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THE SUPREME COURT OF
2157 of 2011
NICHOLAS NI KOK CHIN,
MAURICE FREDERICK LAW and
REGISTRAR OF TITLES
1275 of 2012
NICHOLAS NI KOK CHIN and
MAURICE FREDERICK LAW
MICHELE-MAREE GANNAWAY as administrator of the estate of NANCY CLOONAN
and AUDREY FRANCES HALL as
executor of the estate of KENNETH DUNCAN HALL
TRANSCRIPT OF PROCEEDINGS
ON TUESDAY, PERTH 5 JUNE 2012,
AT 11.11 AM
MR N.N.K. CHIN appeared in person.
MR M.F. LAW appeared in person.
MR C.P. STOKES appeared for the applicant in action number 2157 of 2011 and for the first respondent in action number 1275 of 2012
HEENAN J: I am dealing with an action, number
CIV 2157 of 2011. That is an action between Michele-Maree Gannaway as plaintiff and
Nicholas Ni Kok Chin as first defendant and Maurice Frederick Law as second
defendant and the Registrar of Titles as third defendant. In a judgment, the reasons for which were
delivered on 12 August 2011, Simmonds J ordered
that caveats lodged by Mr Chin and Mr Law against property in the
name of the plaintiff should be removed.
Subsequent to that application an order for costs was made against
Mr Chin and Mr Law in relation to those proceedings.
Now before the Court is an application brought by Nicholas Ni Kok Chin as first applicant, Spunter Pty Ltd as trustee for the M.F. Law Family Trust trading as M.F. Law Builder, second applicant, Michele-Maree Gannaway, respondent, and it is entitled ex parte Spunter Pty Ltd v Nicholas Ni Kok Chin, and it is said to be an ex parte application pursuant to section 15(2) of the Civil Judgments Act.
It is supported by two joint affidavits of Mr Law and Mr Chin, first sworn
23 April 2012, and the second sworn 28 May 2012, seeking orders under the Civil Judgments Enforcement
Act to suspend the alleged unlawful execution of the costs order made pursuant
to the order of Simmonds J on 12 August 2011.
There are a number of irregularities about the proposed application and the affidavits. The first is that they do not accurately recite the title of the proceedings
which I have already described and which Michele-Maree Gannaway is the plaintiff. Secondly, they omit Mr Maurice Frederick Law in his personal capacity as a defendant liable under the Costs Order.
Thirdly, they introduce, without leave, a new party, Spunter Pty Ltd, alleged to be a trustee of the M.F. Law Family Trust, and they seek, on specious grounds, to suspend the alleged wrongful execution of the taxation order.
So far as the application concerns Mr Nicholas Ni Kok Chin, the fact of the matter is that, by an order in separate proceedings,
CIV 1689 of 2011, brought
by the Principal Registrar of this court against Mr Chin, made by Murray J
on 10 January 2012, Mr Chin was declared to be a vexatious litigant, and
certain proceedings were stayed.
The order was that Mr Chin be prohibited from instituting any proceedings in any Western Australian court or tribunal without the leave of that court or tribunal, and it was order that the whole of certain other proceedings,
CIV 1981 of 2010, are
This present application pays no regard at all to that order or the stay order, and despite Mr Chin's assertions to the contrary, the affidavits filed in support of this application make no reference to an application for leave to issue proceedings under the Vexatious Proceedings Restriction Act. Accordingly, I strike out this application brought by Mr Chin.
HEENAN J: So far as the application in the present proceedings have been brought by Spunter Pty Ltd as trustee for the M.F. Law Family Trust trading as M.F. Law Builder, Mr Law, who has appeared in person, has sought leave to appear on behalf of the company. The position under the Rules and the Corporations Law is that a company can only appear by a solicitor in proceedings.
Mr Law asserts, without demonstrating any proof, that he has been granted leave in previous proceedings to appear on behalf of the company, but I have to consider the present application in the current proceedings.
The background is that the company, Spunter Pty Ltd, was not a party in the action before Simmonds J in which the order for costs was made. It is not liable under the costs order made by Simmonds J and it therefore appears to have no interest in the present proceedings.
