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

Abuse of Process – Henderson v Henderson

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

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

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

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

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

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

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

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

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

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

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

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

THE REGISTRAR: You've heard my comments in regard to this bill. Do you want to add anything in regard to the assessment of the costs? I'll give you leave to comment on the bill on behalf of Spunter.
CHIN, MR: Sir, can I make one point?
THE REGISTRAR: No, I've dealt with all your objections, so it's just - otherwise we're going to go over and over the same matter. I've dealt with yours; I'm now dealing with Mr Law.
CHIN, MR: Yes, but
THE REGISTRAR: You heard Mr Chin's comments, which were based mainly on there was no jurisdiction to make a costs order. The costs order is made, so I'm taxing pursuant to that. So really, the comments should be restricted to do you have any objections to any of these matters being included in this bill which you say are improperly included because they're not part of the costs envisaged by that costs order? That's the first question. And then the next one is a question of quantum. Do you have any objection to - are there any items in this bill which shouldn't be here because they're not covered by the costs order?
LAW, MR: Well, I'd like to discuss them. Is that what you're asking?
THE REGISTRAR: No, the first thing is (a) is it saying is any items in this bill which you say should be deleted in their entirety because they don't form part of this bill pursuant to the costs order that I've been referring to?
LAW, MR: Yes. I don't understand why some of these
THE REGISTRAR: No, understanding is different. A bill has been presented which is said to be pursuant to the costs order:
That the first and second defendant's pay the plaintiff's costs of the action including any reserve costs.
Are there any items here which you say aren't costs of the action or the application?
LAW, MR: I just want to understand why
THE REGISTRAR: No, we're past that stage. What you want is for me to give you an education in law, I suspect, but the question is (a) do you object to any of these items, that they don't form part of this action but belong to another action, for example? That's the point I'm getting at.
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LAW, MR: I object to a couple of points.
THE REGISTRAR: Which ones?
LAW, MR: The letter Art Jackson emailed to Ruth, "Settle letter by three." That's associated
THE REGISTRAR: Okay, so that comes under - no, that's the quantum. What I'm asking for first - that letter would be claimed under either item 3 or 4 at this stage. But do you object to the concept of item 3 or 4 being included in this bill?
LAW, MR: Yes, sir.
THE REGISTRAR: On what grounds?
LAW, MR: I see no relevancy of that to the matter that
THE REGISTRAR: That's to do with quantum. If you say it's relevant, I'm going to say they are relevant because the application is precisely covered by the costs order and the getting up is getting up which commences even prior to the commencement of the action. So on the question of relevancy, I dismiss those objections. Now, the next question is do you have any objections as to quantum being claimed? If so, which particular item?
LAW, MR: A telephone call to Dick Askin.
THE REGISTRAR: Which particular item?
LAW, MR: 22nd
THE REGISTRAR: Which particular item in the bill, first? If you go to page 2, they're the items in the bill.
LAW, MR: No, sir.
THE REGISTRAR: So therefore what I'm taxing off there's a total of $76 from item 4 of the bill and $410 from item 5, being a total of $486. So the net amount of the bill is 6870. Does anyone have any different figure?
PRIME, MR: No.
THE REGISTRAR: Now, the taxing fee on that is $171.75. I'm allowing the costs of $741.75. The date today is 3 November. I've now taxed the bill, Mr Chin and Mr Law. Do you have any objection to me signing the allocatur?
CHIN, MR: I would like to tell about the
THE REGISTRAR: No, do you have any objection to me signing the allocatur? If I sign the allocatur now, that
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has the effect of it being
CHIN, MR: Do you
THE REGISTRAR: Please, please. I'm explaining to you. That has the - if I sign it now, that is equivalent of a judgment. If you've got objections as to principle or any other matter, I'll delay signing the allocatur for seven days.
CHIN, MR: I am
THE REGISTRAR: Do you want me to delay signing the allocatur for seven days?
CHIN, MR: Yes, please.
THE REGISTRAR: Mr Law?
LAW, MR: Yes, sir.
CHIN, MR: The reason for my objection is that it should not have been allowed because there is no recoverability. We touched on recoverability. The recoverability is not there.
THE REGISTRAR: Okay, that's fine. We can do all of that. What I'm saying is I'll sign the allocatur on 10 November, which will be next Wednesday, unless before that date a request for review
