11 . Affidavit cover sheet (r. 21(3))
| Supreme Court of Western Australia Court of Appeal | CACV 107 OF 2008 & CIV 1775 OF 2008 & CIV 1877 OF 2010. | ||
| Affidavit 1 | |||
| Parties to the appeal | NICHOLAS NI KOK CHIN Judgment Debtor AUDREY FRANCES HALL as executrix of the estate Of the late Kenneth Duncan Hall Judgment Creditor | ||
| Person making affidavit | Judgment Debtor | ||
| Date made | 22.02.2011 | ||
| Purpose | IN SUPPORT OF JUDGMENT DEBTOR’S APPLICATION FOR AN SUSPENSION ORDER DATED AND FILED 22.2.2011. | ||
| Filed by | Judgment Debtor | ||
| Index 2 | Contents | Page | |
| 1. Affidavit of NICHOLAS NI KOK CHIN 2. Annexure NNC 1 — Letter from Department of Attorney General dated 17.2.2022. 3. Annexure NNC 2 —Email correspondence between myself and Mr. Sam Truglio dated 5.11.2010 and 16.2.2011. 4. Annexure NNC-3 – Incident/Offence Complaint lodged with Senior Constable Simon Williams lodged by Mr. Maurice Frederick Law and myself dated 6.1.2011. 5. Annexure NNC-4 – Email letter from me to the Crime Corruption Commission of WA and Senior Constable Simon Williams regarding the conspiracy to defeat justice contrary to s.135 of the Criminal Code Act 1913 WA dated 1.12.2010. | 1-16 17 18-20 21 22-26 | ||
1. The affidavit must comply with the RSC Order 37.
2. The index must comply with the RSC Order 37 Rule 2(7). The above form contains in italics an example of an index.
| Supreme Court of Western Australia Court of Appeal | CACV 107 OF 2008 & CIV 1775 OF 2008 | |
| Affidavit 1 | ||
| Parties to the appeal | NICHOLAS NI KOK CHIN Appellant LEGAL PRACTICE BOARD OF WA Respondent | |
Date of document: 23 rd January, 2011
Date of filing: 23 rd January, 2011
Filed on behalf of: The Judgment Debtor
Prepared by:
NICHOLAS NI KOK CHIN Phone: 08 92757440;
387, Alexander Drive, DIANELLA Mobile: 0421642735
WA 6059 Emails: nnchin@msn.com; nnchin1@gmail.com
AFFIDAVIT OF NICHOLAS NI KOK CHIN
SWORN THE 22nd February, 2011
---------------------------------------------------------------------------------------------------------------------
INDEX OF HEADINGS PAGE NUMBERS
I, Nicholas Ni Kok Chin, former Lawyer, not in current practice, of No. 387, Alexander Drive, Dianella WA 6059, having been duly sworn, say on oath the following:
BACKGROUND:
PURPOSE OF THIS AFFIDAVIT:
1. I am filing this Affidavit in support of my Form 9 Application for Suspension Order pursuant to ss. 15 and 16[1] of the Civil Judgments Enforcements Act, 2004 (WA) (the Act).
2. The facts herein are true and correct, to the best of my knowledge, information and belief. Where I identify the source of facts stated as other than from my own personal knowledge, I believe such facts to be true and correct.
3. On 17.2.2010 I received a letter from the Deputy Sheriff responding to my customer inquiry at the website of the Attorney General of Western Australia stating that I should make an application for a Suspension Order. See Annexure: NNC 1. I am making this Application to the Court of Appeal of the Supreme Court of Western Australia, which is the Court dealing with my appeal, from the Void Cost Order of Master Sanderson in CIV 1775 of 2008 of the General Division of the Supreme Court of Western Australia also cited as AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255 and found at the website of the Supreme Court of Western Australia at http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf. Master Sanderson reasoned incorrectly at paragraph 5 of his judgment in the following words:
“5 The first defendant, who is a solicitor, acted for Ms Hall in an attempt to remove the second defendant's caveat from the properties. The thrust of the first defendant's defence appears to be that he claims he is entitled to maintain a caveat over the properties by reason of s 244 of the Legal Practice Act 2003 (WA). He claims that the charge created by that Act has priority over the plaintiff's first registered mortgage. It was accepted by counsel for the plaintiff that a solicitor is entitled to a lien over property which is recovered or preserved by the efforts of the solicitor and in the interests of their client. There have been a number of recent decisions in relation to this section, the most comprehensive of which is the decision of the Court of Appeal in Michell Sillar McPhee (A Firm) v First Industries Corp [2006] WASCA 24; (2006) 32 WAR 1. In that decision, reference is made to the decision of the UK Court of Appeal in Greer v Young (1883) 24 Ch Div 545. Bowen LJ described the function of the section (here referring to the UK section which is in similar terms to our section) in these terms:
It appears clear to me that this is a salvage section. The solicitor is treated as a salvor who has recovered or preserved something in a time of danger
by his work and labour. Into whatever hands it may fall it is charged with the salvage (556).