There has been no application to join Spunter Pty Ltd in the current action, therefore it has no standing, and there is no reason for it to be represented and I will not give leave, even if I could, for Mr Law to appear for the company.
So far as Mr Law is concerned personally, he has not brought an application to suspend the costs order and there is no occasion to hear him in his personal interest. The application brought by Spunter Pty Ltd is therefore dismissed.
HEENAN J: There is before the Court an originating motion, number 1275 of 2012, brought by Nicholas Ni Kok Chin and Maurice Frederick Law as first and second applicants. It names Michele-Maree Gannaway as administrator of the estate of Nancy Cloonan Hall as first respondent and Audrey Francis Hall as the executrix of the late Kenneth Duncan Hall as second respondent. It is said to be ex parte by Nicholas Ni Kok Chin and ex parte by Maurice Frederick Law.
Strangely, and irregularly, the notice of originating motion refers to 15 separate proceedings commencing with Gannaway v Chin, 2157 of 2011, and concluding with Maurice Frederick Law, Cheryl Law and Spunter Pty Ltd v Hall (2005) WADC 75. I will not enumerate all the other actions sought to be referred to.
It also says that it is in the matter of an ex parte application in
CIV 2157 of
2011 for the removal of errors apparent on court records and for declarative
orders and jurisdictional errors, the cancellation of technical errors, review
the areas of dispute and new trials of particular areas of dispute (the removal
of errors of law apparent on the court records) to say that the document
reflects inadequate and distorted understanding of the law.
Legal procedure and principles would be a gross understatement but it is necessary nonetheless to distil out of the application some sense of its apparent purpose. In support of the application there is an affidavit of both
applicants sworn 7 February 2012, an affidavit of the first applicant, that is, Mr Chin, in support of the summons for the application to issue three subpoenas, and then there is the document which I have previously overlooked; a subsequent summons issued on 2 May 2012 for leave to issue three subpoenas, and for the following orders.
Those affidavits also support the application for leave pursuant to section 6 of the Vexatious Proceedings Act sought by a notice of originating motion. The first thing to say is that Mr Chin has been declared to be a vexatious litigant by order of Murray J on
In the summons and motion in which he seeks leave pursuant to section 6 of the Vexatious Proceedings Act, it is recited that the leave was for the purpose of instituting legal proceedings for judicial review of jurisdictional errors, their Honours Master Sanderson, Owen JA, Simmonds J and three actions in this court, and her Honour Judge Sweeney in action 2509 of 2002 in the District Court, it is very difficult to make sense of the notice of originating motion, but it seems that it is alleged that each of the decisions which are sought to be judicially reviewed is said to contain jurisdictional errors of various kinds and to have been the result of fraud procured by some third party.
The first thing to say in relation to that is that, so far as concerns proceedings by a Judge of this court, it is not possible for an order for judicial review to issue
because there can be no such things as a jurisdictional error by a Judge of this court. There may be an error which will result in leave to appeal being granted and an appeal being allowed but, for reasons which have been canvassed in other authorities which are collected in the decision of Sleight C in Re Hall ex parte Chin No 2 (2011) WASCA 155, there can be no occasion for judicial review of any of the decisions of Judges of this court. There is therefore no basis to grant leave.
Insofar as concerns the judgment of the District Court, the judgment of her Honour Judge Sweeney, the grounds for which judicial review is sought is a single issue of falsification of court records by a third person resulting in a default and judgment, and that the default of that third person is alleged to amount to criminal professional misconduct.
In relation to those allegations, they would, if they could be established, constitute grounds for setting aside a judgment on the basis that it was procured by fraud but that would require a separate action to that effect. It is possible, if the fraud was patent on the base of the proceedings, for the matter to be dealt with by appeal from the District Court, but it has not been suggested that that course is desired to be taken and there is no proposal to commence separate small proceedings.
I do not consider that judicial review proceedings are appropriate to remedy the alleged errors of fraud and I
refuse leave to Mr Chin under section 6 to bring proceedings to that end. As a result, Mr Chin's application for leave under section 6 of the Vexatious Proceedings Act is refused, and he is debarred from pursuing these proceedings further.
