Gannaway v Chin [No 2]

[2012] WASC 208

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GANNAWAY -v- CHIN [No 2] [2012] WASC 208

CORAM:   EM HEENAN J

HEARD:   5 JUNE 2012

DELIVERED          :   5 JUNE 2012

PUBLISHED           :  18 JUNE 2012

FILE NO/S:   CIV 2157 of 2011

BETWEEN:   MICHELE-MAREE GANNAWAY

Plaintiff

AND

NICHOLAS NI KOK CHIN
First Defendant

MAURICE FREDERICK LAW
Second Defendant

REGISTRAR OF TITLES
Third Defendant

FILE NO/S              :CIV 1275 of 2012

BETWEEN              :NICHOLAS NI KOK CHIN

First Applicant

SPUNTER PTY LTD as Trustee for the MF Law Family Trust trading as FM Law Builder
Second Applicant

MICHELE-MAREE GANNAWAY as Administrator of Estate of Nancy Cloonan Hall
First Respondent

AUDREY FRANCES HALL as Executor of the Estate of Kenneth Duncan Hall
Second Respondent

Catchwords:

Vexatious litigant - Application for suspension of enforcement of judgments - Abuse of process - No prospects of success

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Vexatious Proceedings Restriction Act 2002 (WA)

Result:

CIV 2157 of 2011 - Application by Nicholas Ni Kok Chin struck out
Application by Maurice Frederick Law dismissed with costs

CIV 1275 of 2012 - Application for leave for vexatious litigant to bring application refused
Application by Nicholas Ni Kok Chin dismissed
Application by Spunter Pty Ltd dismissed

Category:    B

Representation:

CIV 2157 of 2011

Counsel:

Plaintiff:     Mr C P Stokes

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Chris Stokes & Associates

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     No appearance

CIV 1275 of 2012

Counsel:

First Applicant              :     In person

Second Applicant          :     No appearance

First Respondent           :     Mr C P Stokes

Second Respondent       :     Mr C P Stokes

Solicitors:

First Applicant              :     In person

Second Applicant          :     No appearance

First Respondent           :     Chris Stokes & Associates

Second Respondent       :     Chris Stokes & Associates

Case(s) referred to in judgment(s):

Maurice Frederick Law, Cheryl Law & Spunter Pty Ltd v Hall (2005) WADC 75

Re Hall; Ex parte Chin (No 2) [2011] WASC 155

EM HEENAN J: 

CIV 2157 of 2011

1. This application and a similar but not identical application in CIV 1275 of 2012 were listed for hearing together.  At the conclusion of the hearing I dismissed both applications giving brief oral reasons for my decisions.  These reasons set out a little more fully the background but otherwise are a revised version of my oral reasons having been edited from the transcript.

2. The application proposed by Mr Chin in CIV 2157 of 2011 purports to be an ex parte application pursuant to s 15(2) of the Civil Judgments Enforcement Act 2004 (WA) 'to stop the unlawful execution of the void or voidable costs order of Simmonds J dated 12 August 2011'. The papers filed in support of the application are irregular in form and content.

3. Action CIV 2157 of 2011 is an action in which Michele‑Maree Gannaway is the plaintiff and in which Nicholas Ni Kok Chin is the first defendant, Maurice Frederick Law the second defendant and the Registrar of Titles is the third defendant.  It was an application by the plaintiff for the removal of caveats lodged against certain of her land by each of the first and second defendants.  By a judgment dated 12 August 2011, Gannaway v Chin [2011] WASC 252, Simmonds J determined the action by granting the plaintiff's application and ordering the removal of the two caveats and also ordering the defendants to pay the costs of those proceedings. The costs were later taxed by a deputy registrar and on 17 April 2012 the taxing officer allowed the costs in the sum of $14,679.91 and ordered that the first two defendants were jointly and severally liable for those costs. Since then the plaintiff, as judgment creditor, has applied for a property seizure order to enforce the order for costs by application dated 19 April 2012.

4. The papers in support of the present application wrongly identify Mr Chin as the first applicant; a company Spunter Pty Ltd as trustee for the MF Law Family Trust t/a MF Law Builder as the second applicant; and Michele‑Maree Gannaway as the respondent and assert that the application is brought ex parte by Spunter Pty Ltd and Nicholas Ni Kok Chin.  It should immediately be apparent that Spunter Pty Ltd was never a party to the original action and is not liable under the order for costs which was made.  Nevertheless, Mr Chin asserted that Spunter should have been the party in the original proceedings rather than Maurice Frederick Law and that it was entitled to join in the present application.  Mr Law, who appeared in person, advanced the same proposition and sought leave to appear on behalf of the corporation, Spunter Pty Ltd, notwithstanding that I had pointed out to him that that company had no interest or liability in the present proceedings and that, in any event, as a corporation it could only appear or be represented in this court by a solicitor.  Accordingly, I refused Mr Law any right to appear or make submissions on behalf of Spunter Pty Ltd.  The irregular presence of Spunter Pty Ltd as an applicant on this occasion has occurred without any attempt to obtain leave to join a new party.  Furthermore, the papers omit any reference to Mr Maurice Frederick Law in his personal capacity as a defendant liable under the costs order.

