent power of courts of unlimited jurisdiction: Hunter v Chief Constable of West Midlands Police [1982] AC 529 (Diplock LJ at 536, Russell, Keith, Roskill, Brandon LLJ agreeing); Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ). In Ridgeway v The Queen (1995) 184 CLR 19, Gaudron J said, of that power (at 74 — 75):

The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.

(Footnotes omitted)

24    Paragraph 3 of Allianz’ interlocutory application will be considered as an application for an order dismissing these proceedings under r 26.01. The rule may be construed against the common law principles concerning the implied or inherent powers of courts to prevent abuses of their processes as discussed in the cases referred to in the preceding paragraph. As a civil practice and procedure provision, the rule is also to be interpreted and applied, and the power conferred by it exercised, in a way that best promotes the overarching purpose identified in s 37M(1) of the FCA Act, namely to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Section 37M(2) provides:

Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

25    Allianz contends that this proceeding is an abuse of process because, among other things, it is an attempt by Mr Barkla to agitate issues that have been determined against him in proceedings in other Courts or Tribunals. That submission requires consideration of the history of litigation pursued by Mr Barkla in the context of a long-held grievance initially arising out of his prior employment. The proceedings are also said to be an abuse of process because they have been instituted and conducted in a way so as to harass and annoy Allianz and its officers. If Allianz is correct in that submission it would follow that this proceeding is a “vexatious proceeding” for the purpose of s 37AO of the FCA Act and so liable to be stayed or dismissed under s 37AO(2)(a), if the preconditions for the order are met.

26    Paragraph 1 of Allianz’ interlocutory application is an application for an order pursuant to s 37AO(2)(b) of the FCA Act. Such an order has wider ramifications for Mr Barkla than the disposition of this particular proceeding. In support of that aspect of the application, Allianz submits that Mr Barkla has frequently instituted vexatious proceedings in Australian Courts or Tribunals. This aspect of the interlocutory application also draws on the long history of litigation between the parties and involving other persons.

27    Before turning to consider that history it is convenient to identify the issues raised, or sought to be raised, by Mr Barkla in this action.

ISSUES AGITATED BY MR BARKLA

28    Mr Barkla is a self-represented litigant. He commenced this proceeding by originating application accompanied by a statement of claim filed on 2 January 2018. His claims relate to a psychological injury suffered in the course of his employment in 2010. He made a claim for compensation in relation to that injury under now repealed provisions of the Workers Compensation and Injury Management Act 1981 (WA) (WCIM Act).

29    The relief sought on the originating application is expressed in the following terms:

1.    The Applicant seeks relief by way of the Respondent (Allianz Australia) answering one (1) question: (pursuant to the Australian Human Rights Commission Act 1986 Schedule 2 International Covenant on Civil and Political Rights - Article 19.2 Freedom of Expression): - By what prescribed means and or Statutory Law/s provide provisions for an Insurer who ‘Accepts Liability’ (by way of a Statutory Regulations Form) is permitted not to pay injury compensation for those personal injuries?

2.    The Applicant seeks relief for damages pursuant to the Insurance Act 1973 section 14 (Breach of authorisation conditions) in that the Respondent (Allianz Australia) have committed a Serious Offence by failing to do an act - that act being failure to pay compensation for personal injury in which the Respondent ‘Accepted Liability’ in a Statutory Regulations Form 3A Insurers Notice that Liability is Accepted for the Applicant’s personal injury (Please see attached Statutory Regulations Form 3A issued by the Respondent on 3rd July 2012 & Statement of Claim 2nd January 2018)

3.    The Applicant seeks relief for personal injury damages as Workcover Medical Expert Dr Kate Nielsen has advised by way of Medical Certificate that the Applicant is suffering ‘permanent injury’ The Respondent (Allianz Australia) are ignoring and disregarding Workcover Medical Expert Dr Kate Nielsen and the Respondent is Negligent in its ‘Duty of Care’ causing a detriment to me a person of the Commonwealth of Australia (Please see attached Medical Certificate 18th July 2016).

4.    The Applicant seeks relief as he has been left on Centrelink benefits (since March 2013) despite the facts that the Respondent (Allianz Australia) have ‘Accepted Liability’ for the Applicant’s Workcover injury and Workcover Medical Expert Dr Kate Nielsen has advised that these injuries suffered are now permanent. The Respondent is ignoring Workcover Medical Expert Dr Kate Nielsen causing severe financial harm and damage and a detriment to me a person of the Commonwealth of Australia.

5.    The Applicant see relief from the Respondent’s (Allianz Australia) “Wrongful Acts of failing to provide Rehabilitation and or injury Compensation for personal injuries suffered constituting an Offence by the Respondent under section 38D (Right to compensation) of the Insurance Act 1973.

6.    The Applicant seeks relief for damages from the Respondent’s (Allianz Australia) Serious Misconduct which is causing a detriment to me a person of the Commonwealth of Australia and violate section 41 (Compliance with prudential standards) of the Insurance Act 1973.

7.    AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 -SCHEDULE 2 International Covenant on Civil and Political Rights

Article 19.2

‘Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’

30    The emphasis is Mr Barkla’s.

31    Mr Barkla’s statement of claim comprises seven substantive paragraphs. It is in the following terms:

1.    The Applicant claims the Respondent is a body corporate appointed under section 118 (Agent in Australia) of the Insurance Act 1973.

2.    The Applicant claims the Respondent issued a Statutory Regulations Form 3A Insurers Notice that Liability is Accepted on the 3rd July 2012.(see attached).

3.    The Applicant claims the Respondent at law have Strict Liability & Absolute Liability to pay compensation for injuries as advised by Medical Expert Dr Kate Nielsen are now ‘permanent injuries.’ On the 18 July 2016 (see attached).

4.    The Applicant claims the Respondent has failed to pay compensation to the Applicant for injuries suffered, despite Accepting Liability for these injuries.

5.    The Applicant claims the Respondent is in breach of section 3 (Interpretation) of the Insurance Act 1973 - insurance business = in respect of loss and damages, including Liability to pay damages or compensation ....

6.    The Applicant claims the Respondent is in Breach of its obligations under section 14 (Breach of authorisation conditions) of the Insurance Act 1973 and section 6.1 (Strict Liability) of the Criminal Code Act 1995.

7.    The Applicant claims the Respondent is in Breach of section 38C (Victimisation of whistleblowers prohibited) of the Insurance Act 1973 by actually causing a detriment to another person, that person being the Applicant,

32    Again, the emphasis is Mr Barkla’s.

33    By [4] of its defence, Allianz admits that it accepted liability to pay workers compensation benefits in respect of Mr Barkla’s claim against his employer (G4S). Allianz says it has paid benefits in respect of that claim in satisfaction of the requirements of the WCIM Act. By [10], Allianz pleads that the originating application is “incompetent and or alternatively not within the jurisdiction of this Court as it concerns a dispute in connection with a claim for workers’ compensation in Western Australia in respect of which Arbitrators of WorkCover WA have exclusive jurisdiction”. It relies on s 176 of the WCIM Act, which provides:

176.    Exclusive jurisdiction of arbitrators

(1)    In this Part —

dispute means —

(a)    a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;

(b)    a dispute in connection with an obligation imposed under Part IX;

(c)    any other dispute or matter for which provision is made under this Act for determination by an arbitrator;

(d)    any other matter of a kind prescribed by the regulations.

