Wednesday, January 18, 2012

JOINT AFFIDAVIT OF NICHOLAS N CHIN AND MAURICE LAW IN THEIR APPLICATIONS FOR JUDICIAL REVIEW OF OWEN JA AND MASTER SANDERSON DECISION ET AL IN CIV 1775 OF 2008 AND CACV 107 OF 2008 RESPECTIVELY


IN THE SUPREME COURT OF WESTERN AUSTRALIA
HELD AT PERTH                                                                             CIV 2157 OF 2011

In the matters of:

1.           CIV 2157 of 2011 or GANNAWAY -v- CHIN [2011] WASC 252;
2.           CACV107 OF 2008: JOINT APPLICATION IN AN APPEAL PURSUANT TO R.44 OF SUPREME COURT (COURT OF APPEAL) RULES 2005 DATED 25.7.2011 IN 44 PAGES;   
3.           CIV 1877 of 2010 or RE HALL; EX PARTE CHIN [2] [2011] WASC 155;
4.           CACV 107 of 2008 (No.2) or CHIN -v- HALL [No 2] [2011] WASCA 96;
5.           P l of 2010 or Chin v Hall & Ors [2010] HCASL 104 (26 May 2010);
6.           CACV 107 of 2008 or CHIN -v- HALL [2009] WASCA 216;
7.           CIV 1775 of 2008 or AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255;
And

In the matters of:

8.           CIV 2509 of 202 or LAW -v- GANNAWAY as administrator of the estate of NANCY CLOONAN HALL [No 2] [2011] WADC 195;
9.           CACV 53 of 2007 or MICHELE-MAREE GANNAWAY as Administrator of the Estate of NANCY CLOONAN HALL v AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL [No.2] [2010] WASCA 173;
10.        CACV 100 of 2008 or LAW v AUDREY FRANCES HALL as Executrix of the Estate of the Late KENNETH DUNCAN HALL [2009] WASCA 86;
11.        CACV 106 of 2008 or LAW v AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL [2008] WASCA 257;
12.        CACV 106 of 2008 or LAW v AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DCUNCAN HALL [2008] WASCA 257 (S);
13.        CACV 53 of 2007 OR HALL v AUDREY FRANCES HALL as Executrix of the Estate of the late KENNETH DUNCAN HALL [2007]WASCA 94;
14.        CIV 2073 OF 2003 or AUDREY FRANCES HALL As Executrix of the Will of KENNETH DUNCAN HALL (DEC) v HALL [2007] WASC 34;
15.        CIV 2509 of 2002 or MAURICE FREDERICK LAW, CHERYL LAW AND SPUNTER PTY LTD -v- HALL [2005] WADC 75;

And

In the matter of an Ex-parte Application in CIV 2157 of 2011 for the Removal of the Errors Apparent on Court Records, pursuant to RSC O 59 r 3 and subs 25(6), 33, 43 and 59 of the Supreme Court Act, 1935 for declarative orders of the jurisdictional errors, the cancellation of the technical errors, review the areas of dispute and the new trials of particular areas of dispute (the Removal of Errors of Law Apparent on the Court Records). 


BETWEEN

NICHOLAS NI KOK CHIN                                                          FIRST APPLICANT
MAURICE FREDERICK LAW                                              SECOND APPLICANT

And

MICHELE-MAREE GANNAWAY As the Administrator of
The Estate of the late NANCY CLOONAN HALL                  FIRST RESPONDENT

AUDREY FRANCES HALL AS the Executrix of the
late KENNETH DUNCAN HALL                                         SECOND RESPONDENT

