Copyright in this document is reserved to the State of
Western Australia
(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.
STATE ADMINISTRATIVE
TRIBUNAL
VOCATIONAL REGULATIONS
VR 158 of 2011
MAURICE FREDERICK LAW Applicant
- and -
LEGAL PROFESSION
COMPLAINTS COMMITTEE Respondent
BEFORE: JUSTICE CHANEY
DATE: TUESDAY, 13 MARCH 2012
VENUE: STATE
ADMINISTRATIVE TRIBUNAL, PERTH
(s&c)
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CHANEY J: Law and the Profession
Complaints Committee.
Mr Law, you appear in
person.
LAW, MR: Good morning, sir,
yes.
CHANEY J: And Mr Fletcher, you
appear for the LPCC.
FLETCHER, MR: Yes, thank you, your
Honour.
CHANEY J: I think I've got Mr
Fletcher coming online -
Mr Taylor coming
online, I should say.
.........., MS: Good morning, DTS
Legal, Natalie
speaking.
CHANEY J: Is Mr Taylor there
please? It’s the State
Administrative
Tribunal calling.
.........., MS: Okay, one moment.
TAYLOR, MR: I’m David Taylor.
CHANEY J: Mr Taylor, it’s Chaney
J speaking.
TAYLOR, MR: Yes, sir.
CHANEY J: I just called your
matter. Mr Fletcher is here
for the LPCC and Mr
Law is here in person and you’re just
coming over the loud
speaker as you’d be aware, so it’s as
though you’re in the
room.
TAYLOR, MR: Thank you.
CHANEY J: We’re here to work out
the way forward in
relation to what
remains of the complaints. Mr Law, I
understand there have
been some proceedings in the Supreme
Court. I don't know
whether that is a matter you need me
to deal with now.
LAW, MR: No. It was dismissed.
CHANEY J: Yes.
LAW, MR: That was the - - -
CHANEY J: Yes.
LAW, MR: - - - yesterday.
CHANEY J: Yes, that’s right.
You've got no application
to make to me now in
relation to the matters you were
dealing with down
there.
LAW, MR: Well, it’s possibly
the same document. It’s a
one-page document.
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CHANEY J: Let me be less
cryptic, perhaps. As I
understand it you made
and application for an order that I
would be disqualified
from dealing with the matter further,
is that right?
LAW, MR: Yes, sir.
CHANEY J: And that’s fine. It’s
questions of
disqualification for
apprehended bias or actual bias – I’m
not sure which it was
– are generally made to the judicial
officer concerned and
it’s a decision for that judicial
officer as to whether
or not they ought to disqualify
themselves. I think
that’s the general position and so I
wasn’t sure whether
you were going to make a submission
that I should
disqualify myself, but if you are, now is the
time to do it.
LAW MR: Yes, I will, sir.
CHANEY J: You weren’t involved
in the matters yesterday,
Mr Fletcher.
FLETCHER, MR: No, your Honour.
CHANEY J: Or Mr Taylor, were
you?
TAYLOR, MR: I’m not sure of the
matter you’re referring
to, sir.
CHANEY J: Well, I doubt that – I
suspect it was done
ex parte, I just
understood that an application had been
made and came before
the chief justice yesterday: a
disqualification of me
and it was unsuccessful.
TAYLOR, MR: Sir, I’m just not
aware of that issue at all.
CHANEY J: No, that doesn't
surprise me. All right, well,
I just need to deal
with it, I think, if you want to make
that application, Mr
Law.
LAW, MR: It has grown some
legs.
.........., MR: Did we get any more
communications from
Law in the last day or
two?
LAW, MR: This one is the start
of my draft, actually.
CHANEY J: All right; just so I
understand, Mr Law – well,
I've read this. Do you
want to elaborate on it at all?
LAW, MR: We have a number of
issues - - -
CHANEY J: You can stay seated
for the time.
LAW, MR: Thanks. I've got crook
knees, actually. I feel
that my evidence isn’t
full evidence as requested by the
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subpoena and I don't
think it is being dealt with properly
and I just feel that
the review of the complaints I made to
the LPCC, which are
serious complaints, and dismissed.
That's not the – I
mean, that has been decided and I can’t
argue about that now,
but we still have no proper evidence
that Mr Taylor paid
and left the money in the Supreme Court
register for filing of
a writ and he has made an affidavit
and it is just not
right and I feel that my case isn’t
being pursued by SAT .
I think that’s quite
fine in the notation, but none
of my stuff has been
acknowledged. I've written to SAT and
nothing is replied.
I've asked for evidence. I saw one
page which wasn’t
supplied in the evidence that was posted
to me after many calls
and one written request, I think it
was. So my evidence
has been thrown out the window and I
can’t see anything
happening. That's why I've put that
application in that I
don't think I’m being given due
consideration. It’s
general talk. I have to wait six
weeks for a
transcript.
Why was this payment
of 654 only then paid into the
personal account of
David Taylor on the same day and not
paid to the Supreme
Court fees for 1131 and Mr Taylor
swears that it was
paid in, but I can’t see anywhere in the
banks statements that
I was provided with as being paid in
and stayed in there.
CHANEY J: Well, I don't want to
get back into those
issues - - -
LAW, MR: No, okay, sorry.
CHANEY J: - - - today, Mr Law.
It’s really just a
question of – the
question I want to deal with first as to
whether I would need
to disqualify myself before we
progress this to deal with
all of your other allegations.
LAW, MR: Okay, yes.
CHANEY J: I understand your
concern is that as a result
of my decision which I
published a couple of weeks ago
- - -
LAW, MR: Six or seven.
CHANEY J: - - - that you are
concerned that the proper
consideration hasn't
been given to the evidence that you
- - -
LAW, MR: Have submitted.
CHANEY J: - - - you've sought –
you've submitted.
LAW, MR: Yes, sir.
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CHANEY J: Okay, so that is the real
basis of the
complaint, is it?
Right, okay, well, is there anything
more about bias – my
bias?
LAW, MR: Do you – what I use
the words – control the
office work of SAT , as in I've written
to SAT and I've
received no
correspondence. I've had to pursue the
transcript over weeks.
The secretary goes away and has
come back to me on two
occasions out of multi numbers - - -
CHANEY J: The short answer to
your question is no, I
don't have control
over what happens administratively on a
file.
LAW, MR: So if I inquire with
the reception – not the
reception – I’ll use
the names Jackie or Toni and I don't
get a call back, this
doesn't come through to you as a
problem? They don't
report to you, “Mr Law has rung and
wants this
information”?
CHANEY J: The general procedures
of the tribunal vary
depending on the
nature of the communication so I don't
want to give you an
answer one way or the other. For
example, and I don't
want to go into this in a great deal
of detail, I have seen
your letter of 15 February seeking a
whole lot of
information but it was not responded to and
that was my decision
because the decision at that stage
was, when I first saw
it, substantially completed on the
interim issue and it’s
not the right way to go about
seeking inquiry -
seeking information. You deal with it in
these directions
hearing. Correspondence with
administrative staff
is not the way to institute inquires
of the various wide
ranging nature that you've sought, so
the answer to your
question is it depends on the particular
nature of the
communication.
LAW MR: I see. Was my
correspondence correct in asking
the questions for the
evidence to be shown for a hearing
like today?
CHANEY J: No. We need to deal
with these things in
directions hearings
and you need to - - -
LAW, MR: So I could just put
all of that on paper and
then present it like
there this morning?
CHANEY J: Yes.
LAW, MR: Okay. Sir, I feel that
the one-page document
that’s missing, I
should not have asked to discuss that.
CHANEY J: What is the one-page
document? Just remind me.
LAW, MR: It was five entries of
a bank statement. The
principle one that I’m
concerned about was where the
$654.20 was paid into
the Supreme Court registry office. I
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imply that a receipt
was given for that. Now, on the same
day that money was
withdrawn.
CHANEY J: Mr Law, the problem
you've got with all of this
is the question – the
ultimate question is, did the
document, the writ,
get filed on the date – whatever it was
– the date that it was
meant to be – and the court says it
was, two judges have
said it was and you’re maintaining it
wasn’t. I mean, the
decision has been made and you can’t
keep seeking a review
of that fact.
LAW, MR: We have a confusion of
receipts. We have - - -
CHANEY J: But all of that
amounts not to a hill of beans.
The question – it
doesn't matter what the court did with
the money. The
question is, did the document get filed and
accepted by the court,
and it did, and that’s my finding,
that’s Simmons J finding
and it’s Owens J finding and it’s
the court’s view.
LAW, MR: Well, the bank
statements don't report that.
CHANEY J: Well, it doesn't
matter because this was
actually your writ. I
don't know why you’re arguing that
your writ wasn’t
filed, but anyway you are.
LAW, MR: Yes.
CHANEY J: It was in your
interests that it be filed.
LAW, MR: Yes.
CHANEY J: The court says it was,
your solicitor says it
was and three judges
have said it was.
LAW, MR: Part of the answer is,
I paid the money for it
and it wasn’t paid
for.
CHANEY J: That's a different
question.
LAW, MR: Is it?
CHANEY J: Very much a different
– there is a new thing
which seems to have
emerged in your recent correspondence
about what happened to
the money you paid on trust.
LAW, MR: Mm'hm.
CHANEY J: That's a separate
question and we can’t start
running down a whole
lot of different new barrows in these
proceedings because as
I've explained to you before, this
is a review of a
decision made by the complaints committee
about a complaint you
made at the time that they considered
and they reached a
decision on, and I don't think – I hope
I’m not wrong about
this – but I don't think what happened
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to your $2000 on
account of costs was one of the things you
complained about.
LAW, MR: That only came to
light when I got my documents.
CHANEY J: Exactly; I know; but
the point is, this isn’t
an ongoing inquiry
into anything that might pop up, do you
understand? I don't
have jurisdiction to deal with that,
but it’s important you
understand – I’m not trying to be
different - - -
LAW, MR: Okay, no, I can hear
what you’re saying.
CHANEY J: If I did it, they’d be
rushing down to the
Supreme Court and they
would be saying, “What’s Chaney J
doing? He’s running
off on a frolic of his own.” I can’t
do it, okay, so - - -
LAW, MR: So this is not really
– what you see in the
tele, it’s supplying
evidence and the judge saying, “This
is incorrect. Mr Law,
you’re right; the other party is
wrong”?
CHANEY J: No. It is an inquiry
as to whether or not the
committee was wrong in
determining that there was no
reasonable prospect –
no reasonable likelihood that
Mr Taylor would be
found guilty of professional misconduct,
okay. So that’s what
we’re about. It’s not some
wide-ranging inquiry
into everything that happened,
especially everything
that happened in relation to Mr Chin.
It’s about your
complaints, the decision taken and whether
or not that decision
was right. But look, we’ve gone far
beyond what we should
be doing as a directions hearing.
(End of extract at 10.32 am )
13/3/12 LAW, MR 7
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_____
STATE ADMINISTRATIVE
TRIBUNAL
VOCATIONAL REGULATIONS
VR 158 of 2011
MAURICE FREDERICK LAW - Applicant
- and -
LEGAL PROFESSION
COMPLAINTS COMMITTEE and DAVID GERALD TAYLOR
Respondent
BEFORE: CHANEY J,
PRESIDENT
JUDGE SHARP, DEPUTY
PRESIDENT
MS R. MOORE, SENIOR
SESSIONAL MEMBER
DATE: THURSDAY, 19 APRIL 2012 , AT 9.57 AM
VENUE: STATE
ADMINISTRATIVE TRIBUNAL, PERTH
HearingRoom10.03
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CHANEY J: The matter of
Maurice Frederick Law and the
Legal Profession
Complaints Committee and David Gerald
Judge Sharp and Ms
Moore.
LAW, MR: Moore
CHANEY J: Yes. All right. Now,
Mr Law, what we propose
to do today is work
through the complaints which are
conveniently set out
in a table that the complaints
committee provided to
the tribunal back in October. It
sets out the eight
matters of complaints and there are now
five left that we need
to deal with. So what we thought we
would do is go through
each of those for you to address us,
to explain the basis
upon which you say Mr Taylor is likely
to be found guilty of
unsatisfactory conduct or
unprofessional conduct
in relation to that particular
complaint.