We come now to the conjoint application by Mr Law. In this application, so far as it concerns present matters, he seeks an injunction to prevent the solicitor, Mr Stokes, from allegedly unlawfully executing a costs order of Simmonds J in
CIV 2157 of 2011.
A judgment of Simmonds J has already been referred to. It occurs in an action called Gannaway v Chin and Ors (2011) WASC 252
in which Mr Maurice Frederick Law was the second of three defendants; the
first being Mr Chin and the third being the Registrar of Titles.
It concerned an application which was successful by Ms Gannaway for the removal of caveats lodged by both defendants and consequent orders for costs. I am informed that the costs in those proceedings have been taxed and that steps have been taken to execute the costs order against Mr Chin and Mr Law, and it is as a result of that that the application for an injunction to stop the solicitor executing those orders is made.
There is no basis to conclude that the execution of the order is in any way unlawful. The proceedings are not the subject of an appeal and there is no basis upon which the action having been fully heard and determined, and an
order for costs made, that the law should not take its course and that the order for costs should not be executed if necessary. Accordingly, the application for an injunction is dismissed.
The next aspect of the application by Mr Law is for the issue of three subpoenas in relation to an appeal in a judgment in
CIV 2073 of 2003 of Hall v Hall. Several things need to be mentioned about
that matter. Firstly, Mr Law was
not a party to those proceedings, as I have been informed and accept. Consequently he has no interest in the
outcome of those proceedings.
Next, those proceedings have themselves been completed. There was a judgment of the Court which led to an application for leave to appeal and appeal to the Court of Appeal. That appeal was resolved by agreement between the parties some years ago and that has been an end of the proceedings. There is no reason to reopen them and Mr Law is not a person who has, or who ever has had, any interest in that action.
It would appear from his oral submissions that Mr Law believes that there is evidence to support his belief that a loan or a mortgage or a financial transaction, which is at the root of a long running litigation concerning the affairs of the late Nancy Hall, was not valid or enforceable or that no money changed hands.
He wishes to issue a subpoena to various authorities to produce evidence which he steadily asserts will
demonstrate that the mortgage was not valid or effective and that no money was ever paid. That may or may not be the case. All I can say is that the question of the efficacy of that mortgage and relate matters has been before the Court in many earlier proceedings and has wound its way to various conclusions which are final.
Insofar as there are final judgments which deal with that mortgage and Ms Hall's obligations they cannot now be reopened. However, Mr Law says that this particular issue has never been the subject of any judicial determination previously, and that it is not a res judicata, and it is therefore open to be pursued. I am not in a position to say, and the evidence before me does not allow any opinion to be formed upon whether or not that contention has any justification.
Assuming for the moment that it does, it would mean that, subject to questions of issue estoppel and res judicata and possibly limitation proceedings, there may be scope to commence proceedings to resolve an issue which has never previously been determined by the courts.
Taking the very favourable assumption that such an opportunity exists, it is not one which would be advanced or could be advanced by the issue of subpoenas as sought in this present application. Consequently the application for the issue of subpoenas is refused. The applications brought on behalf of the applicant, Maurice Law, will therefore all be dismissed.
HEENAN J: It is very difficult to ascertain from the papers exactly the scope and reach of the applications that are before the Court, but it is clear enough that in 2157 of 2011 there was an application for a suspension of the execution of a costs order in the proceedings brought by Simmonds J, which have mentioned several times today, and in which Ms Gannaway was the judgment creditor.
In relation to application 1257 of 2012 there was an application directly seeking an injunction to prevent Mr Stokes from continuing to act for Ms Gannaway in execution of that order. Although they were entitled Ex Parte Applications, notice of them was given to Mr Stokes and Ms Gannaway by them being served by email upon his office.
In those circumstances I consider that Mr Stokes was well justified and was acting in Ms Gannaway's interests in appearing before the Court to oppose the applications today. As they have failed his client's costs should be paid by the applicants, and I order that in each case the applicants pay the costs of Ms Gannaway to be taxed.