CHIN, MR: How do I write the
THE REGISTRAR: - - - and objections are filed before that date.
CHIN, MR: I request for review to the Supreme Court judge against the decision.
THE REGISTRAR: That's me. The first step is for me to review it.
CHIN, MR: Okay.
THE REGISTRAR: If you haven't got any problem with my review but you've got some objection to the taxation, you should seek legal advice or make use of your own knowledge in that field as to what you want to do there. But my review will be a review based on the taxation on which
CHIN, MR: Sir, if I
THE REGISTRAR: If you allow me to - it will restrict those matters in contention. My review - it's necessary - will not include whether judgment pursuant to which this
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bill is taxed is valid or not or whether it should be reversed on some sort of appeal. My review will be on the amounts allowed under the items of the bill. Now, I'm not signing this allocatur until that date, so whatever you want to do in whatever sphere before whoever will have to be done before that day.
CHIN, MR: Sir
THE REGISTRAR: But if it doesn't relate to review of the taxation, being an error in principle on which the bill was taxed and the amounts allowed, I'll be signing the allocatur, because I don't believe that would effect any other step that you'd take.
CHIN, MR: So I can request for a review on the point that those items should not be allowed - only disallowance of those items because there was no - taxation recoverability is not there. Is that the point that I can request for review from you, sir?
THE REGISTRAR: No, you can request a review if you believe I've made an error in principle in taxing the bill.
CHIN, MR: The error in principle is that you should not have allowed all those items. That is the error in principle that I'm requesting for you to review.
THE REGISTRAR: Put it in writing. It's no good me listening to you now. It's what it's got to be. Read what it
CHIN, MR: Sir, if I put it in writing to you, I
THE REGISTRAR: No, you address it to the court.
CHIN, MR: I address to
THE REGISTRAR: The court.
CHIN, MR: The court?
THE REGISTRAR: Yes. This particular file
CHIN, MR: This particular file
THE REGISTRAR: - - - setting out your objections.
CHIN, MR: In form of a letter format?
THE REGISTRAR: The easiest way is if you object to individual items in the bill. Now, if you've got some objection in some other form which has got nothing to do with taxing the bill, that is the decision under which I'm taxing, I'm taking no notice of that because I can't affect that. I'm taxing pursuant to the order. So you
3/11/10 CHIN, MR 32
can't say - you can do whatever you like, but to say that it's an error in principle when the order says I can tax and allow the bill is not achieving anything in my view.
CHIN, MR: I think there is a case
THE REGISTRAR: That's up to you. So far as this bill is concerned now, we've taxed the bill. It's taken from 10 o'clock to 11.30.
CHIN, MR: Sir, let me raise on point. I think there is a case where a taxing master is able to override the decision of the court that make the court order.
THE REGISTRAR: That would be interesting. That's a decision of whom?
CHIN, MR: Because
THE REGISTRAR: Who made that decision?
CHIN, MR: That's what happened in the District Court where Judge Sullivan make an order
THE REGISTRAR: Who?
CHIN, MR: Judge Sullivan make an order.
THE REGISTRAR: Could you spell that name.
CHIN, MR: Judge Sullivan.
THE REGISTRAR: How do you spell that?
CHIN, MR: S-u-l-l-i-v-a-n.
THE REGISTRAR: Sullivan.
CHIN, MR: Sullivan. He made an order and the affecting
THE REGISTRAR: I didn't know there was a Judge Sullivan in the District Court.
CHIN, MR: There was.
THE REGISTRAR: Was there?
CHIN, MR: There was. The court case
THE REGISTRAR: Well, if it
CHIN, MR: The court case
THE REGISTRAR: Well, that's up to you. I've never heard of him, but I may be wrong.
3/11/10 CHIN, MR 33
CHIN, MR: Yes, the court case number is 36.
THE REGISTRAR: Just like the contents of this letter that you quote of mine may be wrong.
CHIN, MR: Yes, the court
THE REGISTRAR: But that doesn't mean to say I'm being biased against you or being untruthful. I've never heard of him or that decision.
CHIN, MR: Yes, but it is
THE REGISTRAR: So until it's produced to me, I can do nothing.
CHIN, MR: It is not reported, sir, but what happened is
THE REGISTRAR: Well, it must - how are you going to
CHIN, MR: I know of it because I saw someone document. And the
THE REGISTRAR: You saw someone what?
CHIN, MR: Document. Because that
THE REGISTRAR: What document?
CHIN, MR: The court order. The court orders say zero court order. The judgment and order and the taxing master gave a zero court order. It's on the principle of a lawyer litigant in prison cannot claim for profit cost. That's why
THE REGISTRAR: That's a different question.
CHIN, MR: But is the same thing that happens here.
THE REGISTRAR: No. I know that decision because I think I was the - that's a judgment from this court. That's Dodbury v Helpman
CHIN, MR: Dodbury v Helpman, yes.
THE REGISTRAR: which up to the full court.
CHIN, MR: Yes, is Dodbury and Helpman.
THE REGISTRAR: But that would mean that the plaintiffs here were representing themselves. They're not. Mr Prime is representing them. Anyway, that finishes this bill, so we'll now move onto the second bill.
AT 11.35 AM THE MATTER WAS ADJOURNED ACCORDINGLY
3/11/10 CHIN, MR 34

