TRANSCRIPT OF THE TAXATION PROCEEDINGS BEFORE MR. ANTHONY PRIME AND MR. MAURICE LAW BY REGISTRAR POWELL - IN THE ABSENCE OF NICHOLAS N CHIN WHO HAS GIVEN PRIOR NOTICE TO REGISTRAR POWELL THAT HE IS UNAVAILABLE

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THE SUPREME COURT OF
WESTERN AUSTRALIA
CIV:1775 of 2008
AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL
and
NICHOLAS NI KOK CHIN
and
SPUNTER PTY LTD
and
THE REGISTRAR OF TITLES
REGISTRAR POWELL
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON FRIDAY, 17 DECEMBER 2010, AT 10.03 AM
Continued from 3/11/10
MR A. PRIME appeared for the plaintiff.
The first defendant appeared in person via telephone.
17/12/10 35
(s&c)
THE REGISTRAR: Commence the reviews in the first instance in CIV 1775 of 2008, Hall v Chin and Spunter Pty Ltd and the Registrar of Titles. Yes, Mr Prime?
PRIME, MR: May it please, registrar, in that matter I appear for the plaintiff.
THE REGISTRAR: Thank you. Now, I note you are here, Mr Law. In what capacity are you here?
LAW, MR: I can say a witness. Mr Chin can't be here and although he mentioned there might be a phone hook-up, I just thought I would come in to see what was going on. These two matters don't directly refer to me.
THE REGISTRAR: They refer to the company.
LAW, MR: Yes.
THE REGISTRAR: But you seem to have flitted in and out without an appearance ever being filed on behalf of the company and notwithstanding that you're not a certified legal practitioner you have had things to say on behalf of Spunter of which you are now the sole director, I understand.
LAW, MR: Yes, sir. I have written a letter to the Supreme Court to ‑ ‑ ‑
THE REGISTRAR: No, I'm not interested in letters.
LAW, MR: Okay.
THE REGISTRAR: It's a review of taxation. Now, in CIV 1775 of 2008 the bill was taxed pursuant to an order of Master Sanderson dated 29 January and the cost provisions state the first and second defendants pay the plaintiff's costs of the action, including any reserved costs and the costs of the application to be taxed. The bill was taxed. Mr Chin filed objections. The order I made at the taxation was the allocatur would be signed on 10 November unless before that date. A request for review and objections were filed. So objections had to be filed before that date.
Now, there was a document received on 4 November. The second defendant's notice of objection to the plaintiff's bill of costs was prepared by Nicholas Chin but it's referred to as the second defendant's notice of objection. Now, I don't want to get embroiled in this hearing on the right or otherwise of Mr Chin to file objections on behalf of the - sorry, Mr Chin is the second defendant.
On 10 November which is late you, Mr Law, sent a letter to the court initially dated 29 October, then altered to 9 November and finally faxed on 10 November so
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it is out of time and it you say, "I'm seeking your permission to file my tax notice of objection dated 9 November." It was too late, but what you filed under your name - who prepared that document?
LAW, MR: Myself.
THE REGISTRAR: Mr Chin?
LAW, MR: Myself. I did receive some assistance from another gentleman.
THE REGISTRAR: Who was that gentleman?
LAW, MR: He lives in another suburb.
THE REGISTRAR: Could you name who it is?
LAW, MR: James Deane.
THE REGISTRAR: What is James Deane, a lawyer?
LAW, MR: No, a friend of mine.
THE REGISTRAR: That document seems to follow the wording of the second defendant's notice of objection.
LAW, MR: I probably took some points from it.
THE REGISTRAR: Is it identical?
LAW, MR: No.
THE REGISTRAR: Which parts aren't identical?
LAW, MR: I don't have the document in front of me. I don't have two documents.
THE REGISTRAR: In any event, firstly, that's out of time; secondly, it's not a notice of objection. At the hearing I stated you should identify those items to which you are objecting and the reasons for the objection. This seems to be a general description of the objections that Mr Chin took at the taxation. I will come back to that in a moment, but in my view this document was prepared by Mr Chin.
LAW, MR: The facts would be the same, wouldn't they?
THE REGISTRAR: You have got your copy now, have you?
LAW, MR: Yes, sir.
