Copyright in this document is reserved to the
State of Western Australia
____
THE SUPREME COURT OF
2157 of 2011
MICHELE-MAREE GANNAWAY
and
NICHOLAS NI KOK CHIN,
MAURICE FREDERICK LAW and
REGISTRAR OF TITLES
1275 of 2012
NICHOLAS NI KOK CHIN and
MAURICE FREDERICK LAW
and
MICHELE-MAREE GANNAWAY as
administrator of the estate of NANCY CLOONAN HALL
and AUDREY FRANCES HALL as
executor of the estate of KENNETH DUNCAN HALL
(Draft Judgment)
(s&c)
HEENAN J
TRANSCRIPT OF PROCEEDINGS
AT 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
2
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
stayed.
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 10
January 2012 .
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.
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