6 It might be the case that a solicitor who performs 'salvage services' could establish a lien which takes precedence even against a mortgagee. It is difficult to imagine a fact situation where that circumstance might arise; but in theory it is possible. But that is not the case here. The first defendant has done nothing to preserve the property the subject of the plaintiff's mortgage. The plaintiff's mortgage was in place well before he began to act for Ms Hall. No lien could have arisen which would defeat the plaintiff's position. The plaintiff was entitled to summary judgment.”
REASON WHY CIV 1775 OF 2008 COST ORDER IS VOID:
4. The reason why I am stating that Master’s Sanderson Costs Order as cited above is a Void Order based on the following grounds:
4.1. Master Sanderson is in jurisdictional excess because he did not take into account that Solicitor David Taylor falsified the court records in CIV 1131 of 2006 to the effect that he did not comply with the Jenkins J Order that he filed an equitable claim against the caveat properties as instructed by his client Spunter Pty Ltd within the correct time frame and he did not (the relevant consideration).
4.2. If Master Sanderson had taken into account the relevant consideration, he would have found for the First Defendant and would not have removed Caveat J614049 and would not have ordered the Void Costs Order.
4.3. That Void Costs Order in CIV 1775 of 2008 brought about the existence of the Second Void Cost Order in CACV 107 of 2008.
SECOND VOID COSTS ORDER:
5. I appealed the decision of Master Sanderson to the Court of Appeal in CACV 107 of 2008. This judgment is also cited as: CHIN -v- HALL [2009] WASCA 216 heard on 12.8.2009 and delivered on 12.9.2009 available at the website: http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf. Owen J in his judgment said the following:
“15 On 19 December 2005 Jenkins J heard Spunter's application to extend its two caveats over the properties in CIV 1142 of 2005. The application was opposed by Nancy Hall, who was represented by Chin. On 20 January 2006 Jenkins J extended the caveats on the condition that Spunter commence proceedings within 21 days to determine whether it had an equitable charge over the properties by virtue of the second deed: Spunter Pty Ltd v Hall [2006] WASC 6.
16 On 7 February 2006 Chin lodged a caveat over the properties. According to Chin, he lodged the caveat because he had come to the conclusion in late 2005 that Nancy Hall, his client, was not going to pay him for his legal services. The purpose of him lodging his caveat over the properties was to protect his solicitor's lien.”
THE REALITY: CIV 1131 OF 2006 NOT COMMENCED ON 10.2.2006 BUT ON 16.2.2006:
6. Spunter and the Laws did not commence their proceedings in CIV 1131 of 2006 through their solicitor David Taylor on 10.2.2006 but only on 16.2.2006. They therefore did not comply with the Jenkin’s J Order; their caveats were unlawfully extended as they did not fulfill the conditions imposed by Jenkins J. Therefore as from that date, the Appellant as the solicitor of Nancy did remove their Caveats by way of operation of law. Therefore, Owen J is in error when he stated at paragraph 17 the following:
“17 On 10 February 2006 the Laws and Spunter commenced CIV 1131 of 2006 in the Supreme Court and issued a writ against Nancy Hall claiming, among other things, a declaration that the second deed created an equitable charge. The commencement of the action fulfilled the condition that Jenkins J had imposed on the extension of the caveats in CIV 1142 of 2005.”
7. Owen J said that the court had recognized that the removal of Caveat J614059 would be subject to an undertaking given by Audrey Hall at paragraph 28 and this is reason for my putting in my New Caveat L550173 with Landgate once again against the two properties of Nancy Hall, in the following words:
“28 As at the date of this appeal hearing, neither the Mount Lawley property nor the Hazelmere property have been sold. The court was informed from the bar table that the Mount Lawley property had been subject to a contract for two years but had not proceeded to settlement. Audrey Hall had given an undertaking to Chin that should the property be settled, $20,000 would be put in trust pending the outcome of the appeal. The Hazelmere property had been taken off the market, but would be offered for sale again.”