THE REGISTRAR: I will have a look at Mr Chin's copy of his objections. It starts off "Take notice", et cetera, "that I the second defendant am objecting to the taxation,"
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and it goes on (1) and then it has got, "53 - party dissatisfied with taxation may object," and then (1)(a) "A party who contends that the taxing officer has made an error." It's identical with the wording in the other one. Every time I see you you just add to the confusion, Mr Law. Nicholas Chin is the first defendant and Spunter is the second defendant.
LAW, MR: Yes.
THE REGISTRAR: Nicholas Chin has filed a notice of objection on behalf of the second defendant.
LAW, MR: We all make mistakes.
THE REGISTRAR: Okay. Don't worry about that.
LAW, MR: No.
THE REGISTRAR: So have you copied this document which was received by the court on 4 November and added your name and then referred to it as your objections?
LAW, MR: Well, the objections would be similar.
THE REGISTRAR: No; no, please answer the questions ‑ ‑ ‑
LAW, MR: No.
THE REGISTRAR: - - - otherwise we are going to have one of these things that go forever.
LAW, MR: Okay, sure.
THE REGISTRAR: You didn't copy it.
LAW, MR: No.
THE REGISTRAR: No, okay. Did you prepare this document or did someone prepare it for you?
LAW, MR: I prepared it.
THE REGISTRAR: When you say "prepared it", typed it up?
LAW, MR: Yes, it's on my computer.
THE REGISTRAR: Was it sent to your computer by Mr Chin?
LAW, MR: No.
THE REGISTRAR: As I say, one, it's out time, (b) it's not an objection to the taxation and (c) you make the same errors that Mr Chin made at the taxation. I'm trying to find the reference to the decision of Judge Sullivan which was towards the end of that document. After
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paragraph (j) or in paragraph (j) it commences:
Registrar Hewitt as the taxing master of another case which affects Mr Alesandro Bertini did on 22 June 2009 decide to overrule his Honour of the District Court Judge O'Sullivan improper costs order affecting the solicitor-litigant in claiming profit costs against Mr Bertini.
Now, we are at the taxing here. Mr Chin was referring to that judge as Judge Sullivan which I have never heard of before, but there is or there was a Judge O'Sullivan at the District Court, but that case has nothing to do with this one. That is to do with the costs of a solicitor as a litigant in person and it was put forward by Mr Chin on the basis that I had the power under this case quoted in here to overrule the decision of a judge. That is sheer nonsense.
LAW, MR: Yes.
THE REGISTRAR: The case that Mr Chin was referring to is in fact Dobree v Hoffman (1996)18 WAR 36. It's a dispute between partners in a legal firm and it has got nothing to do with this case here, but in any event I'm going to rule that that isn't an objection to taxation by you. Insofar as you're concerned (a) you're out of time and I see no reason to extend the time for you to file those objections so your objections have no weight here and you may leave if you so wish.
Now, so far as the objection of Mr Chin is concerned I explained to Mr Chin at taxation the procedures and it might be instructive to go to the transcript. From what I can see Mr Chin's objection is to the fact that I even commenced to tax the bill because the decision of the court was wrong in that it misinterpreted or I misled the court by a letter dated 11 June in CIV 1131 of 2006 concerning the date of when a writ was filed.
Now, Mr Chin says the Court of Appeal were misled in that they relied on my letter in the decision they made in Chin v Hall (2009) WASCA 216 and he referred me to paragraphs 54 and 55 of the judgment of Owen JA where Owen JA said:
I have reviewed the evidence which Mr Chin seeks to adduce and it does not prove his contention. The high point of Chin's evidence is a letter written to him by a registrar of this court dated 11 June.
That's the letter I have just referred to and the judge sets that out in full and the judge at paragraph 55 says:
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The letter does not establish that the action was not commenced on 10 February. It indicates the writ was filed on 10 February and, through an oversight, the filing fee paid was 20 cents of the proper amount. The underpayment was brought to Spunter's solicitor's attention and the correct amount was paid. This does not mean that the writ was not filed until the correct fee was paid.
Now, all his objections at that taxation were based on that and his error in principle is a decision of the court and the fact that I am taxing the bill. First of all I should say that the title to this action 1775 of 2008 is Hall as the plaintiff, Chin as the first defendant, Spunter as the second defendant and the Registrar of Titles is the third defendant and the confusion from time to time is the wrong description of the first and second defendants.
LAW, MR: Yes, I came across this a number of times. They even put me down as Hall.
THE REGISTRAR: When you say "they", who?
LAW, MR: Different solicitors.
