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MAURICE LAW
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NICHOLAS NI KOK PHONE: 08 92757440
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The PRINCIPAL REGISTRAR
SUPREME COURT OF WESTERN AUSTRALIA
BARRACK STREET
ATTEN: ASSOCIATE TO MASTER SANDERSON.
DEAR SIRS
Ref: DISQUALIFICATION OF MASTER
SANDERSON FROM HEARING THE FRESH JOINT APPLICATION OF MR. LAW AND MR. CHIN, DATED
AND FILED 12.6.20121 FOR A SUSPENSION ORDER TO STAY THE COSTS ORDER OF SIMMONDS
J IN CIV 2157 OF 2011 DATED 12.8.2011 SCHEDULED FOR HEARING BEFORE HIS HONOUR ON
25.7.2011 AT 9.15 AM
Dear Sirs,
I refer
to the written judgment of the decision dated 18.6.2012 by EM Heenan in GANNAWAY -v- CHIN
No 2] [2012] WASC 208 or CIV 1275 of 2012 pertaining
to a joint application for a Suspension Order against Simmonds J’s costs order
in CIV 2157 of 2011 or Gannaway
v Chin [2011] WASC 252, by Mr. Law and
Mr. Chin. The First Joint Applicant was
dismissed by EM Heenan J on 5.6.2012 (the First Joint Application).
As a result of the First Joint
Application, both the Applicants made another fresh Joint Application filed and
dated 12.6.2012, which is the above subject matter (the Second Joint
Application).
The Second Joint Application is
not an abuse of process as it is not litigating matters that have already been
litigated but concerns issues which have never been litigated in the past (the EIGHT
non-res judicata issues), namely:
1) the error of law in all previous related litigations that
Spunter Pty Ltd’s Caveatable Interests in the Mt. Lawley and Hazelmere
Properties of Nancy Hall need not be founded on proprietary interests. The Proprietary Interests of Spunter is the
subject matter of Mr. Chin’s appeal against the decision of Justice McKechnie’s
dismissal of CIV 1275 of 2012 on 18.6.2012 (the Proprietary Interests of Spunter).
2) the Proprietary Interests of Spunter was never present in
CIV1775 of 2008 or in Audrey Francis Hall as Executrix of the estate of KENNETH
DUNCAN HALL v Chin [2008] WASC 255 as this should have been the reason for its
removal instead of the allegedly sham mortgage of Kenneth Duncan Hall having a
prior interests to that of Spunter Pty Ltd.
This existence of this fact of the NON-PROPRIETARY INTERESTS OF SPUNTER supports
the fact that Mr. Chin is the s.244 LPA 2005 Salvour of the Mt. Lawley
3) However, the Proprietary Interests of Spunter is present in
the case that is the subject of the error of Simmonds J in Gannaway v Chin [2011] WASC 252 and it is brought about by an
informal will that has its operative effect only in post 13.1.2008 period, and
that date is the date of the demise of the late Nancy Cloonan Hall. This is the subject matter of Appeal by
Maurice Law against the decisions of Simmonds J in his Notice of Appeal dated
3.7.2012 (the Second Caveats).
4) The validity of the Second Caveats depends on the validity of
the Informal Will of Nancy Hall as contained in the Six Deeds of Nancy Hall
which signify the integrity of the debts owing by the estate of Nancy Hall to
Spunter Pty Ltd as admitted to by Simmonds J in his judgment (the informal
will).
5) The paragraph 244 validity of legitimate debts owed by the
Estate of Nancy Hall to Spunter Pty Ltd in the judgment of DCJ Sweeney in her judgment
in LAW -v- GANNAWAY as administrator of the estate of NANCY CLOONAN HALL
[No 2] [2011] WADC 195 (the Integrity of the Debts owed
owed by the estate of Nancy Hall to Spunter as admitted by DCJ Sweeney).