ADMISSION OF FRESH EVIDENCE (NOT NEW EVIDENCE) CAUSED BY REGISTRAR POWELL’S LETTER DATED 11.6.2009:
8. Owen J is absolutely right only when His Honour says that fresh evidence as opposed to new evidence[2] is to be admitted automatically, when he said the following at paragraph 36 in the following words:
“36 Chin has also applied for leave to admit further evidence in the appeal. Chin submits that the additional evidence shows that CIV 1131 of 2006 (initiated by the Laws and Spunter) was not commenced until 16 February 2006, outside the time period directed by Jenkins J. Accordingly, the caveats had lapsed. This was due to his efforts and, thus, he had recovered and preserved property. I will deal with the application when I come to discuss the first ground of appeal.”
9. Owen J is in error, however, when he said that the Spunter’s Caveats did not lapse in February, 2006 but according to the operation of the relevant statute law, they did in reality lapsed[3]. Paragraph 47 of the judgment of Owen J read as follows:
47 I will assume, without deciding, that effecting the removal of a caveat constitutes recovery or preservation of property. In my view there is no merit in the first ground of appeal. Contrary to Chin's assertions, the caveats did not lapse following Spunter's application before Jenkins J in CIV 1142 of 2005. Spunter's caveats remained until 29 October 2008 when the master ordered that they be removed - along with Chin's caveat - following Audrey Hall's successful application for summary judgment. The gravamen of Chin's argument seems to be that Spunter's caveats should have lapsed in February 2006. But the reality is that they did not.
10. Simmonds J handed over to Nancy Hall at one of the proceedings before His Honour a copy of the stamp-date of the Writ of Summons in CIV 1131 of 2006 found at page ii of the Green Appeal Book filed in CACV 107 of 2008. This document was in turn delivered to me by Ms. Nancy Hall. I refer you to Document No. 1 which is my Affidavit sworn in CIV 1775 of 2008 dated 18.8.2008 to which I annexed the relevant Annexure H1 found at page 65 of that Affidavit which in turn is located at page v of the Green Appeal Box indices. Annexure H1 shows that the stamp date for the actual payment of the sum of $654.20 was actually made on 16.2.2006 and not on 10.2.2006, as stated by His Honour Owen J. The relevant receipt Number issued by the Supreme Court of Western Australia is 202483 and is issued at the time when the actual filing fees was paid. This is the date when the CIV 1131 of 2006 is officially filed. Therefore what Owen J said about the stamp date being 10.2.2006 at paragraph 48 is in error because:
“48 In any event, the claim that Spunter did not commence proceedings within the 21 days specified by Jenkins J has already been aired and determined. In Spunter Pty Ltd v Hall [No 2] [2007] WASC 239 Nancy Hall made that claim in support of her application to have Spunter's caveats removed. Nancy Hall gave evidence on affidavit that she had waited all day on 10 February 2006 in the Central Office of the Supreme Court and that CIV 1131 of 2006 was definitely not filed that day: see [107] - [111]. However, the affidavit of Spunter's then solicitor and the date stamp on the writ indicated it was filed on 10 February 2006: see [112], [116].”
CIRCUMSTANCES WARRANTING THE ADMISSION OF FRESH EVIDENCE:
- If the fresh evidence referred to by Owen J is available at the trial before Master Sanderson in CIV 1775 of 2006, it would have made the world of a difference to my defence before the learned Master Sanderson: A causal connection[4] would have been established between my Solicitors Works in CIV 1142 of 2006 and the removal of the Spunter and the Laws Caveats. I would have been held to be the salvor of Nancy Hall Properties and my statutory charge would have taken precedence over Kenneth Duncan Hall’s charge. Consequently, the Costs Orders of Master Sanderson would have been void and the consequent Cost Orders of the Court of Appeal in CACV 107 of 2008 would also have been void. There is no requirement of a new trial as Owen J made a technical slip and it could be repaired by s.33 of the Supreme Court Act, 1935 without an appeal process. Master Sanderson decision was made on 19.10.2008. The fresh evidence came about on 11.6.2009 which was not reasonably available to the Appellant at the time of the hearing before Master Sanderson. Thus, this fresh evidence is not new evidence which should have been admitted by the Owen J anyway[5]. I would have been able to fulfill the condition for the fresh evidence to be admitted into this Court as quoted by Owen J at paragraph 53, from the High Court’s decision in CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 quoted by His Honour in the following words:
”The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the [court] is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
REGISTRAR POWELL CORROBORATES TAYLOR’S FALSIFICATION OF COURT RECORDS IN CIV 1131 OF 2006:
12. Owen J relied upon the falsified evidence of Registrar Powell in his efforts to cover up the falsifications of court records by Solicitor David Taylor who perjured in his Affidavit sworn and filed 29.3.2007 in CIV 1131 of 2006. He gave false evidence in this Affidavit as found at pages 46 to 49 of my Yellow Appeal Book filed and dated 22.6.2009 that a payment for the filing fees of $654.00 was made in cheque for $654.00 and in cash for 20 cents was made on 10.2.2006 and issued with Receipt No. 201702 dated the same day purported issued by the Supreme Court of Western Australia. This is fabricated evidence which runs counter to what is indicated in paragraph 8 above.