LAW, MR: Are these the
remarks that the committee made in
their own meeting?
CHANEY J: No. If I could just
- have you got a copy of
this letter of 7
October from the complaints committee to
the tribunal which
sets out that schedule of complaints, in
a table form?
LAW, MR: I never received
anything in the matter of the
resolutions of the
complaints. There was just that - after
careful consideration
they found that there was no case.
CHANEY J: Yes.
LAW, MR: That's all I
received.
CHANEY J: No. Well, let me
show you this document
because it's just a
helpful, sort of, point of reference
for us. It says it has
been copied to you - by email, by
the look of it. Looks
like you have because you actually
file a document after
that which - - -
LAW, MR: I possibly have.
CHANEY J: - - - which made
reference to those issues, the
leave issues.
LAW, MR: I'll keep looking
and I'll - - -
CHANEY J: Yes. Well, look,
maybe we can - if we can find
another copy of it for
you or take a copy of it. Here we
are, we've got a spare
copy of it. It would just help us
to structure the way
we go so - there you go, there's a
copy you can keep.
LAW, MR: Good, thank you.
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CHANEY J: I'll have mine back,
thank you. Okay, so
you'll see that has a
schedule of the eight complaints that
you made.
LAW, MR: Okay.
CHANEY J: We've dealt with 5,
6 and 7 - or I dealt
with 5, 6 and 7
because they required leave so they were
the ones that he made
submissions about. So what we had in
mind was that we would
just work through those, start with
number 1, and you can
explain why you say that's made out.
There's an issue about
1 - - -
LAW, MR: Yes.
CHANEY J: - - - which I dealt
with in the reasons, and
then we'll go through
the rest. Okay?
LAW, MR: So - - -
CHANEY J: Then I'll invite Mr
Taylor to respond.
LAW, MR: I'll comment on one
at a time?
CHANEY J: One at a time.
LAW, MR: Okay.
CHANEY J: Exactly, yes.
LAW, MR: Well, according to
my evidence, Mr Taylor did
not file the writ on
10 February 2006 and therefore the
matter was dismissed
in as far as the orders of Jenkins J
was - I lost the
cause, because nothing was done about it.
CHANEY J: I don't that's
right, is it? You didn't lose
that case because the
writ wasn't filed. You lost it on
the merits. In other
words the court didn't say, "You lose
because he didn't
comply with Jenkins J's orders." In
fact, the court said
he did comply with the orders, but you
lost it for other
reasons. Is that right?
LAW, MR: Well, I have the
understanding it was lost
because the writ
wasn't - the payment wasn't made on the
10th as the due date.
It's falsely claimed that it was but
I don't know why it
was claimed, because there's basically
three dates that it
was paid and the wrong amount at that,
by cheque, credit card
and withdrawn, so there seems to be
a bag of worms in it,
and I want to prove that my money was
paid into the court
and left there.
CHANEY J: Yes. Well, coming
back to your original
proposition that you
lost because - is that what you said,
you lost because - - -
LAW, MR: The writ wasn't
filed.
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CHANEY J: - - - the writ
wasn't filed. Well, I don't
think that's right,
having looked at all of the papers. I
know the other party
argued that you should lose because
the writ wasn't filed
but the judge rejected that argument.
You lost for other
reasons. Can you point to the judgment
where you say you lost
for that reason?
LAW, MR: I'm not really
efficient in keeping these papers
in order. That was -
we're looking at 10 February?
CHANEY J: Yes. Mr Taylor, can
you assist - was it the
judgment of Simmonds J
that dealt with that caveat of the
sustainability of the
claim underlying the caveats?
TAYLOR, MR: I think I have it
here, sir. No, sir, I
don't have that one
here.
LAW, MR: If all these
payments on the due date are, sort
of, correct, why were
other payments made on different
dates?
CHANEY J: Well, the critical
issue - one can get a bit
tied down in the
payments issue - the critical issue was,
from a professional
conduct point of view, and that's all
we're - we're not
interested - - -
LAW, MR: Yes.
CHANEY J: - - - in your
dispute with Ms Hall.
LAW, MR: Yes.
CHANEY J: Okay, that's not
what we're adjudicating on.
As I understand your
complaint it is that Jenkins J made an
order on 20 January 2006 - - -
LAW, MR: Yes.
CHANEY J: - - - to extend the
caveats on condition that
you commence
proceedings within 21 days, that is, by
10 February.
LAW, MR: Yes.
CHANEY J: And obviously your
lawyer is obliged to make
sure - if it was
within his control - - -
LAW, MR: Conform.
CHANEY J: - - - that a writ be
issued by 10 February.
LAW, MR: Yes, sir.
CHANEY J: Right. The
conclusion reached by Simmonds J,
and also confirmed by
the Court of Appeal, was that in
fact, as a matter of
fact, the writ was lodged on
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10 February. There was
some confusion about payment of the
fee but it doesn't
matter because as I understand the
findings of the court
- which is really the findings which
I've made as well in
relation to the other matter, the Lee
matters - it was as a
fact delivered to the court and the
court accepted it on
10 February. There was then some
argie-bargie - - -
LAW, MR: Kerfuffle.
CHANEY J: - - - about the 20
cents or repaying the money
or something, but it
doesn't change the fact that the writ
was filed and that's
what your solicitor is obliged to do,
what he did do, and
whether or not he paid the fee late or
repaid it is neither
here nor there because the order was
complied with, and so
from a professional conduct point of
view it seems there's
no reason for complaint.
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LAW, MR: Well, in subsequent
receipts and paperwork we
find that that payment
was deposited and then withdrawn.
CHANEY J: Yes.
LAW, MR: Now, that can't say
that the payment was made.
CHANEY J: That's my point
really. The payment isn't the
point.
LAW, MR: Oh, right.
CHANEY J. The question is
whether the writ was filed.
LAW, MR: Can you file a writ
without payment?
CHANEY J. Well, if the court
accepts it on the basis - on
any basis, yes, is the
answer to that question. Filing is
handing into the court
and getting a stamp on the document.
That's filing.
LAW, MR: So you needn't pay a
fee?
CHANEY J. Well, normally the
court won't accept it unless
you pay the fee.
LAW, MR: Yes. See, Ms Jackie
from SAT showed me a
document where the
payment was put into the court and taken
out the same day. Now,
is that a falsification of lodging
the writ and payment?
CHANEY J. Well, no. You see the
whole question of
payment seems to have
become this huge issue for everybody.
The question is was
the document filed. To file it means
no more than handing
it across the counter and having the
court say - - -
LAW, MR: You accept it.
CHANEY J. - - - (indistinct)
accepting it. Now they may
then say oh well you
shouldn't have because you were
20 cents short or
something but that doesn't change the
fact that it was filed
as a fact. Now that has been the
conclusion reached - -
-
LAW, MR: That's incredible.
CHANEY J. Why? What's wrong with
that logic?
LAW, MR: Well, it's just that
you can do things without
payment. The evidence
is there that it wasn't credited and
stayed credited. So
how can a writ be issued and acted
upon, but what
happened to the writ? Where is the writ?
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CHANEY J. Well, it was acted
upon because it was then
- I'm just reading
from the Court of Appeal's decision
which sets out the
history.
LAW, MR: You see, everybody has
accepted - - -
CHANEY J. Just wait a minute.
LAW, MR: - - - that the writ
was filed and paid for.
That's the misleading
issue. So you can pay an amount of
money, get a receipt
for it, come back an hour, two hours,
three hours, four
hours later and withdraw the amount and
you've got a genuine
receipt that it was paid.
CHANEY J. I don't understand how
you mean "withdraw the
amount"?
LAW, MR: You don't understand
that.
CHANEY J. How do you mean
"withdraw the amount"?
LAW, MR: If the payment was
made for the writ, sure, it
doesn't matter, and
then come back later on and withdraw
that amount or pay it
again on another day by a different
method, is that the
situation that - can the Supreme Court
act on a writ, accept
the writ if money was taken back?
CHANEY J. If the writ - - -
LAW, MR: It was paid by cheque
first of all.
CHANEY J. Yes, yes.
LAW, MR: Then by a credit card.
Why the second payment?
CHANEY J. Well, that's been the
subject of a lot of
discussion. The point
is - I think the answer to your
question is yes. The
writ if it's filed and accepted is
filed, okay. Now what
happens about the payment, if
somebody stopped a
cheque, for example - - -
LAW, MR: Mm'hm.
CHANEY J. - - - then there'd be
a debt on the cheque
which the court could
enforce but once the court has
accepted it, so far as
is relevant, the question is was
Jenkins J's order
complied with and it was.
LAW, MR: What a system.
CHANEY J. Well, you may think it
odd but - - -
LAW, MR: Why would it be paid
two or three times?
CHANEY J. I don't know because
apparently there was a
20 cent shortfall.
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LAW, MR: Doesn't the system
break down if it can go ahead
without payment?
CHANEY J. Well, this writ, just
reading the history,
eventually became
inactive but it was accepted by the
court; it was served;
an appearance was entered; then there
was a filing of a
notice of solicitor having ceased to act,
filed by the
defendant's solicitor. So the action was
commenced and it was -
- -
LAW, MR: Then it went to inactive.
CHANEY J. Well, I don't know why
it went to inactive.
That's a different
question.
LAW, MR: Well, that's - - -
CHANEY J. Not because there was
no payment of fees.
LAW, MR: Well, doesn't that
constitute inactive - doesn't
that come about by not
following through on my case?
CHANEY J. Well that's got
nothing to do with the filing
of the writ. If
there's some complaint, I don't know
whether that's one of
- - -
LAW, MR: You see, I paid Mr
Taylor money to act for me to
protect my interests
which so many times he has failed on,
that, you know, I lost
my cause. Possibly I wasn't quite
well represented in
the action of the writ because there
was some - let's say
12 months after that I discharged
Mr Taylor because
nothing was happening for all this money
I was paying him. So
this is the lack of service that I
received. I mean, if I
- - -
CHANEY J. Well, when you say he
lost the case, he lost
the case because Ms
Hall obtained a judgment against you in
another action. Is
that right? Is that what you're
talking about.
LAW, MR: I'm sorry sir. I was
writing a note.
CHANEY J. I'm sorry. I'm just
trying to understand - I
think there's so much
litigation. The problem is everybody
was issuing writs all
over the place and - - -
LAW, MR: Yeah.
CHANEY J. - - - that confuses
things. So I'm just trying
to understand what
happened.
LAW, MR: Well I couldn't get -
- -
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CHANEY J. Just looking at the
history that Owen J set
out, he says there was
an action commenced in 2003 which
ultimately went to
trial in August 2006 before Jenkins J,
who ultimately awarded
judgment in favour of Ms Hall
against you. Is that
the $374,000?
LAW, MR: I don't think she ever
- - -
CHANEY J. Plus interest.
LAW, MR: That's not a matter of
this issue. That's with
the sister-in-law
paying fees - that was the court awarding
the property to - - -
CHANEY J: Audrey Hall.
LAW, MR: - - - Audrey Hall.
CHANEY J: Oh, okay. Yes, right.
LAW, MR: For default of - - -
CHANEY J. I'm sorry; I'm sorry.
LAW, MR: Now, if this writ was
filed and served, is that
where it went inactive
and it wasn't served?
CHANEY J. Well, the question of
inactive is a different
question. That's why
we need to focus on this complaint.
The complaint - we're
only here to deal with the decision
about the complaints
you made to the committee, okay.
LAW, MR: Okay.
CHANEY J. Now, the first of
those is the failure to file
the writ.
LAW, MR: Yes.
CHANEY J. That's what we've been
talking about. What
then happened - it may
come up in the next lot of
complaints when we get
to them but let's focus on them on
the first one. I just
want to understand your position on
it because there have
been several findings that the writ
which was in CIV - - -
LAW, MR: 1142.