OBJECTION TO REGISTRAR POWELL AS TAXING MASTER OF BILL OF COSTS IN CIV 1775 OF 2008 RESULTING FROM MASTER SANDERSON'S ERROR IN NOT ACKNOWLEDGING THE PROVEN FACTS THAT DAVID TAYLOR FALSIFIED COURT RECORDS IN CIV 1131 OF 2006 THAT RECEIVED THE SUBSEQUENT TACIT APPROVAL OF REGISTRAR POWELL

IN THE SUPREME COURT OF WESTERN AUSTRALIA
CIV 1775 OF 2008
BETWEEN

AUDREY FRANCIS HALL, as executrix of the estate of the
Late KENNETH DUNCAN HALL PLAINTIFF
And
SPUNTER PTY LTD FIRST DEFENDANT
And
NICHOLAS NI KOK CHIN SECOND DEFENDANT
And
THE REGISTRAR OF TITLES THIRD DEFENDANT



SECOND DEFENDANT’S NOTICE OF OBJECTION: PLAINTIFF’S BILL OF COSTS FILED AND DATED 5TH JULY, 2010.


Date of Document: 4th November, 2010.
Filed on behalf of: The Second Defendant
Date of Filing: 4th November, 2010.

Prepared by:
NICHOLAS NI KOK CHIN – LAWYER
387, Alexander Drive,
DIANELLLA WA 6059
Phone: 08 92757440
Mobile: 0431398973, 0421642735
Emails: nnchin@msn.com; nnchin1@gmail.com


TAKE NOTICE that I, the Second Defendant am objecting to the taxation of the bill of costs by the Taxing Master Registrar David Powell on the ground that His Honour has made an error in principle pursuant to r.53(1) of O. 66 of the RSC (The Error).

The Error consists in the Taxing Officer allowing all items in toto in that bill for taxation under circumstances which he knows or ought to have known that those items being objected to in toto should not have been allowed . This is because the Plaintiff had not been rendered with the necessary services by her Solicitors McCallum Donavan Sweeney , which is the subject matter of the bill of costs being taxed, on the following grounds:

a) The Caveats of the First Defendant had already been removed, through the solicitor’s work of the Second Defendant in CIV 1142 of 2005 on the 11.2.2006 by way of the operation of law when CIV 1131 of 2006 was not filed on 10.2.2006 by David Taylor Solicitor on behalf of the First Defendant.
b) The subject judgment of Master Sanderson for the Plaintiff cited as AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255 {(See Supreme Court Website at http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf): (sic: “Heard: 29 OCTOBER 2008 Delivered: 10/28/2008”): (prejudgment?)} only removed a vacuum as there were no longer any of the First Defendant’s Caveats still in existence by then.
c) The functions of Registrar Powell as the Taxing Master are to carry out his judicial functions honestly in assessing that bill by ascertaining whether “the services have been performed” as a first step in the taxation process, which is the touchstone for recoverability for those itemized costs. They are being limited only to whether such services of the removal of the First Defendant’s Caveats were provided by the Plaintiff’s solicitors or by the Second Defendant two years earlier and it is his duty to determine these facts as they are presented before it.
d) There is thus no liability for Master Sanderson’s costs order on the part of the Second Defendant; there is nothing to be assessed on a standard basis for the party and party costs, which is said to have “followed the event” in the subject judgment.
e) The Taxing Master has an honest duty to disallow all those items or he could ascribed a ZERO cost to those items as happened by the taxing master who taxed a District Judge Costs Order in District Court Appeal No.39 of 2008 in the case of Alessandro Bertini which is not reported.
f) The honesty of the Taxing Master vis a vis the Affidavit material of David Taylor Solicitor sworn 29.3.2007 has been relied upon by the Court of Appeal in paragraphs 54 and 54 of the joint judgment in CACV 107 of 2008 (the technical slip); this reliance caused it to make that technical slip which is now being sought by the Second Defendant in CIV1877 of 2010 to be rectified before a Court of Appeal judge pursuant to s.33 of the Supreme Court Act, 1935 WA.
g) Registrar Powell is in jurisdictional excesses when he failed to respond to the call by the Second Respondent to abstain himself from taxing the bill on the ground of his apprehended bias against the Second Defendant and that he is therefore a judge of his own cause because he did try to cover up David Taylor’s falsification of the court records in CIV 1131 of 2006 and is continuing to deny this. This has been recorded in the transcript of the proceedings before him on 3.11.2010. The Taxation Orders issued by the Taxing Master are therefore of null effects and are not enforceable in any courts of law.