12.1. Unbeknown to Registrar Powell of the existence of the evidence already available in the court records as previously indicated, His Honour tried to cover up for solicitor David Taylor. This evidence is available in my Yellow Appeal Book at page 136 which is the letter of Registrar Powell answering my request for information which pertains to the actual date when the CIV 1131 of 2006 was supposed to have been filed by David Taylor Solicitor. It was filed on 16.2.2006[6] Thus, the acts of cronyism of Registrar Powell in favour of Solicitor David Taylor is an act of corruption caught by s. 27 (3) of the Crime Corruption Commission Act, 2003 WA which provides as follows:
27 . Allegation about Commissioner, Parliamentary Inspector or judicial officer not to be received or initiated
(1) An allegation about the Commissioner must not be received by the Commission.
(2) An allegation about a person in his or her capacity as the Parliamentary Inspector, or an officer of the Parliamentary Inspector, must not be received or initiated by the Commission.
(3) An allegation about a person in his or her capacity as the holder of a judicial office must not be received or initiated by the Commission unless the allegation relates to —
(a) the commission or attempted commission of;
(b) the incitement of the commission of; or
(c) a conspiracy to commit,
an offence under section 121 of The Criminal Code or is of a kind that, if established, would constitute grounds for removal from judicial office.
(4) The Commission, when performing its functions in relation to the conduct of a holder of judicial office must proceed having proper regard for preserving the independence of judicial officers.
(5) When investigating a holder of judicial office, the Commission must act in accordance with conditions and procedures formulated in continuing consultation with the Chief Justice.
(6) In this section —
holder of a judicial office has the same meaning as it has in section 121 of The Criminal Code .
REGISTRAR POWELL NOTIFIED THAT HE SHOULD NOT BE A JUDGE IN HIS OWN CAUSE:
13. Solicitor Anthony Prime is acting for the widow of Kenneth Duncan Hall one Mrs. Audrey Frances Hall. Anthony Prime knows that Registrar Powell knows that the latter should not be the taxing master of the two void costs orders of CIV 1775 of 2008 and CACV 107 of 2008. I have given Registrar Powell’s Notice that he should not be a judge of his own cause because of his act of cronyism as a judicial officer but he not acceded to my request to abdicate from proceeding with the taxation proceedings. See the transcript of this proceedings dated 3.11.2010 available at my blogspot by Googling NICHOLASNCHIN at: http://nicholasnchin.blogspot.com/2010/11/transcript-of-proceedings-before-taxing_08.html
THE MALICE OF REGISTRAR POWELL:
14. At the relevant pages 30 to 32 of the transcript dated 3.11.2010 reproduced below, the learned Registrar Powell is seen to be descending into the arena of the conflict to participate in that affray created by his own cause of the act of cronyism referred to above, as he is reasonably showing malice as a judge by refusing to accept my point of objection based on the issue of “recoverability” which is the law and limiting himself to receive objections relating only to the issue of quantum which is not relevant once it is reasonably discovered by the court that the relevant void Costs Orders giving rise the taxation proceedings has no reasonable prospects of recoverability by the Plaintiff in CIV 1775 of 20008. He knew he could address the recoverability issue by assessing it at $0.00 costs just as Registrar Hewitt did in the case of Alessandro Bertini in relation to DCJ Sullivan void Costs Order against Mr. Bertini in District Court Appeal No. 36 (sic 39) of 2008. Registrar Powell breached his promise not to sign the Allocatur until he had made his review dated 17.12.2010 of the Taxation Decision given 3.11.2006:
“3/11/10 LAW, MR 30
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
3/11/10 CHIN, MR 31
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
3/11/10 CHIN, MR 32
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.