THE REGISTRAR: So this objection by Nicholas Chin was said to be the second defendant's notice of objection but it's not the second defendant's notice of objection - sorry, it is the second defendant's notice of objection. It's Nicholas Chin. Now, I have previously referred to the objections by Maurice Law for Spunter and what he has done on those objections is make - sorry, this is the problem with this. Chin's objections are said to be on behalf of the second defendant. The second defendant is Spunter. However, in his objections he has reversed Spunter and Chin so that Spunter is shown as the first defendant and Chin is the second defendant, but let's not worry too much about that. The wording of that, of course, is the same as in the document produced by Mr Law, but once again it's not an objection to taxation. Now, I would like to read out ‑ ‑ ‑
THE ASSOCIATE: Registrar, sorry to cut across you, but I think he has either hung up or he has gone.
THE REGISTRAR: Has Mr Chin hung up?
THE ASSOCIATE: It sounds like it.
THE REGISTRAR: Not on that phone; try on another phone. That's still recording is it?
THE ASSOCIATE: It's off now.
THE REGISTRAR: No, I want it recording because I'm going to continue but I want you to ring on another phone whether he has hung up.
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THE ASSOCIATE: Yes.
LAW, MR: I don't know whether ‑ ‑ ‑
THE REGISTRAR: No, please, every time you speak you add to the confusion. Now, at page 2 of the transcript after introducing the case I raised the first question where Mr Chin objected to me taxing the bill and halfway down page 2 of the transcript he says:
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 paragraphs 54 and 55 of that judgment. That judgment was by the Court of Appeal, three members.
Now, I have previously adverted to those paragraphs and I then went on to say, "Look, there has been a decision by the court and I'm taxing pursuant to that order," and Mr Chin persisted at the top of page 3. He says:
I have written a few letters of inquiry regarding the exact position as to why CIV 1131 of 2006 was not filed on 10 February but was filed on 16 February 2006.
I have read out the reasons of Owen JA which were quite clear. Then Chin says:
I have gone to the High Court and the High Court have decided that I had go to go back to the low court to make a legal determination whether it is my work, that is, the solicitor's work in CIV 1142.
Mr Prime interposed saying that the High Court decision was on a special leave application and I said:
This is an order dated 27 May and the High Court stated the application for special leave to appeal in this court for judgment be dismissed.
Chin said he understood that "but the reasons for the judgment says"- and I cut him off. I said, "That's the end of the matter as far as the High Court is concerned." Chin said, "It doesn't end there because there are issues that have not been decided by the High Court," and Chin went on, "It's not over because it's not res judicata." So then we go to page 6 and I said, "Unless you can show cause which says I must not tax the bill, I want to go ahead and tax it," and Mr Chin objected and I asked why. He said:
Because you wouldn't be involved in a dispute which have you been personally implicated because the Court of Appeal in coming to the decision made a technical slip at paragraphs 54 and 55 -
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so he's coming back to those comments by Owen JA -
and that technical slip relied upon your letter of 11 June.
Then we went on and on about that and I asked was he suggesting that I was lying or was he suggesting that I was trying to mislead someone and then Chin went on at page 8, "Also would you like me to go on whether you have got the jurisdiction to tax this matter?" I said, "Yes." "All right. Your jurisdiction as a taxing officer is either to allow or disallow those items in the bill," and I said, "Yes." "Your jurisdiction in this is that you must not allow it because those services were never provided by Mr Anthony Prime to Mrs Hall," and I said, "The costs are allowed pursuant to the costs order. The bill is taxed pursuant to the costs order," and then Chin said, "But according to the rules" - and I asked, "Which rule?" and he said, "Rule 53(1)." Rule 53(1) has a reference to order 66. Rule 53(1):
A party who contends that the taxing officer has made an error in principle in allowing or disallowing any 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, deliver to the other party -
and it goes on with the method of seeking the review and filing objections, but that's after the taxation, not before it. Here we hadn't commenced taxation. It's highlighted by the fact that the Court of Appeal decision which then allowed the taxing in 1775 of 2008 to proceed was wrong in that it was based on a letter written by me which Mr Chin contends was either wrong, a lie, misleading and he's also referred to me trying to protect Mr Taylor.