CHANEY J. 1131 of 2006.
LAW, MR: Oh, sorry, yes.
CHANEY J. 1131 of 2006 - - -
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LAW, MR: Yeah.
CHANEY J. - - - was filed on 10
February. So your
argument is it wasn't
filed because money was - the fee was
subsequently - - -
LAW, MR: Not paid. Yeah.
CHANEY J. - - - withdrawn or
something and repaid.
LAW, MR: You see, there's
notification from the Supreme
Court to Mr Chin who
alerted Mr Taylor that it wasn't filed
properly.
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CHANEY J: So there was no
notification?
LAW, MR: There was notification
that the writ was not -
well, I will say
"active". I'm not sure of the terms,
because the amount
paid was wrong. So that is when the
second payment of 16
February was paid.
CHANEY J: So can you point to
what notification you are
talking about?
LAW, MR: No, I don't have a
copy of that, because it
wasn't addressed to
me; that was addressed to Mr Chin, who
could give evidence of
that statement because Mr Taylor had
failed on some point and
the Supreme Court alerted possibly
both of these people.
I have only been told about it,
because Registrar
Powell made some comment that it was
repaid by a credit
card.
CHANEY J: Yes.
LAW, MR: If I have it right. So
I just can't understand
an office accepting
something if the payment wasn't right
and was rejected,
would have to be paid again, the correct
amount, and I
understand the credit card payment wasn't
correct and it was
paid by the balance of cash, I
understand.
CHANEY J: Yes.
LAW, MR: Well, it was a week
later.
CHANEY J: My understanding is
that whatever the
irregularities may
have been about payment the writ - - -
LAW, MR: Was issued.
CHANEY J: - - - was issued on 10
February and was
accepted as being
issued.
LAW, MR: Okay.
CHANEY J: So while I am
interested in your proposition
that at some later
time, the writ was - - -
LAW, MR: Inactive.
CHANEY J: Became inactive, are
you saying because of the
fact that it hadn't
been filed on time? Is that what you
are saying was the
reason?
LAW, MR: Yes. Well, to my
understanding, it wasn't
served.
CHANEY J: Well, according to the
court in the appeal, it
was not only served
but an appearance was entered by
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Mr Chin on Mrs Nancy
Hall's behalf. You cannot enter the
appearance unless the
thing has been served.
LAW, MR: No.
CHANEY J: So it must have been
served.
LAW, MR: Yes, right.
CHANEY J: Then other steps were
taken, although not much.
I mean, by filing a
notice of ceasing to act so that the
proceedings were on
foot, albeit that they do not seem to
have gone anywhere.
LAW, MR: No.
CHANEY J: So it does not appear
from the materials which
I have seen that the
writ failed because it was not filed
on time.
LAW, MR: Yes. On that point, am
I able to ask Mr Chin if
that is correct, that
he responded to the serving, because
that is happening and
something is flying around the air
that things were - - -
CHANEY J: Well, have a look at
the Legal Profession
Complaints Committee
bundle of documents. Have you got
that there, section 24
bundle of documents?
LAW, MR: What is the date?
CHANEY J: 26 September, so it is
the complaints
committee's bundle of
documents.
TAYLOR, MR: Sir, if it assists, Mr
Law could look at
mine.
CHANEY J: Yes, that might be
helpful.
LAW, MR: It might, yes. Yes, I
do have them, but I don't
know that they're
here.
CHANEY J: Mr Taylor will
helpfully let you look at his
bundle.
LAW, MR: Yes, right. Good.
Thanks.
CHANEY J: If you go to page -
you will see that the first
document there is a
decision of the Court of Appeal in
Chin v Hall, and then
you go to page two, using the page
numbers up in the top
right-hand corner.
LAW, MR: Yes, McLure.
CHANEY J: The court sets out the
background facts, goes
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through the history of
the litigation, and then if you go
to page 4; that is,
page 4 at the top, paragraph 19.
LAW, MR: Page 4?
CHANEY J: Page 4 at the top
right-hand corner, not the
page numbers in the
bottom, which could confuse things a
bit. Do you see
paragraph 17 there?
LAW, MR: Yes.
CHANEY J: This is the court
going through the history of
the litigation:
On 10 February 2006 , the Laws and Spunters commenced
claiming, amongst
other things, a declaration that
the second deed
created an equitable charge.
Commencement of the
action fulfilled the condition
that Jenkins J had
imposed on the extension of
caveats in 1142.
That is the judge
finding that in effect, the writ
was issued on 10
February. On 14 March, Nancy Hall entered
an appearance and
indicated she was legally represented by
Chin. That is what I
was referring to.
LAW, MR: I see.
CHANEY J: Then on 11 May, a
notice of solicitor having
ceased to act was
filed and on 3 November 2006 , she filed a
notice indicating her
intention to act in person. So those
were the steps taken
in the action and they were clearly
steps taken by the
defendant, and as I said before, if
that's right - and I
am presuming the court had the court
record before it or
some materials to base these findings -
it must have been
served.
LAW, MR: Right. I wouldn't know
so much about
Nancy Hall's dealings
with Mr Chin, but if I could ask
Mr Chin the facts
governing that he might be able to put
some light on it for
me.
CHANEY J: I don't want to do
that unless there is some
point to it because
coming back to the complaint, it is
failure to file on 10
February.
LAW, MR: I see.
CHANEY J: So the point which
really seems overwhelming
you against you on
this is that everybody seems to have
accepted that the writ
was filed on 10 February; everybody
except you and Mr
Chin, it seems.
LAW, MR: Why would I have multi
receipts stating that it
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was paid again and
then again? One of those documents is
missing from SAT .
CHANEY J: Yes, but the point is
- I mean, that is again
confusing the question
of payment of the fees with filing.
They are different
things. They are two steps in a
process. The filing is
the filing and the payment of the
fees - - -
LAW, MR: That's serving on -
then it's - - -
CHANEY J: No, filing is lodging
the document at the
court.
LAW, MR: A piece of paper put
over the counter.
CHANEY J: You go to the court
saying, "Here's a writ."
The court gets it, and
they say, "Yes, this is a writ by
the Laws and Spunter
against Ms Hall," and they go,
"Whack," put
a stamp on, and it's filed; it's done. That's
filing.
LAW, MR: Okay.
CHANEY J: And that is what Mr
Taylor said in his
affidavit he had done.
LAW, MR: I see. The issue is,
sir, I cannot understand
an efficient office
not serving if the fee is paid - if it
wasn't paid. If it's
not paid, they wouldn't serve it.
CHANEY J: The office does not
serve it. The plaintiff
serves it. Your
solicitors arrange service.
LAW, MR: Well, when this piece
of paper is stamped on the
counter, he takes it
away and serves it.
CHANEY J: No, he doesn't. Who
does? The solicitor does?
LAW, MR: Yes.
CHANEY J: Yes, that's right. We
are not here to inquire
into the efficiency of
the central office of the Supreme
Court.
LAW, MR: Well, it is an
indication about the receipt,
that the fact was paid
not withdrawn.
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CHANEY J: You're still not
addressing the point, that
payment - filing is
not payment of the receipt.
LAW, MR: Payment.
CHANEY J: Certainly in normal
circumstances, in order to
have the document
accepted for filing, you would tender the
filing fee and the
court accepts that and then they put the
stamp on it. They did
this because they accepted an amount
which was apparently
20 cents short. Now, that doesn't
change the fact that
it's accepted. It doesn't change the
legal character of the
filing.
LAW, MR: But if the fees were
withdrawn completely - - -
TAYLOR, MR: Sir, if I might
interrupt for one moment. It
does seem that Mr Chin
is giving some assistance to Mr Law
and, as I understand
it, he's not permitted to be doing
that.
CHANEY J: Well, he's not
permitted to be a legal - he's
not a legal
practitioner but if he's here occasionally
talking to Mr Law then
I don't think there's a basis upon
which that can be
objected to.
LAW, MR: You see, sir, I'm
not an experienced solicitor
and as far as my - I
was going to say some comment on that.
I am doing my best and
I have these - - -
CHANEY J: Well, I accept that.
LAW, MR: - - - two gentlemen
- and I appreciate your
tolerance, really I do
- - -
CHANEY J: Yes.
LAW, MR: - - - because I've
had multi-medical things and
I'm not all there,
that I can handle the issue, that if the
filing means that the
money is paid, and correctly, things
go ahead, but if it's
not filed correctly it shouldn't go
ahead, and I
understand Mr Chin received correspondence a
week later stating
that it wasn't paid, that you can't file
it if it's not paid.
Surely the clerks would know when
they check their
deposits and stuff that it's not proper,
legal - whatever the
word might be. So isn't that - - -
CHANEY J: I understand where
you're coming from I think,
because you've made
that point a number of times, so can we
move onto 2 now? The
second - Mr Law?
LAW, MR: Thank you.
CHANEY J: Can we move on to
number 2, please - and
Mr Chin, please,
whilst I don't mind you occasionally
providing some
assistance to Mr Taylor I don't want the
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whole thing disrupted
by consistently jumping up and down.
All right? So that Mr
Law - you distract Mr Law. Mr Law,
can we move onto
number 2, please?
LAW, MR: If we haven't
finished - if we haven't resolved
ner 1, do we come
back to it?
CHANEY J: No, but we seem to
be going round in circles.
If you've got
something else you want to say about
number 1, say it.
LAW, MR: Well, it's just the
issue, that it can't be
filed if it's not paid
for.
CHANEY J: Yes, well, that's
the point you've made four or
five times now.
LAW, MR: Yes.
CHANEY J: That's why I thought
we would move on.
LAW, MR: Yes. Well, isn't
that relevant?
CHANEY J: Well, I've got to
rule on it. What I want to
hear are your
submissions on each matter and then we'll
hear from Mr Taylor,
to the extent that he wants to say
anything about any of
these issues, and then we'll make a
ruling about them.
LAW, MR: I see.
CHANEY J: Okay?
CHIN, MR: Sir, can I have the
right of (indistinct)
because it affects me
personally. It affects - because all
the step are against
me. I am suffering detriment. It
affects my right to
practise as a lawyer. This is the very
issue that must be
decided, the very issue that the
writ 1131 was never
filed and served on 10 February 2006 .
That, I cannot
overemphasise that (indistinct) there was
never any decision
ever made on this point.
CHANEY J: All right. Well, Mr
Chin - - -
CHIN, MR: Because that -
whatever decision was made by
any other judges on
this point, is not res judicata because
the reason for those
decision on this issue never addressed
this point.
CHANEY J: All right. Well, Mr
Chin, I don't propose to
give a right of
audience here. I know, I'm aware that this
issue has been the
subject of other matters before the
tribunal in which you
are personally involved in which
you've had the
opportunity of being heard. These
proceedings are not -
these are proceedings in relation to
a complaint by Mr Law
in relation to this practitioner.
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They do not affect -
any findings in these proceedings do
not affect findings
that might be made in any other
proceedings and it
would be inappropriate to give you the
right of audience in
this matter and I decline your
application.
CHIN, MR: Sir, do your
findings of this tribunal is going
to affect the issues
that are going - that are going to be
decided by the court
in the joint application between - by
me and Mr Law in CIV 1275. The magnifying
glass is
focussed on this
issue. This is the only important issue.
There is no other
issue. The issue is whether Mr Taylor,
my learned friend, has
misled the court in the past - - -
CHANEY J: Well, Mr Chin - - -
CHIN, MR: - - - has sworn a
formal affidavit to that
effect in the past.
CHANEY J: Mr Chin - Mr Chin,
whatever may be happening in
other proceedings is
not a matter which these proceedings
will affect at all,
and I decline your application. All
right? Now, that's the
ruling.
CHIN, MR: Sir - - -
CHANEY J: So just resume your
seat, please, Mr Chin.
CHIN, MR: Can I say one more
word, sir?
CHANEY J: (indistinct)
CHIN, MR: Can I say one more
word?