3/11/10 CHIN, MR 33
CHIN, MR: Yes, the court case number is 36 (sic 39).
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.”
APPELLANT’S NOTICES OF OBJECTION TO REGISTRAR POWELL’S TAXATION: THE TRESHHOLD QUESTION – DISALLOW OR ALLOW THE TAXATION IS THE FIRST AND PRIMARY STEP:
15. In my Notices of Objection filed in both CIV 1775 of 2008 and CACV 107 of 2008 found at http://nicholasnchin.blogspot.com/2010/11/objection-to-registrar-powell-as-taxing_08.html and at http://nicholasnchin.blogspot.com/2010/11/objection-to-registrar-powell-as-taxing.html respectively, I stated at paragraphs (g), (h) and (i) the following:
REGISTRAR POWELL DID NOT DETERMINE THE FIRST STEP OF TAXATION CORRECTLY:
“g) The Taxing Master has an honest duty to disallow all those items and he cannot say he cannot override the decision of Master Sanderson who delivered his costs order against the Appellant and the Second Respondent, nor is it available for him to say that he cannot override the costs orders of the court of appeal in the second subject judgment, when it is clear to him that these two costs orders are plainly wrong. His functions are there to do justice to the parties and he cannot run away from this duty. He could escape from this technicality by ascribing a $ZERO assessed cost to those items. This state of affairs had happened in the past to another case which I understand is the correct procedure i.e. in the case of a District Judge in District Court Appeal No.39 of 2008 in the case of Alessandro Bertini which is not reported. I have seen this order myself and I will be able to produce it if necessary.
h) The honesty of the Taxing Master vis a vis the Affidavit material of David Taylor Solicitor sworn 29.3.2007 has been relied upon by the Court of Appeal in paragraphs 54 and 54 of the joint judgment in CACV 107 of 2008 (the technical slip); this reliance caused it to make that technical slip which is now being sought by the Second Defendant in CIV1877 of 2010 to be rectified before a Court of Appeal judge pursuant to s.33 of the Supreme Court Act, 1935 WA.
i) Registrar Powell is in jurisdictional excesses when he failed to respond to the call by the Second Respondent to abstain himself from taxing the bill on the ground of his apprehended bias against the Second Defendant and that he is therefore a judge of his own cause because he did try to cover up David Taylor’s falsification of the court records in CIV 1131 of 2006 and is continuing to deny this. This has been recorded in the transcript of the proceedings before him on 3.11.2010. The Taxation Orders issued by the Taxing Master are therefore of null effects and are not enforceable in any courts of law.”
h) The honesty of the Taxing Master vis a vis the Affidavit material of David Taylor Solicitor sworn 29.3.2007 has been relied upon by the Court of Appeal in paragraphs 54 and 54 of the joint judgment in CACV 107 of 2008 (the technical slip); this reliance caused it to make that technical slip which is now being sought by the Second Defendant in CIV1877 of 2010 to be rectified before a Court of Appeal judge pursuant to s.33 of the Supreme Court Act, 1935 WA.
i) Registrar Powell is in jurisdictional excesses when he failed to respond to the call by the Second Respondent to abstain himself from taxing the bill on the ground of his apprehended bias against the Second Defendant and that he is therefore a judge of his own cause because he did try to cover up David Taylor’s falsification of the court records in CIV 1131 of 2006 and is continuing to deny this. This has been recorded in the transcript of the proceedings before him on 3.11.2010. The Taxation Orders issued by the Taxing Master are therefore of null effects and are not enforceable in any courts of law.”
MISPLACED RELIANCE OF OWEN J ON POWELL’S LETTER WHICH IS LACKING IN INTEGRITY:
16. Owen J relied upon Registrar Powell’s letter dated 11.6.2009 which is without integrity because it contradicted David Taylor Affidavit evidence sworn on 29.3.2007 which says that he paid the full amount by cheque on 10.2.2010 and this was receipted by the Treasurer of the Supreme Court of Western Australia. This reliance is the technical slip correctable by s.33 of the Supreme Court Act, 1935. His Honour said at paragraph 54 the following words:
54 I have reviewed the evidence which Chin seeks to adduce and it does not prove his contention. The high point of Chin's evidence is a letter written to him by a registrar of this court dated 11 June 2009 saying:
You state you have a copy of the writ. In that case you will note it has 2 dates on it.
The first is 10 February 2006 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 2006 and an assessment no of 201702. That assessment was cancelled after close of business on 10 February 2006 when it was realised by the Court that the cheque tendered for payment was for $654.00 and was therefore 20 cents short.