Signed by the Second Defenant
NICHOLAS NI KOK CHIN – LAWYER

To:
The Solicitors for the Plaintiff: Messrs. McCALLUM DONOVAN SWEENEY
Barristers & Solicitors
2nd Floor, Irwin Chambers
16, Irwin Street, PERTH WA 6000
Footnotes:
53. Party dissatisfied with taxation may object
(1) A party who contends that the Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the Taxing Officer —
(a) deliver to the other party interested in the allowance or disallowance and carry in before the Taxing Officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b) thereupon apply to the Taxing Officer to review the taxation in respect of those items or parts.
(2) Pending the consideration and determination of the objection, the Taxing Officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs. Any further certificate which may be necessary shall be issued by the Taxing Officer after his decision upon the objections.
See page 136 of the Yellow Appeal Book which shows that the Taxing Master spoke the truth when he admitted that the filing fees of $654.20 was paid by David Taylor Solicitor by way of credit card on 16.2.2006 in CIV 1131 of 2006. Compare this statement with page 47 which is a receipt of the Supreme Court of WA tendered by David Taylor Solicitor in his Affidavit sworn 29.3.2007 showing that the total filing fees of $654.20 and (NOT $654.00 AND SHORT OF F20 CENTS, AS ALLEGED BY THE TAXING MASTER) was paid on 10.2.2006. Therefore sub-paragraph 2.2 of page 136 contains a falsehood that misled the Court of Appeal in CACV 107 of 2008 resulting in the technical slip of the Court of Appeal in its judgment at paragraphs 54 and 55 because it relief on the honesty of the Taxing Master (the falsehood). The falsehood caused the Appeal of the Second Defendant in CACV107 of 2008 to be dismissed by the Court of Appeal. The falsehood is a convenient device sought by the Taxing Master to cover up the falsification of the court records by David Taylor using the principle of the common law as explained in the judgment, to escape the consequence of David Taylor of not having complied with Justice Jenkins Order in CIV 1142 of 2006 given on 19.1.2006. But for the falsehood caused by the Taxing Master, there would have been no bills of costs in both the CIV 1775 of 2008 and the CACV107 of 2008 today. Therefore, the Taxing Master, by refusing to recuse himself from taxing the two bills of costs is a judge of his own cause. His two taxed bills of costs for the two cases are VOID JUDGMENTS and are not enforceable by any court of law. These proceedings of these VOID JUDGMENTS are recorded in the transcript dated 3.11.2010.

Berman & Fialkov v Lumb (5395/00) [2002] ZAWCHC 48; [2002] 4 All SA 432 (C) (9 September 2002) per VAN REENEN, J at para. 20 quoting Ramsbottom J in Martens v Rand Share and Broking Finance Corporation (Pty) Ltd 1939 WLD 159 at 163 said with regard to the administrative and judicial functions of the Taxing Master in the English legal system in terms of the following:
“… to decide whether the services have been performed, whether the charges are reasonable or according to tariff and whether disbursements properly allowable as between party and party have been made; his function is to determine the amount of the liability, assuming that liability exists, and the fact that he requires to be satisfied that liability exists before he will tax does not show that there is any liability. The question of liability is one for the court, not for the taxing master.”

See the explanation for the removal of the First Defendant’s Caveats by the Second Defendant as contained in his Affidavit sworn 5.6.2009 in paragraphs 54 to 62 at pages 23-25 of the Yellow Appeal Book filed and dated 22.6.2009 in CACV 107 of 2008.
David Taylor Solicitor falsified the court records in CIV1131 of 2006 as indicated at page 46 to 48 of the Yellow Appeal Book.
Morison, W L --- "Fuller, The Morality of Law" [1965] SydLawRw 14; (1965) 5(1) Sydney Law Review 181.
At Page: 183: “The ethos of the judge's office demands that he should remain neutral regarding the substantive aims of a statute he is called on to apply, but with regard to the law's "internal morality"-the morality that makes law possible-he must not remain neutral.”
Ramsbottom J in Martens v Rand Share and Broking Finance Corporation (Pty) Ltd 1939 WLD 159 at 163: “ to decide whether the services have been performed …”
KOEHLER -v- CEREBOS (AUSTRALIA) LIMITED [2004] WADC 64 (13 April 2004) per Registrar Harman in these words:
“The plaintiff is entitled to her costs of the action. In accordance with the expression given to that term in Smith v Buller (1875) LR 19 Eq 473, that entitlement is to the reasonable cost of the services necessarily provided to her for the purposes of the action.”
Power v Northam Air Services Pty Ltd [2003] WADC per Registrar Harman in relation to r.53 of the RSC, 1971: “The rule only provides jurisdiction to review errors made in the allowance or disallowance of items or their constituent parts. Determining quantum is the step taken after any such allowance or disallowance has been effected. That determination does not resonate in either allowance or disallowance; it is simply the valuation of the services for which allowance had already been made…. I am reinforced in that opinion by the failure of the defendant to articulate any service that was disallowed.”

OBJECTION TO REGISTRAR POWELL AS TAXING MASTER OF BILL OF COSTS OF THE COURT OF APPEAL IN CACV 107 OF 2008 RESULTING FROM A TECHNICAL THAT IS CAUSED BY REGISTRAR POWELL

IN THE SUPREME COURT OF WESTERN AUSTRALIA
CACV107 OF 2008
BETWEEN
NI KOK (NICHOLAS) CHIN APPELLANT
And
AUDREY FRANCES HALL as the executrix of the Estate of the late
KENNETH DUNCAN HALL
SPUNTER PTY LTD FIRST RESPONDENT
And
SPUNTER PTY LTD (CAN: 002179375) SECOND RESPONDENT
And
THE REGISTRAR OF TITLES THIRD DEFENDANT

APPELLANT’S NOTICE OF OBJECTION: UNDATED PLAINTIFF’S BILL OF COSTS HAND-DELIVERED TO APPELLANT ONLY ON 3.11.2010 IN THE PRESENCE OF THE TAXING MASTER THAT WAS TAXED FOR $13,983.26.
Date of Document: 4th November, 2010.
Filed on behalf of: The Appellant.
Date of Filing: 4th November, 2010.
Prepared by:
NICHOLAS NI KOK CHIN – LAWYER
387, Alexander Drive,
DIANELLLA WA 6059
Phone: 08 92757440
Mobile: 0431398973, 0421642735
Emails: nnchin@msn.com; nnchin1@gmail.com

TAKE NOTICE that I, the Appellant am objecting to the taxation of the bill of costs by the Taxing Master Registrar David Powell on the ground that His Honour has made an error in principle pursuant to r.53(1) of O. 66 of the RSC (The Error).