(2)    A proceeding for the determination of a dispute is not capable of being brought other than under this Part.

(3)    Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.

[Section 176 inserted by No. 42 of 2004 s. 130; amended by No. 31 of 2011 s. 41.]

34    Three observations may be made about Mr Barkla’s initiating documents.

35    The first is that the documents make a series of broad allegations to the effect that Allianz has certain liabilities and has contravened certain laws. The facts said to give rise to the liabilities and contraventions are either not pleaded at all or are not pleaded with sufficient clarity to enable the reader to fully comprehend the case that is alleged.

36    The second is that the statement of claim itself contains no prayer for relief. It is difficult to identify how the allegations pleaded in the statement of claim correspond with such relief as is claimed on the originating application.

37    The third is that the originating application contains substantive allegations and does not adequately identify the form of relief sought in any event.

38    In the ordinary course, the statement of claim should be struck out and consideration given to whether Mr Barkla should be given an opportunity to file an amended pleading and an amended originating application in a form that complies with the Rules.

39    I have concluded that Mr Barkla should not be afforded an opportunity to re-plead his case. As explained elsewhere in these reasons, I am satisfied that this proceeding constitutes an abuse of process and so should be dismissed under r 26.01 for that reason. I am also satisfied that this proceeding is a “vexatious proceeding” as defined in the FCA Act and that a vexatious proceedings order should be made against Mr Barkla in the terms sought by Allianz.

40    I have drawn those conclusions having regard to the issues it appears Mr Barkla seeks to agitate in this case, notwithstanding the deficiencies in his statement of claim and originating application. Mr Barkla has, by his submissions and conduct in this proceeding, identified three principal issues. I will assume that they are the issues Mr Barkla would seek to re-plead, assuming he were granted the opportunity. They may be referred to as the “the prescribed amount issue”, “the Form 3B issue” and “the vexatious litigant issue”.

41    The prescribed amount issue concerns the construction and application of the provisions of Div 2A of Pt III of the WCIM Act. In cases where they apply, those provisions operate to fix a prescribed amount of compensation payable to a person. In particular s 31J(1) of the WCIM Act provides:

31J.    Limit on compensation of worker electing under s.31H

(1)    A worker who elects under section 31H is not in any case (including the case of a worker suffering by the same accident more than one of the impairments mentioned in Schedule 2) entitled to more than the prescribed amount, in addition to payment of such expenses as are provided for in clauses 9, 17, 18, 18A and 19.

…

42    It is Allianz’ position that Mr Barkla made an election pursuant to s 31H to receive weekly payments and that the provisions therefore operate to limit the compensation payable to him by reference to an amount prescribed in Sch 2 to the WCIM Act, which limit has been reached. As explained earlier, Allianz also contends that this Court does not have jurisdiction in respect of this or any other aspect of Mr Barkla’s workers compensation dispute in any event.

43    Mr Barkla denies that he made an election to receive weekly payments and so denies that he is entitled to no further payments in compensation for his injury. As broadly asserted in the statement of claim in its present form, Mr Barkla otherwise alleges that Allianz has a “strict” or “absolute” liability to make (presumably unlimited) payments to him. That broader allegation is not referenced to the provisions of the WCIM Act. To clarify, Mr Barkla did not contend that he has not received weekly payments in amounts equivalent to the Sch 2 capped figure. His case is that the capped figure does not apply to him and that, accordingly, he is entitled to more.

44    The Form 3B issue concerns the manner in which Allianz procedurally dealt with Mr Barkla’s claim for weekly payments made pursuant to s 57A of the WCIM Act. It provides, in part:

57A.    Claims procedure — insured employer

(1)    This section applies where —

(a)    a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 178(1)(b); and

(b)    the worker suffering the injury has served 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,

and the employer is indemnified by a policy of insurance against his liability to pay the compensation claimed.

(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 3 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 3 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;

(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.

…

(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).

…

45    It is common ground that Mr Barkla made a claim for compensation on 5 November 2010 in accordance with s 57A(1) of the WCIM Act and that G4S claimed under its insurance policy with Allianz in respect of Mr Barkla’s claim in accordance with s 57A(2). It is also common ground that on 8 November 2010, Allianz issued to Mr Barkla a notice in Form 3C pursuant to s 57A(3)(c) of the WCIM Act titled Insurer’s Notice Where No Decision about Liability. It stated that Allianz required further medical and factual information to ascertain if Mr Barkla had sustained an injury in the course of his employment or whilst acting under his employer’s instructions. In the 10 days that followed, Allianz did not give a notice in Form 3A to the effect that the claim was accepted, nor did it provide a notice in Form 3B to the effect that the claim was disputed.

46    It was, and remains, Mr Barkla’s case that Allianz’ “failure” to issue a notice in Form 3B had the consequence that Allianz had not complied with s 57A(3) and so, by force of s 57A(5), Allianz was liable to make weekly payments to him. He was, and remains, particularly aggrieved that Allianz did not accept liability for his claim until 3 July 2012, after first disputing his claim for interim payments for about, he says, 21 months. It is fair to say that the circumstance that Allianz did not accept the claim until July 2012 has incensed Mr Barkla. In the course of submissions on the topic, he acknowledged that he is “outraged”, and otherwise “obsessed with his case”.

47    The vexatious litigant issue concerns conduct alleged against Allianz and other persons in connection with a long history of litigation culminating in an order made by the Supreme Court of Western Australia under the Vexatious Proceedings Restrictions Act 2002 (WA) (VPR Act). In that action, Le Miere J allowed an application by the Attorney General for the State of Western Australia for an order that Mr Barkla be:

prohibited from instituting any proceedings, as defined in the [VPR] Act], unless he first obtains the leave of a Court or Tribunal, as the case requires, under section 6 of the [VPR] Act; or …

48    I apprehend from Mr Barkla’s submissions that he seeks in this proceeding to have this Court conduct an investigation into the conduct of the proceedings before Le Miere J, and perhaps other past proceedings.

49    Among other things, Mr Barkla’s belief that this Court can and should examine the correctness of past judgments was made manifest in his application for leave to issue subpoenas to three persons he said should attend for “cross-examination”. Two of the persons were the Attorney General for the State of Western Australia and a member of the State Solicitor’s office of Western Australia, neither of whom had deposed to affidavits in this proceeding. Mr Barkla explained that he sought to challenge the proposed addressees about evidence they gave in the proceedings in the Supreme Court of Western Australia under the VPR Act.

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.

SUMMARY DISMISSAL

67    Mr Barkla’s response to Allianz’ application for summary dismissal was to again agitate the Form 3B issue and to attempt to persuade the Court that his construction of s 57A of the WCIM Act should be preferred. He did not attempt to persuade the Court that this proceeding was not concerned with the Form 3B issue. To the contrary, his submissions laboured the issue.

68    The Form 3B issue was determined against Mr Barkla by the arbitrator, and the arbitrator’s determination upheld on appeal: Barkla v G4S Custodial Services [2012] WADC 67. Mr Barkla has the benefit of reasons for rejecting his construction argument. He cannot reasonably maintain the position that he does not know the basis for the arbitrator’s reasons or the reasons given for dismissing his appeal from the arbitrator’s decision. He simply refuses to accept those reasons.

69    I conclude that Mr Barkla has used, or attempted to use, the present proceeding as a vehicle by which he may yet again allege that Allianz has failed to comply with the requirements of s 57A of the WCIM Act and to make an ill-defined claim for compensation in respect of that alleged failure. Further, Mr Barkla has used, or attempted to use, the present proceeding as a vehicle to challenge the judgments of the courts of Western Australia and, by so doing, has sought to re-agitate the Form 3B issue by that more indirect route. Mr Barkla has received weekly payments. It is difficult to comprehend what remedy he says remains available to him.

70    I further conclude that Mr Barkla is seeking to use this proceeding to demand answers from Allianz to a multitude of questions concerning the Form 3B issue. He has abused the Court’s processes to achieve that end, as identified elsewhere in these reasons.

71    As to the prescribed amount issue, Mr Barkla does not dispute that he has received compensation for his injury by way of weekly payments. He believes he is entitled to more. His case in that regard depends upon his assertion that he made no election to receive weekly payments. He did not articulate how that could be so in light of his reliance on s 57A and the undisputed fact that he in fact received weekly payments. He has provided no answer to Allianz’ contention that the jurisdiction to determine a dispute concerning workers compensation is vested exclusively in the arbitrators of WorkCover WA by s 176 of the WCIM Act and so cannot be commenced in this Court. I accept Allianz’ submission in that regard. Any proceeding founded on the prescribed amount issue would be liable to be dismissed as incompetent.

72    If I am wrong with respect to the competency of such a claim, I would not, in any event, afford Mr Barkla an opportunity to plead a case founded on the prescribed amount issue. I proceed on the assumption that, if given such an opportunity, Mr Barkla may be capable of drafting a plea that identifies the facts and law upon which he relies. However, in light of the findings I make elsewhere in these reasons, I am not satisfied that Mr Barkla would be willing or able to plead a case that would not seek to re-introduce the Form 3B issue or the vexatious litigant issue, whether directly or under mischievous guises. I conclude that Mr Barkla’s motivation for commencing this action is to maintain his sense of “outrage” in respect of the Form 3B issue and to continue to harass and annoy Allianz because he remains angry. The theoretical possibility that Mr Barkla may be capable of pleading a claim in respect of the prescribed amount issue (assuming this Court would have jurisdiction to entertain it) does not deter me from my conclusion that this proceeding constitutes an abuse of process and so should be dismissed.

73    I have not overlooked [7] of the originating application. By that paragraph, Mr Barkla invokes Article 19(2) of the International Covenant on Civil and Political Rights, forming Sch 2 to the Australian Human Rights Commission Act 1986 (Cth), without articulating any facts capable of giving rise to a remedy. In the course of submissions it became apparent that Mr Barkla asserted an entitlement, as an aspect of a fundamental human right of free expression, to receive answers to his questions. David DCJ of the Western Australian District Court dealt with the same contention in Barkla v Civtella [2016] WADC 3 at [82] – [90]. His Honour said (at [82]):

As to Mr Barkla’s claim in relation to ‘freedom of speech’, as it has been set out in the indorsement of claim and his submissions, this is based on a right not only to ask questions, but also an alleged right to receive answers. This appears to be based on the Australian Human Rights Commission Act Schedule 2 Article 19(2) which states that everyone shall have the right to freedom of expression, which includes the right to seek, receive and impart information and ideas of all kinds. That right does not give rise to a cause of action against Mr Civitella to require him to answer the two questions on a matter of law which has been determined by the Court of Appeal. Such a claim against Mr Civitella is nonsensical.

74    The same may be said of Mr Barkla’s assertion that he is legally entitled to use this Court’s procedures to compel Allianz or any other person to answer his questions.

75    The statement of claim should be struck out and this proceeding dismissed pursuant to r 26.01 as an abuse of process.

SECTION 37AO

Principles

76    In Fuller v Toms (2015) 234 FCR 535, the Full Court said, of the purpose of s 37AO (at [31]):

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.

77    To similar effect, Perry J said in Soden v Croker (No 2) [2016] FCA 15; (2016) 334 ALR 540:

7.     Provisions such as those contained in Pt VAAA of the FCA Act for the making of vexatious proceedings orders are underpinned by a countervailing policy to protect ‘the court’s own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who face actions which lack substance’: Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907 at [52] (Ramsey) (Sackville J); see also Kowalski (FCAFC) at [59] (the court). ‘Linked with that objective’, as Sackville J also pointed out, ‘is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings’ (Ramsey at [52]). The seriousness of any interference with a person’s capacity to access the courts means, however, that such orders are not lightly made: Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (ACN 064 829 616) (2007) 242 ALR 370; [2007] FCA 1069 at [44] (Finn J). As the Full Court held in Kowalski (FCAFC) at [58], the remedy is an extreme one.

…

9    A vexatious proceedings order may include ‘an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court’ and any other order that the Court considers appropriate in relation to the person: s 37AO(2) of the FCA Act. Importantly, such orders are made to shield other litigants from harassment and to protect the court from the expense, burden and inconvenience of baseless and repetitious suits, but not to impose punishment for litigious misconduct: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (Teoh (No 8)) at [56] (the Court); Offıcial Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Gargan (No 2)) at [3] (Perram J), cited with approval in Attorney-General (NSW) v Gargan [2010] NSWSC 1192 (Gargan) at [8] (Davies J).

78    As to the word “frequently” in s  37AO(1)(a), her Honour said (ALR at [25]):

The term ‘frequently’ is a relative term and ‘must be looked at in the context of the litigation being considered’: Gargan at [7] (Davies J); see also Wilson at [12] (Davies J); Jones v Cusack (1992) 109 ALR 313 at 315 (Toohey J); and Chan at [37] (Adamson J). Thus, the Court may find that a person has instituted or conducted vexatious proceedings ‘frequently’ even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue already determined against the person: Fuller v Toms [2013] FCA 1422 at [77] (Barker J). Similarly, in explaining the previous requirement that vexatious proceedings be instituted ‘persistently’, the Full Court in Kowalski (FCAFC) at [67] approved the statement of the New Zealand Court of Appeal in Brogden v Attorney-General [2001] NZAR 809 at [21] that:

What constitutes institution of such proceedings ‘persistently’ will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication.

79    The purpose of an order pursuant to s 37AO of the FCA Act is not to punish a litigant for his or her conduct in a proceeding. The conduct of a litigant in proceedings may, however, be taken into account for the purpose of evaluating whether a particular proceeding satisfies the definition of a vexatious proceeding (extracted above at [19]). The litigant’s conduct will also be relevant to the Court’s evaluation of the likelihood that the litigant will continue to institute vexatious proceedings if an order pursuant to s 37AO is not made and so inform the exercise of the Court’s discretion. In the pages that follow I express conclusions concerning the degree to which Mr Barkla has departed from the standards of courtesy and civility to be expected of all litigants in this Court (whether represented or not), the extent to which he has wrongly invoked the Court’s processes and the extent to which he has wasted the Court’s judicial and administrative resources. These findings are to be understood as referable to the protective purpose of s 37AO of the FCA Act. The intention of the Court is not to punish Mr Barkla, but to explain how the jurisdiction to make the order sought by Allianz is enlivened on the facts, and why the discretion to make the order should be exercised in Allianz’ favour.

Frequent vexatious proceedings

80    On the basis of the history of litigation described in [50] to [66], I am satisfied that Mr Barkla is a person who has frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals. I respectfully agree with the outcomes and characterisations of the various proceedings given by Le Miere J identified at [60] and [61] above. I would reach the same conclusion even without reference to the few authorities not read by this Court identified at [59] of these reasons. This proceeding may also be characterised as a vexatious proceeding and may be taken into account in determining that the requisite element of “frequency” is satisfied.

81    The conclusion that Mr Barkla has frequently instituted vexatious proceedings may be reached irrespective of whether Mr Barkla has a genuine belief in the correctness of his legal position. As Walsh J said in Hutchison v Bienvenu (unreported, High Court of Australia, Walsh J, 19 October 1971) the question of whether proceedings are vexatious is “not simply a subjective one”. His Honour endorsed what Ormerod LJ had said in In re Vernazza [1960] 1 QB 197 at 208:

‘[T]he question is not whether [legal proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious.’

That question is one for the Court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought was acting maliciously or in bad faith. So, in deciding the present application, it is not to the point that Mr Skyring may believe and believe strongly in his view of s 115 of the Constitution and the associated points he wishes to agitate.

Discretion

82    The order sought by Allianz is expressed in the widest of terms. If the order were to be made, it would not only prohibit Mr Barkla from instituting in this Court (without leave) proceedings against Allianz in respect of his claimed entitlement to workers compensation, but would also prohibit him from instituting in this Court any proceeding (without leave) against any other person in relation to any other legal controversy. The practical effect of the order would be to erect a barrier to be overcome by Mr Barkla in relation to any proceeding in this Court, whether related to any workplace injury or not. The barrier is the requirement to obtain leave under s 37AT of the FCA Act. The Court may grant leave under s 37AT only if it satisfied that the proceeding is not a vexatious proceeding: s 37AT(4). The prohibition is not absolute.

83    By [2] of its interlocutory application, Allianz seeks “such other order under section 37AO … as the Court considers to be appropriate”. An alternative order may be fashioned so as to prohibit Mr Barkla from commencing, without leave, a proceeding against specified persons or arising out of specified subject matter: see, for example: Rana v Department of Defence [2018] FCA 1642. The discretion must be exercised having regard to the availability of an alternative course, so as to go no further than is necessary to advance the statutory purpose.

84    I have had particular regard to Mr Barkla’s status as self-represented litigant. The manner in which his written materials are expressed reflect that status. The same may be said of Mr Barkla’s oral submissions. The disadvantages attending a litigant in person are obvious. Speaking generally, in the context of an application for an order under s 37AO, the Court must remain alert to the possibility that the frequent commencement of vexatious proceedings may be explained, in whole or in part, by a litigant’s lack of knowledge, not only in respect of the substantive law but in respect of the Court’s procedures and its expectations of propriety and civility. A proceeding may be dismissed as having no reasonable grounds for success without there being a malicious or wrongful motivation for commencing it. The outward behaviour of a self-represented litigant must also be assessed, within reasonable bounds, having regard to the stress of participating in a foreign and formal process, especially where there is an apparent imbalance of financial and intellectual resources between parties. Ignorance of the law may be a reason for not making an order under s 37AO of the FCA Act, particularly where there is no reason to believe that the litigant has difficulty accepting the finality of any previous judgment and has genuinely attempted to articulate a claim that has not been judicially determined.

85    These general observations justify a cautious approach, particularly when considering whether the past conduct of a self-represented litigant is a reliable indicator of future conduct. Each case must be assessed with careful regard to all of the circumstances. I will consider Mr Barkla’s conduct against these general statements of principle. To the extent that the general statements can reasonably apply to Mr Barkla, they may weigh against the making of the order.

86    I will now give an account of the manner in which Mr Barkla has conducted this particular proceeding.

87    On 10 January 2018, Allianz’ solicitor (Mr Civitella) sent an email to Mr Barkla by which he served a Notice of Address for Service. Early the following morning, Mr Barkla replied to Mr Civitella’s email. Mr Barkla copied his email to a large number of recipients, including my Associate. This was the first of a large number of emails distributed to multiple recipients in the following weeks. The language and tenor of Mr Barkla’s initial email is fairly representative of most of the others. It reads:

Dear Mr Civitella,

Thank you Sir, Please be advised that this is one of the Biggest Scandals if Not the Biggest Scandals in Australian Law Court History. (I did tell you … you are going to make me Famous #Watch this Space)

I cant say too much at this stage except to say you are going to prison for Corrupt & Dishonest Violations of the Criminal Code Act 1995 (As will [a Justice of the Court] & [a Registrar of the Court] IF they Deny me Due Process & Procedural Fairness) and your client Allianz is about to be caught up in the biggest Australian Law Court Scandal of modern day history – which will bring you & them down..#SmileyFace

Remember how you couldn’t n didn’t File a Defence Against me n how you ‘Claimed’ you Won n Beat me and How I CORRECTLY predicted to the AFP ? (This video is a Witness Against YOU – I have it on the HIGHEST Authority that you and or your side will soon make a move that will BLOW this case Wide Open) #Murphy’sLaw #BringitOn #Liar

88    Mr Barkla then inserted what appears to be a hyperlink to a YouTube channel. The email continues:

(look how YOU failed to file the Respondents Answer VIOLATING LAW ….lol )

Oh n just a heads up on the Notice to admit Facts:

1. The Fact is that Allianz have a History of Bribing Government Officials? (Wanna dispute that Fact – I will show you up for the Liar you are if you do)

2. The Fact is that Allianz were fined over $12 Million dollars in 2012 for Bribing Government Officials? (Wanna dispute that Fact – I will show you up for the Liar you are if you do) https://wsj.com/articles/SB10001424127887324407504578185453425776948

LOL (See you in Court Loser pig dog) – I beat you so many times in Court at LAW but CORRUPT Registrars & Judges Covered you ass

Folks please remember I will be putting videos out under the name – Federal Court – Barkla v Allianz

Oh n you know the videos I have been putting out are Witnesses AGAINST you & your Corrupt Client Allianz

#MURPHY”S LAW IS COMING FOR YOU

Kind regards

Geoff Barkla

89    On the following day, Mr Barkla sent a further email to Mr Civitella by which he served a Notice to Admit Facts. That email, too, was copied to multiple recipients, including my Associate. Like the previous email, it was expressed in a belligerent tone. The notice to admit facts was the first of eight such notices served on Allianz. They are discussed below.

90    On 12 January 2018, I caused my Associate to send an email to Mr Barkla. By that email Mr Barkla was directed to cease copying the Associate’s email address into correspondence between him, Allianz and any other person. Mr Barkla was reminded that the email address of an Associate to a Justice of the Court is not to be used as a public forum for making disparaging or derogatory statements about a party or another person. Mr Barkla was provided with a copy of a Practice Note and his attention drawn to those paragraphs concerning the appropriate means by which a party should communicate with the Court.

91    In an emailed reply, Mr Barkla said “Thank you for the below and I take it on board”.

92    Mr Barkla ignored the Court’s direction. On 15 January 2018, he sent a further email to multiple recipients, including my Associate. By that email, Mr Barkla purported to serve on Mr Civitella a further notice to admit facts. Mr Barkla was again reminded, through my Associate, to cease copying the Associate’s email address in correspondence passing between him, Allianz or any other person.

93    Mr Barkla ignored the reminder. Mr Barkla copied the Court in further email correspondence (including correspondence by which he served further notices to admit facts) on 17, 18, 22, 23 and 31 January 2018 once again directed to multiple recipients.

94    On or around 19 January 2018, Mr Barkla made an application for leave to issue a subpoena addressed to a representative of Allianz, Mr Fong. The SA District Registry sent an email to Mr Barkla acknowledging receipt of that application and informing Mr Barkla that the Court would consider whether leave should be granted at the first case management hearing, then listed for 13 February 2018. At a subsequent case management hearing Mr Barkla denied receiving the Registry’s email.

95    On 29 January 2018 Mr Barkla also filed an “urgent” application for judgment on admissions.

96    On 30 January 2018, Mr Barkla sent an email to the SA District Registry enquiring about his application for leave to issue the subpoena addressed to Mr Fong and as to whether the terms of the subpoena were sufficient. A member of staff of the Registry replied in terms informing Mr Barkla that the Registry could not give him advice about a subpoena he might seek leave to issue.

97    On 31 January 2018 Mr Barkla sent an email to Allianz’ solicitors. The email attached what purported to be a subpoena addressed to Mr Fong. The email was copied to multiple recipients. It stated:

Dear Mr Stephen Fong & Mr Civitella (Allianz Australia)

I refer you to the attached Federal Court Form 43C Supboena, you have now been served and you are ‘required’ to attend.

I look forward to seeing you in a Court of Law.

#Justifiable Self- Defence

#Murphy’s Law

Kind regards

Geoff Barkla

98    On the same day, Mr Barkla sent a further email to Mr Civitella and Mr Fong attaching a notice to produce and a notice to admit. Again, the email was copied to multiple recipients. It concluded with the words:

IF the Judge fails to comply with the Constitution then Justifiable Self – Defence

99    The Court of its own initiative listed the matter for a case management hearing on 1 February 2018. At that hearing, Mr Barkla was warned that his conduct in purporting to serve a subpoena for which leave had not been granted to issue was viewed seriously by the Court. In response, Mr Barkla complained that he had not received a response from the Court concerning the progress of his application for leave to issue the subpoena to Mr Fong.

100    The Court made orders requiring Mr Barkla to serve any future application for leave to issue a subpoena on Allianz and on the intended recipient of the subpoena. The Court explained to Mr Barkla that any application for leave to issue a subpoena would be heard and determined in open court and the intended addressee provided with an opportunity to be heard. Mr Barkla was informed that the purpose of the order was to ensure that Mr Barkla did not again purport to serve a subpoena on any person for which no leave to issue had been granted.

101    On 10 April 2018 Mr Barkla sent an email addressed to Mr Fong and to the Attorney General for Western Australia and to a solicitor in the employ of the Western Australian State Solicitor’s Office. That email, too, was copied to many other recipients. Attached to the email were three documents purporting to be subpoenas requiring the attendance of the addressees to give evidence at the hearing of these applications set down at 10am on 16 April 2018. The email reads:

Dear Mr Fong, Mr Michael Mischin & Gillian Scott Bailey (State Solicitors Office),

The Applicant in the Federal Court matter of SAD 2 of 2018 Barkla v Allianz Australia ‘REQUIRES’ you to comply with the following Federal Court Subpoenas – The Applicant makes no objections to you appearing via video link or phone. You have now been served.

…

…

…

You have ALL now been served - Comply

102    Mr Barkla was provided an opportunity to explain why he had again purported to serve subpoenas for which no leave had been granted. He was warned that he was not required to respond to the Court’s request for an explanation. Mr Barkla’s response was to the effect that the addressees should be required to give evidence. He did not address the circumstance that no leave had been granted for the subpoenas to issue. I find that Mr Barkla knew at the time that he purported to serve the three subpoenas that no leave had been granted for them to issue.

103    The Court was taken to additional correspondence sent to Allianz and its legal representatives by Mr Barkla forming annexures to an affidavit of Mr Fong sworn on 26 February 2018. Mr Barkla does not dispute that he sent the communications. Rather, he sought to justify the communications by reference to his long standing grievance against Allianz, his contention that Allianz is guilty of criminal wrongdoing, and his emphatic disagreement with the outcome of legal proceedings he has instituted.

104    It is sufficient to summarise the overall effect of the correspondence.

105    For the most part, Mr Barkla’s communications are obnoxious and menacing. He makes allegations of judicial bias and corruption (including against the Court as presently constituted). He alleges that Allianz has only succeeded in past litigation because of the corrupt conduct of members of the judiciary. Some of the correspondence contains hyperlinks to “videos”, the title of which indicates that Mr Barkla has publicly published material concerning his forays in litigation. In some of the correspondence, Mr Barkla threatens to publish further videos if he is unsuccessful in this action or his demands of Allianz are not otherwise met. Mr Barkla’s communications also contain express and implied threats of unspecified consequences, typified by the extract at [98] above and by the following:

You think there’s not going to come a time when all of this will come back for you!

…

VICTORY belongs to me ˂― ― ― Mark these words She [the presiding judge] will be exposed as well.

More videos coming soon #FRAUDS #LIARS #CHEATS

…

I am then FALSELY Ruled a Vexatious Litigant – NOT THIS TIME WITHOUT Consequences.

You are going to lose this, one way or the other YOU WILL BE EXPOSED.You and Your Client have NO TRUTH and or FACTS

#Murphy’sLaw is coming for you. #JUSTICE

…

You cannot win the case against you in relation to the words ‘Requiring’ & ‘Required’ which both impose a legal obligation to do an act (everyone knows that) and even in the event that a Judge rules in your favour it will prove ‘Judicial Bias" & ‘Obstruction of Justice’ and the equal and opposite reaction to this will be me defending my honour against false rulings that are contrary to laws and rules..

…

The fact is this matter is over for you (It’s only a matter of time - sure you can drag it out but that’s all you have) for the last time (before this explodes) Do the RIGHT Thing or face the consequences (COB tomorrow).

106    The correspondence contains repeated demands by Mr Barkla that Allianz and its representatives answer questions about the meaning of the statutes upon which he relies or which, he alleges, have been contravened by Allianz.

107    By reference to the email addresses of the copied recipients, I infer that Mr Barkla craves the attention of a wider audience, including (without being exhaustive) members of the judiciary, members of Parliament and members of the Australian Federal Police.

108    In some of the correspondence, Mr Barkla states that Allianz has admitted certain facts by reference to the notices to admit served in these proceedings. I make the following observations in relation to the notices. As I have said, there are eight in total. They assert “facts” numbered 1 to 170 (although some numbers appear to be omitted). Many of the asserted “facts” are assertions of law or poorly cast conclusions that Allianz has contravened the law. The notices reveal Mr Barkla’s obsession with the Form 3B issue. The following asserted “facts” are typical:

…

2.    Fact is on the 3rd July 2012 the Respondent (Allianz) issued the Applicant with a Statutory Regulations Form 3A Insurer’s Notice that Liability is Accepted? (Please see ‘NTAF Annexure ‘A’’)

..

5.    Fact is the Respondent caused harm, damage & detriment to the Applicant by omissions to show a duty of care? (If you disagree provide evidence of care?)

6.    Fact is the Respondent are in violations of the Criminal Code Act 1995 Chapter 2 Section 6.2 offence of ‘absolute liability’? (Due to the fact Allianz accepted liability)

…

15.    Fact is on the 16th March 2017 the Applicant wrote a letter to the Respondent (Allianz Mr Stephen Fong) asking 3 questions? (Please see NTAF Annexure ‘C’

…

18.    Fact is the Respondent (Allianz Mr Stephen Fong) is in violations of the Australian Human Rights Commission Act 1986 Schedule 2 Article 19.2 Freedom of Expression?

…

25.    Fact is Section 14 of the Insurance Act 19734 states the following:

Breach of authorisation conditions

(1)    A general insurer commits an offence if:

(a)    the insurer does an act or fails to do an act: and

(b)    doing the act or failing to do the act results in a contravention of a condition of the insurer’s authorisation under section 12; and

(c)    There is no determination in force under subsection 7(1) that this subsection does not apply to the insurer.

Penalty: 300 penalty units.

…

29.    Fact is the Respondent conduct did in fact cause a determinant to me (Applicant) a person of the Commonwealth of Australia. for exposing the Respondents Wrongful & Unlawful Acts.

…

31.    Fact is that any ruling by any Court contrary to Statutory written laws is in fact unlawful?

32.    Fact is the Respondent disputed liability in my case? And admit no Form 3B has been filed?

33.    Fact is on the 5th December 2013 on the record of Hansard the Hon: L. Ravlich stated at point (3) and I quote: ‘Is it acceptable to the minister that the insurer Allianz has failed to comply with the act and regulations in relation to Mr Barkla’s claim by disputing liability without issuing the regulations form 3B and that Workcover WA have failed to ensure compliance by the insurer with the act and regulations’? (NTAF Annexure ‘D’).

…

38.    Fact is that Workcover WA Registrar Shane Melville ruled contrary to the law regarding the regulations Form 3B and facts in this notice (Facts 33 to 37 inclusive) ?

109    All emphasis is Mr Barkla’s.

110    Allianz filed three notices of dispute in response to the first three notices to admit. In response to the fourth notice, Allianz informed Mr Barkla by correspondence that the alleged facts were disputed. It otherwise stated that the allegations were either not facts but submissions, irrelevant or scandalous and that, overall, the notices were vexatious. Allianz put Mr Barkla on notice that it would bring the notices to admit to the Court’s attention in support of its application under s 37AO of the FCA Act. That did not deter Mr Barkla. A further four notices to admit were served, each of them having the same characteristics as the first.

111    I conclude that Mr Barkla’s conduct in serving the notices to admit is oppressive, and knowingly so. Mr Barkla is a person who has received the benefit of reasons for judgment in a large number of proceedings, including proceedings in which he has wrongly sought to invoke a notice to admit procedure.

112    In Western Australia Supreme Court proceedings CACV125 of 2015 Mr Barkla had sought to file the Notice to Admit Facts in the Supreme Court of Appeal which contained “facts” of a similar nature to those asserted in this case. A registrar rejected the documents on the basis that they were not required nor permitted by the Court of Appeal Rules. Mr Barkla made an application for judicial review of that decision. In Barkla v Allianz Australia [2015] WASCA 210, Newnes and Murphy JJA said:

5    The ‘notice to admit facts’, in essence, sought admissions by the respondent of a right of the appellant, pursuant to the Australian Human Rights Commission Act 1986 (Cth), to seek and receive information; as to the terms and effect of O 30 r 2(1) of the Rules of the Supreme Court 1971 (WA); that certain dictionaries contain certain definitions; and that the appellant wrote a letter to the respondent asking two legal questions.

…

7    The registrar wrote to the appellant on 20 August 2015 explaining her reasons for rejecting the documents. In relation to the ‘notice to admit facts’, the registrar pointed out that O 30 r 2 has no application in the Court of Appeal and it is not the function of this court to conduct a fresh factual enquiry into the matters before the court below. The registrar referred the appellant to the decision of this court in Barkla v Allianz Australia Insurance Ltd [2014] WASCA 192 [3], where that point was made in relation to interrogatories the appellant had sought to file in a previous appeal. (An application by the appellant for special leave to appeal to the High Court against that decision was dismissed: Barkla v Allianz Australia [2015] HCASL 40.)

113    Mr Barkla followed the same course in later proceedings, again had his papers rejected for filing by a registrar and again applied for review of the registrar’s decision. On review Newnes and Murphy JJA’s said (Barkla v Civitella [2016] WASCA 71):

7    The ‘notice to admit facts’, in essence, sought admissions by the respondent (a) that the appellant wrote a letter to the respondent asking two legal questions; (b) as to the terms and effect of O 30 r 2(1) of the Rules of the Supreme Court 1971 (WA); (c) of a right of the appellant, pursuant to the Australian Human Rights Commission Act 1986 (Cth), to seek and receive information; (d) that a particular dictionary contains a certain definition; and (e) that the Australian Constitution contains a provision in terms of part of s 5 of the Commonwealth of Australia Constitution Act. It is in all material respects the same as the document which, in Barkla v Allianz Australia [2015] WASCA 210, this court held was an abuse of process and properly rejected for filing by the Court of Appeal Registrar. On that occasion, the ‘notice to admit facts’ was accompanied by a meaningless document headed ‘Referral of legal issue to Court of Appeal’.

8    The proceedings on this occasion followed precisely the same course as on the previous occasion.

114    I make the following findings by reference to Mr Barkla’s manner of conducting these proceedings and his wide history of litigation:

(1)    Mr Barkla is unwilling to accept the finality of judgments of courts that have made orders adverse to his interests;

(2)    Mr Barkla is obsessed with his case and so has sought to widen his original dispute to involve a broader class of perceived opponents;

(3)    Mr Barkla wants to obtain an out of court settlement with Allianz and, to that end, has sought to publicly embarrass Allianz with widely distributed correspondence, into which the Court has been copied;

(4)    Mr Barkla has exhibited a pattern of alleging bias and corruption against members of the judiciary and staff of the Court in respect of the decisions against him;

(5)    Mr Barkla has menaced Allianz and this Court with threats of unspecified consequences should these proceedings be decided against him or should Allianz not settle with him; and

(6)    Mr Barkla has abused the Court’s processes to maintain a long campaign of harassment and annoyance.

115    Mr Barkla’s unwillingness to accept the finality of judgments and rulings against him was confirmed in the course of his oral submissions. He said:

… the fact is I’ve not been rehabilitated and there was – there’s issues around that and about what happened, but the 21 months caused for this to keep going, keep going, and now I find myself in a situation where I’m just obsessed with this case in getting justice and a fair go, which I’ve not received by the courts before, and that’s why the rulings are – well, they violate the law and then they tell me I’m a vexatious litigant.