I assume that fact was forwarded to the plaintiffs' solicitors because on 16 February 2006 the correct amount was paid: $654.00 by credit card and 20 cents cash. The assessment stamp was altered to 16 February 2006 and the new assessment number 202483 entered on the altered stamp.
The assessment number is given on payment.
.
TAXATION PROCEEDINGS IS A TWO-STAGE PROCESS: SECOND STAGE CANNOT BE PROCEEDED WITH IF THE FIRST STAGE IS NOT APPROVED:
16.1. Registrar Powell must first determine the first step whether the two costs orders are or not void. If they are void, then he should have disallowed them and if they are not void, he has discretion to allow it. Only if he has allowed it, then only he can proceed to the second stage, i.e. to tax it in order to determine the quantum of each item as presented by solicitor Anthony Prime on that bill[7]. Here, he is himself involved in bringing about those two void cost orders as he is helping solicitor David Taylor to falsify those court records. He is a judge in his own cause. Little did he know that David Taylor had already helped himself by producing a false affidavit sworn 29.3.2007 with a false receipt purportedly issued by the treasury department of the Supreme Court of Western Australia. Registrar Powell unwittingly tried to cover up those false court records of David Taylor by using his ingenuity to find a suitable law pertaining to the full filing fee of $654.20 not having been paid on 10.2.2006 but was purportedly paid on 16.2.2006 to protect solicitor David Taylor. That principle of law is referred to by Owen J in paragraph 55 of his judgment in the following words:
PART FILING FEE WAS PAID ON 10.2.2006 IN CIV 1131 OF 2006: A FICTION CREATED TO SUIT THE CASE BY REGISTRAR POWELL:
55 The letter does not establish that the action was not commenced on 10 February 2006. It indicates that the writ was filed on 10 February 2006 and, through an oversight, the filing fee paid was 20 cents short of the proper amount. The underpayment was brought to Spunter's solicitor's attention and the correct amount was paid. This does not mean that the writ was not filed until the correct fee was paid.
56 Order 4 r 1 of the Rules of the Supreme Court 1971 (WA) provides that an action must be commenced by a writ of summons. Order 5 r 6 provides that a writ is issued upon its being sealed by the proper officer, and r 7 and 8 provide that a copy shall be left with the appropriate officer for filing. Regulation 6 of the Supreme Court (Fees) Regulations 2002 (WA) requires that fees be paid before documents are filed. Regulation 7, however, confers on the court and registrars a discretion to waive, reduce, refund or defer fees. Regulation 11 provides that an unpaid fee is a debt due to the State and may be recovered by action in a court of competent jurisdiction. It seems to me that on the proper interpretation of the Rules it does not necessarily follow that a document is deemed not to be 'filed' merely because, as a result of oversight, the correct fee has not been paid. This conclusion is supported by authority from other jurisdictions: see Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81; Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15.
THE TOUCHSTONE OF RECOVERY IS MISSING:
17. This principle of a two stage process in the taxation proceedings before Registrar Powell has been explained to him in both Notices of Objection filed by me. He had refused to accept it on the ground that they are not valid objections. He is in error. The touch stone for recovery is “whether the services of Solicitor Anthony Prime had been performed for Mrs. Audrey Frances Hall in the removal of the Spunter’s Caveats. My contention is that I have removed those caveats by operation of law on 10.2.2006. By the time Master Sanderson arrived on the scene, those Spunter Caveats have already been removed and there are none to be removed by Mr. Anthony Prime. In this scenario, Mr. Anthony Prime did not perform those services. As a result he is not entitled to be paid. Therefore the two Costs Orders are void[8].
18. Registrar Powell’s letter dated 11.6.2009 is a cover-up because in reality the total fees of $654.20 was paid by way of credit card only on 16.2.2006 as admitted by him. There is no question of the part-payment of the fees of $654.00 only with the 20 cents missing, having been paid by solicitor David on 10.2.2006 because the latter’s Affidavit sworn 29.3.2006 as contained in pages 46 to 48 of the Yellow Appeal Book speaks otherwise.