The Error consists in the Taxing Officer allowing all items in toto in that bill for taxation under circumstances which he knows or ought to have known that those items being objected to in toto should not have been allowed . This is because the Plaintiff had not been rendered with the necessary services by her Solicitors McCallum Donavan Sweeney , which is the subject matter of the bill of costs being taxed, on the following grounds:

a) The Caveats of the First Defendant had already been removed, through the solicitor’s work of the Second Defendant in CIV 1142 of 2005 on the 11.2.2006 by way of the operation of law when CIV 1131 of 2006 was not filed on 10.2.2006 by David Taylor Solicitor on behalf of the First Defendant.
b) The first subject judgment of Master Sanderson for the Plaintiff cited as AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255 {(See Supreme Court Website at http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf): (sic: “Heard: 29 OCTOBER 2008 Delivered: 10/28/2008”): (prejudgment?)} only removed a vacuum as there were no longer any of the First Defendant’s Caveats still in existence by then.
c) The second subject judgment of the Court of Appeal for the Plaintiff cited as CHIN -v- HALL [2009] WASCA 216 heard 12.8.2008 and delivered 12.9.2009 is for the Plaintiff resulting in the costs of the both the first and second subject judgments to “follow the event”. The Court of Appeal handed down a perfect judgment, except for its technical slip which the Applicant is applying to have it rectified .
d) The functions of Registrar Powell as the Taxing Master are to carry out his judicial functions honestly in assessing that bill by ascertaining whether “the services have been performed” as a first step in the taxation process, which is the touchstone for recoverability for those itemized costs. They are being limited only to whether such services of the removal of the First Defendant’s Caveats were provided by the Plaintiff’s solicitors or by the Second Defendant two years earlier and it is his duty to determine these facts as they are presented before it.
e) There is thus no liability for Master Sanderson’s costs order on the part of the Second Defendant; there is nothing to be assessed on a standard basis for the party and party costs, which is said to have “followed the event” in the first subject judgment and therefore the same logic follows for the second subject judgment.
f) The principle of taxation of costs is that that Taxing Master must first consider whether a particular item is allowable to be taxed and the test of the recoverability of that item is based on the touchstone that the legal services had indeed been provided to the Plaintiff and that it was necessary in the circumstances. If that first hurdle results in those items being dismissed in toto, there is no necessity to proceed with the taxation by going through the process of determining the quantum of those items that have not been allowed or should not have been allowed .
g) The Taxing Master has an honest duty to disallow all those items and he cannot say he cannot override the decision of Master Sanderson who delivered his costs order against the Appellant and the Second Respondent, nor is it available for him to say that he cannot override the costs orders of the court of appeal in the second subject judgment, when it is clear to him that these two costs orders are plainly wrong. His functions are there to do justice to the parties and he cannot run away from this duty. He could escape from this technicality by ascribing a $ZERO assessed cost to those items. This state of affairs had happened in the past to another case which I understand is the correct procedure i.e. in the case of a District Judge in District Court Appeal No.39 of 2008 in the case of Alessandro Bertini which is not reported. I have seen this order myself and I will be able to produce it if necessary.
h) The honesty of the Taxing Master vis a vis the Affidavit material of David Taylor Solicitor sworn 29.3.2007 has been relied upon by the Court of Appeal in paragraphs 54 and 54 of the joint judgment in CACV 107 of 2008 (the technical slip); this reliance caused it to make that technical slip which is now being sought by the Second Defendant in CIV1877 of 2010 to be rectified before a Court of Appeal judge pursuant to s.33 of the Supreme Court Act, 1935 WA.
i) Registrar Powell is in jurisdictional excesses when he failed to respond to the call by the Second Respondent to abstain himself from taxing the bill on the ground of his apprehended bias against the Second Defendant and that he is therefore a judge of his own cause because he did try to cover up David Taylor’s falsification of the court records in CIV 1131 of 2006 and is continuing to deny this. This has been recorded in the transcript of the proceedings before him on 3.11.2010. The Taxation Orders issued by the Taxing Master are therefore of null effects and are not enforceable in any courts of law.