CHANEY J: Yes.
CHIN, MR: Mr Law is asked to
make payment for costs,
which is a non-cost
orders. I'm asked to make payment for
costs which are
non-cost orders and always non-cost orders
is based on the issue
of the (indistinct) of the court
records and the CIV 1131 of 2006. If I
can get this issue
resolved every other
issue has been resolved.
CHANEY J: Well, Mr Chin, I've
said once, I'll say it
again, the determination
in these proceedings will not,
because it is between
different parties, the determination
for any other purposes
other than the present purposes, and
I'm not going to
embark upon a conversion of these
proceedings into some
de facto effort on your part to
obtain vindication on
an issue you are litigating
elsewhere. So I
decline your application.
Mr Law, that exchange
raises an issue which has
concerned me really
from very early in these proceedings,
and that is the extent
to which these are actually your
complaints as distinct
from Mr Chin's complaints which
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you're providing a
vehicle to conduct because, and it most
starkly arises in
relation to the issue we've just been
discussing where
you're arguing vehemently, contrary to a
number of
determinations by courts which are actually
determinations in your
favour, that those determinations
are wrong.
So the fact that Mr
Taylor deposed, for example, that
the writ was filed on
10 February and the fact it was filed
on 10 February are all
matters which you would - it's in
your interests if
they're correct, and that they've been
found to be correct,
and now you're arguing that they
shouldn't have been.
That's a peculiar position for you to
adopt. One can understand
why Mr Chin might want to run
that argument but not
you. So I would like your assurance
that these are your
complaints.
LAW, MR: Yes.
CHANEY J: Good. Okay, well,
let's move on. Let's move
to 2. The complaint is
you incorrectly - sorry, that
Mr Taylor incorrectly
advised you that your company had a
caveatable interest in
two properties the subject of the
proceedings. Now, when
- perhaps you could tell us about
that allegation. I'm
interested when the advice was given
and why you say it was
wrong and so on.
LAW, MR: Well, I would
imagine that I wouldn't go for two
and a half years if I
didn't understand that I had a
caveatable interest. I
had paid Ms Hall funds and
therefore in her name
and for the properties and other
events so having paid
it to Ms Hall they were costs against
the properties, so I
had a caveatable interest on those
properties.
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CHANEY J: So that was your case?
LAW, MR: Yes, sir.
CHANEY J: All right, and that
was ultimately found to be
unsuccessful, was it?
LAW, MR: Yes.
CHANEY J: When was that?
LAW, MR: Unsuccessful?
CHANEY J: Yes.
LAW, MR: Probably a third of
the way through 07. I don't
have a recollection of
the actual time.
CHANEY J: All right, yes. Well,
I am just looking at
paragraph 5 - - -
LAW, MR: When I paid the money
or when the action was - I
lost the caveats? I'm
sorry, I just might have missed out
by your meaning for
the caveatable interests, that was
in the end of 2000 and
through 2001 is when I was paying
the money. I have
genuine receipts et cetera, so - - -
CHANEY J: No, I am interested in
- and again, we are
focusing here on the
advice. It might help me to help you,
I think, to sort of
explain again what we have to do. I
mean, we have got the
task of judging certain issues. You
have made an
allegation that you got incorrect advice as to
the existence of a
caveatable interest. That is
complaint 2.
LAW, MR: Well, I would have
engaged Mr Taylor mid-2005,
and Mr Taylor engaged,
I understand, three counsels. I
don't know why three,
it cost a lot of money, and came up
with why he continued
with the case. He should have said,
"Look, you
haven't got a caveatable interest. Forget it.
Go away."
CHANEY J: All right, so he
engaged three counsel?
LAW, MR: Yes.
CHANEY J: Who advised in
relation to your - - -
LAW, MR: Case.
CHANEY J: Case, all right, and
did any of them advise
that there wasn't an
arguable caveatable interest?
LAW, MR: Not to my
recollection. I would understand from
this point here that
if I didn't have a caveatable
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interest, Mr Taylor
should have said, "Forget it. I can't
do anything good for
you. Go away," but I kept giving
money, money, money,
money, money.
CHANEY J: Yes, okay.
LAW, MR: So I would have been
impressed that I had a
caveatable interest. I
had genuine receipts paid to
Ms Hall, so doesn't
that form a caveatable interest?
CHANEY J: Who said it did not?
You have got a judgment -
well, your complaint
is - - -
LAW, MR: I would say it's poor
representation, sir.
CHANEY J: Yes, well I am just
trying to identify
when - was there a
judgment which said you don't have a
caveatable interest?
LAW, MR: Well, that's why the
caveats were lifted.
CHANEY J: Yes, okay. When was
that judgment? There is
reference - - -
LAW, MR: I thought it was
Simmonds who took the caveats
off, because Sweeney J
said I was owed money and so did
Registrar Hewitt.
CHANEY J: It may be that just
looking at paragraph 23 on
what is page 5 at the
top of the Court of Appeals'
decision, it says:
Audrey Hall's
application for summary judgment was
heard by Mr Sanderson.
The application was granted
and Mr Chin's caveat
was ordered to be removed
immediately. Those
orders are the subject of the
appeal. On 5 November 2008 - - -
LAW, MR: In 2008?
CHANEY J:
- - - published his
reasons. The master also granted
summary judgment
against Spunter and ordered that its
caveats be removed
immediately, and Spunter was
dissatisfied with
these orders.
LAW, MR: I think it's pure poor
representation that I
didn't have a case. I
mean, if you pay - as I said before,
if I give somebody a
money for a purpose - - -
CHANEY J: Yes, so your complaint
is that you did have a
caveatable interest,
but you lost the case anyway.
LAW, MR: Yes, sir.
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CHANEY J: The complaint you
appear to have made before is
that Mr Taylor told
you that you did have a caveatable
interest when you did
not, but you say that you did have a
caveatable interest,
but he did not represent you properly
to establish that?
LAW, MR: Yes, sir.
CHANEY J: All right.
LAW, MR: In those different
proceedings, sir, I had costs
orders against Nancy
Mr Taylor, so that
would also add to my caveatable interest
in those two
properties.
CHANEY J: Why do you say that?
LAW, MR: Why do I say that?
Isn't it a bill that has to
be paid by,
eventually, the estate or by the person when
they're living? Nancy
Hall had investments, so she would
have had the money to
have paid me.
CHANEY J: Perhaps we don't need
to go into it. Can I say
that my understanding
of the legal position is that the
existence of a debt,
and a costs order is a debt, is not a
caveatable interest;
it has to be a charge against a
property, so a mere
debt - - -
LAW, MR: Do they have - - -
CHANEY J: If you owe somebody
some money, that doesn't
mean you can go and
lodge a caveat on their property.
LAW, MR: Although I had
originally that, originally the
caveats were granted
to me.
CHANEY J: Yes.
LAW, MR: The costs order of the
default judgment, because
the debt was growing,
wouldn't that be added to what I say
the first issue?
CHANEY J: Well, that may depend
on the terms of the
mortgage, but anyway,
all right, can I just raise this
issue with you? There
is a fundamental issue we are going
to have to deal with
here, and that is we can, as I have
explained to you a
number of times now, I think - Mr Chin,
I am trying to talk to
Mr Law and I think it is distracting
if you are right next
to his ear. We have to review the
decision of the
complaints committee in relation to the
complaints which you
made to it, and that is all we can do.
We can't deal with any
other complaints you might make now.
Do you understand
that? That is because of our review
jurisdiction.
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LAW, MR: Yes, sir, yes. I have
come across that before,
even - - -
CHANEY J: Yes, that's right, and
it is a common - - -
LAW, MR: - - - even though I
have got the right on my
side, I'm wrong.
CHANEY J: Yes, well we don't
have some role to
investigate
practitioners at large. We can only do what
the act tells us we
can do and we can review decisions on
complaints. What the
LPCC has considered as number 2
complaint is that Mr
Taylor, as I said, incorrectly advised
you that you had a
caveatable interest.
That is a very
different thing from an allegation
that you did have a
caveatable interest, so that that
advice would in fact
not be incorrect, but you weren't
properly represented.
That involves a whole different
inquiry about
everything that happened and the
representation, and I
don't know that it is open to us to
even consider that
now, so I just raise that difficulty for
you and invite you to
say what you want to say about that.
LAW, MR: So what it's saying in
that remark is that
Mr Taylor did advise
me that I did have a caveatable
interest in the two
properties.
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CHANEY J: What complaint 2 is,
is that Mr Taylor said to
you, "You have a
caveatable interest," and that advice was
wrong because you
didn't have a caveatable interest and
then it necessarily
must be a complaint that it was so
wrong or so unarguable
as to amount to unsatisfactory
professional conduct
or professional misconduct to give you
that advice that you
did have a caveatable interest.
You're here now
telling me that you did have a caveatable
interest.
LAW, MR: Yes.
CHANEY J. So if Mr Taylor gave
you that advice, on your
case that wasn't
incorrect; it was correct advice. So
paragraph 2 seems -
complaint 2 falls away.
LAW, MR: If it's said that I
did have a caveatable
interest, how can
people take those caveats off?
CHANEY J. Well, that's what I
understood you to be
saying, that in fact
you didn't have a caveatable interest
because the court
ultimately said you didn't. Although it
seems to be as against
Audrey Hall not Nancy Hall that your
caveats were
dismissed.
LAW, MR: Nancy Hall was trying
to remove the caveats.
She wasn't successful.
CHANEY J. No. Well see, that
tends to suggest that -
your interest is in an
interest in the property in its
ownership at the time.
So when Nancy Hall owned the
property, it may be,
and from what you've just said it
sounds like it was the
case, that you did have a caveatable
interest against the
property but then other things
happened to the
property where Audrey Hall became entitled
to it and as against
her your interest didn't stand. I
might be wrong about
that. So it sounds like you did have
a caveatable interest
at one stage but you lost it.
LAW, MR: Yes, I'd say yes.
CHANEY J. That sounds right. Is
there anything more you
want to say about
complaint 2?
LAW, MR: No, not in those
wordings.
CHANEY J. Okay.
LAW, MR: It's still just struck
out as far as the caveats
are concerned. Nothing
else. The fact that I had these
cost orders to add to
the caveats, I guess, would I have
had to have taken out
new caveats to increase the value or
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increase the proof
that I had caveatable interests in those
two blocks of land
which were never taken out of Nancy
Hall's name. Is that
clear?
CHANEY J. Well, I don't quite
see how it fits into the
complaint we're
dealing with.
LAW, MR: No. I see.
CHANEY J. How does it fit in?
LAW, MR: Yeah.
CHANEY J. Can you explain that?
LAW, MR: Well, I had caveatable
interests in those
properties and I just
feel that Mr Taylor didn't carry out
my defence in the time
that he was employed by me and
therefore going into
my own inadequacy I lost the caveats.
You can do what you
like if you put words from an
experienced person, I
guess, into a case, whereas, I
wouldn't know the
replies or the time factor of defending
myself.
I had the truth. I
have the truth; I have the proof
that I gave money to
Nancy Hall and I can't get it. What's
wrong with the law?
Why can't judges, like you see on the
tele, award costs that
have been paid out to a person and
not able to claim
them. You know, these solicitors seem to
do what they like, say
what they like and disregard the
truth, so that I am
unable to gain my support to somebody.
She took money from
everybody, everywhere. $110,000
from another person,
never paid a cent. So she went
bankrupt and kept the
money, probably under the carpet but
that will be
investigated in the very near future.
CHANEY J. Is this Nancy Hall you
are talking about?
LAW, MR: Yes, sir.
CHANEY J. All right, thanks, Mr
Law. Well can we move
on - - -
LAW, MR: I spent a lot of money
with Mr Taylor and I
virtually obtained
nothing for it.
CHANEY J. All right. Can we move
on to the third
complaint. Sorry, I'll
just make a note.
LAW, MR: Well, that really ties
in with number 1.
CHANEY J. In what way?
LAW, MR: Well, the execution of
judgment, the 144,000
that was obtained by a
previous solicitor and Mr Taylor had
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not acted and obtained
the payment of that default
judgment.
CHANEY J. How does that tie into
1, I don't follow?
LAW, MR: Well, pursuant to the
orders of Jenkins J that I
had the caveatable
interest and that was something that
Mr Taylor did not
commence proceedings to obtain that
judgment.
CHANEY J. Now when - again, this
is the sort of thing
where if you make this
sort of generalised complaint but we
need to consider and
understand the particularity of the
complaint. So you need
- well, normally if you say
somebody failed to do
something, you'd say, "On this day I
provided instructions.
This is what then happened," and,
you know, the amount
of time happened - passed and no
action was taken or
something. So when did all this happen
and - - -
LAW, MR: Sir, I engaged Mr
Taylor to act for me. Now, I
knew very very very
little at that time. I gave Mr Taylor
my problem. Everybody
says, "There's a default judgment.
Why haven't you done
it?" "Oh, the solicitor at the time
didn't do it."
CHANEY J. Okay. So just let's
take it a step at a time.
When was the default
judgment obtained?
LAW, MR: 10/10/02 .
CHANEY J. That was a default
judgment against - - -
LAW, MR: And costs. Yes,
against Nancy Cloonan Hall for
the money I had lent
her up to that point.
CHANEY J. All right and so - - -
LAW, MR: Then there were the
two subsequent court orders
in costs and I was not
represented.
CHANEY J. Okay.
LAW, MR: I was represented by
Mr Taylor but I did not get
those.
CHANEY J. So let's just take it
a step at time because
I'm trying to get this
down here - - -
LAW, MR: Yeah, bag of worms.
CHANEY J. So we've got 10
October 2002 there's a default
judgment against Mr
Hall - against Mrs Hall, Nancy Hall.
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LAW, MR: Yep.
CHANEY J. Then when did you
instruct Mr Taylor? In 2005
did you say?
LAW, MR: Yes. So let's say
June, I don't know that for
sure but it was
somewhere in the middle of the year.
CHANEY J. What had happened in
the meantime?
LAW, MR: Well, I was waiting
for something to happen. I
didn't know what I was
supposed to do. So - - -
CHANEY J. Did you have a
solicitor - that's before you
instructed Mr Taylor?
LAW, MR: No. After the default
judgment I just let it
go, I suppose, not
knowing - - -
CHANEY J. Did you have a
solicitor at the time of
obtaining the default
judgment?
LAW, MR: Yes.
CHANEY J. Who was that?
LAW, MR: Mr Sorensen.
CHANEY J. All right, and then?
LAW, MR: He wasn't acting on
his own. He was in with a
company at that point
but Sorensen.
CHANEY J. Yes.
TAYLOR, MR: I believe it was
Robertson Hales, sir.
LAW, MR: Yes.
CHANEY J. Okay, thank you. So
when did you terminate
their services?
LAW, MR: Oh, probably four or
five months after the 10th
of the 10th, probably
January, February 03.
CHANEY J. Had they done anything
about enforcing the
judgment in that five
months?
LAW, MR: I don't believe so.
CHANEY J. Had you asked them to
do anything?
LAW, MR: No, I don't think I
did because I suppose I'd
finished with their
services and I just thought
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- I probably just
thought that it would come to me, you
know, a court order.
Me, I would have said,"Oh, the court
is going to write a
letter and say here's your money."
CHANEY J. Okay.
LAW, MR: Then I took my time. I
mean, I've been under a
lot of stress since
then and I just didn't know. I had
nobody to advise me
and you pay for advice and you don't
get it. I've been to a
couple of solicitors, got advice
and nothing. Paying
money and I just get no advice.
CHANEY J. Anyway, so you did
nothing because you thought
the judgment would - -
-
LAW, MR: Look after itself.
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CHANEY J. Yes, look after
itself. So then you instructed
Mr Taylor in June,
roughly mid 2005 and instructed him to
do what?
LAW, MR: I'll just say get my
money. I'd lent Nancy Hall
the money. I got a
default judgment. I asked him to stop
the caveats being
lifted and get my money.
CHANEY J. So - - -
LAW, MR: Would I have let the
money just fritter away in
the wilderness? I
think I would be giving instructions to
get my money.
CHANEY J. Well, just going back
a step. You said that
nothing happened. When
were the caveats lodged?
LAW, MR: I'd say September 02.
CHANEY J. So before the
judgment?
LAW, MR: Yes. I would have
taken out caveats when I saw
Mr Sorensen say that
it would protect my interests and he
would have gone ahead
with the action to have Nancy
those sums of money.
CHANEY J. So you said you
instructed Mr Taylor to stop
the caveats being
lifted. There were attempts being made
at that stage to have
them removed, were there?
LAW, MR: Yes, sir.
CHANEY J. By Nancy Hall.
LAW, MR: Yes, sir.
CHANEY J. So had she commenced
proceedings then?
LAW, MR: Yes. She was borrowing
money. She had no
assets because they
were encumbered by a first mortgage and
she approached Darren
Hands of Loans West to obtain money
to renovate the hotel
that I helped her buy and she wanted
the caveats lifted so
that she'd have the right to borrow.
How she had the equity
to borrow the money, that's another
matter that I'm
pursuing - that she had money.
CHANEY J. Yes. So the properties
over which you had
caveats, was it one
property or more?
LAW, MR: Two.
CHANEY J. Two. Were encumbered
by a first mortgage.
LAW, MR: A first mortgage to
her brother.
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CHANEY J. Right, which had
priority over your caveats?
LAW, MR: Yes, sir.
CHANEY J. Were they encumbered
to their full value by the
mortgages?
LAW, MR: Not to the full value
but going back into the
early days of 1994,
her brother had taken the mortgage over
from the previous
mortgagee and that was 375,000 for -
probably the value of
the two properties was 8 or 9 hundred
thousand but because
of the size of the debt we received
information that by
the time my - no, wait a minute. I
started in 05.
The interest from 94
to 2002 rose to be $2.3 million,
by 15 per cent. So
there was nothing left for my equity to
be taken. That was
because no-one pursued the legality of
her borrowing the
375,000 from her brother. That's going
to be investigated in
the near future.
CHANEY J. Right, okay.
LAW, MR: I've just got a little
bit of time to spare to
get that.
CHANEY J. Okay, but on the face
of it that the properties
were encumbered by a
first mortgage. The debt is said to
be in excess of the
value of the properties.
LAW, MR: Two point three.
CHANEY J. But you wanted to
retain your thing, so you
instructed Mr Taylor
to resist attempts to lift the
caveats?
LAW, MR: Yes, sir.
CHANEY J. Is that - okay, so
what happened then?
LAW, MR: I instructed Mr
Taylor's employee to investigate
if the payment of the
350,000, which grew to the 375,000,
was legit. I have
proof now that there was no money paid.
So Mr Taylor did not
pursue my request to find out if that
first mortgage was
legit.
CHANEY J. Well, again that's a
new complaint, isn't it?
So - - -
LAW, MR: Well, yes, it is. It's
probably - I've known it
all along but you
don't pursue every jolly thing that you
do, you know. I paid
money for them to tell me what I
needed to do and I
spent a few appointments in their
offices and I was busy
trying to work to save the money to
pay these fees, hoping
that I would get service.
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CHANEY J. Again, coming back to
the complaint number 3,
it's delay in
enforcing execution of a judgment. So you've
told us that you
instructed Mr Taylor initially to resist
the removal of the
caveats.
LAW, MR: Yes.
CHANEY J. Did you give him any
other instructions?
LAW, MR: Yes. To investigate
the legality of the
mortgage.
CHANEY J. Right.
LAW, MR: To obtain the money. I
mean, that's what you
hire a solicitor for -
to get your money. I had all - they
have a copy of the receipts
of the money that I paid to
Ms Hall. I got - - -
CHANEY J. Well, you had a
judgment though, didn't you, at
that stage?
LAW, MR: Yes, sir.
CHANEY J. So the judgment had
become the debt.
LAW, MR: Yes; yes, and then of
course there would have
been costs but - - -
CHANEY J. Was there any other -
anything to execute the
judgment against other
than the properties over which you
had the caveats? Did
Nancy Hall have anything else?
LAW, MR: Well, I've found out
since she had investments.
CHANEY J. At the time did - - -
LAW, MR: At the time - well,
it's not my job. I'm paying
a solicitor to do the
job.
CHANEY J. Yes.
LAW, MR: And I don't get the
service. I don't know, I've
learnt a lot in the
last 10 years. I think I know as much
as some of these solicitors.
I just can't enforce my
words. I can sit on
the lounge chair and talk to somebody.
You know, it would be
great if we could sit at a round
table and discuss my
bill and accounts and say look,
"Here's the
receipts. You owe me that money can I get it?"
and that's legit,
signed sealed, you know.
CHANEY J. Yes.
LAW, MR: All of my payments
were signed for.
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CHANEY J. All right. Well, what
we need to focus on with
a complaint like that
is you say he didn't do things and -
can you identify to us
what in the circumstances of the
case that now you've
helpfully explained to us - what he
should have done that
he didn't do?
LAW, MR: Investigate the first
mortgage legality. I've
been claiming it as a
document for the last - from say 2007
through Mr Prime who
was a solicitor for Audrey Hall. I
just lost my track.
CHANEY J. You were telling us
what he should have done.
You said he should
have investigated the first mortgage's
legality.
LAW, MR: Yes,stopped the caveats
being lifted and
obtained my rightful
money.
CHANEY J. When you - - -
LAW, MR: That's sort of the
simplicity of it. I wanted
my money.
CHANEY J. Yes.
LAW, MR: I have now proof that
no money changed hands.
CHANEY J. Between the brother
and - - -
LAW, MR: Sorry?
CHANEY J. Between the brother
and her or - - -
LAW, MR: Yes, sir.
CHANEY J. Okay.
LAW, MR: Even probably the
original lender for the
350,000 which was held
for two years and then the brother
paid that mortgage
out. No money changed hands.
CHANEY J. Well, except - - -
LAW, MR: I've got a letter from
- - -
CHANEY J. - - - that he paid her
debt.
LAW, MR: Sorry?
CHANEY J. He paid her debt.
LAW, MR: He allegedly did, yes.
I've got proof that no
money changed hands
and that's to be further investigated
in the near future.
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CHANEY J. All right. Well, I
think - - -
LAW, MR: You wonder why these
things go on so long but
you know I have
operations and I'm paying solicitors and
then I've engaged
another solicitor after Mr Taylor and I
could have done a
better job myself. I won't go into that.
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CHANEY J: All right. Well,
let's move along to number 4
- incorrectly advised
you to pursue a Supreme Court costs
order against another
practitioner in the Magistrates
Court.
LAW, MR: Yes, sir. I have no
idea really what the reason
for me to pursue the
costs order from Registrar Powell in
an action to obtain
$300 except that he probably - that
Mr Chin aggravated Mr
Taylor and so Mr Taylor said, "Oh,
this bloke's barking
up a tree," or something and you can
get that costs order
by taking it to the Magistrates Court
Mr Taylor paid the
court fees and I'm buggered if I know
why because I would
have got those fees free.
CHANEY J: Sorry - he paid - -
-
LAW, MR: He paid the court -
- -
CHANEY J: Yes.
LAW, MR: - - - the fees for
the case to be heard in the
Midland Magistrates Court
CHANEY J: Right.
LAW, MR: So I had - I think,
if I remember rightly he
said, "Oh, look,
I've paid the court fees. You just take
the matter further
from here. It won't be profitable for
me to handle it."
So, you know, I would have been paying
Mr Taylor probably
$500 to get $300.
CHANEY J: Yes. So did he pay
from moneys held in trust -
pay using your money
or his money?
LAW, MR: I don't - I didn't
give him the money
physically.
CHANEY J: No.
LAW, MR: He would have taken
it from some of his funds,
whether it was the
trust account or - - -
CHANEY J: Well, had you given
him money to hold on trust
for his costs and
stuff?
LAW, MR: I paid various lumps
every so often when I had
funds available to
pay.
CHANEY J: All right, and you
can pay - I understand this
one, and the committee
expressed some concern about it.
The complaint is that
you should have - he tried to enforce
the order through the
Supreme Court, it being the Supreme
Court's order rather
than having to go off and look at
separate action in the
Magistrates Court
the nub of the
complaint, isn't it?
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LAW, MR: I didn't know the
mechanics. I sort of did as I
was told. I'd been
paying a man who was supposed to be
qualified in -
qualified, knowing, efficient, et cetera,
honest so, you know, I
just let it go. I'd said, "Oh, yes,
all right, I'll take
Mr Chin. I'll get $300," and I just
found that when I took
the matter to the courtroom there
was no justification
in what - Mr Chin was okay to me. I
spoke with him. I
served the notice to him at his home,
his new address
(indistinct) and he said he would defend
it. I went to the
court. We spoke in the preceding matter
and I found nothing
wrong so I just thought, "Oh, well,
that's cost.
Goodbye." It's one of the things you put
down. I suppose I'd
said, "If I" - "When I win my case,
I'll be paid that
matter back," the $300 that
Registrar Powell had
said was a fine to Mr Chin.
CHANEY J: All right. Yes, I
understand that. Then we
move down to - - -
LAW, MR: If you get a dog you
don't bark. You let the
dog bark.
CHANEY J: Yes. The final
complaint is - demanded payment
of outstanding fees in
an aggressive manner.
LAW, MR: I got the shock of
my life, one of the shocks of
my life. I've had a
few. One was just recent. Shocking,
what some of these
solicitors do. I was attending the
Midland court for
another matter and this man comes up to
me and he says to me,
"Where's my money?" His face was
red. Now, I got the
shock of my life. I didn't know what
to say. "You owe
me money!" Now, I'd done free building
labour on his home which
he has not acknowledged to this
date, and the bills
just kept coming in and I couldn't
understand so I made a
statement and I paid $2000 in good
faith as a final bill
which Mr Taylor didn't recognise as a
final account.
CHANEY J: Was this after the Midland court thing or
before?
LAW, MR: Possibly a bit
before.
CHANEY J: And how much was he
claiming?
LAW, MR: $10,000 I think. I
was to do this free labour
in payment for fees
which - I just run out of money. I
couldn't keep up this
- it sort of was rising up to 50,
60,000. You don't have
that pocket money. I was trying to
build, renovate my
home and there was - sir, I had lost my
daughter in 2008 and
it's devastating. She was a healthy
girl. She dropped dead
like that in the Royal Perth
Hospital and I'm
fighting this business with (indistinct)
legal work. So I was
stressed to the hilt and still
stressed because I
haven't had a chance to grieve in peace,
trying to get my
hard-earned money that I'd helped a bloody
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labour, lady out with
goodness and she does what she has
done, and her daughter
is just as bad. All right. Where
was I?
CHANEY J: Well, can I just - -
-
LAW, MR: Demanded the payment
- - -
CHANEY J: Can I just get a
time - yes, the Midland Court
When was that? Can you
remember? Can you put a date on
it?
LAW, MR: Two thousand -
probably the end of eight,
somewhere in that
period - - -
CHANEY J: End of 2008.
LAW, MR: - - - because my
daughter died in February,
January 08, just
before Nancy
CHANEY J: All right.
LAW, MR: And they knew that
I'd lost my daughter and
there was no, no
gratitude. Never mind.
CHANEY J: So he came up to
you, spoke in the manner which
you've indicated and
said, "Where's my money? You owe me
money." What else
happened? Was that it then or - - -
LAW, MR: Yes. There wasn't a
long confrontation. I
mean, people were
milling around us, going to their court
hearings and we were
probably both going into different
hearings and I think
it was in the same courtroom. I don't
know if my matter was
before or after his now. I can't
wear that sort of
stuff.
CHANEY J: Yes, and how long
was that after he stopped - I
take it he wasn't
acting for you any more at that stage?
LAW, MR: No.
CHANEY J: No.
LAW, MR: He stopped acting in
the middle of 07. This was
some time in 08.
CHANEY J: Right. So in fact
you think - - -
LAW, MR: I'd had no contact
with him towards the end
of 08.
CHANEY J: You think towards
the end of 08?
LAW, MR: I think so.
CHANEY J: Yes. All right.
Thanks, Mr - is there
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anything else you
wanted to say about any of those? I'm
now going to invite Mr
Taylor just to respond.
LAW, MR: Well, I still want to
argue on the point of 1,
because to me nothing
was resolved. I mean, I achieved
nothing from this
solicitor. Yes, he defended two
hearings. That's when
I got the costs orders but for all
that money - $60,000.
Crikey. You tell me that's
efficiency. That's
all.
CHANEY J. Well, thanks Mr Law.
Just bear with me for a
second.
LAW, MR: Sir, one point which
has just been pointed out.
Nancy Hall waited at
the Supreme Court general area,
waiting for somebody
to turn up to file the defence and she
claims in an affidavit
that no-one turned up. Now, I can
type up that receipt
on my computer. There's no proof of
money being in and
staying in.
CHANEY J. Yes. I think that's a
point that has been made
elsewhere, yes.
LAW, MR: Thank you.
CHANEY J. Mr Taylor, we'd like
to invite you to address
us in relation to
various complaints. We don't need to
hear from you in
relation to 1 or 2 but in relation to 3, 4
and 8, we invite you
to perhaps assist us. In relation to
3 just as to the
nature of your instructions and in
relation to the
question of enforcement of the judgment of
2002. So if you can
address us on that question.
TAYLOR, MR: Sir, the judgment -
the District court
judgment was for a sum
of approximately $144,000. I
refreshed my memory
some time this morning. It's how I
remembered it was a
matter conducted by a firm Robertson
Hayles at that time,
H-a-y-l-e-s. That was in
approximately 2002.
When Mr law came to see me, sir, it
was 2005 - I think at
some point in 2005. As I recall,
this matter was
generally handled by an employed solicitor
at the time, Simon
O'Brien.
I do recall at various
times looking at the file and
Mr O'Brien's handling
of the matter where he was involved.
In my view, it was
faultless. He always recorded careful
file notes of every
dealing or most dealings in the matter.
As I recall, there
were actually three properties involved
in these
circumstances. There was a Mount Lawley
a Hazelmere property
and a Colliefields Hotel which is in
Colliefield. In
Collie; sorry not Colliefields, in Collie.
As I recall also, I
had discussions with the
solicitors acting for
a Mrs Audrey Hall, I think it was, at
that time in relation
to the Hazelmere property and the
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Mount Lawley property.
It was made clear to me - sorry I
don't remember the
name of the solicitor that I was dealing
with. It may have been
this Mr Prime who has been
mentioned. I can't
recall for sure.
It was made clear to
me that the liability secured by
those properties was
well more than their value and that
included doing some
commonsense research. In those days I
lived in the area and
one looks around to see what values
the property are, the
area being Mount Lawley
around to see what the
values are and the sort of comments
that were made as
well.
The Colliefields Hotel
I had no knowledge of the
value there. As I
recall a warrant of execution was
executed - was issued
for money and then eventually a land
warrant.
CHANEY J. Do you know where that
occurred?
TAYLOR, MR: I'm struggling
remembering the names because
there's now probably
seizure orders have - - -
CHANEY J. Yes. Anyway - - -
TAYLOR, MR: They were issued and -
- -
CHANEY J. Anyway, a writ of
FiFa.
TAYLOR, MR: That's correct, sir,
yes and they came back
unsatisfied.
CHANEY J. When was that do you
know?
TAYLOR, MR: No, sir, I'd be
guessing.
CHANEY J. Okay but in any event
writs were issued and
were unsatisfied. In
relation to all three properties or
- - -
TAYLOR, MR: That I can't recall. I
guess something in
relation to
Colliefields.
CHANEY J. All right.
TAYLOR, MR: It may have been my
decision at the time or
Mr O'Brien's decision
at the time not to pursue. The Mount
Lawley and the
Hazelmere properties has been a complete
waste of time. There
was certainly - we received
information and I know
this but I can't recall whether I
received it or Mr
O'Brien received it from the bailiff.
I don't know who the
bailiff was at that time, the
Collie bailiff, who
the bailiff was at that time I don't
recall but the
comments were on the lines that the hotel is
in a horrifying
condition as far as renovation is
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concerned. This place
won't even sell for the cost of
repairs. Nevertheless,
the caveat was lodged there at some
point.
CHANEY J. So apparently there
were caveats lodged on the
Hazelmere and Mount Lawley
you're saying there
was another caveat lodged in relation
to the hotel?
TAYLOR, MR: Well 2002, sir, I
wasn't involved.
CHANEY J. No, I know. I
understand that but - - -
TAYLOR, MR: Sorry.
CHANEY J. - - - you just
mentioned that a caveat was
lodged, what caveat
are you talking about?
TAYLOR, MR: I believe there may
well have been a caveat
lodged in relation to
the Colliefields as well. I'm not
100 per cent sure but
certainly the properties are - the
writs of FiFa were
issued and they were renewed. I can't
tell you how often
they were renewed but they were
certainly renewed more
than twice.
CHANEY J: Eventually returned
unsatisfied?
TAYLOR, MR: Yes. The renewal
process, sir, as I recall
back in those days,
the purpose of which was just to keep
priority, that's why.
It had nothing to do with whether
there was any value in
the property or not. If no action
was taken the priority
could be lost.
CHANEY J. All right.
TAYLOR, MR: Sir, I don't believe
there was any - - -
CHANEY J. So there was never a
sale or was there an
auction of the - - -
TAYLOR, MR: Not during the times I
recall that I was on
the record, sir, or
acting for Mr Law.
CHANEY J. Why was that, just
because there was the
bailiff - - -
TAYLOR, MR: I think because no-one
wanted to buy it
(indistinct) wanted to
sell it and there was mortgages on
it. It's not as though
it had no security on it.
CHANEY J. Oh, I see.
TAYLOR, MR: So the order of once
again priority was it
was a mess in terms of
- but the driving force in the
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beginning there was
that there may have been some potential
as far as the
Colliefields is concerned and only the
Colliefields Hotel.
CHANEY J. All right. Well, now
can we just move to 4.
TAYLOR, MR: Yes, sir. I don't
remember all of the
details about this. I
remember a number of salient facts
however I believe.
Certainly a cost order was made against
Mr Chin and I think it
was - it doesn't matter what the sum
was it wasn't paid. It
had been requested to be paid.
CHANEY J. It was $300.
TAYLOR, MR: I was going to say
that, sir, it just sounded
too much for those
days. It was requested I believe in
writing and ignored or
not responded to in any event. I
certainly told Mr Law
there's no way that you want me
involved in trying to
recover $300. Mr Law says, I've
heard him say then
that we paid out of our money. So I
don't recall that.
That may be correct, I don't recall
that fact, paid out of
our money for the application in the
Magistrates Court.
CHANEY J. I think that the
thrust of the complaint and
the committee
expressed some concern about this, was that
that was not the
appropriate place to enforce payment.
TAYLOR, MR: It may not have been,
sir. I wasn't giving
Mr Law direct advice
that you should do it in the
Magistrates Court.
That was the first time I'd ever come
across an unpaid cost
order from another solicitor or for
myself and it may have
been that I said you have to go to
the Magistrates Court
I'm not going to step
back from that possibility, as
a real possibility. I
just don't recall, sir.
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CHANEY J: Well, I mean, I
think it's reasonable to
conclude that if you
assisted somehow in payment of the
fees - whether from
your own money or out of the
Magistrates Court's
view of in effect, at least implicitly,
suggesting that's the
appropriate course of action.
TAYLOR, MR: Sir, I'm not
stepping back from that.
CHANEY J: No.
TAYLOR, MR: It may well have
been what I - and I may have
said it clearly, not
just implicitly, I may have said it
clearly, he had to go
to the Magistrates Court
recall it. What I do
recall is it was the first time I'd
come across an unpaid
cost order, out of the Supreme Court.
CHANEY J: Do you accept now
that it's not the appropriate
methodology?
TAYLOR, MR: Yes, sir, I do
accept now.
CHANEY J: All right.
TAYLOR, MR: Number 8, sir, I
just reject the version of
events, except for a
number of facts. Yes, I did meet
Mr Law at the Magistrates Court Midland
accidental meeting not
an arranged meeting. Yes, I did
demand payment of my
fees. Yes, it may have come across to
him as a - in an
aggressive manner. So be it. And yes, I
probably had a red
face. I always have a red face. I
smoke, it's hot and I
wear a suit, and usually in those
days I was rushing
from one place to another.
CHANEY J: Yes. All right.
Good, well, what I think we
might do now, unless
there's anything that you wish to say
in response to - I
don't want anything new from you now,
Mr Law - but if
there's anything that Mr Taylor has said
that you want to
respond to, this is - I'll give you that
opportunity now.
LAW, MR: It's only a little
point, with the hotel. It
was in a company name.
She deceived me by registering the
hotel in her company
name so I wasn't able to pursue
anything. In effect,
when she died, it became part of the
estate. That's when I
included the hotel in my actions.
That's the simplicity
of it.
CHANEY J: Right. Okay. Good,
thank you.
TAYLOR, MR: Sorry, if I may make
one final comment, sir.
The doom of most of
these matters occurred long after my
involvement so I
simply don't know what happened in
CHANEY J: Yes. Well, I was -
I'm glad you raised that
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actually because it
seems that the action became inactive
some time after
November 2006, just looking at the Court of
Appeal's summary. You
ceased acting in 2007. Do you know
anything about what
happened to the action? Did you have
the conduct of it or
was Mr - - -
TAYLOR, MR: Sir, apart from -
personally, no. Certainly
as far as the witness
is concerned and the preparation of
the statement of
claim, counsel was involved, and I suspect
it was Mr Yin at the
time, Ken Yin, I'm not sure. I wasn't
directly involved in
the matter from time to time, at all,
except for occasions
when Mr O'Brien would come to discuss
matters there with me.
All I'm able to say is that the
writ was filed on time
and I've looked at the - there's
money issues as well,
and I'm quite confused about what has
happened, but I
haven't pursued that issue.
LAW, MR: Sir, does Mr Taylor
have a copy of that document
that was filed in the
court?
CHANEY J: The writ?
LAW, MR: Yes.
CHANEY J: Well, I think we've
all got a copy, haven't we?
It's - - -
TAYLOR, MR: Sir, it's attached
to several affidavits and
several letters, and
the LPCC complaints and - as is the
filing instructions. I
initialled my - Simon O'Brien's,
time, NN, is on there
as well. The receipt is there.
CHANEY J: There's a bundle of
documents attached to your
application or your
submission which you filed on
5 September and
there's a copy in there, Mr Law, so you -
I'm not quite sure
what the point of your question is, but
we've all seen the
document. All right. So we're going to
adjourn briefly now to
consider the submissions that have
been made and we'll -
- -
LAW, MR: Sir, we are very
adamant that this writ was not
attended to.
CHANEY J: Yes, I understand.
LAW, MR: Sir, one other
thing. Mr O'Brien has got some
pencilled notes there,
as some sort of evidence given to
copy of those words?
Now, also, the point I also would
like to bring out with
this filing business, SAT has lost,
done something with,
this piece of paper that is proof that
there's something
fishy about the payment. Now, is it
possible that SAT can give me that
copy?
CHANEY J: This is a matter
that has been investigated at
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some length I think.
The documents, checks have been made,
despite your
expression of concern, that the documents with
which you were
supplied are the only documents that the
tribunal has had and
that inquiry has been made and that
has been the outcome,
so - - -
LAW MR: Sir, there was one
page shown to me on
30 November, one. I
went away thinking, "Incredible that
only one page with
four or five lines on," and that's the
page that is so
adamant that this money was paid and
withdrawn the same day
and that - can we get another copy
of that from the bank?
CHANEY J: I don't know what
document you're referring to.
LAW, MR: Well, it was just -
- -
TAYLOR, MR: Sir, if I may
assist?
CHANEY J: Yes.
TAYLOR, MR: There's the letter I
sent to SAT on 28 -
29 November and three
or four pages attached to it. There
were two Bankwest
pages, one handwritten page and a
calendar from a diary
or some such thing.
CHANEY J: That's right, yes.
We've got that document.
TAYLOR, MR: The first of those
is to a date - from
17 February 2006, the
Bankwest document I mean.
CHANEY J: That's right. I
mean, you got those documents,
and you got a copy of
Mr - - -
LAW, MR: Yes, sir.
CHANEY J: Yes. So we've got
those. Mr Law has
maintained since he
came to inspect documents that he saw
something else that -
- -
TAYLOR, MR: Well, sir, I've only
got the four pages -
one, two, three - sir,
they've only sent four pages.
CHANEY J: Payment accounts.
TAYLOR, MR: Sir, my apologies,
five, a receipt.
CHANEY J: Yes, a receipt.
TAYLOR, MR: The Supreme Court
receipt.
CHANEY J: Is that what you're
talking about, the Supreme
Court receipt?
LAW, MR: No. No. The page
that is missing had five
entries on it showing
that the 654 was paid and withdrawn
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on the same day and
that's the page that's missing. Now,
relating to payment
and receipt, the payment was deposited
from a cheque and went
back into Mr Taylor's credit card,
personal credit card.
You've got that in those statements
- in those papers with
Mr Taylor - went in by a cheque,
came out and deposited
to a credit card, to his personal
credit card, so he has
put it in as a tax deduction and
taken it out and put
it into his - - -
CHANEY J: Mr Law, this is all
- anyway.
TAYLOR, MR: Sir - - -
CHANEY J: We'll deal with the
matter. I'm not going to
go into this at any
further length now. All right? So
we're going to
adjourn. We're going to consider the
submissions that have
been made.
CHIN, MR: May I have the right
of audience, sir, please?
CHANEY J: Sorry?
CHIN, MR: May I have the right
of audience?
CHANEY J: No. Mr Chin, I've
already ruled on that.
CHIN, MR: This is a very
important point that affects me.
It affects me because
- - -
CHANEY J: Well, Mr Chin, I
have - - -
CHIN, MR: - - - it's a
decision that is going to affect
me.
CHANEY J: All right. Well,
this - - -
CHIN, MR: I take exception to
Mr Taylor saying that he
paid the fees and
filed the document on 10 February 2006.
This never, never,
never, never happened.
CHANEY J: Mr Chin - - -
CHIN, MR: The proof is before
the court.
CHANEY J: Mr Chin - - -
CHIN, MR: If the court is not
going to accept it, then
this court is not
doing justice in accordance with the law.
I'm so sorry I have
insulted - - -
CHANEY J: Well, Mr Chin,
you've raised the same point on
which we've made a
ruling already and I don't propose to
revisit that ruling.
Right. We'll adjourn now and we will
- if you can bear with
this, perhaps for quarter of an
hour, 20 minutes,
we'll discuss the submissions that have
been made and then
hopefully we'll be in a position to give
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you a decision today.
So we'll adjourn now till, let's
say, five past 12.
____________________
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LAW, MR: I would like to show
you these two pages, which
is crucial.
CHANEY J: Thank you.
LAW, MR: If you study them
carefully - I will give you
the time to study
them, dates, numbers and payments of
credits, and it is
dealing with this document that is
missing, and I think
we have to wait until we have that
document that is
missing replaced.
CHANEY J: So what do you want to
say about these?
LAW, MR: Well, it's just proof
that it wasn't filed and
served. Served is the
second-most important point. It has
not been paid.
CHANEY J: No, served is not
important at all. All that
had to be done was
that it had to be lodged.
LAW, MR: Well, the directions
were filed and served.
That is by the 10th.
Not served a week, a month later, but
it is the dates that
are important, sir, and the amounts.
CHANEY J: Yes, the - - -
LAW, MR: You see, there is two
amounts. First of all,
the money was paid
short, $654, and then it comes back.
The 20 cents was paid
on another document, and then on
the 2009, the payment
was made and returned, as is
expressed on that
document that is missing.
CHANEY J: No, the payment
details - - -
LAW, MR: The payment was - - -
CHANEY J: The invoice is dated
19 May 2009, but it
actually records a
payment said to have been made on
16 February, which is
consistent with the - - -
LAW, MR: Well, it's not paid on
the 10th.
CHIN, MR: Can I explain the
point, sir?
CHANEY J: No, Mr Chin. Mr Hall?
LAW, MR: Mr Chin will explain
it better than I, sir, and
this is important.
With a missing document to show
something further - -
-
CHANEY J: Look, we have reached
a view in relation to
this which is
consistent with the exchange earlier that I
reached, which I will
explain in a moment, that whatever
bookkeeping oddities
may have occurred, the central factor
is whether or not the
document was filed on 10 February, so
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I propose to deal - I
have noted these documents. We will
deal with the matter
now.
LAW, MR: Sir, I object.
CHANEY J: To what, Mr Hall?
LAW, MR: I want to wait for
that document that is
missing.
CHANEY J: Well, I will deal with
that in the reasons. I
hear your application
and we will deal with it, all right?
LAW, MR: Can we have Ms
Jackie come and answer some
questions?
CHANEY J: No, we can't, Mr Hall
(sic) for reasons which
will become evident in
the reasons I am about to deliver,
all right, so - - -
CHIN, MR: Sir, you cannot reach
a decision based on the
wrong facts.
CHANEY J: Mr Chin - - -
CHIN, MR: This court is about
the truth.
CHANEY J: Mr Chin - - -
CHIN, MR: If you are going to
reach a decision on the
wrong facts, you have
got no right to sit here. You are
not the judge.
CHANEY J: Mr Chin, please - - -
CHIN, MR: You are exceeding your
authority.
CHANEY J: Mr Chin - - -
CHIN, MR: You are in
jurisdictional error. I want this
to be recorded and I
want this to be appealed.
CHANEY J: Well, this is not your
application, Mr Chin.
CHIN, MR: It is not my
application, but it affects me.
CHANEY J: Leave the party's
table and sit at the rear of
the court or I will
have security remove you from the
hearing room. We have
had the opportunity of considering
the submissions that
have been made this morning. We
propose now to deliver
our reasons for decision. They can
be transcribed and
provided as written reasons of the
tribunal, subject to
my right to make any grammatical
corrections that might
be required.
LAW, MR: Would that be a full
transcript, sir?
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CHANEY J: It will be a
transcript of the decision.
LAW, MR: I would like the full
transcript.
CHANEY J: Well, that is
available on payment, Mr Law.
You are entitled to
the transcript of the reasons for
decision.
LAW, MR: I understand that I am
in a position where I am
able to waive the fees
of this transcript.
CHANEY J: That is a matter for
the executive officer.
You can make an
application in relation to that. What I
have said is that you
are entitled to the transcript of the
reasons I am about to
deliver, they being the reasons for
the decision of the
tribunal, without charge. Now, whether
or not you have got an
entitlement to a waiver in relation
to the whole of the
transcript of the hearing is a matter
which is in the hands
of the executive officer under the
State Administrative
Tribunal regulations.
LAW, MR: I get them everywhere
else, sir.
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CHANEY J: I have just explained
the position, Mr Law.
This is an application
pursuant to section 435 of the Legal
Profession Act 2008 in
which Mr Law seeks a review of a
decision of the Legal
Profession Complaints Committee to
dismiss certain
complaints which he made against a legal
practitioner, Mr David
Gerald Taylor. The complaint
committee's decision
was contained in its letter of 4
August 2011. There are
eight matters of complaint made by
Mr Law concerning Mr
Taylor.
In respect of three of
those matters, the committee
found the complaints
to be unreasonable, which required,
therefore, leave for
an application for review of that
decision to be made.