EX-PARTE: NICHOLAS NI KOK CHIN
EX-PARTE: MAURICE FREDERICK LAW
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AFFIDAVIT OF FIRST AND SECOND APPLICANTS IN SUPPORT OF THE NOTICE OF ORIGINATING MOTION FOR JUDICIAL REVIEW AND THE REMOVAL OF ERRORS OF LAW APPARENT ON THE COURT RECORDS IN CIV 2157 OF 2011 (AND FOR LEAVE PURSUANT TO RSC O 67 R.5 APPLICABLE ONLY TO THE FIRST APPLICANT AS PER ORDERS OF MURRAY J IN CIV 1689 OF 2011 DELIVERED 10.1.2011) (83 pages).
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Date of Document:                                                23rd day of January, 2012
Filed on behalf of:                                                 The First and Second Applicants in   
                                                                                 Person. 
Date of filing:                                                    23rd day of January, 2012
Prepared by:
NICHOLAS NI KOK CHIN                                Phone & Facsimile: 08 92757440 
387, Alexander Drive                                             Mobile: 0421642735
DIANELLA WA 6059                                           Email: nnchin1@gmail.com;

MAURICE FREDERICK LAW                       Phone: 08 92961555
P.O. BOX: 399                                                               Mobile; 0402002797         
MIDLAND WA 6936                                         Email: moza35@bigpond.com 