Signed by the Appellant
NICHOLAS NI KOK CHIN – LAWYER

To:
The Solicitors for the Plaintiff: Messrs. McCALLUM DONOVAN SWEENEY
Barristers & Solicitors
2nd Floor, Irwin Chambers
16, Irwin Street, PERTH WA 6000
53. Party dissatisfied with taxation may object
(1) A party who contends that the Taxing Officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the Taxing Officer —
(a) deliver to the other party interested in the allowance or disallowance and carry in before the Taxing Officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in a short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b) thereupon apply to the Taxing Officer to review the taxation in respect of those items or parts.
(2) Pending the consideration and determination of the objection, the Taxing Officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or of part of the bill of costs. Any further certificate which may be necessary shall be issued by the Taxing Officer after his decision upon the objections.
See O.66 r.1(2) of the RSC which provides:
“If the Court is of opinion that the conduct of a party either before or after the commencement of the litigation or that a claim by a party for an unreasonably excessive amount has resulted in costs being unnecessarily or unreasonably incurred it may deprive that party of costs wholly or in part, and may further order him to pay the costs of an unsuccessful party either wholly or in part.”
See page 136 of the Yellow Appeal Book which shows that the Taxing Master spoke the truth when he admitted that the filing fees of $654.20 was paid by David Taylor Solicitor by way of credit card on 16.2.2006 in CIV 1131 of 2006. Compare this statement with page 47 which is a receipt of the Supreme Court of WA tendered by David Taylor Solicitor in his Affidavit sworn 29.3.2007 showing that the total filing fees of $654.20 and (NOT $654.00 AND SHORT OF F20 CENTS, AS ALLEGED BY THE TAXING MASTER) was paid on 10.2.2006. Therefore sub-paragraph 2.2 of page 136 contains a falsehood that misled the Court of Appeal in CACV 107 of 2008 resulting in the technical slip of the Court of Appeal in its judgment at paragraphs 54 and 55 because it relief on the honesty of the Taxing Master (the falsehood). The falsehood caused the Appeal of the Appellant in CACV107 of 2008 to be dismissed by the Court of Appeal. The falsehood is a convenient device sought by the Taxing Master to cover up the falsification of the court records by David Taylor using the principle of the common law as explained in the judgment, to escape the consequence of David Taylor of not having complied with Justice Jenkins Order in CIV 1142 of 2006 given on 19.1.2006. But for the falsehood caused by the Taxing Master, there would have been no bills of costs in both the CIV 1775 of 2008 and the CACV107 of 2008 today. Therefore, the Taxing Master, by refusing to recuse himself from taxing the two bills of costs is a judge of his own cause. His two taxed bills of costs for the two cases are VOID JUDGMENTS and are not enforceable by any court of law. These proceedings of these VOID JUDGMENTS are recorded in the transcript dated 3.11.2010 and have to be repaired by way of Certiorari in CIV 1877 of 2010.
Berman & Fialkov v Lumb (5395/00) [2002] ZAWCHC 48; [2002] 4 All SA 432 (C) (9 September 2002) per VAN REENEN, J at para. 20 quoting Ramsbottom J in Martens v Rand Share and Broking Finance Corporation (Pty) Ltd 1939 WLD 159 at 163 said with regard to the administrative and judicial functions of the Taxing Master in the English legal system in terms of the following:
“… to decide whether the services have been performed, whether the charges are reasonable or according to tariff and whether disbursements properly allowable as between party and party have been made; his function is to determine the amount of the liability, assuming that liability exists, and the fact that he requires to be satisfied that liability exists before he will tax does not show that there is any liability. The question of liability is one for the court, not for the taxing master.”

See the explanation for the removal of the First Defendant’s Caveats by the Appellant as contained in his Affidavit sworn 5.6.2009 in paragraphs 54 to 62 at pages 23-25 of the Yellow Appeal Book filed and dated 22.6.2009 in CACV 107 of 2008.
David Taylor Solicitor falsified the court records in CIV1131 of 2006 as indicated at page 46 to 48 of the Yellow Appeal Book.
The Appellant lodged a Motion for Certiorari Orders dated 9th June, 2010 in 43 pages in CIV 1877 of 2010 which was heard by Justice Heenan on 4.8.2010 and published on 11.8.2010 cited as RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212. Justice Heenan did not have the jurisdiction to make prerogative orders with regard to justices of the same rank as himself. Therefore, the the Appellant was directed by the Registrar of the Court of Appeal on 26.7.2010 to lodge a Further Motion for CIV 1877 of 2010 to be heard by a Cour of Appeal Judge pursuant to s.33 of the Supreme Court Act, 1935, it being not an appeal process to correct that technical slip.
Morison, W L --- "Fuller, The Morality of Law" [1965] SydLawRw 14; (1965) 5(1) Sydney Law Review 181.
At Page: 183: “The ethos of the judge's office demands that he should remain neutral regarding the substantive aims of a statute he is called on to apply, but with regard to the law's "internal morality"-the morality that makes law possible-he must not remain neutral.”
Ramsbottom J in Martens v Rand Share and Broking Finance Corporation (Pty) Ltd 1939 WLD 159 at 163: “ to decide whether the services have been performed …”
KOEHLER -v- CEREBOS (AUSTRALIA) LIMITED [2004] WADC 64 (13 April 2004) per Registrar Harman in these words:
“The plaintiff is entitled to her costs of the action. In accordance with the expression given to that term in Smith v Buller (1875) LR 19 Eq 473, that entitlement is to the reasonable cost of the services necessarily provided to her for the purposes of the action.”
Registrar Harman in relation to r.53 of the RSC, 1971 in the case of Power v Northam Air Services Pty Ltd [2003] WADC said the following:
“The rule only provides jurisdiction to review errors made in the allowance or disallowance of items or their constituent parts. Determining quantum is the step taken after any such allowance or disallowance has been effected. That determination does not resonate in either allowance or disallowance; it is simply the valuation of the services for which allowance had already been made…. I am reinforced in that opinion by the failure of the defendant to articulate any service that was disallowed.”
Why did the Taxing Master refuse to provide the Appellant with the bank statement showing that the filing fees were paid into court on 16.2.2006 instead of 10.2.2006? See page 131 of the Yellow Appeal Book. But for the failure of the Taxing Master to provide this information, the Appellant would have not to appeal the decision of Master Sanderson in CIV 1775 of 2008 to the Court of Appeal in CACV107 of 20