19. The purported facts sworn to David Taylor on 29.3.2007 contradicts the purported facts of Registrar David Powell in his letter dated 11.6.2009. There cannot be two versions of the truth. There is only one truth and it is reasonable to conclude from the conduct of Registrar Powell’s refusal to provide more elaborate evidence in terms of bank statement of the Treasury of the Supreme Court of Western Australia of what the truth is: the full filing fees was paid by credit card on 16.2.2006. The contention that a cheque was tendered for $654.00 only on 10.2.2006 is a fiction and is an after-thought to cover up a gaping gap. Therefore, the view of the learned Owen J as expressed in paragraph 56 of that judgment cannot by any stretch of imagination be a correct rendition of the facts vis a vis its applicability to the law:
56 Order 4 r 1 of the Rules of the Supreme Court 1971 (WA) provides that an action must be commenced by a writ of summons. Order 5 r 6 provides that a writ is issued upon its being sealed by the proper officer, and r 7 and 8 provide that a copy shall be left with the appropriate officer for filing. Regulation 6 of the Supreme Court (Fees) Regulations 2002 (WA) requires that fees be paid before documents are filed. Regulation 7, however, confers on the court and registrars a discretion to waive, reduce, refund or defer fees. Regulation 11 provides that an unpaid fee is a debt due to the State and may be recovered by action in a court of competent jurisdiction. It seems to me that on the proper interpretation of the Rules it does not necessarily follow that a document is deemed not to be 'filed' merely because, as a result of oversight, the correct fee has not been paid. This conclusion is supported by authority from other jurisdictions: see Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81; Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15.
CONCLUSION:
20. The First Cost Order in CIV 1775 of 2008 is void because Master Sanderson is in jurisdictional excesses when he made it. The Second Cost Order is void because Owen J relied upon the integrity of the Registrar Powell’s letter dated 11.6.2009. That letter is now found to be without integrity and therefore the findings of the Owen J as expressed in paragraphs 54 and 54 of that judgment needs to be expunged or repaired without requiring the Appellant to go through a process of appeal by virtue of s.33 of the Supreme Court Act, 1935 WA.
21. The Appellant has filed his Application for Certiorari Orders in CIV 1877 of 2010 dated 11.6.2010 to repair this defect of judgment caused by a technical slip of Owen J and this matter is awaiting to be listed by Mr. Sam Truglio, the Supreme Court Listings Officer who can only list it before a Justice of the General Division who would have to return an order nisi before it is confirmed by a Court of Appeal Judge (See Annexure NNC-2 –Email correspondence between myself and Mr. Truglio dated 5.11.2010 and 16.2.2011).
23. The matter is now also reported with the Police Force of WA and is in the hands of Senior Constable Simon Williams P9216 since the 6.1.2010 (See Annexure 3: Incident/Offence Complaint Advice Slip by Senior Constable Simon Williams delivered to Mr. Maurice Frederick Law). Whether or not there is any fraud, it is up to the Police to determine as the matter has also been referred to the Major Fraud Squad as I have been so informed by SC Williams. I have also reported the matter to the Crime Corruption Commission in my email letter in 4 pages dated 1.12.2010. (See Annexure NNC-4).
24. The enforcement of the two VOID COSTS ORDERS should now be permanently suspended by this Honourable Court with no conditions.
SWORN by the Deponent at Perth ]
In the State of Western Australia ]
This 23nd day of January, 2010 ]……………………………………………..
Before me:
…………………………………..
Justice of Peace/ Commissioner of the Supreme
Court for Taking Affidavit
[1] S.15 (1) A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to —
(a) the court that gave the judgment; or
(b) a court that is dealing with an appeal against the judgment.
(2) The court may deal with such an application in the absence of the person entitled to the benefit of the judgment if it is just to do so.
(3) On such an application, the court may only make such an order if there are special circumstances that justify doing so.
(4) A suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise.
(5) When or after making a suspension order the court may make any necessary ancillary or consequential order including an order —
(a) that a means inquiry, default inquiry or interpleader proceedings be adjourned;
(b) that a means inquiry or default inquiry not be held for such period as the court specifies;
(c) as to the operation or effect of any order that has been made under Part 4 or 5 or section 101;
(d) that a person imprisoned under section 90 or 98 for a contempt of court be released from prison for such period and on any terms that the court specifies;
(e) that prohibits or restricts dealings with a judgment debtor’s property, or the payment of debts owed to a judgment debtor, while the suspension order has effect.
16 . Suspension order, effect of
(1) A suspension order has effect according to its contents.
(a) the enforcement of the judgment is suspended to the extent stated in the order;
(b) any order that has been made under Part 4 or 5 or section 101 has effect subject to the suspension order and any order made under section 15(5).
(3) To the extent that a suspension order suspends the enforcement of a judgment, the order is to be taken for all purposes to be a stay of the execution of the judgment to that extent.