INDEX TO EXHIBITS OF DOCUMENTS & STATEMENT OF CHRONOLOGY
No.
Label
Date of Document
Description of Documents
Page Nos.
1
n/a
23.1.2012
Affidavit of First and Second Applicants sworn in Support of Notice of Motion as an Application for Judicial Review and for the Removal of Errors of Law Apparent on the Court Records dated the same day in CIV 2157 of 2011.
10
2
C&L1
5.8.2004
The Lecture of the Honourable James J Spigelman AC Chief Justice of NSW in 14 pages referred to in paragraph 5 below, which is an authority on the Jurisdictional Errors and Errors of Law Apparent on the Court Records..     
11 to 25
3
C&L2
10.2.2006
DGT14: found at page 48 of the Yellow Appeal Book in CACV 107 of 2008 filed and dated 22.6.2009 is the Exhibit to the Affidavit of David Taylor sworn filed and dated 29.3.2007. This is the Invoice No.201702 which says that David Taylor paid for the disputed court fees by:
1) a personal cheque the sum of $654.00 for which a Receipt SCR 1348 was issued to him on 10.2.2006;
2) cash 20 cents on 10.2.2006 for which a Receipt SCR 1347 was issued to him on 10.2.2006.
26
4
C&L3
21.1.2006
6.2.2006,
Email correspondences and letters sent by the First Applicant upon the instructions of Nancy Hall for the processing of her loan from Loans West et al which was approved conditional on the removal of the Spunter’s Caveat by Operation of Law.  The dereliction of duties of David Taylor caused damages to the estate of Nancy Hall as a result of the falsifications of the court records in CIV1131 of 2006 by David Taylor and the ensuing litigation in CACV107 of 2008 et al until today.  This is the basis for the claim of the First Applicant against the estate of Nancy Hall in the aftermath of her death which occurred on 13.1.2008. The Solicitor Work of the First Application has a causal connection with the Removal of the Spunter’s Caveat by operation of law, which is referred to as the Nexus found in the rationale of the High Court in P1 of 2010 (The Nexus) (6 pages)
27-32
5
C&L4
14.2.2006
Draft Order prepared by the First Applicant on behalf of his client Ms. Nancy Hall in CIV1142 of 2005 for the Caveats of Spunter Pty Ltd or the First Applicant to be removed forthwith.  The removal of the Caveats is by operation of law which was caused by the dereliction of duties of David Taylor to the First Applicant (Removal of Spunter’s Caveats by Operation of Law) (2 pages).
33-34
5A
C&L4A
14.7.2008
Letter from Mr. Chris Stokes that his client, the administrator of the Estate of Nancy Hall had been defrauded by Mrs. Audrey Hall as a result of the false claim of $2.4 million in CIV 2073 of 2007 in the aftermath of Nancy’s death.  This finally led to the Clandestine Settlement referred to in Document No.10 below which deprived the legitimate creditors of their rights which is the subject of this Application for Judicial Review (1 page)
34A
6
C&L5
19.5.2009
ML1: Maurice Law requested this document from Supreme Court Registry. It indicates Invoice No. 201702 for registering the Writ in CIV 1131 of 2006 issued by David Taylor in purported compliance with Jenkins J Order in CIV 1142 of 2005 dated 19.1.2005 was made in error on 10.2.2006 but correctly made on 16.2.2006.
Fact No.1: CIV1131 of 2006 not filed on 10.2.2006.
Fact No.2: CIV 1131 of 2006 purportedly filed on 16.2.2006. 
Query by Maurice Law:
1)      Why is ML1 different to DGT 14?
2)      Why is ML1 said to be in error?
3)      Why is DGT14 referring to two payments by cheque and cash on the same day i.e. on 10.2.2006?
4)      Why is ML2 referring to the two payments on different days?
5)      Why are the Receipt Nos in DGT 14 for the two payments different to the Receipt Nos. for the two payments in ML2
6)      Why is ML2 referring to payment by Eftos Credit Card for $654.00?
7)      Why is DGT14 referring to payment by personal cheque issued by David Taylor?
8)      Why is the personal cheque never produced by David Taylor to Maurice Law in VR158 of 2011 on 29.11.2011 at the Order of President Chaney of SAT? 
35
7.
C&L6
19.5.2009
ML2: Acknowledgment by Supreme Court Registry to Maurice Law: Invoice No. 202483 issued by the Supreme Court Registry at Perth for the registering of CIV1131 of 2006 which indicates:
1)      Payment of $654.00 by Eftpos Credit Card for which Receipt No. SCR1441 dated 16.2.2006 was issued to David Taylor on 16.2.2006.
2)      Payment of 20 cents by Cash for which Receipt No. SCR1442 dated 16.2.2006 was issued to David Taylor on 16.2.2006. 
Query by Maurice Law:
1) Why did David Taylor pay 20 cents cash on 16.2.2006 again when he could have paid the two sums totaling $654.20 using Eftpos on a credit card on the same day?
2) Why was David Taylor issued four Receipts instead of two receipts for only two payments of $654.20 by the Supreme Court Registry?
3) When was the Writ in CIV1131 of 2006 purportedly filed on 16.2.2006 served upon Nancy Hall?
4) When was the Writ in CIV1131 of 2006 purportedly filed on 10.2.2.2006 served upon Nancy Hall?
5) Has Jenkins Order dated 19.1.2006 been complied with by David Taylor?
6) What are the conditions for complying with the Jenkins Order?
7) Is there any dereliction of duties of David Taylor in the filing and service of CIV 1131 of 2006?
8) Has the Caveats of Spunter Pty Ltd been removed by operation of law as a result of the dereliction of duties of David Taylor? 
36
8
C&L7
2.9.2011
Letter from the Chief Justice Wayne Martin QC stating that His Honour shall be investigating the falsification of court records by Registrar Powell regarding the latter’s letter to the First Applicant that CIV1131 of 2006 was filed on 16.2.2006 instead of 10.2.2006. That letter is dated 11.6.2009 and is found at page 136 of the Yellow Appeal Book in CACV 107 of 2008.  That letter is referred to as the Fresh Evidence in CIV1877 of 2010 that was decided by Commissioner Sleight. His Honour’s reply letter dated 3.8.2011 to the First Applicant’s letter dated 24.7.2011 (The Fresh Evidence).
37-38 & 38A
9
C&L8
22.5.2011
Letter from the First Applicant to the LPCC regarding the sum of $20k that was the subject of Pullin JA Order in CACV 107 of 2008 (the Trust Monies) (2 pages):
1)      The Trust monies were required to be paid into the account of the legal firm of McCallum Donovan Sweeney for which Anthony Prime is its director.
2)      The Trust Monies were in consideration for the removal of the stay of execution of Master Sanderson Order in CIV1775 of 2008 to remove the First Applicant’s Caveat against part of the estate of Nancy Hall.
3)      The caveat is to protect the caveatable interests of the First Applicant resulting from the former s.244 LPC Salvour’s solicitor work of the First Applicant for the removal of the Caveat of Spunter Pty Ltd (Removal of Spunter’s Caveat by operation of Law).
4)      The Removal of Spunter’s Caveats by operation of Law was caused by the dereliction of duties of David Taylor to Maurice Law or Spunter in CIV 1131 of 2006 (the Dereliction of Duties). 
39-40
10
C&L9
9.8.2011
Affidavit of the Administrator of the Estate of Nancy Hall filed in CIV2157 of 2011 at paragraph 8 explains how the fraud of Mrs. Audrey Hall in CIV2073 of 2007 was resolved by the administrator clandestinely with the payment of mortgage sum of $702k in exchange for the fraudulent debt of $2.3m. This is a settlement effected by the Administrator with her Aunty Mrs. Audrey Hall without satisfying the claim of the creditors of the Estate of Nancy who are (the Clandestine Settlement):
1)      The First Applicant’s claim through the former s.244LPA Salvour provision for Solicitor’s Costs that has been approved by Buzz JA in CACV 107 of 2008;
2)      The Second Claimant’s debt based on the Default Judgment of DCJ Groves in DCCIV 2509 of 2002 dated 10.10.2002 that was recently acknowledged by DCJ Sweeney in her judgment dated 8.11.2011.
Both the creditors of the Estate of Nancy Hall lodged their respective New Caveats to protect their Caveatable Interests which was unlawfully removed by Justice Simmonds on 12.8.2011 in CIV 2157 of 2011 (the Simmonds Removal of the New Caveats)(2 pages)