LETTER TO SAT AND LPCC REGARDING THE FUTURE DIRECTIONS HEARING OF VR87 OF 2010 CURRENTLY BEFORE JUDGE SHARP, THE DEPUTY PRESIDENT OF THE STATE ADMINSITRATIVE TRIBUNAL OF WA

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


My ref: VR87OF2009

The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
GPO Box U1991 Perth 6845
Phone (08) 9219 3111 1300 306 017
Fax: (08) 9325 5099
ATTEN: The Associate to JUDGE SHARP

2nd November, 2010.

Dear Sir FACSIMILE TRANSMISSION

VR 87 0F 2009: LPCC V CHIN

I refer to the directions hearing before the learned Deputy President of SAT Judge Sharp on the 1st day of October, 2010 at 9.35 am when I was present appearing as a litigant in person with Ms. Le Miere appearing for the Committee. I have since received a copy of the 10 page transcript of those proceedings. In anticipation of the further directions hearing before His Honour scheduled on the 12.11.2010 at 9.30 am, I would like to state the following:

a) At the last paragraph of page 4 and para. 1 of page 5 of the transcript Ms. Le Miere was raising the issue of the 70 year old witness, one Mrs. Nalini Mathias which relates to the allegedly new complaint of the Committee after Justice Chaney’s decision in LEGAL PROFESSION COMPLAINTS COMMITTEE and CHIN [2009] WASAT 219 delivered on 4.11.2009.
b) At the last paragraph of page 5 and para.1 of page 6, His Honour Judge Sharp was referring to the new issue that had developed after Justice Chaney’s decision which dismissed my claim that those issues in VR87 of 2009 are barred by the principles of res judicata.
c) Ms. Cahon of the LPCC was relieved by Ms. Caroline Brookes who wrote to me on 15.12.2009 regarding the new issue of Mr. John D Gregory, a handwriting expert, who had prepared a report on the case of Mrs. Nalini Matthias dated 6.7.2009 (the handwriting expert) (See Annexure: NNC-1).
d) The trial before Justice Chaney is by ambush as the handwriting expert’s report was available before the time of the above decision but it was never disclosed to me; and upon reflection, it might have been disclosed to Justice Chaney.
c) His Honour Judge Sharp states at page 6 of the transcript that I have not addressed this issue of the handwriting expert as this is a new issue. This is incorrect as I have already responded to Ms. Brookes letter in my letter dated 17.12.2009. This document is Doc.54 at page 529 of my Application in CIV 1019 of 1019 before Justice Heenan (See Annexure: NNC-2).
d) Would the Committee confirm with me that it had recently written to the tribunal requesting for its decision as to what issue shall be addressed in VR87 of 2009 as a result of my letters to the Associate of both Judge Pritchard and Judge Sharp. I
have misplaced this document? Please provide me with a copy of this letter. I would like to know the response of the tribunal to this letter of the LPCC.
e) Justice Heenan dismissed my Application in CIV 1019 of 2010 for prerogative Orders against the Void Judgment of the President of SAT for jurisdictional excesses in the case of RE PRESIDENT OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA (SAT), JUSTICE CHANEY; EX PARTE CHIN [2010] WASC 89 on 21.4.2010.
f) Before this event, Justice Heenan ordered the Committee to provide answers to my questions as contained in my 6 page Amended Minute of proposed Certiorari Orders dated and filed the 25th March, 2010 together with my bundle of documents that was served upon it (the CIV 1019 of 2010 Application). I would like to know why the Committee refused to answer that specific order of Justice Heenan although it was not made obligatory by His Honour upon the LPCC and why did Justice Heenan made an about-turn in his Order to the LPCC?
f) I would suggest the Committee do provide to His Honour Judge Sharp with a copy of my CIV 1019 of 2010 Application so that he would not be misled on the facts of the case before in preparation for future directions hearing.
g) I do not believe that there are any more outstanding or new issues that need to be decided by this tribunal as I am crying out “res judicata” which covers the defences of merger in judgment, cause of action estoppel and issue estoppel which protect the public and private interests in the finality of litigation (the extended doctrine of res judicata).
h) You will note that I am raising issues that were refused litigation by the Court of Appeal in CACV 107 of 2008, the court like tribunals of the LPCC and the regulator of the legal profession in WA including the VR137 of 2006 Judge Eckert and the VR107 of 2008 of Justice Chaney which are more specifically described in my Proposed Certiorari Orders in CIV 1019 of 2010 filed and dated 25.3.2010 (See Annexure: NNC-3-1 to NNC-3-6).
i) These are non-res judicata issues that are currently being raised in CIV 1981 of 2010, CIV 1877 of 2010, CACV 41 of 2010 and CACV 75 of 2010. In contrast, those res judicata issues raised by the Committee in VR 87 of 2009 cannot avail themselves of the extended doctrine of res judicata because they are estopped in that they have already been decided by the tribunals of the past and are more specifically referred to in the Proposed Certiorari Orders. For the Committee to further indulge in these res judicata issues, it is undermining the finality of those earlier judgements and they constitute an abuse of process.
i) I am not appealing the VOID JUDGEMENT of Justice Chaney as I using Certiorari. I went before Justice Heenan and he dismissed my CIV 1019 of 2010 Application. I then went before Justice Le Miere and His Honour dismissed my CIV1604 of 2010 as the matter is not before him and he is right because the matter had been appealed to CACV 41 of 2010 at the time of my appearance before him as it is now still before the Court of Appeal.
j) Most recently, Justice Heenan in his judgment in RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212 delivered 4.8.2010 and published 11.8.2010 ruled that a justice of the General Division of the Supreme Court of Western Australia like himself having the same rank as Justice Chaney do not have the jurisdiction to make Royal Prerogative orders against another judge of the same rank. Indirectly, Justice Heenan has indirectly admitted that he is in jurisdictional error when he dismissed my CIV 1019 Application on 21.4.2010 and therefore that decision is a VOID JUDGMENT.
k) Res judicata is not a two-edged sword for those who are not working on the truth as the justiciable issues are not before the courts or the tribunals. Thus it denies the Committee to attack me with that sword of res judicata issues but it is available for me to use it as a weapon of attack to protect my rights against the Void Judgment of Justice Chaney based on those issues which have been denied litigation or were not properly brought before those tribunals or those court-like tribunals or because they were avoided by the judge or those issues have never been decided at all although they were before the courts or the tribunals on the grounds that the reasons of their judgments did not answer those questions.
l) A "void judgment" grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack. No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, I as a disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. On certiorari the Court of Appeal may not review questions of fact because it is not at liberty to determine disputed facts nor to review the weight of the evidence but Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain.

