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
NICHOLAS NI KOK CHIN FIRST DEFENDANT
And
SPUNTER PTY LTD SECOND DEFENDANT
And
THE REGISTRAR OF TITLES THIRD DEFENDANT
SECOND DEFENDANT’S NOTICE OF OBJECTION AGAINST THE PLAINTIFF’S BILL OF COSTS DATED 5TH JULY, 2010. DESPITE THE OBJECTION, REGISTRAR POWELL PERSISTED IN TAXING IT AND BY DOING SO, HE IS A JUDGE OF HIS OWN CAUSE, ON 3.11.2010 AT 9.30 AM.
Date of Document: 9th November, 2010.
Filed on behalf of: The Second Defendant
Date of Filing: 9th November, 2010.
Prepared by:
MAURICE FREDERICK LAW
BOX 399 MIDLAND 6936
87, Herne Hill, WA 6056
PHONE: 08 9296 1555
MOBILE: 0402002797
Email: moza35@bigpond.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, 1971 WA (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 so 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 Second Defendant had already been removed, through the solicitor’s work of the First 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 Second 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 Second 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 Second Defendant is applying to have it rectified . I am not affected by the costs order of the Court of Appeal which affects only the First Defendant but I do not want to see injustice being done to the First Defendant. There should be morality in our court proceedings and our law would not stand up in our justice system if there are wrong doings by perpetrators against innocent members of our society.
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 Second Defendant ’s Caveats were indeed provided by the Plaintiff’s solicitors or they had already been rendered by the First Defendant two years earlier to the late Ms. Nancy Cloonan Hall, and it is the taxing master’s duty to determine these facts as they are presented before him. His function is to do justice to the parties and he cannot be seen to be in dereliction of this judicial duty.
e) There is thus no liability for Master Sanderson’s costs order on the part of the First Defendant or 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, which incidentally affects only the First Defendant.
f) The principle of taxation of costs is that the taxing master must first consider whether a particular item is allowable to be taxed and the test of the recoverability of those impugned items are 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 proceedings by going through the process of determining the quantum of those items that have not been allowed or should not have been allowed in the first place .
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 First and the Second Defendant, 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.
h) His functions are there to do justice to the parties and he cannot run away from this duty. He could escape from this technicality. This technicality pertains to the issue of whether the First and Second Defendant is liable for the costs that is being taxed by Registrar Powell. That issue has already been determined by Master Sanderson himself.
i) In the light of Master Sanderson having refused to make that determination or was making a VOID JUDGMENT out of the facts of the case, then it is for the taxing master to avoid that improper costs order of Master Sanderson that he was about to tax by ascribing a $ZERO assessed cost to those items.
j) Registrar Hewitt as the taxing master of another case which affects Mr. Alessandro Bertini did on 22.6.2009 decide to override His Honour the District Court Judge O’ Sullivan’s improper costs order affecting a solicitor litigant in person claiming profit costs against Mr. Bertini .
k) 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 First 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.
l) Registrar Powell is in jurisdictional excesses when he failed to respond to the call by the First Defendant to abstain himself from taxing the two bills of costs of the first and the second subject judgments on the ground of his apprehended bias against the First Defendant and the Second Defendant on 3.11.2010 in our joint presence and also in the presence of counsel for the Plaintiff, Mr. Anthony Prime.
m) In that event, the taxing master is reasonably observed by us to be a judge of his own cause because he did try to cover up for the David Taylor’s falsification of the court records in CIV 1131 of 2006 and is continuing to deny it, although the evidence before him is blatantly very clear to himself and he was seen to be admitting this by his own conduct by his “tremblings” that was witnessed by all of us. The Second Defendant made a record of this incident.
n) This event has been recorded in the transcript of the proceedings before him on 3.11.2010, albeit unfaithfully so. The taxation Orders issued by the taxing master Registrar Powell, are therefore of null effects and are not enforceable in any courts of law.
Signed by the Second Defendant
MAURICE FREDERICK LAW standing in for Spunter Pty Ltd, the Second Defendant, with the consent of the Mr. Athony Prime
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 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 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 relied 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 falsifications 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. Therefore, the Taxing Master, by refusing to recuse himself from taxing the two bills of costs is a judge of his own cause. His taxed bills of costs are VOID JUDGMENTS and are not enforceable by any court of law. These proceedings of these VOID JUDGMENTS of the two bills, the other for the Second Defendant alone, are recorded in the transcript dated 3.11.2010 as I understand it, Mr. Chin is having the technical slip of the Court of Appeal 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 Second Defendant ’s Caveats by the First Defendant as the former solicitor for the late Nancy Cloonan Hall in CIV 1142 of 2005 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 who is my former solicitor in CIV 1142 of 2005 falsified the court records in CIV1131 of 2006 as indicated at page 46 to 48 of the Yellow Appeal Book.
The Second Defendant 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 by way of orbitur dicta said that he did not have the jurisdiction to make prerogative orders with regard to Justices of the same rank as himself. Therefore, the First Defendant 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 Court of Appeal Judge pursuant to s.33 of the Supreme Court Act, 1935 WA, it being not an appeal process to correct that technical slip of the Court of Appeal in the case of CHIN -v- HALL [2009] WASCA 216.
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 WA 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.”
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:
“……; 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.”
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.36 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. This matter is in relation to the Order of the learned Magistrate Bromfield in Perth Magistrates Court CA 2881 of 2006 arising out of the Applicant by Mr. Bertini dated 13.8.2007. Judge O’Sullivan gave his improper costs orders dated 11.12.2008 in District Court Appeal No.36 of 2008.
The learned Registrar Hewitt had on a previous occasion taxed an improper costs order given by Commission Herron in District Court Appeal No.6 of 2008 as a result of the appeal by the First Defendant against Magistrate Musk Void Judgment in FR944 of 2007. The First Defendant objected to Solicitor Timothy Robin Thies bill of costs dated 29.7.2008 made pursuant to the order of Mr. Commissioner Herron dated 20.5.2008 that was taxed by Deputy Registrar Hewitt on 19.8.2008 at 2.15 pm. Registrar Hewitt learnt his lesson from this improper costs order as a result of the objection papers filed by the First Defendant dated 26.8.2008 to the effect that he as the taxing master and as an inferior judicial officer to Commissioner Herron could override the latter’s improper costs order indirectly by making a ZERO COSTS ASSESSMENT of that improper costs order. This is the pointer given by the First Defendant to Registrar Powell as recorded in the transcript of the taxation proceedings in CIV 1775 of 2008 dated 3.11.2010 at page 33.
Dobree v Hoffman (1996) 18 WAR 36.
Why did the Taxing Master refuse to provide the First Defendant 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 First Defendant would have not to appeal the decision of Master Sanderson in CIV 1775 of 2008 to the Court of Appeal in CACV107 of 2008.
No comments:
Post a Comment