41-42
11
C&L10
10.8.2011
First Applicant’s Written Submission before Justice Simmonds explaining why the First and Second Applicants do have caveatable interests in the New Caveats (8 pages).
43-51
12
C&L11
24.8.2011
Notice from the First Application and by way implication Notice from the Second Application to Mr. Chris Stokes as solicitor for the Administrator that is he shall be held personally responsible to indemnify both the Applications for the unlawful removal of the New Caveats through His Honour Justice in CIV 2157 of 2011 by misleading him as it would be a professional misconduct to do so in 5 pages (NOTICE to Chris Stokes in CIV2157 of 2011) (6 pages)  
52-57
13
C&L12
1.9.2011
Email communications between the first and Second Applicants with the Associate of Justice Simmonds in CIV 2157 of 2011 for the unlawful removal of the New Caveats. This resulted in Justice Simmonds requesting the Applicants to make an Application for Judicial Review in 3 pages (Permission for Judicial Review).
57-60
14
C&L13
5.9.2011
Email correspondence between First and Second Applicants and the Associate to Justice Simmonds and the Fraud Squad of WA regarding the Simmonds Removal of the New Caveats in 5 pages (Communications with Fraud Squad). 
61-65
15
C&L14
13.9.2011
Order issued by President of SAT Justice Chaney in VR158 of 2011 to David Taylor to enable the latter to prove to the court that he was never in dereliction of Duties to Spunter Pty Ltd or the First Applicant (President Chaney’s Order).
66
16.
C&L15
15.11.2011
Page 8 and of the transcript of those proceedings held in VR158 of 2011 held before the learned President of SAT Justice Chaney. These documents indicate that His Honour was willing to provide a copy of the documents submitted by David Taylor on 29.11.2011.  Those documents are in compliance with President Chaney’s Order as seen by the First Applicant on that day – 2 pages (The document of David Taylor submitted to SAT on 29.11.2011).
67-68
17
C&L16
13.12.2011
Application by Maurice Law for the suspension of the improper costs order made in DCCIV2509 of 2002 that was caused by the Dereliction of Duties of David Taylor (One of results of the Dereliction of Duties of David Taylor) (11 pages):
1)      By Registrar Hewitt retracting his earlier leave to execute the default of DCJ Groves
2)      By DCJ Sweeny for her refusal to grant the First Applicant’s leave to execute the DCJ Groves Default Judgment.
69-79
18.
C&L17
14.12.2011
Letter from the First Applicant to SAT requesting for the Document of David Taylor submitted to SAT on 29.11.2011 (2 pages).
80-81