6) The former s.244 LPA 2003 validity of
the Salvour Status of Mr. Chin as admitted to by Buss JA and concurred to by
McLure JA in CHIN -v- HALL [2009] WASCA 216 at paragraph 67 (the validity of
the Statutory Salvour Status of Mr. Chin) is in the following words of His
Honour:
“67 BUSS JA: I agree with Owen JA, for the reasons he gives, that the
appeal should be dismissed. It is unnecessary to decide in this appeal whether
work performed by a legal practitioner (including the prosecution of legal
proceedings), which results in the removal of a caveat lodged in respect of
land owned by the practitioner's client, constitutes work for or involving the
'recovery' or 'preservation' of the land. I assume, for the purposes of this
appeal, that work of that kind may constitute work for or involving the 'recovery'
or 'preservation' of the land in question.”
7) The hitherto-valid accusations made against David Taylor as
the former solicitor of Spunter Pty Ltd by Mr. Law that he David Taylor was in
dereliction of his duties towards it (Spunter) in that he (David Taylor) did
not comply with the orders of Jenkins J in CIV 1142 of 2005 No.1 to file CIV
1131 of 2006 by 10.2.2006, is rendered unnecessary by the non-res judicata
issue of the Non-Proprietary Interests of Spunter in the First Caveats (the Unnecessary
Accusations against David Taylor and Registrar Powell).
8)
The Unnecessary Accusations against David Taylor and Registrar Powell
shall render the status of the s.244 former LPA 2005 Salvour Status of Mr. Chin
valid as he is indeed the salvour of the Mt. Lawley and Hazelmere Properties of
the Estate of Nancy Hall since 10.2.2006 and this fact renders the
administrator of that estate Mrs. Gannaway liable in law to compensate Mr. Chin
for his ongoing legal work performed by him as Salvour for the Estate of Nancy
Hall until today and it is continuing (the compensation to Mr. Chin).
Although the EIGHT NON-RES JUDICATA matters as recited above has not been
the direct subject matters that came within the purview of His Honour Master
Sanderson in his judgment in AUDREY FRANCIS HALL as executrix of the estate of
KENNETH DUNCAN HALL -v- CHIN [2008] WASC 255 dated 29.10.2008, the Joint
Applicants in the Second Joint Application are apprehensive of the fact that
His Honour Master Sanderson might not bring an impartial mind as a judge in the
above matter on the following grounds:
1)
His Honour had already formed pre-judgments and personal opinions on the
matter based on his previous decision;
2)
His Honour’s impartiality might therefore be reasonably questioned;
3)
His Honour is in possession of disputed evidentiary facts concerning
these proceedings;
4)
His Honour had previously expressed an opinion concerning the same issues
that will affect the outcome of the second Joint Application;
5)
His Honour shall be reasonably seen as acting in conflict of interests or
shall be reasonably seen as a judge sitting to hear his own cause as he had
already made up his mind on the same issues in the previous proceedings;
6)
It is therefore right for his Honour to voluntarily recuse himself from
hearing this Joint Application if he were to recognize the existence of facts
leading to his disqualifications as he is the sole arbiter of this informal motion
of recusal- this recusal therefore depends on His Honour’s own knowledge,
conscience and his own discretions;
Yours faithfully,
MAURICE LAW
NICHOLAS N CHIN
See the judgement of His Honour Master Sanderson in
ReplyDeleteGANNAWAY -v- CHIN [No 3] [2012] WASC 269 at
http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf/PDFJudgments-WebVw/2012WASC0269/%24FILE/2012WASC0269.pdf
Look at paragraph 2 of the above judgement of the learned Master heard 25.7.2012 and delivered 27.7.2012. His Honour said:
ReplyDelete"....Moreover, I was advised by Mr Chin appeal proceedings are on foot. If the enforcement order is to be suspended, it should be by order of the Court of Appeal."
This can only mean one thing: that the learned Master's dismissal of this application to stay the costs orders of Justice Simmonds in CIV 2157 of 2011 and of Justice Heenan in CIV 1275 of 2012 are either VOIDABLE or VOID and therefore are unenforceable pending the determination of the appeal notice of both Mr. Chin dated 28.6.2012 and Mr. Law dated 3.7.2012 respectively, both of which appeals are currently being consolidated into CACV 5 of 2012. The effect of the above statement is that the learned Master had abdicated himself from making a decision on it: there is therefore no decision.