IN
THE SUPREME COURT OF WESTERN AUSTRALIA
HELD
AT PERTH CIV 1275 OF 2012
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 BOTH APPLICANTS IN SUPPORT OF THE NOTICE OF ORIGINATING MOTION FOR LEAVE PURSUANT
TO S.6 OF THE VEXATIOUS PROCEEDINGS RESTRICTIONS ACT, 2002 (WA) AS PER ORDERS
OF MURRAY J IN CIV 1689 OF 2011 DELIVERED 10.1.2011 (95 pages).
------------------------------------------------------------------------------------------------------------
Date
of Document:
7th day of February, 2012
Filed
on behalf of:
The First and Second Applicants in
Person.
Date
of filing: 8th day of February,
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
|
16.1.2012
|
Affidavit of First and Second Applicant
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
|
19
|
C&L18
|
31.1.2012 etc.
|
Correspondence between the First
Applicant and the parties involved in the dispute about the former being
declared a Vexatious Litigant pursuant to ss.4 and 6 of the Vexatious
Proceedings Restrictions Act 2002 (WA) in CIV 1689 of 2011 and the extension
of time granted by SAT to the Deputy President Judge Sharp for another 60
days to deliver his judgment in VR87 of 2009 (13 pages).
|
82-94
|
20
|
C&L19
|
15.9.2011
|
Letter from Registrar Eldred of the Court
of Appeal referring to the Joint Application of both Applicants in these
proceedings dated 15.7.2011 in 44 pages stating that it appears to be an
abuse of process and therefore requires leave of judge pursuant to RSC O.67
r.5. The Applicants requires this set of 44 pages to be including for the
purpose of these Proceedings for LEAVE and EXPURGATION.
|
95
|
1.
I,
NICHOLAS NI KOK CHIN (Lawyer, not in current practice)
of No. 387, Alexander Drive , DIANELLA WA , do make oath and say as
follows:
2. The facts herein are true and correct, to the best of my
knowledge, information and belief. Where I identify the source
of facts stated as other than from my own personal knowledge, I believe such facts to
be true and correct.
3. I am filing this Affidavit in support
of the joint Application in the ORIGINATING MOTION dated 7th day of February,
2012 in Form 64 pursuant to RSC O 54 r 5 for LEAVE to institute proceedings for
the FIRST TIME PURSUANT to s.6 (1) and (3) of the Vexatious Proceedings
Restrictions Act, 2002 (WA) (the Act); (as a result of the Order of Justice
Murray dated 11.1.2012 in CIV1689 of 2011 declaring the First Applicant a
Vexatious Litigant) for the purposes of seeking the following:
3.1 EIGHT
ORDERS for Leave pursuant to s. 6(1) (a) of the Act.
3.2. EIGHT Declarative Relief pursuant to
s.25(6) of the Supreme Court Act, 1935 WA for which there
can be no objection to by the contending parties (the Act);
3.3.IF NECESSARY and in the course of this Honourable Court
making the SIXTEEN ORDERS AND DECLARATORY RELIEFS, the parties who are ordered
to be served with these documents may be asked to show cause as to why those
parts of the decision in the SEVENTEEN LISTED matters should be EXPURGATED for
Errors of Law Apparent On the Court Records and for the Jurisdictional Errors
of the FOUR JUDGES which had caused detriment and economic deprivations to both
Applicants. Such EXPURGATION is to be
determined by a Judge of the Supreme Court in accordance with the law on
Jurisdictional Errors and Judicial Integrity as propounded by the Honourable
Justice Spigelman, in the following terms:
3.3.1.
the cancellation of the technical slips of issues made by the
courts below pursuant to s.33 of the Supreme Court Act, 1935 (the Second Act);
3.3.2.
the Judicial Review of disputed issues pursuant to s. 43 of
the Second Act;
3.3.3.
the new trial of disputed issues pursuant to s.59 of the Second
Act..
DOCUMENTS TO BE
INCLUDED IN THIS APPLICATION:
4.