5. The application to suspend the order for the enforcement of the costs as taxed in the action is supported by two joint affidavits of Mr Law and Mr Chin, the first sworn on 23 April 2012 and the second sworn 28 May 2012.  These explain that the deponents are 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.

6. So far as the applicant concerns Mr Nicholas Ni Kok Chin, it is a fact of which the court can take notice from its own records that, by an order in separate proceedings, CIV 1689 of 2011, brought by the Principal Registrar of this court against Mr Chin, and made by Murray J on 10 January 2012, Mr Chin was declared to be a vexatious litigant with the result that he is thereby prohibited from commencing any further proceedings or taking any further step in existing proceedings, including certain proceedings then specified without the leave of the court.

7. This present application by Mr Chin pays no regard at all to the order declaring him a vexatious litigant and the order staying proceedings. Despite Mr Chin's assiduous assertions to the contrary, the affidavits filed in support of this application make no reference to an application for leave to issue proceedings by him under s 6 of the Vexatious Proceedings Restriction Act or at all.  Accordingly, I strike out this application brought by Mr Chin.

8. So far as this present application purports to have been brought by Spunter Pty Ltd as trustee for the MF Law Family Trust trading as MF Law Builder, it is irregular and should not be accepted.  I have already referred to the fact that Spunter Pty Ltd is not a party to the original action nor is it liable under the costs order.  Not only has Mr Law no right to appear for or make submissions on behalf of that company but the company has no interest in these proceedings.

9. Mr Law asserts, without demonstrating any proof, that he has been granted leave in previous proceedings to appear on behalf of Spunter Pty Ltd.  I have not paused to investigate whether or not that is so because I have to consider the present application in the current 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.

10. So far as Mr Law is concerned personally, he has not brought an application to suspend the enforcement of 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.

CIV 1275 of 2012

1. This purports to be an originating motion CIV 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 Frances Hall as the executrix of the late Kenneth Duncan Hall as second respondent.  It is said to be brought ex parte by Nicholas Ni Kok Chin and ex parte by Maurice Frederick Law.

2. Strangely, and irregularly, the notice of motion refers to 15 separate proceedings commencing with Gannaway v Chin CIV 2157 of 2011, and concluding with Maurice Frederick Law, Cheryl Law & Spunter Pty Ltd v Hall (2005) WADC 75. I will not enumerate all the other actions sought to be referred to but they are readily identifiable from the face sheet of the notice of originating motion.

3. The notice of motion asserts that it is 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 of the areas of dispute and the new trials of particular areas of dispute (the removal of errors of law apparent on the court records)'. To say that the document reflects an inadequate and distorted understanding of the law, legal procedure and principles would be a gross understatement. Nonetheless, it is necessary to attempt to distil from the application some sense of its apparent purpose. In support of the application there is a joint affidavit of Mr Chin and Mr Law sworn 7 February 2012, an affidavit of the first applicant, Mr Chin, in support of an associated summons for the issue of three subpoenas. There is also the subsequent summons issued on 2 May 2012 for leave to issue three subpoenas and for other orders. The application includes a claim for leave to be granted to Mr Chin pursuant to s 6 of the Vexatious Proceedings Act to make this application.  As I have already said in the associated earlier matter Mr Chin has been declared to be a vexatious litigant by order of Murray J on 10 January 2012.

4. In the summons and motion in which Mr Chin seeks leave pursuant to s 6 of the Vexatious Proceedings Act, it is recited that the leave sought is for the purpose of instituting legal proceedings for judicial review of jurisdictional errors of their Honours Master Sanderson, Owen JA and Simmonds J in three actions in this court, and of 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 is 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.

5. The first thing to say in relation to that is that so far as concerns proceedings before a judge of this court, it is not possible for an order for judicial review to issue because there can be no such thing 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 cases which are collected in the decision of Sleight C in Re Hall; Ex parte Chin (No 2) [2011] WASC 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 in respect of any of the decisions of this court nominated by Mr Chin.

6. Insofar as concerns the judgment of the District Court, the judgment of her Honour Judge Sweeney, the grounds upon which judicial review is sought constitute an allegation of falsification of court records by a third person resulting in a judgment by default and a further allegation that the default of that third person constitutes criminal professional misconduct.  In relation to those allegations they might, 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 be brought to that effect.  It is possible, if the fraud was patent on the face 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 proceedings to set aside the judgment.

7. 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 s 6 of the Vexatious Proceedings Act to bring proceedings to that end. As a result, Mr Chin's application for leave under s 6 of the Vexatious Proceedings Act is refused, and he is debarred from pursuing these proceedings further.

8. I come now to the associated application by Mr Law.  In this application, so far as it concerns present matters, