TRANSCRIPT OF PROCEEDINGS IN CACV 75 OF 2008: COURT OF APPEAL JUSTICES: PULLIN JA and NEWNES JA DECIDED TO DISMISS MY APPEAL. I HAVE SINCE ASKED FOR A REVIEW OF THAT JUDGMENT ORDER

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THE SUPREME COURT OF

WESTERN AUSTRALIA

COURT OF APPEAL

CACV 75 of 2010

NICHOLAS NI KOK CHIN

and

TIMOTHY ROBERT THIES and ANOTHER

PULLIN JA

NEWNES JA

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 23 NOVEMBER 2010, AT 11.18 AM

Continued from 15/10/10

The appellant appeared in person.

MR D.S. ELLIS appeared for the first respondent.

23/11/10 11 (s&c)

THE ASSOCIATE:   Chin and Thies, CACV 75 of 2010.

PULLIN JA:   Mr Chin, you're appearing on your own behalf?

CHIN, MR:   Yes, sir.

PULLIN JA:   All right.  Thank you.  Mr Ellis?

ELLIS, MR:   I appear on behalf of the first respondent, your Honour.

PULLIN JA:   Thank you.  Mr Chin, we are all here today because of a registrar's notice which indicates that you are today to show cause why the appeal should not be dismissed under rule 43(2)(g)(i) because none of the grounds of appeal have a reasonable prospect of succeeding, or under 43(2)(g)(ii) for failure to comply with rule 32(4) or (5).  You understand that's why we're here today?

CHIN, MR:   Yes, sir.

PULLIN JA:   All right.  What are your submissions as to why those orders should not be made?

CHIN, MR:   Sir, there is only one golden thread interwoven into all my grounds of appeal.  That golden thread is the involuntary consent judgment of Registrar Susan Wyle in FR417 of 2007 that happened on the 7th day of June 2007.  Your Honour, that is the only point that is of importance to this court and that is the subject of the (indistinct) conduct of my learned friend, a barrister called Ellis.

NEWNES JA:   Mr Chin, the appeal is against a judgment of Kenneth Martin J on 8 July 2010.  When this matter came before me sitting alone on 15 October, in the course of an exchange you told me or you confirmed that there were essentially two complaints that you wished to make in the appeal.  One was that his Honour had not disqualified himself from hearing it, and the other was that he had erred in ordering that you provide security for costs.

      On that occasion I observed that none of those matters were reflected in the grounds of appeal or the submissions which you had filed then in the appellant's case as it then stood and you were given leave to file an amended appellant's case within a certain period of time on the basis that in all probability that would be the last opportunity you got to file an amended appellant's case, the matter having gone on for some considerable time at that point.

      You filed an amended appellant's case - that is dated 1 November, although it was filed on 3 November - but it is not apparent that that is the subject matter of your appeal, which seems to canvass a number of different proceedings, a number of different issues, and in many

23/11/10               CHIN, MR                        12

cases it's very difficult, if not impossible, to understand.  A moment ago you seemed to be talking about some other decision.

CHIN, MR:   His Honour Kenneth Martin J make two decision.  One is the (indistinct) exclusion case.  The other is the security order case.  In the security order case the only reason for his Honour Ken Martin J in ordering the security costs against me is the unmet legal costs of the District Court matter which has been taxed by a Registrar Hewitt.  That matter has not been appealed to the Supreme Court.  That is a debt that remain and that is the reason why the security costs order has been made against me.

      That is not a debt.  That debt is based on the (indistinct) judgment.  The (indistinct) judgment is the involuntary consent order and my learned friend, Mr Timothy Robert Thies, and his counsel, Mr Scott Ellis - they are aware that I have been updating Registrar Wyle from 12 April when those applications was made for consent order and there is a series of correspondence and those correspondence were addressed to Registrar Wyle and that is why Registrar Wyle delayed the process of the consent order from the 12th day of April to the 7th day of June.  What happened was on the 6th day of June when it became impossible for the matter to be delayed any more, for the sham compromise to be crystallised ‑ ‑ ‑

NEWNES JA:   I think you are getting off the topic, Mr Chin.  The question today is, among others, whether the grounds of appeal comply with the rules.

CHIN, MR:   Yes, your Honour, the grounds of appeal abide by the rules.  All the grounds of appeal is interwoven with one single golden thread, and that golden thread is the involuntary consent order of Registrar Wyle.

PULLIN JA:   All right.  Well, that's the simple point you make then, is it?

CHIN, MR:   That is the most simple point, sir, and that is the subject of the misleading statement that was made to Ken Martin J on the 17th day of June 2010.  That misleading statement was contained at page 33 of the transcript of 17 June 2010 and that is the subject of my complaint (indistinct) and that letter has been sent, a copy, to the Court of Appeal registrar and that letter is proof that - that is proof that Mr Scott Ellis, my learned friend, knows - he knows very well and Mr Timothy Robert Thies knows very well that the duress situation was communicated to Registrar Susan Wyle and Registrar Susan Wyle could not do anything but she was press under duress to (indistinct) to that consent judgment.  That consent judgment isn't (indistinct).

23/11/10               CHIN, MR                        13

      The event that happened on 6 June - my son became so unwell that he has got to be treated by his doctor and that was communicated, that situation was communicated to her, and in order to switch the situation (indistinct) harm to my son.  That is what has happened to Registrar Wyle who involuntarily consented to that consent judgment.

NEWNES JA:   That's the substance of your appeal, is it?

CHIN, MR:   Yes.  That is the only issue of my appeal.

PULLIN JA:   All right.  Thank you, Mr Chin, for those submissions.

CHIN, MR:   Thank you, sir.

PULLIN JA:   We don't need to trouble you, Mr Ellis, thank you.  The court is satisfied that the appeal should be dismissed for the reasons referred to in the registrar's appeal notice and reasons for the decision will be published in due course.  Mr Ellis, is there any consequential order?

ELLIS, MR:   I seek an order for the costs of the appeal, your Honour.

PULLIN JA:   All right.  Mr Chin, is there any reason why a costs order should not be made?

CHIN, MR:   Sir, this is - the rule, the Supreme Court rule, Supreme Court Act, section 61F(3), says that if a Supreme Court judge makes a decision, that decision is subject to an ex parte application.  There has been no judicial determination by this court before ‑ ‑ ‑

PULLIN JA:   No, we're just concerned with a costs order at this stage, Mr Chin.

CHIN, MR:   Yes, sir.  If it is an ex parte application there would have been no cost because there has been no judicial determination that the ex parte case can be made inter partes.  Second point, sir, is that the legislative intention of this court is that there was never any debt claimable by Mr Thies against my son and me.  Hasluck J, in the first stage of the proceedings ‑ ‑ ‑

PULLIN JA:   No, no, just on the costs.  The only question is whether or not a costs order should be made, Mr Chin.  Normally a costs order would be made, as you would know, if you had been unsuccessful.

CHIN, MR:   Yes, but the case of (indistinct), your Honour, says that if Mr Thies link me to an action that has no basis of success, that because there was never any valid claim against me, there is no costs because of the legislative intention of the (indistinct) provisions.

23/11/10               CHIN, MR                        14

PULLIN JA:   All right.  Thank you.

CHIN, MR:   The third point is that Mr Thies started the case FR417 of 2007 claiming for legal costs, claiming for profit costs.  The case of Dobree v Hoffman says that if you are litigant in person, you are not entitled to claim for any profit costs.

PULLIN JA:   All right.  Thank you, Mr Chin.  The orders of the court will be that the appeal is dismissed and that the appellant pay the respondent's costs of the appeal to be taxed.  As I say, reasons will be delivered later.

AT 11.31 AM THE MATTER WAS ADJOURNED ACCORDINGLY

23/11/10               CHIN, MR                        15

DRAFT NOTICE OF APPEAL FOR SPECIAL LEAVE TO APPEAL TO HIGH COURT FOR REVIEW OF DECISION OF COURT OF APPEAL IN CACV75 OF 2010 DELIVERED 23.11.2010 BY NEWNES JA AND PULLIN JA

Form 23       Application for leave or special leave to appeal (rule 41.01.1)

IN THE HIGH COURT OF AUSTRALIA                          No.                   of 2010

[PERTH REGISTRY]

BETWEEN:                                  

NICHOLAS NI KOK CHIN                                                                 Applicant

and

TIMOTHY ROBIN THIES                                                                    First Respondent

PAUL CHUNG KIONG CHIN                                                             Second Respondent

APPLICATION FOR SPECIAL LEAVE TO APPEAL

1.   The applicant applies for  special leave to appeal the whole of the interlocutory judgment of Justice Pullin JA and Newnes JA of the Court of Appeal of Appeal, Supreme Court of Western Australia given on 23.11.2010 in CACV 75 of 2010 and published on ………. This case is also cited as CHIN V THIES [2010] WASCA …. (the judgment below).

2. The judgment below is concerned with the refusal of the Court of Appeal to allow the Applicant’s Application for Leave to Appeal the interlocutory judgment of Ken Martin J:

21. RE MICHELIDES; EX PARTE CHIN [No 2] [2010] WASC 169 (Michelides No.2) which unlawfully imposed a Security Costs Order of $20,000.00 on the Applicant thereby stultifying the proceedings in RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 (Michelides No.1).

2.2. THIES -v- CHIN [2010] WASC 111 which unlawfully excludes the Applicant as a litigant in person from protecting his second son Paul Chung Kiong Chin, the Second Respondent, whose vulnerabilities had hitherto been exploited by the First Respondent from being further exploited by him, in accordance with the Mandate given to the Applicant in Michelides No.1 (The Mandate Exclusion Case).

2.3. In the Mandate Exclusion Case, the Applicant is at all material times a “lawyer” and not a “legal practitioner” or “counsel” or “barrister and solicitor”  in accordance with the strict interpretation of Column 1 of regulation 5(2) of the Legal Profession Regulations, 2009 (WA).

2.4. The Applicant has never held himself up to the public that he was entitled to be engaged in legal practice other than as a litigant in person fighting his own cause against the First Respondent. 

2.5. As such the Applicant is never playing the public role of a legal practitioner and therefore he could never be wrongly interpreted nor faulted by Ken Martin J to have been acting in conflict of interest situations in so far as he was extricating his son out of the tentacle-like grip of the First Respondent which the Applicant had inadvertently caused the Second Respondent to become involved in. 

3. The judgment below therefore had caused a travesty of justice to the Applicant on the following grounds: 

3.1.    It refused to take into account the relevant facts that Counsel for the First Respondent Barrister Scott Ellis had misled the court of Ken Martin J on 17.6.2010 as recorded at page 33 of the transcript of those proceedings in Michelides No.2, in the following terms: 

3.1.1.  Registrar Susan Wilde’s Consent Judgment of the Fremantle Magistrates Court in FR417 of 20007 dated 7.6.2007 is involuntary as she acted under duress.  The basis of her involuntariness resulted from her having been constantly updated by the Applicant by way of explicit simultaneous correspondence addressed to her and to all parties concerned with regard to the then prevailing conditions of duress being exerted upon her, the Applicant and the Second Respondent by the First Respondent.  This situation of duress led to the Sham Consent Judgment and as such it is a Void Judgment and is unenforceable at law (the Sham Consent Judgment).

3.1.2.  The Sham Consent Judgment is the basis for the improper costs order of Commissioner Herron in District Court Appeal No.6 of 2008 (Commissioner Heron’s Order).

3.1.3.   Commissioner Herron’s Order is the basis for the Michelides No.2 judgment at [38] to stultify the righteous judgment of Hasluck J in Michelides No.1.

3.1.3.   Registrar Hewitt’s taxation of Commissioner Herron’s Order at [36] of Michelides No.2 was lawfully objected to by the Applicant on the basis that the touchstone for the recoverability of costs is whether the First Respondent had rendered his legal services to the Applicant or the Second Respondent as the basis for his claim in FR417 of 2007.  This is an issue pointed out in Michelides No.1 that was refused consideration by the learned Ken Martin J in Michelides No.2.

3.1.4. The Court of Appeal is purported to have dismissed the Applicant’s Application for leave to appeal under Rule 43(2)(g)(i) because none of the grounds of appeal have a reasonable prospect of succeeding or under Rule 44(2)(g)(ii) for failure to comply with Rule 32(4)(b) or that his submissions fail to comply with Rule 32(5)(1).  If there is such failure to comply with the Rules, it should have been subsumed by the argument of the Applicant’s use of the metaphor that the Sham Consent Judgment represents the single Golden Thread interwoven into the fabric of the Applicant’s Grounds of Appeal in CACV 75 of 2008 as the purpose of the court to provide fair justice should not have been complicated by mere technicalities (the Single Ground of Appeal).

3.1.5. The Single Ground of Appeal did comply with the Rules on the following basis:

3.1.5.1. The Rules are derived from The Supreme Court (Court of Appeal) Rules, 2005 and are either directory Rules or mandatory Rules. 

3.1.5.2. The Rules involved in this case are directory Rules, the compliance with which is optional for the Applicant.

3.1.5.3. The Rules set out duties and procedures which the legislature intends or expect to be obeyed. 

3.1.5.4. The legislature may simply trust its officers i.e. the Court of Appeal to yield implicit obedience to them or if it sees fit to attach a penalty as punishment for disobedience.  But in this case, the obedience to procedural law as opposed to substantive law cannot be sacrificed by it in circumstances when it is clear to it that the First Respondent is lacking in morality in his conduct and action towards the Applicant and the Second Respondent, as it is a universally acknowledged principle of fair law, which cannot exist independently if it were not inherently impregnated with morality (the good law).   

3.1.5.5. The Court of Appeal knows that morality means justice and fair play and knows the distinction between what is right and what is wrong. It cannot condone the First Respondent reneging on his contractual obligations and extorting monies from the Applicant under conditions of duress consequent on his failure to fulfill his contractual obligations to the Applicant.  This is the issue pointed out by Hasluck J in Michelides No.1 for determination by Ken Martin J in Michelides No.2 but it was not done (only the good law must be administered).  

3.1.5.6. The Court of Appeal knows that for it to function lawfully, its duty is to stop the unlawful acts of the First Respondent and his counsel Scott Ellis who is a judge of his own cause on the ground that the latter received $6,000.00 as legal fees for legal advice from the former but he had tendered him the wrong legal advice in the former’s defence of FR944 of 2007 and he knows that the First Defendant is going to sue him for that wrong legal advice.  Scott Ellis is now perpetuating his first wrongs by misleading the court of Ken Martin J to the effect that the Sham Consent Judgment is not sham (an officer of the court must not act in conflict of interests and must help the court to administer good law).

3.1.5.7. The Court of Appeal must adopt a neutral position with regard to its interpretation of statute and common law including the Rules but it must side with the Applicant against the First Respondent and must only enlist officers of the court who are not acting in conflict of interests and who can help the court to administer good law.

3.1.5.8. The Court of Appeal therefore knows that strict compliance with the Rules is unnecessary in this particular case because it has a duty to decide on the legal consequence of non-compliance with the Rules that will affect the rights of the Applicant and the Second Respondent viewed in the light of a concrete state of facts and a continuing chain of events involving the First Respondent and his counsel who are not administering good law. It therefore should not have dismissed CACV75 of 2010.  

3.1.5.9. The Court of Appeal knows that FR417 of 2007 was started by the First Respondent against the Applicant and the Second Respondent for the vexatious purpose of pursuing a ZERO SUM debt claim against the latter by using his gun of duress action in CIV1112 of 2007 caveat case against the home property of the Second Respondent.  By wielding both weapons against the father and son, the First Respondent was able to extort $11,500.00 from them under the Sham Consent Judgment (the wrongs of the First Respondent).

3.1.5.10. The Court of Appeal knows that all legal costs involved in proceedings at whatever forum and whatever stage of the proceedings that is caused by the wrongs of the First Respondent cannot be brought upon the shoulders of the Applicant but must be borne by the First Respondent himself. That is the case for the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004.

3.1.5.11. The Court of Appeal knows that s.60(1)(f)(3) of the Supreme Court Act, 1935 provides that the subject application before the Court of Appeal in CACV 75 of 2010 is to be brought ex-parte by the Applicant (the subject application).  However, Newnes J at the first hearing denied the Applicant his natural justice by refusing to make a legal determination by inviting a formal application from the First Respondent as to why he should have been made a party to the subject application.  As a consequence, the Applicant owes no liability for costs of the subject application to the First Respondent, should it fail.    

3.1.5.12. The Court of Appeal knows that in relation to its duty to impose the Rules, it is now faced with an ambiguous task to impose conditions of validity or invalidity on those Rules in the process of administering good law.  Under these circumstances, it will then have to exercise its wide discretion to make those Rules either mandatory or directory.  The predisposing circumstance of this particular case renders those Rules mere directory rules and this concludes that the judgment below is wrong.

3.1.5.13.  The Court of Appeal knows that the First Respondent did not comply with the r.22 of the Consolidated Practice Directions of the Supreme Court of Western Australia as its submission was delivered by way of email to both the Court of Appeal Registrar and the Applicant on 22.11.2010 at 4.48 pm for hearing on 23.11.2010 at 10.30 am.  There is no two clear working days before the hearing and the Applicant suffered a detriment as he was taken by surprise.

3.1.5.14.  The Court of Appeal knows that the First Respondent did not comply with Rule 33(3) and (4) to file his answer within seven days to the Applicant’s Appellant’s Case with his answer, submissions, notice of contention and legal authorities.  The Court of Appeal discriminate the Appellant and sided with the First Respondent by not requiring him to comply with the Rules but requires the Applicant to comply strictly with the Rules.    

3.1.5.13.  The Applicant is seeking the Court of Appeal to review the judgment below and shall be away from the jurisdiction for the duration of December, 2010, January, 2011 until mid-February, 2011. The Applicant hopes to repair the technical slip of the Court of Appeal through s.33 of the Supreme Court Act, 1935 without having to go through an appeal process in the High Court of Australia.   

Order(s) sought

The Applicant seeks the grant of:

i)                    A Special Leave to Appeal the Order of the judgment below be allowed.

ii)                   The judgment below in CACV 75 of 2010 be set aside.  

iii)                 Michelides No.2 be heard before another judge of the Supreme Court in accordance with the normal approach of the common law as extant in Western Australia in relation to an application for Review Orders pursuant to s. 36(4) of the Magistrates Court Act, 2004 (WA). This is the second stage of the CIV 1903 of 2008 proceedings and that it be pursued by the Applicant as Plaintiff to its final conclusion, without its being strangled or stultified by an improper Security for Costs Order caused by the error of Ken Martin J.

iv)                 The Interim Security for Costs Order in Michelides No.2 by Ken Martin J be set aside on the ground that it is founded on incorrect law.

v)                  The Costs Order of Commissioner Herron and of the District Court Appeal No. 6 of 2008 be set aside.

vi)                 The Costs Order of the Court of Appeal in CACV 75 of 2010 be set aside.  

vii)               Costs of this Application.

viii)              Any other relief which this Honourable Court may deem fit.

Dated this 24^th day of November, 2010.

                                                                    ..................(signed)..................                                                                 ( Applicant or Applicant's solicitor )

To:  

1. The First Respondent

No.7, Yalgoo Avenue

White Gum Valley WA 6152

2. The Second Respondent

387, Alexander Drive

DIANELLA WA 6059

(The Second Respondent to remain inactive pursuant to Orders of Court in Michelides No.1).   

TAKE NOTICE:    Before taking any step in the proceedings you must, within 14 DAYS after service of this application, enter an appearance in the office of the Registry in which the application is filed, and serve a copy on the applicant.

< End of Document>

LETTER TO PRINCIPAL REGISTRAR OF MAGISTRATES COURT AT PERTH AND THE LEGAL PRACTICE BOARD RE: PROSECUTION OF ME WITHOUT CAUSE UDNER SUBS.13(1) OF THE LEGAL PROFESSION ACT

Nicholas Ni Kok Chin - LL.B.; B.Econs.(Business & Accountancy), Post. Grad. Dip (Business Law),

My ref: CIV1981 of 2010 & CACV41 of 2010.

Sunday, November 21, 2010

The Principal Registrar

Magistrates Court of WA

Central Law Courts
501 Hay Street
PERTH WA 6000

Criminal Matters

Telephone: (08) 9425 2222
Facsimile: (08) 9425 2777
Criminal Listings Enquiries: (08) 9425 2497 / (08) 9425 2261

Dear Sir                                                          FACSIMILE TRANSMISSION

TWO CRIMINAL CHARGES UNDER SECTION 13(1) OF THE LEGAL PROFESSION ACT, 2008

I refer to the above matter and would like to state as follows:

a)     I was served with a Court Hearing Notice dated 7.10.2010 signed by Shung Kee Neoh as the legal officer of the Legal Practice Board of Western Australia.

b)    I also received a Written Plea by Accused and a Prosecution Notice together with a Statement of Material Facts concerning two charges under s.13(1) of the Legal Profession Act, 1903 that I held myself to be entitled to legal practice.   The charges pertain to these documents:

·         A Summons in Chambers in CIV 1112 of 2007 dated 8.10.2009 and made an Affidavit in Support dated 12.10.2009 indicating that I appeared on behalf of my son Paul.

·         a letter dated 10.10.2009 to the Listings Coordinator filed in CIV 1903 of 2008 where I put a stamp indicating that I was a Barrister & Solicitor, although I was appearing as a lawyer litigant in person.

c)       I have since been in communication with the writer of those documents Mr. Shung Kee Neoh who promised me that he is going to ensure that those charges are withdrawn before the first hearing date of this matter i.e. the 26^th day of November, 2010 at 10.00 am.

d)       I have since made two telephone calls to the Magistrates Court at Perth but found that this prosecution of me by the Legal Practice Board has not been lodged with it and there is no registration number.

e)       I was given the mandate by Justice Hasluck in CIV 1903 of 2009 on 17.6.2010 and subsequent dates to represent my son Paul Chung Kiong Chin in those proceedings in CIV 1112 of 2007 and Civ 1903 of 2008 and these matters are currently being pursued in my Application for Mandus Orders in CIV1981 of 2010 and CACV 75 of 2010.  The latter is scheduled for hearing on 23.11.2010 at the Court of Appeal.  I am also due to appear on the 26.11.2010 before the Deputy President of SAT His Honour Judge Sharp at 9.30 am.

f)        My communications with Mr. Shung Kee Neoh is to the effect that I was unaware until mid-October, 2010 that I could not use my title barrister and solicitor on the ground that I was never struck off the roll and is never guilty of any professional misconduct or unsatisfactory conduct.  I am now aware that in accordance with the schedule of r. 5(2) of the Legal Profession Regulations 2009, I am only entitled to use my title as Lawyer and not as Barrister & Solicitor.

g)       I understand that s. 13(1) is a strict liability offence as indicated by the words  “rebuttable presumption” as found in subs.14(3) of the Act.

h)       As for the first charge, I had no intention on my part to hold to the public that I was entitled to be engaged in legal practice because I was given the mandate to do so by Hasluck J in order to prevent Mr. Timothy Robin Thies from further exploiting the vulnerabilities of my son Paul C. K Chin.

i)         As for the second charge, I am exonerated from blame that I misunderstood the fact that under my special circumstances, I was only entitled to use my title as Lawyer and not as Barrister & Solicitor.  I have now resiled from further using that title Barrister & Solicitor and is contented with only using my title as Lawyer.  

j)         Further I have never played the public role as a legal practitioner for my son even when I was holding a practice certificate under any circumstances. 

k)       Therefore I am not and was not under any circumstances construed to have acted in conflict of interests when I was defending my son’s rights as his father, agent or Amicus Curiae or even as his McKenzie friend as I not acting for reward or personal gain but as a father who has a fatherly love and good intentions for his son.  The law pertaining to this matter has been extensively submitted before the learned trial judge Ken Martin J in CIV 1903 of 2003 which is currently the subject matter of my appeal in CACV 75 of 2010.

l)         The Legal Practice Board knows that I have not committed any offence under subs s. 13(1) of the Act and Mr. Shung has given me his assurance that he is going to do something about it and I am still waiting….   As such, I want the Magistrates Court in Perth to know of my position of defence and my unavailable dates for the months of December, 2010, January, 2011 and till mid-February, 2011.    

Therefore, please find attached a copy to this facsimile a copy of my NOT GUILTY plea dated 22.11.2010.   If you need to understand further my case, please refer to my blogspot which you an access by Googling NICHOLASNCHIN.

Yours faithfully

NICHOLAS N CHIN

The Chairperson

The Legal Practice Board

Atten: Mr. Shung Kee Neoh, Legal Officer.

5^th Floor, Kings Building, 533 Hay Street                                                      

PERTH WA 6000

Telephone: (08) 6211 3600; Facsimile: (08) 9325 2743

LETTER TO SAT, LPCC AND COURT OF APPEAL RE: THE RES JUDICATA EXTENDED PRINCIPLE DEBARMENT OF THE "DEFICIENCY ISSUE" BEING CONSTANTLY AND PERSISTENTLY USED FOR THE PURPOSE OF HARASSING THE APPELLANT IN CACV 41 OF 2010

Nicholas Ni Kok Chin - LL.B.; B.Econs.(Business & Accountancy), Post. Grad. Dip (Business Law),

LAWYER

Wednesday, November 17, 2010

The Associate of the Deputy President His Honour Judge Sharp

State Administrative Tribunal State Administrative Tribunal
Ground Floor
12 St Georges Terrace Perth
Phone: (08) 9219 3111
Fax:(08) 9325 5099

The Chairperson

Legal Profession Complaints Committee

2nd Floor, Colonial Building, 55 St Georges Terrace, Perth WA 6000

TEL (08) 9461 2299 /

FAX (08) 9461 2265 /

EMAIL lpcc@lpbwa.com /

The Associate to L Bush

A/Court of Appeal Registrar

Supreme Court of Western Australia,

Court of Appeal

Registrar’s Cahmbers

Stirling Gardens

Barrack Street

PERTH WA 6000

Dear Sirs

CACV 41 OF 2010: CHIN V LEGAL PRACTICE BOARD and VR 87 OF 2009: LPCC V CHIN

I refer to the Consent Judgment entered into between the Legal Practice Board of WA and myself in CACV 43 of 2007 approved by the then President Steytler of the Court of Appeal dated the 26.09.2007.   Order 1 of the attached Consent Judgment states that the decision of the State Administrative Tribunal in VR137 of 2006 made 12.09.2006 be set aside (the Judge Eckert Judgment).

In view of the above, I would like to state the following:

a)             The Judge Eckert Judgment found that I was not guilty of any professional

misconduct but was “guilty” of an alleged “deficiency” in my professional knowledge and as a result Her Honour confirmed the decision of the First Pseudo Board of the Legal Practice Board to impose conditions on my practice certificate and thus delimiting my independent legal practice without any just cause (the deficiency issue).

Office: 387 Alexander Drive, DIANELLA WA   6059, AUSTRALIA. Contact:  ph & fax: +6189275 7440; mobile: 0421642735; emails: nnchin@optusnet.com.au; nnchin@msn.com; Skype: nicholasnchin2885

a)      The deficiency issue was set aside by the Consent Judgment of President Steytler on 25.9.2007 (with the Steytler Order dated 26.9.2007) when the Pseudo Board conceded that it was usurping the true functions of the real board of the Legal Practice Board (the admission).  

b)      Despite the admission, a Second Pseudo Board re-appeared on 3.4.2008 as an Inquiry Panel and it decided on the res judicata debarred “deficiency issue” against me amidst its admission for the second time that it is a Pseudo Board usurping the functions of the real board of the Legal Practice Board. 

c)      The two Pseudo Boards knew at all material times that the deficiency issue is estopped by way of the merger of judgments and is debarred by the extended principle of res judicata in Henderson v Henderson (1843) 3 Hare 100; 67 E.R. 313 (the extended principle of res judicata).

d)      Despite the over-whelming odds against me although I was represented by barrister Tim Stephenson, a Third Pseudo Board on 2.5.2008 (albeit improperly constituted) rose in its Phoenix-like fashion, from its ashes, to ratify the Second Pseudo Board’s decision - by doing the same wrongs against me as it was wont to do so, in the past.    

e)      The then Deputy President of the State Administrative and later its President the learned Justice Chaney in VR 107 of 2008 heard me on the debarred deficiency issue on the first anniversary of the President Steytler’s Consent Judgment.  Chaney J delivered this controversial judgment after one month of the hearing date i..e. 25.10.2008 and published it two days later on the 27.10.2008.  This persistent refusal of Justice Chaney to accept my defence of the extended principle of res judicata is manifested by his persistent decision to decide repeatedly on that debarred “deficiency issue” in CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252 (Justice Chaney’s persistence).   

f)       Justice Chaney’s persistence is again found in his ambushed decision in VR87 of 2009 of LEGAL PROFESSION COMPLAINTS COMMITTEE and CHIN [2009] WASAT 219 heard and delivered 4.11.2010.  Despite my vehement protests that the ambushed decision was not supposed to have occurred on the 4.11.2010, Justice Chaney persisted in denying me natural justice by reinforcing his decision again on the promised date of 10.11.2010 so as to alleviate my accusation that the first judgment was an ambushed one. The latter decision is now taken off the website of the State Administrative Tribunal.  

Yours faithfully

NICHOLAS N CHIN

Office: 387 Alexander Drive, DIANELLA WA   6059, AUSTRALIA. Contact:  ph & fax: +6189275 7440; mobile: 0421642735; emails: nnchin@optusnet.com.au; nnchin@msn.com; Skype: nicholasnchin2885

PRESIDENT STEYTLER CONSENT JUDGMENT IN CACV 43 OF 2010 DOES NOT PERMIT THE PSEUDO BOARD TO CONTINUE TO HARASS THE APPELLANT ANYMORE... why do we need a consent judgment if we want to ignore it?

VR 87 OF 2009 BEFORE DEPUTY PRESIDENT SHARP OF THE STATE ADMINISTRATIVE TRIBUNAL IS AN ABUSE OF PROCESS BY THE LPCC AND IT SHOULD BE STRUCK OFF.

Abuse of Process – Henderson v Henderson

Henderson -v- Henderson – 1843 – Sir James Wigram VC – Litigation Practice

The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.

Sir James Wigram VC said: “In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

Cited by:
Wain -v- Sherwood & Sons Transport Ltd CA (); Time Group Limited -v- Computer 2000 Distribution Limited and IBM United Kingdom Limited TCC ([2002] EWHC 126 (Technology)); Ansari and Another -v- Barclays Bank Plc CA ([1997] EWCA Civ 3055, [1997] EWCA Civ 3055); Gwendolen R Tilly -v- Hamleys of London Ltd Essex County Council CA ([1998] EWCA Civ 1767); Johnson -v- Gore Wood and Co (a Firm) CA ([1998] EWCA Civ 1763, [1999] BCC 474); Johnson -v- Gore Wood & Co HL ([2000] UKHL 65, [2001] 2 WLR 72, [2001] 1 All ER 481, [2002] 2 AC 31); Motorola Credit Corporation -v- Uzan and others (No 2) CA ([2003] EWCA Civ 752, , [2004] 1 WLR 113); The Sennar (No 2) HL ([1985] 1 WLR 490); Anyanwu and Ebuzoeme -v- South Bank Students’ Union South Bank University CA ([1999] EWCA Civ 1032); J A Pye (Oxford) Limited -v- South Gloucestershire District Council CA ([2000] EWCA Civ 268); Barrow -v- Bankside Members Agency Limited CA ([1996] 1 WLR 257); Yat Tung Investment Co Ltd -v- Dao Heng Bank Ltd PC ([1975] AC 581); Sweetman -v- Nathan and others CA ([2003] EWCA Civ 1115, [2004] PNLR 89); Arnold -v- National Westminster Bank Plc HL ([1991] 2 AC 93, [1991] 1736); Celador Productions Ltd -v- Melville ChD ([2004] EWHC 2362 (Ch)); Blackburn Chemicals Ltd -v- Bim Kemi Ab CA ([2004] EWCA Civ 1490, ); John Edwin Berry -v- Post Office Investigation Department CA ([1996] EWCA Civ 926); Hormel Foods Corporation -v- Antilles Landscape Investments NV ChD ([2005] RPC 28, [2005] EWHC 13 (Ch),); Phipps, Regina -v- CACD ([2005] EWCA Crim 33); Occidental Exploration & Production Company -v-Republic of Ecuador CA ([2005] EWCA Civ 1116, [2006] 2 WLR 70, [2006] QB 432); Dallal -v- Bank Mellat ([1986] 1 QB 441); Coulter -v- Chief Constable of Dorset Police CA ([2005] EWCA Civ 1113); Ganesmoorthy -v- Ganesmoorthy CA ([2002] EWCA Civ 1748, [2003] 3 FCR 167); Heffernan and Another -v- Grangewood Securities Ltd CA ([2001] EWCA Civ 1082); Vervaeke -v- Smith HL ([1983] AC 145); McBride -v- The Body Shop International Plc QBD ([2007] EWHC 1658 (QB)); Anyanwu and Another -v- South Bank Student Union and Another HL ([2001] UKHL 14, [2001] 2 All ER 353, [2001] 1 WLR 638, [2001] ICR 391, [2001] IRLR 305, [2001] Emp LR 420); Munir -v- Jang ([1989] ICR 1); Divine-Bortey -v- London Borough of Brent CA ([1998] EWCA Civ 830, [1998] EWCA Civ 831, [1998] EWCA Civ 832); Dimtsu -v- Westminster City Council EAT ([1991] IRLR 450); Campbell -v- Leeds United Association Football Misc ([2009] EW Misc 4 (EWCC)); Walbrook Trustees (Jersey) Ltd and Others -v- Fattal and Others CA ([2009] EWCA Civ 297);

References: (1843) 3 Hare 100 | [1843] EngR 917 | (1843) 67 ER 313 |
11-Jul-43 Commonlii: -> Link |

TRANSCRIPT OF PROCEEDINGS BEFORE TAXING MASTER REGISTRAR POWELL IN CIV 1775 OF 2008 ON 3.11.2010

Copyright in this document is reserved to the State of Western Australia. Reproduction of this document (or part thereof, in any format) except with the prior written consent of the attorney-general is prohibited. Please note that under section 43 of the Copyright Act 1968 copyright is not infringed by anything reproduced for the purposes of a judicial proceeding or of a report of a judicial proceeding.
_____
THE SUPREME COURT OF
WESTERN AUSTRALIA
1775 of 2008
AUDREY FRANCIS HALL as executrix of the estate of Kenneth Duncan Hall
and
NICHOLAS NI KOK CHINU
and
SPUNTER PTY LTD
and
THE REGISTRAR OF TITLES
REGISTRAR POWELL
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 3 NOVEMBER 2010 AT 10.07 AM
(In Chambers)
MR A.M. PRIME appeared for the plaintiff.
The first defendant appeared in person.
MR M.F. LAW appeared for the second defendant.
3/11/10 1
(s&c)
THE REGISTRAR: This is a taxation of costs in two matters. The first is Hall v Chin CIV 1775 of 08; the second is Chin - is the appellant, Audrey Francis Hall is the first respondent, Spunter is the second respondent and the Registrar of Titles is the third respondent in CACV 107 of 2008. I'll deal with the civil matter first, which is 1775 of 08. Before we do, I've received a letter - an email - from Mr Chin. I'll take appearances on this matter.
PRIME, MR: Yes, may it please, for the plaintiff, Mr Prime.
THE REGISTRAR: Initial please, Mr Prime.
PRIME, MR: A.M.
THE REGISTRAR: Thank you. Yes.
CHIN, MR: Nicholas Ni Kok Chin, sir.
THE REGISTRAR: The email refers to what you say are technical slips in the Court of Appeal, and then following that there's a heading, "Registrar Powell must not be a judge of his own case as the taxing master of Audrey Hall's bill of costs and CACV 107 of 2008." Do you have any problems with me taxing the matter in the civil one?
CHIN, MR: Yes, sir. Can I
THE REGISTRAR: You can remain seated at all times. It's only in here because we require more space than my room can provide.
CHIN, MR: Sir, I do not want to be a problem for anyone, sir. If I can help it, I don't want to cost any one any problems. I don't want to hurt anyone, but I have to defend myself and I have to protect my own self from being deprived of my legal costs - my profit costs as the solicitor acting for the late Nancy Cloonan Hall in CIV 1142 of 2005. I believe there is a technical slip of the Court of Appeal in its decision in CACV 107 of 2008. That technical slip happens at paragraph 54 and 55 of that judgment. That judgment was by the Court of Appeal of three members.
THE REGISTRAR: So that technical slip is in the reasons for decision.
CHIN, MR: The reason for the technical slip, sir, is that
THE REGISTRAR: Perhaps if I could stop you there. There's an order by the Court of Appeal dated 8 April.
CHIN, MR: The Court of Appeal ordered that I pay costs
3/11/10 CHIN, MR 2
and I asked the president, Justice McLure JA as to why I need to pay costs and McLure J referred it to Owen J. I think Owen J was not able to give me any reason for his judgment why I was made to pay costs. From the statement of reasons of that judgment, that judgment is a perfect judgment, but that judgment relied, sir, on your letter dated 11 June 2009. I have written a few letters of inquiries regarding the exact position as to why CIV 1131 of 2006 was not filed on 10 February 2006, but was filed on 16 February 2006.
The late Nancy Cloonan Hall made several affidavits averting to the fact that she was here personally present on that day to make sure whether that record was filed on that day, and that record was never deposited by David Taylor on 10 February.
THE REGISTRAR: I can't go into that now.
CHIN, MR: Sir
THE REGISTRAR: I'm taxing pursuant to a court order.
CHIN, MR: Yes, sir.
THE REGISTRAR: For you to overturn those court orders, you'd have to achieve something through the appeal process.
CHIN, MR: I understand that, sir. Let me finish, sir. I've gone to the High Court and the High Court had decided that I have to go back to the low court to make the legal determination of whether it is for my work that is my solicitor's work in CIV 1142 that cost
THE REGISTRAR: Have you got a copy of that? I don't have a copy of that order.
CHIN, MR: It is in my documents, which I will tell you in a moment. The High Court
THE REGISTRAR: Is there any reason why I can't see that now?
CHIN, MR: Yes, you can see it, but it's only that I've got - those document is in my affidavit, 1877.
PRIME, MR: Registrar, if it assists, that's the order that the High Court made on the special leave application.
THE REGISTRAR: This is an order dated 27 May.
CHIN, MR: Yes.
THE REGISTRAR: Where the High Court stated:
The application for special leave to appeal to this
3/11/10 CHIN, MR 3
court for judgment in the ordinary Court of Appeal of the Supreme Court of Australia made on 9 December be dismissed.
CHIN, MR: I understand that, sir, but the reason for judgment says that
THE REGISTRAR: That's the end of the matter as far as the High Court is concerned.
CHIN, MR: It does not end there, sir, because there are issues that have not been decided by the High Court. The High Court did not decide the issue
THE REGISTRAR: But they don't have anything before them to decide that now, do they?
CHIN, MR: No.
THE REGISTRAR: This particular appeal is over.
CHIN, MR: No, sir, it is not over because it is not res judicata, this particular issue.
THE REGISTRAR: Because it's not what?

CHIN, MR: No res judicata.
THE REGISTRAR: I'm sorry, I can't understand.
CHIN, MR: The issue whether I have removed the caveat, or was it Master Sanderson who removed the caveat is an issue that has never been decided by the High Court, and therefore this issue can
THE REGISTRAR: But is there anything before them to decide that issue? Is there a continuing
CHIN, MR: Yes.
THE REGISTRAR: - - - appeal before them?
CHIN, MR: Yes, sir.
THE REGISTRAR: Could you just check the indexes on both those files.
CHIN, MR: Yes, sir. I have made an application in CIV 1877 of 2010. That application was just decided by Heenan J on 4 August 2010. His decision was handed down on 11 August 2010. That Heenan J decision dismissed my case and I have received a letter from Registrar Eldred. Registrar Eldred told me this case was never dismissed but was adjourned sine die.
THE REGISTRAR: Which case?
3/11/10 CHIN, MR 4

CHIN, MR: The one that was before Heenan J in 1877.
THE REGISTRAR: So that's 1877. See, this is getting - that's got nothing to do with this case.
CHIN, MR: Yes, it has, sir.
THE REGISTRAR: No, it hasn't, because these are distinct matters. There's a civil case 1775 of 2008 and there's an appeal, which is CACV 107 of 2008.
CHIN, MR: Let me explain, sir
THE REGISTRAR: Now, the appeal
CHIN, MR: Let me explain
THE REGISTRAR: Hold on a moment. I've given you a good go. We've gone 20 minutes now.
CHIN, MR: Yes.
THE REGISTRAR: The appeal doesn't act as a stay to the taxation of costs in the civil matter.
CHIN, MR: Yes, sir.
THE REGISTRAR: The appeal is now being decided. Is that right?
CHIN, MR: The issue I'm trying to say is that you will be deciding your own case, sir and that
THE REGISTRAR: How can I be deciding my own case? I'm deciding nothing. This is a civil - 1775 of 2008 is a civil matter which was completed by order dated 29 January.
CHIN, MR: Yes, I understand that, sir. I understand that. Just let me finish, please.
THE REGISTRAR: Look, this is a way of getting
CHIN, MR: No, I'm not
THE REGISTRAR: This is a very simple bill
CHIN, MR: I will explain to you.
THE REGISTRAR: - - - in a very simple matter.
CHIN, MR: I will explain to you your jurisdiction.
THE REGISTRAR: You might want someone to listen to you - all your complaints - but this isn't the jurisdiction to do that. I have no power in these other matters.
3/11/10 CHIN, MR 5
CHIN, MR: Sir
THE REGISTRAR: My only power here is to tax the bill.
CHIN, MR: Yes. I'm going
THE REGISTRAR: Unless you can show an order which says I must not tax the bill, I want to go ahead and tax the bill.
CHIN, MR: Yes. I am asking you for your acquittal to tax this bill.
THE REGISTRAR: Why?
CHIN, MR: Because you will be involved in a dispute of which you have been personally implicated. Because the Court of Appeal, in coming to the decision of CACV 107 of 2008 made a technical slip at paragraph 54 and 55. That technical slip
THE REGISTRAR: Yes, sorry.
CHIN, MR: That technical slip relied upon your letter of 11 June 2009. Your letter contradicted the affidavit of David Taylor Swan on 27 March 2007.
THE REGISTRAR: Mine is just a letter, his is an affidavit, so why is my letter so important?
CHIN, MR: Because your letter was relied upon by the Court of Appeal and caused the court order to be made against me.
THE REGISTRAR: But how did it get before the Court of Appeal?
CHIN, MR: Because that judgment in paragraph 54 and 55 said it relied upon your letter.
THE REGISTRAR: Yes, but how did it get there?
CHIN, MR: It get there because
THE REGISTRAR: Was it in the
CHIN, MR: Because I put it in the appeal book.
THE REGISTRAR: What, you put it in?
CHIN, MR: Yes, sir.
THE REGISTRAR: If you put it in, so be it.
CHIN, MR: Yes. So because of this technical slip at paragraph 54 and 55, I have made an application under section 33 of the Supreme Court Act for this technical slip
3/11/10 CHIN, MR 6
to be repaired. This matter is currently pending hearing. It has been heard
THE REGISTRAR: Yes, but
CHIN, MR: Sir, it has been heard by Heenan J. Heenan J says he has no power to hear it, therefore Registrar Eldred told me to make an application to the Court of Appeal, chance to hear it. And it is pending.
THE REGISTRAR: When did she tell you that?
CHIN, MR: And it is pending.
THE REGISTRAR: So you've done that?
CHIN, MR: Yes, sir.
THE REGISTRAR: So what's
CHIN, MR: I done it on 20 September 2010.
THE REGISTRAR: In which part?
CHIN, MR: It is in 1877, sir.
THE REGISTRAR: What other files should I have up here? So we've got 1877
CHIN, MR: 1877 of 2010.
THE REGISTRAR: Is that a civil file or appeal file?
CHIN, MR: That is a civil
THE REGISTRAR: Is there CIV in front of it, or
CHIN, MR: There's a CIV.
THE REGISTRAR: Any other files that I should
CHIN, MR: That CIV file is Supreme Court file.
THE REGISTRAR: Yes, okay. Any others?
CHIN, MR: But I've been told to go before a Court of Appeal judge.
THE REGISTRAR: Yes, okay. So that's the only - I've got two files here.
CHIN, MR: Yes. The first application was made on 11 June.
THE REGISTRAR: On which file?
3/11/10 CHIN, MR 7
CHIN, MR: On the 1877.
THE REGISTRAR: Hold on a moment, I'll get this file.
LAW, MR: Excuse me, could I have a drink?
THE REGISTRAR: You don't have to stay here during this matter. You're not a party to this matter, are you?
CHIN, MR: Also, would you like me to go on, onto whether you've got the jurisdiction to tax this matter?
THE REGISTRAR: Yes.
CHIN, MR: All right. Your jurisdiction as a taxing officer is either to allow or disallow those item in the bill of tax.
THE REGISTRAR: Yes.
CHIN, MR: Your jurisdiction in this is that you must not allow it because those services were never provided by Mr Anthony Prime to Mrs Hall.
THE REGISTRAR: No, no, no.
CHIN, MR: Because the costs
THE REGISTRAR: The costs are allowed pursuant to a court order. The bill is taxed pursuant to a court order.
CHIN, MR: Yes, sir.
THE REGISTRAR: Now, all these other things - I know you want people to hear it, but I don't have any jurisdiction where they're concerned.
CHIN, MR: But according to the rules - can I read out the rules to you?
THE REGISTRAR: Yes.
CHIN, MR: According to the rule
THE REGISTRAR: Which order and rule?
CHIN, MR: The rule of the - okay, rule 53(1) of order 66 of the Rules of Supreme Court. It provides that I may object to the error in principle of a taxing officer when he allow of those above items before a certificate of taxation dealing finally with those items is signed by him. So I'm saying that
THE REGISTRAR: That's a party dissatisfied with the taxation. We haven't got as far as that yet.
3/11/10 CHIN, MR 8
CHIN, MR: Yes, but I'm just pre-empting this because if you allow it, then I have to object it under rule 53.
THE REGISTRAR: That's providing your objection can come under that.
CHIN, MR: Under order 66. And then I will go onto
THE REGISTRAR: I can't understand this letter of mine which you've been concentrating on. Are you suggesting I was colluding with someone?
CHIN, MR: Sir, I don't want to make any allegations
THE REGISTRAR: I don't know the relevance of this letter.
CHIN, MR: Yes, but because the judgment of the Court of Appeal relying on your letter. If you did not tell the truth in that letter it's going
THE REGISTRAR: Are you suggesting I wasn't telling the truth?
CHIN, MR: Sir, because
THE REGISTRAR: No, if you'd answer that question.
CHIN, MR: Yes, sir. Because
THE REGISTRAR: Why would I lie?
CHIN, MR: Because I ask many times for the bank statement to be produced, whether the court fees was paid on that day, and you refused to produce it to me, sir. I'm sorry about this, but I've asked you many times for it to be produced, and you refused to produce to me. Therefore I understand that
THE REGISTRAR: I can't obtain that.
CHIN, MR: I understand that, sir. You have covered up Mr Taylor.
THE REGISTRAR: Look, I don't want to waste my time going through the appeal and all the rest of it.
CHIN, MR: No, sir, we don't have to
THE REGISTRAR: Where is this letter
CHIN, MR: We don't have to waste time, we only go to relevant issue.
THE REGISTRAR: Where is this - please, where is this letter in the appeal book?
3/11/10 CHIN, MR 9
CHIN, MR: Here, sir. This letter at page 126.
PRIME, MR: The yellow book.
CHIN, MR: Yellow book, yes.
THE REGISTRAR: 107 of 2008?
CHIN, MR: You wrote this letter 11 June 2009.
THE REGISTRAR: No, what is the yellow file?
CHIN, MR: The yellow is the appeal book. The yellow appeal book in CACV 107 of 2008.
THE REGISTRAR: I've got a white, a blue and a green.
CHIN, MR: And there is a yellow book.
THE REGISTRAR: Where does the yellow book come from?
PRIME, MR: I think the yellow book was produced pursuant to an order whereby there was an application to adduce further evidence and it was said that the book should be produced with that further evidence, so it might be part of that.
THE REGISTRAR: I see, so
PRIME, MR: But it certainly was separately bound with a yellow cover.
THE REGISTRAR: Okay.
PRIME, MR: There is a bound - behind
THE REGISTRAR: Yes, it would be a separate volume.
PRIME, MR: Yes.
THE REGISTRAR: This is getting onto the appeal. If we go backwards and forwards from the civil to the appeal - we've gone half an hour and we've got absolutely nowhere so far. I'd just like to deal with the civil file. There is no order staying the taxation in that file.
CHIN, MR: Because my case has not been heard.
THE REGISTRAR: That happens in a lot of appeals. They're not heard but the taxation proceeds.
CHIN, MR: I know, sir, but it will be
THE REGISTRAR: I've got this yellow book you referred to. What page is this letter of mine that you're talking about?
3/11/10 CHIN, MR 10
CHIN, MR: Sir, it will be the last piece sir. The last piece. The last piece of the yellow book. The last one.
THE REGISTRAR: Yes.
CHIN, MR: If you look at that, you
THE REGISTRAR: What has - which paragraphs contain errors there?
CHIN, MR: You say that the whole of the fees was paid on 16 February, whereas Mr David Taylor he paid it with receipts from the Supreme Court that was paid on 10 February. Mr David Taylor produced those receipts
THE REGISTRAR: No, what I've got here is - you state you have a copy of the reg. In that case you'll notice two dates on it: the first is 10 February with a notation that the fee was $654.20; the second is the assessment, which in its original form shows a date of 10 February and assessment number 201702. That assessment was cancelled after the close of business on 10 February when it was realised that the cheque tendered for payment was $654 and was therefore 20 cents short.
With cheques, the court can only accept a cheque for the full amount, so money was tendered but it didn't strictly meet with the strict requirements of payment fees. Now, I go on to say:
I assume the fact was forwarded to the plaintiff's solicitors because on 16 February the correct amount was paid by credit card and 20 cents cash.
CHIN, MR: Sir
THE REGISTRAR: "The assessment stamp was altered to 16 February "
CHIN, MR: Sir
THE REGISTRAR: "- - - and the new assessment number is 202483 "
CHIN, MR: Sir
THE REGISTRAR: "- - - entered on the altered stamp. The assessment number is given on payment."
CHIN, MR: Sir, your letter is correct because that was the letter relied upon by the Court of Appeal. That is why the order for costs is made against me, because
THE REGISTRAR: What, and did they accept that payment on the first date as being sufficient?
3/11/10 CHIN, MR 11

CHIN, MR: As being paid on 16 February. But - but the technical slip is at page 44, you see? This is the receipt produced by the Supreme Court which is attached to the affidavit of David Taylor.
THE REGISTRAR: In here?
CHIN, MR: Yes, page 44, sir - no, page 48. At page 48 you see this receipt is dated 10 February 2006. This receipt says a payment has been made, $654.20.
THE REGISTRAR: Yes.
CHIN, MR: Your letter says the payment has been made. If it has been made on 10 February, why was it necessary to make the payment by credit card on 16 February, sir?
THE REGISTRAR: I've just told you. After the close of business they realised it was 20 cents short and we can only accept payment in full.
CHIN, MR: But this receipt say the credit sent was never short, sir. This receipt dated 10 February says it was never short. Because of your letter I have to pay for this court, and therefore you are involved in it, and therefore you must not hear your own case.
THE REGISTRAR: As far as I'm concerned, what I've got there is correct.
CHIN, MR: But
THE REGISTRAR: That's a long way from saying that I conspired against you and telling untruths.
CHIN, MR: But, sir
THE REGISTRAR: Now, unless you can show me that in some way I'm conspiring against you and telling lies, I see no reason to disqualify myself from taxing the bill and taxing it now.
CHIN, MR: Sir, can I ask one question? I have got the attorney-general's letter which says that I must report this to police.
THE REGISTRAR: Right.
CHIN, MR: I must report the falsification of the court records because
THE REGISTRAR: If the attorney-general said that to you, go ahead and do so.
CHIN, MR: Because it is asking me to pay a cost order which I should not pay.
3/11/10 CHIN, MR 12
THE REGISTRAR: No. You say the attorney-general said to report it to the police?
CHIN, MR: Yes, sir.
THE REGISTRAR: Have you reported it to the police?
CHIN, MR: I have not, sir.
THE REGISTRAR: Well, that's open to you. I can't force you to.
CHIN, MR: But I don't want to cause anybody
THE REGISTRAR: No, I want to proceed with the taxation now.
CHIN, MR: Sir, can I have a copy of today's transcript so that I can use it for later legal proceedings, sir? Are all these proceedings being recorded, sir?
THE REGISTRAR: Yes.
CHIN, MR: Can you give the order that I be given a copy of the transcript, please.
THE REGISTRAR: I'll make sure both sides have a copy.
CHIN, MR: All right.
THE REGISTRAR: Okay?
CHIN, MR: Yes.
THE REGISTRAR: The relevant order that dismissed the appeal in CACV 107 of 2008 was an order dated 9 December 2009 and extracted on 4 January 2010.
CHIN, MR: What is that order again, CACV 107?
THE REGISTRAR: It will be on the transcript.
CHIN, MR: So would you want this
THE REGISTRAR: That appeal, as I understand it
CHIN, MR: Would you want to
THE REGISTRAR: Hold on a moment. That appeal as I understand it related to an order in CIV 1775 of 2008 dated 29 October when the master ordered a removal of the caveat and other matters
CHIN, MR: Can I
THE REGISTRAR: - - - and paragraph 6 of that is an order
3/11/10 CHIN, MR 13
directing the first and second defendants pay the plaintiff's costs of the action and reserve costs and the costs of the application.
CHIN, MR: I have appeal against Master Sanderson's order. Master Sanderson
THE REGISTRAR: Isn't this the appeal?
CHIN, MR: Yes. Master Sanderson did not cause the caveat to be removed because it was I who removed the caveat on 10 February 2006
THE REGISTRAR: Okay. That doesn't affect the taxation of these costs.
CHIN, MR: Yes, sir, but it affects the liability of the party to pay the costs.
THE REGISTRAR: What
CHIN, MR: This taxation will be a waste of the court's time.
THE REGISTRAR: No. It will be for others to judge what is time wasting, but as far as I'm concerned, we're now taxing the bill. Item 1
CHIN, MR: Sir, sir
THE REGISTRAR: Sorry, what?
CHIN, MR: Do you admit that your letter of 11 June 2009 was relied upon by the
THE REGISTRAR: I haven't looked at that part of the thing. I don't need to. I'm taxing the bill pursuant to the present orders.
CHIN, MR: Yes, but I'm objecting to these items to be allowed because the taxation of recoverability is not there.
THE REGISTRAR: You can argue that elsewhere. All I'm here for is to quantify and assess the costs.
CHIN, MR: But
THE REGISTRAR: Now, the first item
CHIN, MR: But the
THE REGISTRAR: Hold on. The first item - I only want to hear about these.
CHIN, MR: Sir
3/11/10 CHIN, MR 14
THE REGISTRAR: You can reserve an appeal as to whether this taxation should have proceeded, but so far as taxing the bill is concerned, item 1 refers to a writ of summons which is claimed under 1A
CHIN, MR: Sir
THE REGISTRAR: Do you have any objection?
CHIN, MR: Sir, rule 53 of the Rules of Supreme Court does not allow you to have the jurisdiction to proceed with the taxation. Can I read out this rule? The rule only provides jurisdiction to review errors made in the allowance
THE REGISTRAR: Precisely.
CHIN, MR: - - - or this
THE REGISTRAR: You're now agreeing with me. That's the only thing I'm interested in here.
CHIN, MR: - - - or this allowance of
THE REGISTRAR: So if you've got any other error that has been made here, it's not for me to decide.
CHIN, MR: What I'm saying is you must not allow these items to be taxed at all.
THE REGISTRAR: No, I am allowing them because I'm quantifying them. I'm quantifying them pursuant to an order.
CHIN, MR: Sir, but the rules say
THE REGISTRAR: Now
CHIN, MR: The rules say
THE REGISTRAR: I know what the rules say
CHIN, MR: It says
THE REGISTRAR: - - - it's where you're dissatisfied with my taxation. But we haven't taxed it, so how can you be dissatisfied with my taxation? What you're dissatisfied about is my right to commence the taxation. Now, I'm saying I'm proceeding on that basis. Any decision of a taxing officer is appealable pursuant to the rules. That's up to you, but I'm proceeding at the moment.
CHIN, MR: But you are deciding quantum, sir, and quantum is a second stage of that allowance or disallowance. The first thing you have to decide is whether you allow it or you disallow it. If you have decided to allow it, then
3/11/10 CHIN, MR 15
only you can decide on the quantum.
THE REGISTRAR: Well, I'm allowing them because the order of 29 January says, "The first and second defendants pay the plaintiff's costs of the action, including any reserve costs." So that takes care of that. And that now on the quantum there's a claim under item 1
CHIN, MR: Yes, but
THE REGISTRAR: Do you object to that claim?
CHIN, MR: Sir
THE REGISTRAR: No, do you object to that claim?
CHIN, MR: Sir
THE REGISTRAR: I've given you quite a good run. We've gone for 40 minutes
CHIN, MR: Sir
THE REGISTRAR: We haven't started the taxation. Nothing you have said progresses this matter one iota before me.
CHIN, MR: One last objection before you start your tax, sir. The law - there is no morality - the law is impossible to exist - it is impossible for a law to exist if there is no morality. Morality must coexist with the law. As a judge, you are taxing master, you are a judge. As a judge
THE REGISTRAR: As a taxing master, I'm a taxing master.
CHIN, MR: You are taxing
THE REGISTRAR: Full stop.
CHIN, MR: You're a taxing master, sir.
THE REGISTRAR: I'm acting judicially.
CHIN, MR: Yes, but as a judge, you are look at
THE REGISTRAR: Whose morality
CHIN, MR: You look at the
THE REGISTRAR: Whose morality should I be taking into consideration in doing this?
CHIN, MR: Yes, you
THE REGISTRAR: Whose morality should I be taking into consideration?
3/11/10 CHIN, MR 16
CHIN, MR: I finish
THE REGISTRAR: You said I've got to take into consideration morality.
CHIN, MR: I finish this point, sir.
THE REGISTRAR: Whose morality? Your morality; my morality; or morality set down somewhere else? We've got the laws of the land.
CHIN, MR: Yes. Sir, let me finish the point. Your duty is to remain neutral as far
THE REGISTRAR: I am remaining neutral.
CHIN, MR: - - - as far as the statute in the common law is concerned. But your
THE REGISTRAR: I have never met
CHIN, MR: Your duty is
THE REGISTRAR: I have never met Audrey Francis Hall, the executrix of the estate of Kenneth Duncan Hall, and I don't think I've every met Kenneth Duncan Hall either; not to my recollection. But in any event, there is absolutely no reason why I would be biased in their favour in taxing this bill. I'm employed here to tax bills. That's all I want to do.
CHIN, MR: But is David Taylor
THE REGISTRAR: If you've got some other dispute with them, do it elsewhere. Don't do it here.
CHIN, MR: Sir, it's David Taylor that I'm talking about.
THE REGISTRAR: David Taylor isn't a party to this action. Do you have any objection to item 1 of the bill?
CHIN, MR: Where is item 1? Writ of summon. Yes, I object to it.
THE REGISTRAR: On what grounds?
CHIN, MR: Because it is irrecoverable.
THE REGISTRAR: It is recoverable, so that objection is overruled. Do you have any objection to the quantum?
CHIN, MR: I have no - I object to it because it cannot be allowed because
THE REGISTRAR: No, well I'm going to allow something. Okay? Do you have any objection to the quantum?
3/11/10 CHIN, MR 17
CHIN, MR: Quantum, I have no objection.
THE REGISTRAR: Okay. So item 1 is allowed. Item 2 is a statement of claim under item 1(b) and there's a claim for $396. Do you have any objection to that amount?
CHIN, MR: I object it because it's not allowed.
THE REGISTRAR: Why isn't it allowed?
CHIN, MR: It isn't allowed because it's not recoverable because it's not the services that have been provided to Mrs Hall because she never removed the caveat. Anthony Prime never removed the caveat. It was I who removed the caveat.
LAW, MR: Sir, can I
THE REGISTRAR: Paragraph 6 - no, you're not a party to this.
LAW, MR: Okay.
THE REGISTRAR:
The first and second defendants pay the plaintiff's costs of the action including any reserve costs and the costs of the application to be taxed.
So they are allowed. So the question is one of quantum. Do you object to the quantum?
CHIN, MR: I do not want to participate in this, sir. I want to
THE REGISTRAR: So I'm going to allow that item. The next item is the application for summary judgment. That application was filed on 15 August 2008. In support of that there was an affidavit of Audrey Francis Hall sworn 28 July 2008 and filed on 15 August. That is a five-page affidavit with another 55 pages of annexures which in the main relate to sworn valuation of the two properties and contract of sale of one of those; copies of the second defendant's caveats; decision of her Honour Jenkins J; and a copy of the first defendant's caveats and another 13 pages of correspondence.
The memorandum of conferral under order 59 rule 9 was made and filed on 15 August. There was an affidavit filed by you, Mr Chin, on 18 August. The body of that affidavit was - it ends on the 12th page. Thereafter, there were annexures so that the total number of pages in the document was 55. There were a series of hearings in relation to that. The first was on 30 September 2008 when it was adjourned to a special appointment. That appointment was less than five minutes. The second was on 29 October
3/11/10 CHIN, MR 18
CHIN, MR: Sir, may I ask you
THE REGISTRAR: Hold on.
CHIN, MR: Is this
THE REGISTRAR: Hold on. You have spoken. I'm now speaking.
CHIN, MR: I just want to
THE REGISTRAR: Where order was made in terms of a minute. That hearing on 29 October went for just over 10 minutes. That resulted in an order that was extracted on 12 November:
The first defendant's caveat be removed immediately. The second defendant's caveat be removed immediately.
Now it refers to another file again, the order made on 20 January 2006 in CIV 1142 of 2005 extending the operation of the second defendant's caveats be discharged. "The third defendant" - who's the Registrar of Titles -
take all necessary steps to remove the first defendant's caveat and the second defendant's caveat.
"(5) The third defendant" - which is the Registrar of Titles -
accept for registration any transfer of land at the Mount Lawley property or the Hazelmere property executed by the plaintiff as transferee.
What follows was the costs order. On 5 November there was a further hearing but no appearance was required. That was for publication of the master's reasons. All of this occurred in September and October of 2008. So that will be costs under the 2008 schedule.
CHIN, MR: Sir, is this a
THE REGISTRAR: Hold on a moment. I'm explaining what this item is before I hear anything from either party. 10(a) of that scale sets the maximum at 9570. That maximum was arrived at based on two days' preparation and a one-day hearing. What's claimed here is very much below that, $2554.20. Do you object to this item?
CHIN, MR: I have no knowledge to object because they are not to be allowed because they did not touch - it is not recoverable costs.
THE REGISTRAR: It is, pursuant to the sale. I've dismissed the claim because it is pursuant to the order of the court.
3/11/10 CHIN, MR 19

CHIN, MR: The order
THE REGISTRAR: Do you have any objection to the quantum being claimed?
CHIN, MR: Sir, the order of - the court's order against me is a void judgment and I've approached it
THE REGISTRAR: Decided by whom?
CHIN, MR: - - - by way of certiorari.
THE REGISTRAR: Who decided that?
CHIN, MR: I have approached it by certiorari and it will be decided.
THE REGISTRAR: But it's not decided by anyone at the moment. All of these are allegations by you.
CHIN, MR: It is not allegations, it's the fact.
THE REGISTRAR: It's the allegations of lies by me. All of these are just - if you exclude everything else and just deal with the conclusions you want to
CHIN, MR: No, I don't want to be involved in this situation
THE REGISTRAR: - - - you can convince yourself of any story you like.
CHIN, MR: - - - I don't want - sir, I don't want to waste my time here taxing something which I'm not liable to pay.
THE REGISTRAR: Okay.
CHIN, MR: It is a void judgment.
THE REGISTRAR: So you're not tending any reasons for objecting to the quantum on that item?
CHIN, MR: I don't - I consider it all null and void.
THE REGISTRAR: Okay, thank you. Do you wish to say anything to justify that amount?
PRIME, MR: No, other than there were two appearances in court. Each of them were relatively short. There were submissions filed. There were submissions filed by the other party. There was affidavit material.
THE REGISTRAR: The affidavit material is somewhat voluminous, and so it's all got to be gone through
CHIN, MR: Then I just
3/11/10 CHIN, MR 20
THE REGISTRAR: - - - and therefore in regard to item 3, I'm allowing that item. Now, in relation to item 4, do you have any objection to that item?
PRIME, MR: Sorry, to cut across, can I just - as you hit item 4 - seek to amend that? I actually, in preparing this
THE REGISTRAR: I know the correct - you've claimed 396
PRIME, MR: It should be 320.
THE REGISTRAR: Where as what was allowed was 320.
PRIME, MR: 320, yes. And in fact I also noted that - yes, in reviewing
THE REGISTRAR: So $76 comes off from that item.
PRIME, MR: Yes. And it's also picked up when you get to the next item.
CHIN, MR: Is this indemnity cause or standard assessment?
THE REGISTRAR: This is costs fixed by the case manager.
CHIN, MR: Is it a standard assessment or an indemnity assessment?
THE REGISTRAR: It's costs fixed by the case manager. There was no taxation about it. The case manager fixed those costs and that can be seen by the order dated 18 August 2008, "The costs of the day be in the cause fixed at $320."
CHIN, MR: So is a standard assessment not indemnity costs?
THE REGISTRAR: That's the order. Forget what it is, it's fixed.
CHIN, MR: Sir, I want to know whether it is a party in party cost that I am asked to pay?
THE REGISTRAR: There's no suggestion it's anything other than party in party costs, but it's been fixed by the judicial officer who made that order. The next item is getting up, and there's a schedule provided for that.
PRIME, MR: Just while we've got a moment, can I just point out the other thing I noted last night which relates to that, which is one of those items - that 18 August attendance has been picked up again there in getting up. This time
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THE REGISTRAR: Where's that?
PRIME, MR: It's about halfway down the first page of schedule B, it's been picked up at 409.20, so that needs to be deducted. It fell into the getting up list.
THE REGISTRAR: $409.20.
PRIME, MR: Yes, that needs to come off, which makes that a schedule 15.
THE REGISTRAR: This consists of a number of letters backwards and forwards with Mr Chin. There's one also out to Ruth Brown. How is it Ruth Brown is involved in this?
PRIME, MR: Ruth Brown is the plaintiff's daughter and so because they've always lived in South Australia - the family - she's been usually, in terms of correspondence, the point of contact because she has the email address. The plaintiff is quite an elderly lady.
THE REGISTRAR: Then there's the perusal of a fax from Morris Law. What was that about?
PRIME, MR: Advising me that'd been down with the flu, unable to complete his defence, and his request for information as required, and should have it ready by Monday, 1 September 2008.
THE REGISTRAR: Spunter Pty Ltd is his company. Is that right?
PRIME, MR: Yes.
THE REGISTRAR: Had Spunter filed an appearance?
PRIME, MR: There's only reference in the getting up there to the second - sorry, the first defendant's appearance. He certainly attended
THE REGISTRAR: He never appeared on the associate's record.
PRIME, MR: He certainly appeared - sorry, physically appeared, perhaps not legally appeared, at the hearing of the special appointment. He was at the status conference, wasn't he? I'm just trying to find that. He certainly filed material. I'm just seeking
LAW, MR: Sir, over the last couple of years
PRIME, MR: I'm just having a look at my
THE REGISTRAR: I can't see what relevance his letters have in this matter.
3/11/10 PRIME, MR 22
PRIME, MR: My handwritten notes of the status conference have him attending on behalf of the second defendant. That was on 18 August. As I say, he did file - he may not have filed an appearance, but he did file some material. He filed an affidavit
THE REGISTRAR: Mr Law is here.
PRIME, MR: Yes. He's always involved himself in the proceedings, perhaps I put it that way.
THE REGISTRAR: What was your position with this company? Were they intending to defend this particular action or
LAW, MR: I'm the director.
THE REGISTRAR: Yes, but you didn't file an appearance.
LAW, MR: Well, I've had medical procedures and physical inadequacies and I think I've written
THE REGISTRAR: Are you the only director of the company, or are there other
LAW, MR: I am now. My wife may have been at that time, but she withdrew from the company. I don't have a date in front of me.
THE REGISTRAR: Before this hearing?
LAW, MR: We're talking of 08, aren't we?
PRIME, MR: Yes. Sorry, Mr Law filed an affidavit in the proceedings - or certainly I was provided with it - dated 1 September, in which he referred to the defendant as Spunter Pty Ltd, Morris F. Law, sole director.
THE REGISTRAR: There's nothing here on file.
PRIME, MR: We were certainly provided with it.
THE REGISTRAR: Did you file that?
LAW, MR: Yes.
THE REGISTRAR: What's the file reference on that?
PRIME, MR: It's the 1775 of 08.
THE REGISTRAR: There's nothing on the index.
PRIME, MR: And I'm pretty sure I dealt with it in my sumissions. Just having a look. First defendant's position - I dealt with the second defendant's position in my submissions. I'm just seeing if I've referred to his
3/11/10 PRIME, MR 23
affidavit. Nothing in the second defendant's affidavit creates problems. So it was certainly provided to us in opposition to the application for summary judgment.
THE REGISTRAR: Yes. That's pursuant to the order of Registrar Christo of 18 August. Pursuant to that he referred to the defendants in the plural.
PRIME, MR: Yes, and I think the fax I referred you to at the beginning of your inquiry was obviously from Mr Law in response to the fact that because of him having the flu, he hadn't been in a position to file a defence. So that was obviously as a result of the directions made on 18 August.
LAW, MR: There has been so much correspondence to the court that hasn't been replied to, so I don't know whether I replied - informed the court, or they just didn't acknowledge that I
THE REGISTRAR: There's a claim under that item.
PRIME, MR: Sorry, sir, just before we do move on. There is a memorandum of appearance actually attached to the back of Mr Law's affidavit of 1 September which bears a stamp - well
THE REGISTRAR: Can I have a look at it?
PRIME, MR: Yes, certainly. I was going to say it bears a stamp of the Midland Court, but I think that was in the context in which he's sworn some declaration at the bottom of it.
THE REGISTRAR: See, that's not this court, this is the Midland Court.
PRIME, MR: No, but it's the CIV number. I don't think that's the
THE REGISTRAR: It has a reference to the CIV number, but the stamp on it - I see.
PRIME, MR: But I'm wondering if that stamping is to do with him having sworn something at the bottom rather than a registry having accepted it. But it appears it was attached to his affidavit that was - certainly, I thought was filed
THE REGISTRAR: What was that again? The May undertaking to file it
PRIME, MR: I've got no idea. Just when I looked at the affidavit then, noted that on the back of it. It just appears at the bottom of that appearance
THE REGISTRAR: See, there's a reference at the top there
3/11/10 PRIME, MR 24

to NFL 1 and then a number 10479. Were there other proceedings in the Midland Court?
PRIME, MR: 10479 is just our internal file number.
THE REGISTRAR: Is it?
PRIME, MR: Yes.
LAW, MR: Was Mr Chin possibly, sir.
THE REGISTRAR: Yes, but I don't think this ever ended up on - it may have been part of it
PRIME, MR: It certainly formed part of the submissions we filed on the summary judgment.
THE REGISTRAR: This is claimed under getting up as opposed to application for summary judgment. Were any of these items related to the application for summary judgment?
PRIME, MR: The ones in May and June and the like related to seeking to have the caveats removed before issuing proceedings then the issuing of the proceedings and service of the writ.
THE REGISTRAR: Right.
PRIME, MR: There's obviously the appearance of the first defendant. There is then correspondence with the parties, but I think it related to the status conference It's conceivable that the September and thereabouts correspondence, particularly with the client, may well have covered both basis, but it's certainly not being claimed under both headings.
THE REGISTRAR: Right. So there's no duplication.
PRIME, MR: There's no duplication. I've gone through and it's either fallen into category A or category B. You may have noted there was very little, if any correspondence referred to in schedule A. It was really all about the submissions and the
THE REGISTRAR: For starters, Mr Chin, an amount of $409.20 has to come off from that item. Do you have any objection to item 5?
LAW, MR: On what page? What was that there, sir?
THE REGISTRAR: I think Mr Chin should be handling this rather than you handling it for him. You shouldn't address the court at all.
LAW, MR: And that's on that matter.
3/11/10 PRIME, MR 25
THE REGISTRAR: This is on the bill that we're taxing. Item 5 is a claim for getting up under item 16 at the scale and a claim for 1966 and 80 cents and I've already referred to - so do you have any objection to that item, Mr Chin?
LAW, MR: That one there.
CHIN, MR: I object to it because it's not allowed.
THE REGISTRAR: Okay, so it's the same as your objections previously.
CHIN, MR: Yes.
THE REGISTRAR: And I'm relying on the order to say the costs are allowed. Do you have any objection as to quantum?
CHIN, MR: I think it's too much.
THE REGISTRAR: You've got a schedule there. Which items do you think?
CHIN, MR: Is this schedule B? Page 2?
THE REGISTRAR: Schedule B is at page 5 of the bill. Any answer? The reference AMP is a reference to you.
PRIME, MR: Yes.
THE REGISTRAR: That's all been work undertaken by you.
PRIME, MR: I think all of the work was undertaken by me.
THE REGISTRAR: And you're a senior solicitor?
PRIME, MR: At that point in time I was. I was admitted in February 92.
THE REGISTRAR: Mr Chin?
CHIN, MR: This total, 1996, is that right? This table B, this part?
THE REGISTRAR: Yes.
PRIME, MR: Yes, this is the one.
THE REGISTRAR: You've got the bill there. He's claiming that. He's conceded that $409 has to come off because it's already dealt with. Do you say it's still too much? I'm asking you which of those items
CHIN, MR: Ruth Brown has got nothing to do with me.
THE REGISTRAR: I think I'm going to accept Ruth Brown as
3/11/10 CHIN, MR 26
a conduit for getting in touch with the client, who's Ruth Brown's mother, so I'm told. It was sent by email. Presumably it was then Ruth Brown who got in touch with the mother with that information. So I'm accepting that. I'll accept that item as being reasonable and tax off 409 - I won't worry about the cents. I'll put it in your favour, Mr Chin. I'll tax off $410. Drawing bill of costs; do you have any objection to that item?
CHIN, MR: 396. Should be less. $400.
THE REGISTRAR: No, I don't agree with that. That's the cheapest bill I've seen in the last six months, so I'll accept that amount. Attending taxation; we've been going for over an hour. Do you have any objection to
CHIN, MR: 250.
THE REGISTRAR: There's preparation, and as I say, we've been going for over an hour, so I'll accept that as being reasonable. Do you have any objections to the disbursements?
CHIN, MR: Where's the proof that this payment has been made?
THE REGISTRAR: I won't worry too much about the filing of the chamber summons and the writ of summons because they're on the court file. What about service fees?
PRIME, MR: Sir, I've got here a letter to the process server, attached our remittance advice. There was a cheque requisition and his invoice. In actual fact, I noticed again preparing last night, his invoice was for $254.10. I'm not sure where I got that other figure, but I'm happy if it's allowed at that lower figure.
THE REGISTRAR: Could you show that to Mr Chin. Do you accept that?
CHIN, MR: Who's Shane Shore?
PRIME, MR: Shore Process Servicing. If you turn to the back page you'll see his letter. It's 167 on the bill. It's actually 254. I'm just claiming 167.
CHIN, MR: 254?
PRIME, MR: 254 is what the invoice was. I don't know where I got 167. That's the invoice. That's our remittance advice paying it. That's the description telling us for service.
LAW, MR: It's still owing?
PRIME, MR: No, we paid 254, I'm just leaving it at 167.
3/11/10 CHIN, MR 27
THE REGISTRAR: He's claiming
PRIME, MR: That was a typo.
CHIN, MR: Okay.
PRIME, MR: I can amend it to 254.10 if you prefer.
CHIN, MR: File and service of summons, 173. That is - cannot be disputed. Writ of summons, 713. That cannot be disputed.
PRIME, MR: No. I've got those receipts there too if you want them.
THE REGISTRAR: He's not disputing that.
PRIME, MR: Okay.
THE REGISTRAR: How do you arrive at that total of 167?
PRIME, MR: I've got no idea. I must have looked at the invoice or something or picked it up from somewhere else. I don't know how that was transposed into there, but that's clearly the - it's quite obvious from his invoice now that I've located it that that was the particular job, even though
THE REGISTRAR: That's less than what you've claimed - you're claiming less than
PRIME, MR: I'm happy to leave it at 167. Yes, it's less than what we've paid.
THE REGISTRAR: Has anyone granted you, Mr Law, leave to appear on behalf of Spunter in this or any other matters?
LAW, MR: That was - well, I had a solicitor - no, I was - I think - yes, I did. I applied, yes. I wrote to the court
THE REGISTRAR: And what was the order?
LAW, MR: I don't think I received a reply again.
THE REGISTRAR: No, you make an application. Did you make an application?
LAW, MR: Not especially as a document from the court.
THE REGISTRAR: It runs through a registrar, registered in the court, and there needs to be these matters. Normally an individual who is not a lawyer cannot represent a company. Do you have any objections to Mr
PRIME, MR: No, registrar.
3/11/10 PRIME, MR 28

THE REGISTRAR: You've heard my comments in regard to this bill. Do you want to add anything in regard to the assessment of the costs? I'll give you leave to comment on the bill on behalf of Spunter.
CHIN, MR: Sir, can I make one point?
THE REGISTRAR: No, I've dealt with all your objections, so it's just - otherwise we're going to go over and over the same matter. I've dealt with yours; I'm now dealing with Mr Law.
CHIN, MR: Yes, but
THE REGISTRAR: You heard Mr Chin's comments, which were based mainly on there was no jurisdiction to make a costs order. The costs order is made, so I'm taxing pursuant to that. So really, the comments should be restricted to do you have any objections to any of these matters being included in this bill which you say are improperly included because they're not part of the costs envisaged by that costs order? That's the first question. And then the next one is a question of quantum. Do you have any objection to - are there any items in this bill which shouldn't be here because they're not covered by the costs order?
LAW, MR: Well, I'd like to discuss them. Is that what you're asking?
THE REGISTRAR: No, the first thing is (a) is it saying is any items in this bill which you say should be deleted in their entirety because they don't form part of this bill pursuant to the costs order that I've been referring to?
LAW, MR: Yes. I don't understand why some of these
THE REGISTRAR: No, understanding is different. A bill has been presented which is said to be pursuant to the costs order:
That the first and second defendant's pay the plaintiff's costs of the action including any reserve costs.
Are there any items here which you say aren't costs of the action or the application?
LAW, MR: I just want to understand why
THE REGISTRAR: No, we're past that stage. What you want is for me to give you an education in law, I suspect, but the question is (a) do you object to any of these items, that they don't form part of this action but belong to another action, for example? That's the point I'm getting at.
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LAW, MR: I object to a couple of points.
THE REGISTRAR: Which ones?
LAW, MR: The letter Art Jackson emailed to Ruth, "Settle letter by three." That's associated
THE REGISTRAR: Okay, so that comes under - no, that's the quantum. What I'm asking for first - that letter would be claimed under either item 3 or 4 at this stage. But do you object to the concept of item 3 or 4 being included in this bill?
LAW, MR: Yes, sir.
THE REGISTRAR: On what grounds?
LAW, MR: I see no relevancy of that to the matter that
THE REGISTRAR: That's to do with quantum. If you say it's relevant, I'm going to say they are relevant because the application is precisely covered by the costs order and the getting up is getting up which commences even prior to the commencement of the action. So on the question of relevancy, I dismiss those objections. Now, the next question is do you have any objections as to quantum being claimed? If so, which particular item?
LAW, MR: A telephone call to Dick Askin.
THE REGISTRAR: Which particular item?
LAW, MR: 22nd
THE REGISTRAR: Which particular item in the bill, first? If you go to page 2, they're the items in the bill.
LAW, MR: No, sir.
THE REGISTRAR: So therefore what I'm taxing off there's a total of $76 from item 4 of the bill and $410 from item 5, being a total of $486. So the net amount of the bill is 6870. Does anyone have any different figure?
PRIME, MR: No.
THE REGISTRAR: Now, the taxing fee on that is $171.75. I'm allowing the costs of $741.75. The date today is 3 November. I've now taxed the bill, Mr Chin and Mr Law. Do you have any objection to me signing the allocatur?
CHIN, MR: I would like to tell about the
THE REGISTRAR: No, do you have any objection to me signing the allocatur? If I sign the allocatur now, that
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has the effect of it being
CHIN, MR: Do you
THE REGISTRAR: Please, please. I'm explaining to you. That has the - if I sign it now, that is equivalent of a judgment. If you've got objections as to principle or any other matter, I'll delay signing the allocatur for seven days.
CHIN, MR: I am
THE REGISTRAR: Do you want me to delay signing the allocatur for seven days?
CHIN, MR: Yes, please.
THE REGISTRAR: Mr Law?
LAW, MR: Yes, sir.
CHIN, MR: The reason for my objection is that it should not have been allowed because there is no recoverability. We touched on recoverability. The recoverability is not there.
THE REGISTRAR: Okay, that's fine. We can do all of that. What I'm saying is I'll sign the allocatur on 10 November, which will be next Wednesday, unless before that date a request for review
CHIN, MR: How do I write the
THE REGISTRAR: - - - and objections are filed before that date.
CHIN, MR: I request for review to the Supreme Court judge against the decision.
THE REGISTRAR: That's me. The first step is for me to review it.
CHIN, MR: Okay.
THE REGISTRAR: If you haven't got any problem with my review but you've got some objection to the taxation, you should seek legal advice or make use of your own knowledge in that field as to what you want to do there. But my review will be a review based on the taxation on which
CHIN, MR: Sir, if I
THE REGISTRAR: If you allow me to - it will restrict those matters in contention. My review - it's necessary - will not include whether judgment pursuant to which this
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bill is taxed is valid or not or whether it should be reversed on some sort of appeal. My review will be on the amounts allowed under the items of the bill. Now, I'm not signing this allocatur until that date, so whatever you want to do in whatever sphere before whoever will have to be done before that day.
CHIN, MR: Sir
THE REGISTRAR: But if it doesn't relate to review of the taxation, being an error in principle on which the bill was taxed and the amounts allowed, I'll be signing the allocatur, because I don't believe that would effect any other step that you'd take.
CHIN, MR: So I can request for a review on the point that those items should not be allowed - only disallowance of those items because there was no - taxation recoverability is not there. Is that the point that I can request for review from you, sir?
THE REGISTRAR: No, you can request a review if you believe I've made an error in principle in taxing the bill.
CHIN, MR: The error in principle is that you should not have allowed all those items. That is the error in principle that I'm requesting for you to review.
THE REGISTRAR: Put it in writing. It's no good me listening to you now. It's what it's got to be. Read what it
CHIN, MR: Sir, if I put it in writing to you, I
THE REGISTRAR: No, you address it to the court.
CHIN, MR: I address to
THE REGISTRAR: The court.
CHIN, MR: The court?
THE REGISTRAR: Yes. This particular file
CHIN, MR: This particular file
THE REGISTRAR: - - - setting out your objections.
CHIN, MR: In form of a letter format?
THE REGISTRAR: The easiest way is if you object to individual items in the bill. Now, if you've got some objection in some other form which has got nothing to do with taxing the bill, that is the decision under which I'm taxing, I'm taking no notice of that because I can't affect that. I'm taxing pursuant to the order. So you
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can't say - you can do whatever you like, but to say that it's an error in principle when the order says I can tax and allow the bill is not achieving anything in my view.
CHIN, MR: I think there is a case
THE REGISTRAR: That's up to you. So far as this bill is concerned now, we've taxed the bill. It's taken from 10 o'clock to 11.30.
CHIN, MR: Sir, let me raise on point. I think there is a case where a taxing master is able to override the decision of the court that make the court order.
THE REGISTRAR: That would be interesting. That's a decision of whom?
CHIN, MR: Because
THE REGISTRAR: Who made that decision?
CHIN, MR: That's what happened in the District Court where Judge Sullivan make an order
THE REGISTRAR: Who?
CHIN, MR: Judge Sullivan make an order.
THE REGISTRAR: Could you spell that name.
CHIN, MR: Judge Sullivan.
THE REGISTRAR: How do you spell that?
CHIN, MR: S-u-l-l-i-v-a-n.
THE REGISTRAR: Sullivan.
CHIN, MR: Sullivan. He made an order and the affecting
THE REGISTRAR: I didn't know there was a Judge Sullivan in the District Court.
CHIN, MR: There was.
THE REGISTRAR: Was there?
CHIN, MR: There was. The court case
THE REGISTRAR: Well, if it
CHIN, MR: The court case
THE REGISTRAR: Well, that's up to you. I've never heard of him, but I may be wrong.
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CHIN, MR: Yes, the court case number is 36.
THE REGISTRAR: Just like the contents of this letter that you quote of mine may be wrong.
CHIN, MR: Yes, the court
THE REGISTRAR: But that doesn't mean to say I'm being biased against you or being untruthful. I've never heard of him or that decision.
CHIN, MR: Yes, but it is
THE REGISTRAR: So until it's produced to me, I can do nothing.
CHIN, MR: It is not reported, sir, but what happened is
THE REGISTRAR: Well, it must - how are you going to
CHIN, MR: I know of it because I saw someone document. And the
THE REGISTRAR: You saw someone what?
CHIN, MR: Document. Because that
THE REGISTRAR: What document?
CHIN, MR: The court order. The court orders say zero court order. The judgment and order and the taxing master gave a zero court order. It's on the principle of a lawyer litigant in prison cannot claim for profit cost. That's why
THE REGISTRAR: That's a different question.
CHIN, MR: But is the same thing that happens here.
THE REGISTRAR: No. I know that decision because I think I was the - that's a judgment from this court. That's Dodbury v Helpman
CHIN, MR: Dodbury v Helpman, yes.
THE REGISTRAR: which up to the full court.
CHIN, MR: Yes, is Dodbury and Helpman.
THE REGISTRAR: But that would mean that the plaintiffs here were representing themselves. They're not. Mr Prime is representing them. Anyway, that finishes this bill, so we'll now move onto the second bill.
AT 11.35 AM THE MATTER WAS ADJOURNED ACCORDINGLY
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