I got to the first item at page 14 of the transcript at the bottom and at the beginning of page 15 I said, "You can reserve an appeal as to whether this taxation should proceed but as far as the taxing of the bill is concerned item 1 refers to a writ," and we commenced to tax, "Do you have any objection?" Chin: "Sir, rule 53 does not allow you to have jurisdiction to proceed with the taxation." In my view that's clearly wrong. It can only be right if his contention that the Court of Appeal were wrong in their decision and I'm not the body who can decide that question. I assumed that was the purpose of the application to the High Court which was dismissed. I make the point towards the bottom of page 15 in referring to this rule:
It's only where you're dissatisfied with my taxation but we haven't taxed it yet, so how can you be dissatisfied with my taxation? What you're dissatisfied about is my right to commence the taxation.
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THE ASSOCIATE: He has gone again, registrar.
THE REGISTRAR: Yes. I will just adjourn it for a moment. Now, I will continue but I'm assuming that either Mr Chin has hung up or his phone has ceased to receive this call. Looking at the transcript from then onwards, you can see how the taxation proceeded at page 18 at the top of the page referring to the statement of claim. Mr Chin: "I object because it's not allowed." Registrar: "Why isn't it allowed?" Chin: "It isn't allowed because it's not recoverable because it's not the services that have been provided to Mrs Hall." I said:
The order provides that the first and second defendants pay the plaintiff's costs of the action, including any reserved costs and that's what I was taxing.
I said, "Do you want to object to the quantum?" Mr Chin: "I do not wish to participate in this, sir." I said, "I'm going to allow the item," and then we proceeded with the summary judgment application. At the top of page 20 I said, "Do you have any objection to the quantum being claimed?" Mr Chin: "Sir, the order of the court - the court's order against me is a void judgment and I've approached it" - and I interjected, "Decided by whom?" Chin: "By way of certiorari." "Who decided that?"
Chin: "I've approached it by certiorari and it will be decided." Registrar: "It's not decided by anyone at the moment. All of these are allegations by you." "It's not an allegation. It's a fact." Chin: "I don't want to waste my time taxing something which I'm not liable to pay," so the whole objection is that he's not liable to pay because of the faulty judgment of the court which was based either on a lie or being led astray by my letter.
THE ASSOCIATE: He's dropped out.
THE REGISTRAR: Is he dropping out or is he ‑ ‑ ‑
THE ASSOCIATE: Yes, I don't fully understand why it is.
CHIN, MR: Hello.
THE ASSOCIATE: This is Perth again, Mr Chin.
CHIN, MR: Hello.
THE REGISTRAR: Yes, we can hear you, Mr Chin. Then at page 21 there's a discussion on item 3 of the bill - sorry, item 4 of the bill which were costs fixed by a case manager. Mr Chin: "Is it a standard association or an indemnity assessment?" I replied:
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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: "So is it a standard assessment, not an indemnity costs?" "That's the order. Forget what it is. It's fixed." "Sir, I wanted to know whether it's party and party costs that I'm to pay that is made?" "There is not suggestion this is anything other than party and party but it's been fixed by the judicial officer who made the order," and then we went on and taxation proceeded on that basis.
If I could digress a moment, at page 28 with respect to Mr Law I asked, "Has anyone granted you, Mr Law, leave to appear on behalf of Spunter in this or any other matters?" Mr Law: "Well, I have a solicitor - no, I was, I think - yes, I did. I applied, yes. I wrote to the court." "And what was the order?" Law: "I don't think I received a reply again." "Did you make an application?" "Not especially as a document from the court." The end effect is that no‑one is representing the company but I gave Mr Law leave to speak at the taxation with respect to the bill for that company.
LAW, MR: Sir, do I have to ask the court each time I come in on a matter whether I'm able to represent the company?
THE REGISTRAR: I'm not worried about that. What I'm worried about is this taxation. So any other matter you can take up with the judicial officer, but to my way of thinking this taxation will end this action so if you commence something further, you will have to ask. At page 3 we got on to a review of taxation. At the bottom of that page I said:
The easiest way is if you object to individual items in the bill. Now, if you have got some objection in some other form which has got nothing to do with taxing of the bill, that is a decision under which I'm taxing.
In other words, getting back to the order of the Full Court, "I'm taking no notice of that because I can't affect that. I'm taxing pursuant to the order," and that's because, if I could go back one, at page 31 at the end of the taxation I said, "I'm explaining to you that if I start it now, that's the equivalent of a judgment. If you have got objections as to principle or any other matter, I will delay signing the allocatur for seven days," and Chin asked me to do that and so did Mr Law.