116    Viewed in its totality, Mr Barkla’s conduct in this proceeding cannot be diminished in its seriousness by mere naivety, lack of legal assistance or other disadvantages of a self-represented litigant of the kind discussed earlier. His conduct in purporting to serve subpoenas without leave was deliberate. The correspondence that accompanied the emails purporting to serve the subpoenas was distributed to a wide audience and, I find, was intended to wrongly lend the authority of this Court to the subpoenas. There was no such authority. I consider that conduct alone to constitute an extreme abuse of this Court’s processes. I find that despite the Court’s warnings and guidance, Mr Barkla has demonstrated no insight into the seriousness of that conduct. Indeed, after an initial warning, the conduct was repeated. Overall, I consider Mr Barkla’s manner of conduct in this proceeding to be a reliable indicator of the conduct he is likely to engage in if an order in the terms sought by Allianz is not made. The conduct cannot be justified by reason of his apparently firm belief in the correctness of his position. As the Full Court said in Manolakis v Carter [2008] FCAFC 183 at [10]:

Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private ‘Royal Commissions’.  …

117    If an order is not made prohibiting Mr Barkla from commencing any action in this Court, there is an unacceptable likelihood that Mr Barkla would commence vexatious proceedings against a widening circle of perceived opponents. He would, I am satisfied, seek to draw Allianz back into any proceeding whether by purporting to serve subpoenas on its officers or by other mischievous means. I am also satisfied that if the order was not made, Mr Barkla, would continue to vex the Court itself with threatening correspondence, to ignore the orders of the Court and to waste the Court’s judicial and administrative resources, as he has done in the present case.

AN ASSERTED CONSTITUTIONAL ISSUE

118    I will now explain why Mr Barkla’s Notice of a Constitutional Issue dated 11 January 2018 does not prevent the Court from proceeding to judgment on Allianz’ interlocutory application.

119    The issue is expressed by Mr Barkla in the following terms:

Nature of Constitutional matter

[State briefly but specifically, the nature of the Constitutional matter].

1.    Is the Australian Human Rights Commission Act 1986 Schedule 2 (International Covenant on Civil and Political Rights) and or the Criminal Code Act 1995 Section 4.3 Omissions, binding on a Respondent pursuant to Clause 5 (Operation of the Constitution and laws) of the Commonwealth of Australia Constitution Act? (If no please provide Statutory provisions)

2.    Does an act of omission to perform an act that there is a duty to perform by a law of the Commonwealth, by a Respondent, pursuant to the Criminal Code Act 1995 Section 4.3 Omissions, to comply with the Australian Human Rights Commission Act 1986 Schedule 2, (International Covenant on Civil and Political Rights) constitute a violation/s and or breach Clause 5 (Operation of the Constitution and laws) of the Commonwealth Constitution Act? (if no please provide Statutory provisions)

Please see page 2 – Clause 5 (Operation of the Constitution and laws) of the Commonwealth Constitution Act and The Australian Human Rights Commission Act 1986 Schedule 2 (International Covenant on Civil and Political Rights) Article 19.2 Freedom of Expression and Section 4.3 Omissions of the Criminal Code Act 1995 (All laws named are Commonwealth laws)

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – CLAUSE 5

Operation of the Constitution and laws

http://www5.austlii.edu.au/au/legis/cth/consol_act/coaca430/s5.html

‘This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth..’

AUSTRALIAN HUMAN RIGHTS COMMISSION ACT 1986 – SCHEDULE 2

International Covenant on Civil and Political Rights

http://www5.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/sch2.html

Article 19.2

2.    ‘Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’

CRIMNINAL CODE ACT 1995

4.3 Omissions

An omission to perform an act can only be a physical element if;

(a)    the law creating the offence makes it so; or

(b)    the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that there is a duty to perform by a law of the Commonwealth, a State or a Territory, or at common law.

Facts showing that section 78B Judiciary Act 1903 applies

1.    [State the facts showing that the matter is one to which section 78B of the Judiciary Act 1903 applies]. Fact is the Commonwealth Constitution Act and all laws shall be binding on the Courts, Judges and people of every State and of every part of the Commonwealth. (The Rule of Law)

120    Mr Barkla’s notice does not require the issue of s 78B notices for three reasons (any one of which is sufficient).

121    The first is that the issues arising in the substantive proceeding are ill-defined such that the statement of claim will be struck out. Whether a constitutional issue might have genuinely arisen on an adequately pleaded claim falling within the jurisdiction of this Court is not necessary to decide.

122    The second is that the relief sought by Allianz on its interlocutory application does not depend upon the resolution of any legal or factual issues arising in Mr Barkla’s underlying proceeding.

123    The third is that the issue identified by Mr Barkla is not properly to be regarded as an issue arsing under the Constitution or involving its interpretation in any event. So far as it can be understood, the notice proceeds from the premise that Allianz and this Court are bound by the Constitution and all laws made by the Parliament of the Commonwealth under the Constitution: Commonwealth of Australia Constitution Act, s 5.

124    Section 78B of the Judiciary Act does not impose a duty on the Court not to proceed in the face of a Constitutional point that is unarguable: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at [14] (French J).

125    The remainder of the notice asserts Mr Barkla’s construction of the laws upon which he relies. The questions of construction do not, of themselves, turn on any issue arising under the Constitution or involving its interpretation.

EVIDENCE

126    Before concluding, I will rule on a procedural question concerning the affidavits of Mr Fong sworn on 15 January 2018, 26 February 2018, 26 March 2018 and 13 April 2018. In the course of the hearing, and at the case management stage, an issue arose as to whether Mr Barkla had an entitlement to cross-examine Mr Fong on his affidavits. The Court invited submissions as to whether there was such an entitlement, or whether the question was one for the Court’s discretion.

127    The issue arises because of the various orders sought by Allianz, some of which are interlocutory. Importantly, an order pursuant to s 37AO(2)(a) or (b) of the FCA Act is a final order (see s 37AO(5)) having significant consequences for Mr Barkla.

128    The Court did not require Mr Fong to attend for cross-examination in the course of the hearing. The question of whether he should be required to attend was deferred. The reason for adopting that course was to enable the Court to consider whether, or to what extent, Allianz’ application required findings to be made on any contested facts. The Court informed the parties that should the Court later form the view that Mr Fong should be made available for cross-examination, then argument on Allianz’ application would be reopened so as to allow that to occur. The Court has proceeded to judgment without requiring Mr Fong to attend for cross-examination for the following reasons.

Evidence Act

129    The starting point is s 27 of the Evidence Act 1995 (Cth). It provides:

A party may question any witness, except as provided by this Act.

130    Section 26 provides:

26    Court’s control over questioning of witnesses

The court may make such orders as it considers just in relation to:

(a)    the way in which witnesses are to be questioned; and

(b)    the production and use of documents and things in connection with the questioning of witnesses; and

(c)    the order in which parties may question a witness; and

(d)    the presence and behaviour of any person in connection with the questioning of witnesses.

131    Section 26 and s 41 of the Evidence Act confer powers on the Court to control the manner in which a witness is questioned. The examination and cross-examination of a witness is, of course, subject to the requirement that the questions bear on a relevant issue. Evidence that is not relevant in a proceeding is not admissible: s 56(2). For the purposes of these provisions, the relevant “proceeding” is Allianz’ application for a vexatious proceedings order against Mr Barkla. The hearing of 16 April 2018 was not a hearing of Mr Barkla’s originating application.

132    In Tarrant v Statewide Secured Investments Pty Ltd (2012) 128 ALD 290 Katzmann J said, in respect of the “right” to cross-examine:

34    At common law there was no ‘right’ to cross-examine a witness: see, for example, GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 18, 22 (GPI Leisure) per Young J in Eq; NMFM Property Pty Ltd v Citibank Ltd (No 8) (1999) 161 ALR 581; [1999] FCA 266 at [16] per Lindgren J (following Young J in GPI Leisure); LGM v CAM [2008] FamCA 185 at [207]–[208] per O’Ryan J. As Young J put it in GPI Leisure at 22, the only right was the right to a fair trial. But s 27 of the Evidence Act 1995 (Cth) provides that a party may question any witness, except as provided by the Act. That suggests that the parliament’s intention was to legislate for such a right: compare Moore v Wilson [2006] FCA 79 at [76] where Mansfield J queried whether the common law position had been removed by s 27.

35    The right, of course, is not unfettered. But if a party wishes to cross-examine a witness on matters in dispute in the proceeding and gives reasonable notice of its intention to do so, it is an incident of the court’s duty to provide a fair trial that, in general, that wish be respected. The right to cross-examine a witness has been described as ‘a fundamental element of litigation when conducted on affidavits or witness statements, not lightly to be set aside’, all the more so when the witness is a party: Alexander v Jansson [2010] NSWCA 176 at [11]. There is old authority that evidence given by a party affecting another party is not admissible against that other party unless there is a right to cross-examine: Allen v Allen [1894] P 248 at 253. Nevertheless, courts have a discretion to admit affidavit evidence where the deponent is not available for cross-examination, even over objection.  …

133    The power of this Court to control the conduct of a proceeding is not affected by the Evidence Act, except insofar as the Evidence Act provides otherwise, whether expressly or by necessary intendment: Evidence Act, s 11(1). The power of this Court with respect to an abuse of process in a proceeding is not affected: Evidence Act, s 11(2). Read in context, the entitlement of a party to question any witness must be understood as subject to the Court’s powers with respect to the abuse of its processes and to the powers conferred by s 26 and s 41. Even in proceedings (such as the present) where a final order is sought, it is not correct to say that there is an absolute entitlement to cross-examine a witness.

Proposed topics

134    Mr Barkla was invited to state in writing the topics in respect of which he sought to cross-examine Mr Fong. Mr Barkla’s written response to that invitation was uninformative. At the hearing, the Court again invited Mr Barkla to identify the topics of cross-examination. Having regard to Mr Barkla’s responses and to his position in the proceedings more generally I anticipate that Mr Barkla proposed to cross-examine Mr Fong about:

(1)    the proper construction of s 57A of the WCIM Act (that is, the Form 3B issue);

(2)    the proper construction of Div 2A of Pt III of the WCIM Act;

(3)    the correctness of previous judgments of the courts of Western Australia, including the order of Le Miere J under the VPR Act (that is, the vexatious litigant issue);

(4)    alleged failures by Allianz to answer questions in the course of the proceedings before Le Miere J and in other proceedings;

(5)    Allianz’ treatment of him with respect to his workers’ compensation claim more generally; and

(6)    the consequence for Allianz of any deemed admissions under the notice to admit procedure.

135    For the reasons given earlier, I will make an order striking out the statement of claim. That order is not founded upon the construction of the WCIM Act or the substantive merits of any issue Mr Barkla might otherwise have sought to agitate in this proceeding.

136    I have also concluded that this proceeding should be dismissed under r 26.01 of the Rules in any event because it constitutes an abuse of the processes of the Court. That conclusion is not based on any view I have formed about the proper construction of the WCIM Act aside from the competency question turning upon s 176. The conclusion is principally based on the circumstance that Mr Barkla has sought, by this proceeding, to re-agitate questions that have already been determined against him and because, to the extent that there is an undetermined question in the controversy between the parties, Mr Barkla is either unable or unwilling to extricate that question from the Form 3B issue. The conclusion that this proceeding constitutes an abuse of process is also founded upon the vexing manner in which it has been conducted by Mr Barkla. Cross-examination of Mr Fong on Mr Barkla’s proposed topics would not assist the resolution of any of these issues.

137    My conclusion that Mr Barkla has frequently commenced vexatious proceedings is based upon the many judgments and orders referred to elsewhere in these reasons. Many of the judgments and orders were annexed to an affidavit of Mr Fong. The provision of the authorities to the Court by that means was at the Court’s own suggestion, so that Mr Barkla might be conveniently provided with copies of the judgments and orders to be referred to by Allianz, rather than merely the citations for them. It is sufficient for Allianz to rely upon the annexures as authorities to be read. The correctness of the prior judgments is not a proper topic for cross-examination of Mr Fong.

138    Mr Barkla did not suggest that the legal proceedings to which the judgments refer were not commenced by him, nor that the reasons for judgment were other than as stated in the copies of the judgments provided to the Court. Rather, he sought to agitate the question of whether the authorities were correctly decided. Mr Barkla’s submission that the cases were wrongly decided proceeded from the incorrect assumption that this Court had the jurisdiction to overturn the judgments.

139    Copies of some of the email correspondence to which the Court has referred elsewhere in these reasons were annexed to three affidavits of Mr Fong. Mr Barkla did not seek to cross-examine Mr Fong as to the authenticity of the emails. He did not dispute that he sent the correspondence. He sought instead to justify the correspondence by reference to the perceived merits of his case in the underlying dispute. The inferences I have drawn from the correspondence do not depend on the truth of any deposition of Mr Fong. The correspondence speaks for itself.

140    Finally, I reject Mr Barkla’s submission that he has an absolute entitlement, whether pursuant to any human rights law or otherwise, to compel Allianz to answer questions in relation to the construction of the laws upon which he relies. There is no relevant question of law upon which Mr Fong has been qualified to express an opinion in any event. The Court is not otherwise interested to hear Mr Barkla debate the merits of legal his position with Mr Fong.

141    The consequence of these findings is that there was no proper proposed topic for cross-examination of Mr Fong going to any contested question of fact the Court was required to decide. These considerations informed my assessment that the Court should not require Mr Fong to attend for cross-examination, whether or not any one of the orders sought by Allianz was final in nature and notwithstanding the significant consequence for Mr Barkla of the order. Mr Barkla’s oral application for an order requiring Mr Fong to attend for cross-examination is refused.

142    As has been mentioned, the Court has also had regard to email correspondence copied to the Court itself. At a case management hearing on 1 February 2018 I ordered that any correspondence copied to the Court be marked for identification and sent to the solicitors for Allianz. On 11 April 2018 the Court notified Mr Barkla that it may, of its own initiative, have regard to the email correspondence in which it had been copied. Mr Barkla was invited to prepare his submissions on the application on the basis that the Court would have regard to that correspondence. There is necessarily some duplication between the correspondence marked for identification by the Court and that exhibited to Mr Fong’s affidavit. The correspondence read by the Court, previously marked for identification MFI1 to MFI12, will be collated in a bundle and marked Exhibit 1.

CONCLUSION

143    Allianz’ interlocutory application dated 15 January 2015 will be allowed.

144    I will dismiss Mr Barkla’s application for judgment in default and hear the parties as to costs.

Associate:

Dated:    20 December 2018