1.                  WE,  NICHOLAS NI KOK CHIN (Lawyer, not in current practice) of No. 387, Alexander Drive, DIANELLA WA 6059, and MAURICE FREDERICK LAW (Retired Builder) of No. 87, William Street, HERNE HILL WA 6056, do make oath and say as follows:
2.         The facts herein are true and correct, to the best of our knowledge, information and belief. Where we identify the source of facts stated as other than from our own personal knowledge, we believe such facts to be true and correct.
3.         We are filing this Affidavit in support of the joint Application in the NOTICE OF MOTION dated 23rd day of January, 2012 in Form 64 pursuant to RSC O 54 r 5 for the following purposes of seeking the following:
3.1.THIRTEEN Declarative Orders pursuant to s.25(6) of the Supreme Court Act, 1935 WA for which there can be objection to by the contending parties (the Act);
3.2.IF NECESSARY and in the course of this Honourable Court making the Declarative Orders, the contending parties are asked to show cause as determined by this Honourable Court in terms of:
3.2.1.      the cancellation of the technical slips of issues made by the courts below pursuant to s.33 of the Act;
3.2.2.      the Judicial Review of disputed issues pursuant to s. 43 of the Act;
3.2.3.      the new trial of disputed issues pursuant to s.59 of the Act..

DOCUMENTS TO BE INCLUDED IN THIS APPLICATION:  

4.                  In addition to the above NINETEEN listed documents in the Schedule above, I wish to be included for the consideration of this court the following documents which have been filed in the various proceedings for the courts to make a determination of the above declarative Orders, in the following terms:
4.1.All those FIFTEEN listed matters in two sets: the first set consisting of SIX matters and the second set consists of EIGHT matters, which are cited at page one of the Application;
4.2.We refer to item 2 of the first set of matters, for which we have received a response from the Court of Appeal Registrar Eldred dated 15.9.2011.  The response requires us to make an application under RSC O 67 r.5 as it appears to her to be an abuse of process/frivolous or vexatious. Accordingly, we are including the said item 2 as part of this application for leave.
4.3.Further, the First Applicant is the subject of the Order of His Honour Justice Murray in his decision in PRINCIPAL REGISTRAR V CHIN [2012] WASC 7 dated 10.1.2012 in CIV 1689 of 2011 that he has to obtain leave of court for this filing of this Application pursuant to RSC O.67 r.5.  .   

THE JURISDICTIONAL ERRORS OF THE FOUR JUDGES:  