[2] See page 43 of the Yellow Appeal Book at paragraphs 21and 22 of my Outline of Written Submissions dated 6th day of January, 2009 filed in CACV 107 of 2008.
[3] The Spunters Caveats did lapse by operation of law contrary to the reasoning of his Honour Justice Owen J at paragraph 47. The lapse of the Spunters Caveat is automatic and is in accordance with the provision of s. 138B(2)(a) of the Transfer of Land Act, 1893. This is the argument advanced by the Appellant at paragraph 56 in page 24 of the Yellow Appeal Book as per the Affidavit sworn by the Appellant on 5.6.2009 filed in CACV 107 of 2008 which is probably missed by the learned Justice Owen.
[4] The Appeal sought special leave to appeal the CACV 107 of 2008 decision to the High Court of Australia in P1 of 2010. That special leave was disposed of by the High Court in Chin v Hall & Ors [2010] HCASL 104 (26 May 2010) found at http://www.austlii.edu.au/au/cases/cth/HCASL/2010/104.html. Their Honours J.D. Heydon and V.M Bell refers to, inter alia, the causal connection between the Applicant’s solicitor work and the removal of the Spunter Caveats in the following terms:
The first respondent obtained judgment from the Supreme Court of Western Australia (Master Sanderson) against the applicant and the second respondent. The judgment required them to remove caveats against the title to two properties. The applicant is a solicitor who contends that he is entitled to maintain a caveat over the properties to protect a statutory charge. The Master found that the first respondent's mortgages had priority over the charge.
The Court of Appeal of the Supreme Court of Western Australia dismissed an appeal, but for a different reason. Owen JA (McLure P and Buss JA concurring) held, not that the mortgages had priority over the charge, but that the charge never arose because the factual precondition to it was not satisfied. That factual precondition was a causal connection between the recovery or preservation of the relevant property and the work of the solicitor. The Court of Appeal held that even if effecting the removal of a caveat constitutes recovery or preservation of property, the removal was caused by the first respondent's successful application for summary judgment, not the applicant's work.
[5] See page 43 of the Yellow Appeal Book at paragraphs 21and 22 of my Outline of Written Submissions dated 6th day of January, 2009 filed in CACV 107 of 2008.
[6] When Solicitor David Taylor was goaded by me to do so by my facsimile to him dated 15.2.2006 as found as Annexure D36 at page 39 of my Affidavit sworn 18.8.2008 filed in CIV 1775 of 2008 in my Green Appeal Book.
[7] The case law are as follows:
1. Ramsbottom J in Martens v Rand Share and Broking Finance Corporation (Pty) Ltd 1939 WLD 159 at 163: “ to decide whether the services have been performed …”
2. KOEHLER -v- CEREBOS (AUSTRALIA) LIMITED [2004] WADC 64 (13 April 2004) per Registrar Harman in these words:
“The plaintiff is entitled to her costs of the action. In accordance with the expression given to that term in Smith v Buller (1875) LR 19 Eq 473, that entitlement is to the reasonable cost of the services necessarily provided to her for the purposes of the action.”
Power v Northam Air Services Pty Ltd [2003] WADC per Registrar Harman in relation to r.53 of the RSC, 1971: “The rule only provides jurisdiction to review errors made in the allowance or disallowance of items or their constituent parts. Determining quantum is the step taken after any such allowance or disallowance has been effected. That determination does not resonate in either allowance or disallowance; it is simply the valuation of the services for which allowance had already been made…. I am reinforced in that opinion by the failure of the defendant to articulate any service that was disallowed.”
2. KOEHLER -v- CEREBOS (AUSTRALIA) LIMITED [2004] WADC 64 (13 April 2004) per Registrar Harman in these words:
“The plaintiff is entitled to her costs of the action. In accordance with the expression given to that term in Smith v Buller (1875) LR 19 Eq 473, that entitlement is to the reasonable cost of the services necessarily provided to her for the purposes of the action.”
Power v Northam Air Services Pty Ltd [2003] WADC per Registrar Harman in relation to r.53 of the RSC, 1971: “The rule only provides jurisdiction to review errors made in the allowance or disallowance of items or their constituent parts. Determining quantum is the step taken after any such allowance or disallowance has been effected. That determination does not resonate in either allowance or disallowance; it is simply the valuation of the services for which allowance had already been made…. I am reinforced in that opinion by the failure of the defendant to articulate any service that was disallowed.”
[8] Id.
