IN THE SUPREME COURT
OF WESTERN AUSTRALIA
HELD AT PERTH
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
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
------------------------------------------------------------------------------------------------------------
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).
------------------------------------------------------------------------------------------------------------
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
MAURICE FREDERICK LAW
Phone: 08 92961555
P.O. BOX: 399 Mobile
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
|
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
|
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
|
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
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 ,
and MAURICE FREDERICK LAW (Retired Builder) of No. 87,
William Street , HERNE HILL WA ,
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
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
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
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
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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