In addition to NINETEEN SETS of the listed documents in the
Schedule above, I wish to draw this Honourable Court’s attention to
the following documents already in the court records as follows:
4.3.All those FIFTEEN matters are in two sets: the first set
bearing Nos. 1 to 7 and the second set bearing Nos. 8 to 15, both of which are
cited at page one of the Application;
4.4.I refer to item No.2 of matters, for which I have received
a response from the learned Court of Appeal Registrar Eldred in her letter
dated 15.9.2011 (See Document No.20 in the Schedule). That response requires me 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, I am including the said
item 2 (in 44 pages) as part of this application for leave.
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 mine and the
Second Applicant’s joint Application.
7.
I would like to stress the Integrity Aspects of the
Jurisdictional Errors of the Law of the Four Judges, which impinges on the
public perception of Their Honour’s honesty, sincerity, good faith and therefore
their integrity (without paying 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 for cronyism to take place (the Integrity
Aspects).
8.
Having regard to the Integrity Aspects of the Four Judges, I specifically would like
to stress that Their Honours must not be seen to be evading those issues 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 and equal justice to all the disputing
parties that are before them. I am not
making a blanket accusation against any of the judges, but I want to apologize
beforehand lest I create any ill feelings against me whilst I am trying to be
honest. They are the issues before this Honourable
Court which I am referring to the Joint Application as “issues” in terms of the
following:
8.3.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;
8.4.The respective judges must not at all material times, identify the wrong issues
and they are reasonably found to be doing so;
8.5.I know that the respective judges were asking themselves the
wrong questions;
8.6.I know that the respective judges were ignoring relevant
materials;
8.7.I do know that the respective judges were relying on
irrelevant materials;
8.8.They are reasonably found to have been making erroneous
findings of facts or law;
8.9. I have personally found them to be reaching mistaken
conclusions of facts or law;
8.10.
When they are making determination of critical facts they
have been reasonably found to have relied on no evidence;
8.11.
They were making
irrational and illogical reasoning in the fact finding process in the
respective judgments;
8.12.
My due respect to all the Four Judges, I must say that as a
result of the above, their Honours are found to have made
purported decisions only which does 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.
8.13.
This is because Their Honours must not continue to
misapprehend the law after they have been pointed out the correct law by
me. All the above pointers are contained
in the filed documents in the above listed FIFTEEN MATTERS.
9.
I refer to the Statement of Chronology and the 18 documents
as listed above which show 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 and
that the Nexus between my solicitors work for Nancy Hall and the Removal of the
Spunter’s Caveats have been established. Therefore I am entitled to make my claim for
my solicitors remuneration based on s.244 of the former LPA as the Salvour of
part of Nancy
10. Further, I as the solicitor for
Nancy Hall have been faithful in exercising my duties in accordance with the
law and I am entitled to make my claim against the Estate for Nancy Hall for the
legal costs of my solicitors work in the sum of about $150k to be assessed by
this Honourable Court. I shall be
continuing my work for the estate of Nancy
11. At the same time, as the solicitor for
Nancy Hall under the former s.244 of the LPA, I need to ensure that the
creditors of Nancy Hall in the person of the Second Applicant is being dealt
with justly and bring it to a successful conclusion and in accordance with the
law. The remissness of the Administrator
of Nancy Hall is causing me to do this.
This is my duty to the court first and it does not conflict with my
interests as the Salvour of Nancy’s estate.
12. The only issue I need this
Honourable Court to DEAL WITH is NOT TO AVOID the SINGLE ISSUE OF THE
FALSIFICATIONS OF THE COURT RECORDS BY DAVID TAYLOR IN CIV 1131 OF 2006 ON
10.2.2006 THAT IS NOW BEING VERIFIED BY THE EVIDENCE PROVIDED BY DAVID TAYLOR
IN VR158 OF 2011 ON 29.11.2011: THAT IS NOW IN THE HANDS OF THE PRESIDENT OF
SAT, THE HONOURABLE JUSTICE CHANEY.
SWORN by the First Deponent at Perth
In the State of Western Australia
This day of FEBRUARY,
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 Western
day of FEBRUARY,
2012 ]……………………………………………..
Before me: (Signature
of Maurice Frederick Law as the Second Deponent)
…………………………………..
Justice of Peace/
Commissioner of the Supreme
Court for Taking
Affidavit