k) I would like to quote again what Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at p. 115 said of that Henderson principle which prevents the Committee from bringing up the issue of the handwriting expert in the following words:

"... when a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction [INCLUDING THOSE COURT-LIKE TRIBUNALS], the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward ... The plea of res judicata applies, except in special cases ... to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time". [EMPHAS ADDED]
See the source: A Closer Look at Henderson v Henderson at the site hosted by the Supreme Court of New South Wales: http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_handley_061201a
l) Those issues that are not res judicata but form the substance of my attack against the VOID JUDGEMENT of Justice Chaney are now in the hands of the Court of Appeal in CACV 41 of 2010, CACV 75 of 2010 and CIV 1981 of 2010 and CIV 1877 of 2010.

m) The hand writing expert evidence was not brought forward before Justice Chaney and the Henderson principle disallows it to be brought forward again. I do not agree with the Committee that is being voiced by Ms. Le Miere on this new issue of the handwriting expert for which I do not want to run away as I have put in my response in writing. To refuse to heed and to continue to prosecute on this non-issue constitutes malicious persecution by the Committee.
n) It is impossible for the law to function without morality. Morality means the judge must be able to distinguish between what is right and what is wrong and what is just and unjust and what is good and what is bad. For a judge to perform his duties honourably, he must be neutral as far as the interpretation of the statute law and the principles of the common law are concerned. But as far as it concerns the internal morality of the law, the judge must not remain neutral but must be on the side the party who has been wronged or who has been mistreated with malicious intentions or who has been treated with injustice on account of cronyism.

n) If there are issues regarding my having held out that I am entitled to be engaged in legal practice contrary to subs. 13(1) of the Legal Profession Act, 2008, that issue is being addressed in the three documents filed and dated 1.11.2010 at the Order of His Honour Newnes JA in CACV75 of 2010 delivered on 15.10.2010. These documents are accessible at my blogspot by Googling NICHOLASNCHIN at http://nicholasnchin.blogspot.com/. The documents to look at are as follows:
a) Amended Submissions.
b) Amended Grounds of Appeal in
c) Statement of Chronology.


Finally, I would like to state that I shall not be available after the 1st day of December, 2010 until
Mid February, 2010.

Yours faithfully


NICHOLAS N CHIN


c.c. to: .

The Legal Profession Complaints Committee
PO Box: Z5293,
St. Georges Terrace,
PERTH WA 6831
Facsimile: 9461 2265
Atten: Ms. Le Miere
Your ref: S232/09




Office: 387 Alexander Drive, DIANELLA WA 6059, AUSTRALIA. Contact: ph & fax: +6189275 7440; mobile: 0421642735; emails: nnchin09@tpg.com.au ; nnchin@msn.com; nnchin1@gmail.com.