Mr Chin: "The reason for my objection is it should not have been allowed because there is no recoverability."
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"We touched on recoverability. The recoverability is not there." In other words, he's finding fault with the judgment of the court and I suggested that he should either seek legal advice or make use of his own knowledge, being formerly a lawyer, and that, "My review would be based on the taxation and I will restrict it to those matters in contention," and I said at the foot of page 32:
It will not include whether the judgment pursuant to which this 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.
I invited him to "do whatever you want in whatever sphere" but to do it before that date "but if it doesn't relate to the review of the taxation, being an error in principle on which the bill was taxed and the amounts allowed, I will be signing the allocatur". In my view that's what this document headed "Objections" is. It doesn't specify the items. It doesn't specify the amounts, but it reverts back to the commencement of the writ in 1131 of 2006.
CHIN, MR: Hello, is that (indistinct)
THE REGISTRAR: It says, "The two bills of costs are for judgments and are not enforceable in a court of law. These proceedings are void and have to be repaired by way of certiorari in CIV 1877 of 2010," and there's a reference to various cases.
CHIN, MR: Can I (indistinct)
THE REGISTRAR: So far as I'm concerned these objections are not objections as to the taxation. Now, whether you, Mr Chin, have a right to take this matter on the question of the judgment pursuant to which I'm taxing the bill to another jurisdiction is not for me to decide, but I don't believe these objections in any way cause me to change the amounts I taxed at taxation. Now, you want to say something, Mr Chin?
CHIN, MR: Yes.
THE REGISTRAR: Do you want to say anything?
CHIN, MR: I actually can't hear. What's your decision again, please?
THE REGISTRAR: Yes, what I'm saying is that this isn't objections to taxation. It's objections ‑ ‑ ‑
CHIN, MR: (indistinct)
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THE REGISTRAR: I'm going to allow the taxation - the amount allowed at taxation.
CHIN, MR: (indistinct) can you send me that email again because ‑ ‑ ‑
.........., MR: He's talking to someone else.
THE REGISTRAR: Which email?
.........., MR: He's talking to someone else at the same time, someone called Jackson.
CHIN, MR: Your Honour?
THE REGISTRAR: Are you talking to me, Mr Chin?
CHIN, MR: Your Honour - your Honour, can you hear me?
THE REGISTRAR: Yes.
CHIN, MR: I'm speaking to Jackson of the Supreme Court at this moment just a little - I have got a document I ask him to send to me and I will (indistinct). Is that okay?
THE REGISTRAR: No, I'm making my decision now because what you have filed are not objections to the taxation. I will just see what Mr Prime has to say.
CHIN, MR: (indistinct) I didn't hear the decision properly.
THE REGISTRAR: Okay. I just want to hear what Mr Prime has got to say. Do you have anything to say?
PRIME, MR: All I say, registrar, is that on the defendants' own document where they quote order 53 rule (1)(a) it says that an objection in writing must be ‑ ‑ ‑
CHIN, MR: (indistinct)
THE REGISTRAR: Can you keep your voice up for his purposes?
PRIME, MR: The objection must be a list in a short and concise form of the item ‑ ‑ ‑
THE REGISTRAR: Hold on, Mr Chin, please. Mr Prime is speaking now.
PRIME, MR: The objection needs to be a list in a short and concise form of the items or parts of items objected to and the grounds and reasons for the objections. This document doesn't do that. This document seeks to continue
17/12/10 46
to argue the matter that has been put to rest by the Court of Appeal and by the High Court.
THE REGISTRAR: That is what I pointed out to Mr Chin ‑ ‑ ‑
PRIME, MR: Yes, at the original taxation.
THE REGISTRAR: - - - and to Mr Law at the original taxation.
PRIME, MR: That's right, and indeed to the extent that he refers to seeking prerogative relief the decision of Heenan J in that regard, although adjourned sine die, says, in effect, "Subject to any submissions from Mr Chin those applications are doomed to failure but I won't dismiss them at this stage." So all of those are issues that he could seek to take elsewhere. He has sought to do so and unsuccessfully. They do not impact upon your taxation and they're not bases upon which to seek a review of individual items.
THE REGISTRAR: So as a result of that I'm not going to sign the allocatur in the bills and that completes the hearing. Thank you.
AT 10.50 AM THE MATTER WAS ADJOURNED ACCORDINGLY
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