The tribunal dealt with those three
matters and leave was
refused in relation to those three
matters for reasons
which were delivered on 24 February
this year and are
reported at (2012) WASAT 36.
The remaining
complaints therefore fall for
consideration. These
matters involve a review by the
tribunal of the
decision of the complaints committee which
is required to ask
itself the question as to whether or not
there is a reasonable
likelihood that the practitioner
might be found guilty
of unsatisfactory professional
conduct or
professional misconduct.
The tribunal, for the
purposes of the present
proceedings, steps
into the shoes of the complaints
committee and it has
to ask itself that same question. So
it follows that what
is before us now is a consideration of
whether, on the
materials which have been provided,
supplemented by the
submissions that have been made this
morning, there is a
reasonable likelihood that Mr Taylor
might be found guilty
of unsatisfactory professional
conduct or
professional misconduct in respect of any of the
five remaining matters
of complaint. So it is appropriate
that we deal with each
of those matters in turn.
The first matter of
complaint is that Mr Taylor
failed to file a writ
of summons to commence proceedings in
the Supreme Court by
10 February 2006 pursuant to an order
of Jenkins J made on
20 January 2006. There is a
significant overlap
between this matter of complaint and
two of the complaints
which required leave. They were
complaints that Mr Law
had been misled by Mr Taylor as to
the date of filing for
the writ of summons and that
Mr Taylor swore an
affidavit containing the false
affidavit.
Those two matters
were, in substance, complaints that
Mr Taylor's assertion,
both to his client and on affidavit,
that the writ was
filed on 10 February 2011 was inaccurate.
In the reasons for
decision delivered in relation to those
matters I concluded
that there was no reasonable likelihood
of that a finding
would be made against Mr Taylor in those
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respects on the basis
that it appeared on the available
evidence that the writ
had, in fact, been filed on
10 February 2011.
Mr Law today
challenges that conclusion. He does so
on the basis of what
can only generally be fairly described
as some confusion
about the bookkeeping which surrounds the
payment of fees and
indeed, the precise date on which the
court ultimately
received the filing fee in respect of the
writ. For reasons were
which traversed in the course of
exchange with Mr Law
during this submissions, there is a
fundamental question
which is what was the date of filing
of the application, or
more particularly, what was the date
of issue of the writ,
because it was the issue of the writ
which was required to
be undertaken by 10 February in
accordance with the
order of Jenkins J on 20 January 2006.
The tribunal is of the
view, which is consistent with
the view expressed during
the course of exchange, that the
question of issue of
the writ and its filing is a question
of when the court
accepted and applied its stamp to the
writ. There seems no
doubt that that occurred on
10 February 2006,
notwithstanding that that was some
subsequent uncertainly
in relation to whether or not the
fee had been paid.
Whether or not the court staff might be
criticised for
accepting the writ when there was not a full
payment, if that was
the case, or for issuing receipts
subsequent to 10
February in relation to payment, is not to
the point.
The point simply is
whether the writ was, in fact,
filed on 10 February.
The only basis for suggesting that
all of the evidence
which points to the fact that the writ
was received and
stamped and issued on 10 February, is a
suggestion made
throughout the papers that there somehow
was some deception or
conspiracy between a registrar of the
court and Mr Taylor to
falsify the writ so as to give a
mistaken impression
that it was, in fact, issued on
10 February 2006.
As I concluded in
reasons in relation to the leave
question, and having
regard now to the further submissions
that have been made
and the further documents that have
been provided by Mr
Law in respect of the matter, we remain
of the view that there
is no cogent evidence whatsoever to
support that theory of
conspiracy or fraud and there is no
basis on the materials
which we have seen to conclude that
the writ was not, in
fact, received, accepted and issued by
the court on 10
February 2006 and for that reason we do not
consider that there is
any reasonable prospect that in
respect of that
allegation, Mr Taylor could be found guilty
of either
unsatisfactory professional conduct or
professional
misconduct.
The second complaint
is a complaint that Mr Taylor
incorrectly advised Mr
Law that Mr Law's company Spunter
1
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Pty Ltd had a
caveatable interest in two properties the
subject of Supreme and
District Court proceedings. In oral
submissions this
morning Mr Law has indicated that, in
fact, in his view he
did have a caveatable interest in the
two properties, but
rather his complaint is that Mr Taylor
did not provide
adequate representation so as to ensure
that that caveatable
interest was ultimately preserved.
The first thing that
can be said about that is that
the complaint made
this morning is a different complaint
from that, considered
by the complaints committee and
therefore is not a
complaint which this tribunal is in a
position to consider
because no decision in a complaint of
that nature has been
made by the complaints committee at
first instance and the
tribunal in these proceedings is
limited to a review of
decisions made by the complaints
committee.
Having said that it is
not immediately apparent that
there was, in fact, no
caveatable interest in the two
properties. It is
quite apparent that the caveats which
apparently were lodged
some years before Mr Taylor became
involved as Mr Law's
solicitor, and at a time when Mr Law
was represented by
other solicitors, survived despite
apparent attack over a
number of years until they were
ultimately removed in
some time after Mr Taylor had ceased
acting for Mr Law.
The removal appears to
have been occasioned by
proceedings not by the
person owing the debt which provided
a basis of the
interest claimed, but by a different person,
Audrey Hall who had as
a result of extensive proceedings in
the Supreme Court
eventually become entitled to the
properties. So it
seems that, in fact, there may well have
been a caveatable interest
although it ultimately become
worthless. It could
not be said that if Mr Taylor gave
that advice it was
incorrect in any event.
But as I said, we do
not need to get to that point
became this morning it
does not seem that Mr Law has said
anything which could
support the complaint in the terms in
which it was
considered by the complaints committee and
therefore the matters
falls away. The third complaint is a
complaint of delay and
enforcing execution of a judgment in
the District Court
proceedings. This relates to a
judgment, a default
judgment which was obtained in
October 2002 by Mr Law
against Nancy Hall in respect of
money which he had
lent to her.
As I already indicated
at that time, Mr Law was
represented by
different solicitors. It was not until it
was thought sometime
in 2005 that Mr Law instructed
Mr Taylor to act on
his behalf. The papers which have been
filed by Mr Taylor in
relation to these matters indicate
that during the early
part of 2005 there were extensive
proceedings whereby Ms
Hall sought to set aside the default
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judgment in respect of
which Mr Taylor acted, or his firm
acted, and they appear
to have been successful in relation
to a number of
applications made to set aside the judgment
or otherwise attack Mr
Law's entitlements.
Mr Law makes this
complaint in fairly general terms.
He does not identify
with specificity what he says should
have been done by way
of execution of the default judgment
which was not done and
when action should have been taken
which was not taken.
We are told by Mr Taylor and the
documents before us
tend to support that, in fact, steps
were taken by his firm
to execute against the judgment.
There were, we are
told, three properties which were
potentially available
for execution.
Two of those, it seems
common ground between the
parties, were
encumbered by a first mortgage, the claim
under which vastly
exceeded the value of the properties.
So on the face of it,
enforcement action against them would
have been a pointless
waste of money. There was a third
property, the
Colliefields Hotel and we are told, and there
is no reason to not
accept that, writs of fi fa were lodged
and renewed from time
to time in relation to that property,
but were ultimately
unsatisfied.
So it does appear that
although it would have been
helpful to have had
more detail as to precisely when events
occurred, provided by
the second respondent, it does appear
that enforcement
action was taken. There is insufficient
evidence given the
generality of Mr Law's allegation to
identify a cogent
basis upon which a finding of
unsatisfactory
professional conduct or professional
misconduct might be
found against Mr Taylor in respect to
this complaint. We
agree with the complaints committee's
conclusion but there
is no reasonable likelihood of that
event occurring.
The fourth complaint
is a complaint of incorrectly
advising Mr Law to
pursue a recovery of a Supreme Court's
costs order against
another practitioner, Mr Chin, in the
Magistrates Court. The
complaints committee in respect of
this complaint
expressed concern that the course of action
which Mr Law undertook
in relation to recovery of what was
a costs order for $300
was not appropriate and we agree
with that. There were
obviously enforcement action ought
to have been taken
through the court which had made the
order rather than
issuing a summons in the Magistrates
Court.
The committee
considered, however, and we agree, that
although that the
extent that Mr Taylor might have given
advice to take that course,
that advice might, at most, be
negligent, but is no
sufficient to support a finding of
unsatisfactory
professional conduct or professional
misconduct which
involves a level of culpability beyond
mere negligence. So in
the circumstances we would not
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disagree with the
complaints committee's conclusion that
there is no reasonable
likelihood of a finding of
unsatisfactory
professional conduct or professional
misconduct in respect
of this complaint.
The final complaint is
a complaint that Mr Taylor
demanded payment of
outstanding fees in an aggressive
manner. This has been
particularised in oral submissions
made to us this
morning that at the end of 2008 Mr Taylor
approached Mr Law in
the Midland Magistrates Court where
the two happened,
merely coincidentally, be involved in
unrelated proceedings,
and he said in an aggressive manner,
"Where's my
money? You owe me money." Mr Law demonstrated
to the tribunal the
manner in which that was said and
described it, I think,
as an aggressive approach.
Mr Taylor does not
substantially disagree with
Mr Law's account of
events, although that he says that he
did not intend to be
aggressive or threatening but said
that he may have
appeared that way. Mr Law has indicated
that at the time this
occurred, well, not terribly long
before this occurred,
he suffered a personal tragedy which
had caused him very
significant stress and we certainly
understand that that
would have been the case and that
therefore he - that
event coupled with, no doubt, the
stress of this very
lengthy and unsatisfactory course of
litigation.
Well, unsatisfactory
in the sense of not having
provided any fruits to
Mr Law, would have caused him to be
sensitive and
stressed, particularly when reminded of the
course of events by
his chance meeting with Mr Taylor. His
perception therefore
may have been rather more acute than
might normally be the
case. It is apparent that Mr Taylor
was claiming a
substantial sum of money from Mr Law in
respect of work which had
been done some very long time
before in
circumstances where Mr Taylor had ceased acting
for Mr Law, it would
seem at least 12 months or perhaps
more before this
chance meeting.
It is always
unfortunate if a practitioner even
inadvertently comes
across as aggressive in dealings with a
client or a former
client and it is a course to be avoided.
We did not consider,
however, that on the account that is
given by Mr Law of
what was a very short encounter there is
any reasonable
likelihood that Mr Taylor would be found
guilty of
unsatisfactory professional conduct and certainly
not professional
misconduct in relation to that encounter.
So it follows that we
are of the view that none of the
complaints made by Mr
Law against Mr Taylor carry with them
a reasonable
likelihood of a finding against Mr Taylor and
the complaints should
be dismissed.
We are mindful in
reaching that view that Mr Law has,
for a period of the
best part of 10 years, been involved in
what must be extremely
frustrating proceedings which have
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not realised any
financial benefit to him and have no doubt
cost him a significant
amount of money in what is a myriad
of very messy and
unfortunate litigation. Whilst that
frustration might well
be understood, we do not consider
that it justifies or
provides any, in the surrounding
circumstances, provide
any basis of a finding, at least on
the materials before
the tribunal of any adverse conduct by
Mr Taylor. So for
those reasons the application will be
dismissed.
AT 12.31 PM THE MATTER WAS ADJOURNED ACCORDINGLY
1
Transcript Statement
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recording
and transcription production standards that must be adhered to.
The
transcript VR158/11 heard on 19/4/12
1. Is
a written reproduction of the audio record of the proceedings;
2. Is
a complete transcript except where otherwise stated. Any "indistinct"
notations
within the transcript refer to those parts of the recording that could
not
be accurately transcribed due to speech clarity, recording quality or other
factors
impacting word intelligibility.
Certified
on 13/6/12
THE BIAS OF PRESIDENT CHANEY IN VR 158 OF 2011: PLEASE REFER TO THE COMMENTS OF MR.CHIN AT
ReplyDeletehttp://nicholasnchin.blogspot.com.au/2011/11/written-submissions-of-maurice-law-in_05.html