DISPARITY IN THE ENFORCEMENTS OF RULES - THREE VOID COSTS ORDERS BASED ON TECHNICAL ERRORS FOR CORRECTION

TECHNICAL ERRORS OF COURT OF APPEAL IN CACV 107 OF 2008 TO BE CORRECTED BY COMMISSIONER SLEIGHT IN CIV 1877 OF 2010

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Nicholas N Chin  to me

show details 7:25 PM (1 hour ago)

Our Ref: CIV1877-10.  

Friday, April 14, 2011

Mr. Anthony Prime

McCallum Donovan Sweeney

Level 12, 16 Irwin Street PERTH WA 6000

Ref: AMP/10479                                            BY FACSIMILE: 08 9221 2220

Court of Appeal Registrar

Supreme Court of Western Australia

Stirling Gardens

Barrack Street

Perth WA 6000                               BY FACSIMILE: 08 9221 5471

Atten: Maria Santos Bond – Associate to Court of Appeal Registrar

Atten: Ms. Gillian Bailey – Associate to Hon Justice Pullin

Atten: the Associate of Commissioner Sleight in CIV 1877 of 2010.

Dear Sirs

CACV 107 OF 2008: CHIN V HALL  & ANOR

I refer to my letter to Mr. Anthony Prime of Mc Callum Donovan Sweeney as solicitors for the First Respondent in CACV 107 of 2008 dated 8.4.2011 copied to the Court of Appeal Registrar.  I also refer to the letter from Ms. Gillian Bailey as Associate to the Hon Justice Pullin dated 14.4.2011 enclosing the  published reasons of the Pullin JA in Chin v Hall [No.2][2011] WASCA 96 in four pages (the second judgment).

I refer to paragraph 3 of the second judgment to the effect the fraud of David Taylor solicitor in CIV 1131 of 2006 would not have produced a different result in Chin v Hall [2009] WASCA 216 (the first judgment).  This paragraph 3 belied (with due respect to His Honour) the of-repeated technical slip of Owen JA in paragraph 54 and 55 that impinges on the fraud of David Taylor in CIV 1131 of 2006 (the fraud) of the first judgment by His Honour quoting  para 57 of the first judgment in the following words (the technical errors):

“57 Leaving aside the question of whether, in light of CDJ v VAJ, Chin needs to establish that his evidence is fresh and, if so, whether it possesses that quality, it is clear that the evidence would not have produced a different result had it been available before the master. I have already dealt with the letter from the registrar dated 11 June 2009. None of the other evidence which Chin seeks to adduce establishes that CIV 1131 of 2006 was not commenced on 10 February 2006. As the evidence the subject of the application would not have made a difference to the outcome of the master's decision had it been available before him, I would dismiss the application to adduce further evidence.”

I refer to the underlined words of Owen JA and to my application for prerogative review Order before Commissioner Sleight in CIV1877 of 2010 that was heard before His Honour on 4.4.2011 to repair the technical errors using s.33 of the Supreme Court Act, 1935 that does away with the need for an appeal process.  Consequently, there is no longer a need for a Justice (as the learned Commissioner Sleight will do) having the same rank as Pullin and Owen JJA, to correct those technical errors of the two judges of the Court of Appeal (the Review Order).

It would be salubrious for us to note with regard to the underlined words, that it is the very rare occasion that the High Court of Australia would grant Special Leave to Appeal to any litigant and it is therefore normal for the High Court in its Special Leave Dispositions in P1 of 2010 to refuse such leave, thus leaving us with no adverse ramifications for such a dismissal. However, the High Court is wise in having pointed out to us that Master Sanderson is in error at paras. 5 and 6 in his Honour’s judgment in AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255, to the effect that it is not the question of priority between the competing impugned mortgage of the Plaintiff and my s.244 first statutory charge that is being called into question, BUT whether the fraud had disrupted the causal connection between my solicitor works for Nancy Hall estate and the removal of the Spunter’s caveats (the High Court Pointer). 

The High Court Pointer is to the following effects (The Void Costs Orders of the primary and secondary decision maker):

a)      the primary decision maker made a first void costs order against me by picking upon the irrelevant issue of priorities of my competing rights with Mrs. Audrey Hall but failed to look at the salient issue of the causal connection that establishes my first s.244 statutory right against the estate of Nancy Hall (the jurisdictional error of the primary judge);

b)      the secondary decision maker in the first judgment made a second void cost order against me by not focusing on the integrity of the causal connection which is the fraud of David Taylor but relying on the cover-up 20 cent story of Registrar Powell which covers up that connecting link (the jurisdictional error of the first judgment of the secondary judge).

c)      the secondary decision maker in the second judgment relied on the wrong premise of the first judgment in para 57 referred to in the underlined words as the High Court Pointer and also made a third Void Cost Order against me on 1.4.2011.         

The three void costs orders of the primary and the secondary decision maker impinges on the technical error of the secondary decision maker which now stands within the jurisdiction of Commissioner Sleight for correction.  Once corrected, the primary decision maker and the first judgment of the Secondary decision maker will stand up in all its majesty whilst the second judgment of the Secondary Decision Maker will inevitably have to fall away into oblivion (the Jurisdiction of Commissioner Sleight).   

It would also be salubrious to all parties concerned that this matter be no longer prolonged by technicalities as it is in the public interest that this litigation should end having regard to the fact that the reversal of first judgment of the secondary decision maker would have reinstated my status as the salvor for the estate of Nancy Hall.  The $20k set aside by Pullin JA in the interim decision of the first judgment of the Second Decision Maker will have to be returned to me with interests as soon as possible by Mr. Anthony Prime.  Any continuing works done by me as the salvor in pursuing my appeal against the first and secondary decision makers work to the detriment of the financial interests of Mrs. Michele-Maree Gannaway who is the administrator and residual beneficiary of the estate of Nancy Hall.  Hence the reason for my New Caveat lodged with the Registrar of Titles in February, 2011 for the Hazelemere Proerty of the estate of Nancy Hall. This view is in consonant with the last words of the Hon Buss JA at paragraph 67 of the first judgment in CACV 107 of 200:

“I assume, for the purposes of this appeal, that work of that kind may constitute work for or involving the 'recovery' or ‘preservation’  of the land in question.

If the cogs in the wheels of justice do not move efficiently, it is the duty of everyone concerned to lubricate and oil them, as any neglect in this regard would only cause public detriment and anyone who has been dishonest would have to pay for the price of injustice.  Please be reminded that it furthest from my mind to bear any ill-will to any person or to cause anyone any harm, and I have done my best to avoid harming anyone, and alas. … finally, I am resigned to the fact that justice must simply be done and it has to be seen to be done. 

I am now giving NOTICE to all parties concerned that I do reserve my right to appeal the second judgment of the secondary decision maker pending the outcome of the decision of Commissioner Sleight in CIV1877 of 2010 and that time for my appeal against that second judgment should only begin to run as from the date of the delivery of the decision of Commissioner Sleight in CIV 1877 of 2010 and not as from the 1.4.2011.    

Yours faithfully

NICHOLAS N CHIN