5.      Just as in any other principles of common law, there is only one principle of common law in Australia concerning the jurisdictional Errors of the Four Judges.  I refer to the lecture of the Honourable Chief Justice of the NSW Supreme Court His Honour Justice James Spigelman entitled Jurisdiction and Integrity - The Second Lecture in the 2004 National Lecture Series available which is available at: http://www.ipc.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman050804 (the lecture) (See Document No.1 labelled as C & L 1 in the Schedule above). . 
6.      The lecture can provide this Honourable Court an understanding of the law with regard to jurisdictional facts and errors of law apparent on the court records, which are the subject matter of this joint Application.  
7.      We would like to stress the Integrity Aspects of the Jurisdictional Errors of the Law of the Four Judges, which impinges on Their Honour’s honesty, sincerity, good faith and therefore their integrity without deference to Registrar Powell and solicitor David Taylor in their discharge of their duties as judges for the proper purpose of the administration of justice in our judicial system in Western Australia which does not allow cronyism to take place (the Integrity Aspects). 
8.      Having regard to the Integrity Aspects of the Four Judges, we specifically would like to stress that Their Honours must not be seen to be evading those issues to be read together with the applicable evidence before them.  To do their duties faithfully, they must provide the reasons for their decisions on those specific issues that are before them or they must be reasonably found to be honestly discharging their duties in accordance with the law in order to provide fair justice to all the disputing parties that are before them.  We do not make blanket accusations against any of the judges, but if the caps fit them, they are exhorted with due honesty and due respect to wear them.  Those are the issues before this Honourable Court which we are referring to in this Joint Application as “issues” in terms of the following: 
8.1.The grouses of the Applicants must be heard or they must not be denied their procedural fairness or their natural justice, lest the determination of the judges be rendered null and void;
8.2.The respective judges must not at all material times, identify the wrong issues and they are reasonably found to be doing so;
8.3.We know that the respective judges were asking themselves the wrong questions;
8.4.We know that the respective judges were ignoring relevant materials;
8.5.We do know that the respective judges were relying on irrelevant materials;
8.6.They are reasonably found to have been making erroneous findings of facts or law;
8.7. We have personally found them to be reaching mistaken conclusions of facts or law;
8.8.When they are making determination of critical facts they have been reasonably found to have relied on no evidence;
8.9. They were making irrational and illogical reasoning in the fact finding process in the respective judgments;
8.10.                    Our due respect to all the Four Judges, we must say that as a result of the above, their Honours are found to have made purported decisions only which do not render themselves ex-functus  officio, as they are bound by the laws to continue to discharge their obligations until they have made proper determinations in accordance with the law and have therefore dispensed justice in accordance with their respective oaths of office.
8.11.                    This is because Their Honours must not continue to misapprehend the law after they have been pointed out the correct law by us.  All the above pointers are contained in the filed documents in the above listed FOURTEEN MATTERS.  
9.      We refer to the Statement of Chronology and the NINETEEN documents as listed above which shows that the Dereliction of Duties of David Taylor as solicitor for Maurice Law or the Second Applicant or to his company Spunter Pty Ltd had caused the Removal of the Spunter’s Caveats by operation of law.  Therefore, the Nexus between the First Applicant’s solicitors work for Nancy Hall and the Removal of the Second Applicant’s or Spunter’s Caveats have been established.  Therefore the First Applicant is entitled to make my claim for his solicitors remuneration based on s.244 of the former LPA as the Salvour of part of Nancy’s Estate which is now under the hands of the Administrator.
10.  Further, the First  Applicant as the solicitor for Nancy Hall have been faithful in exercising his duties in accordance with the law and he is entitled to make his claim against the Estate for Nancy Hall for the legal costs of his solicitors work in the sum of about $150k to be assessed by this Honourable Court.
11.  At the same time, as the solicitor for Nancy Hall under the former s.244 of the LPA, the First Applicant needs to ensure that the creditors of Nancy Hall in the person of the Second Applicant are being dealt with justly and brought to a successful conclusion in accordance with the law.  The remissness of the Administrator of Nancy Hall is causing us, the First and Second Applicant to do this.  There are our duties to the court first and they do not conflict with the First Applicant’s interests as the Salvour of Nancy’s estate nor with the Second Applicant’s interests.  
SWORN by the First Deponent at Perth]
In the State of Western Australia  on     ]
Monday, the 23rd day of January, 2012 ]……………………………………………..
Before me:                                (Signature of Nicholas Ni Kok Chin as the First Deponent)
…………………………………..
Justice of Peace/ Commissioner of the Supreme
Court for Taking Affidavit 
SWORN by the Second Deponent ]
at Perth In the State of Western      ]
Australia  on Monday, the 23rd day]
of January, 2012.                            ]……………………………………………..
                                    (Signature of Maurice Frederick Law as the Second Deponent)
Before Me:
…………………………………..
Justice of Peace/ Commissioner of the Supreme
Court for Taking Affidavit 

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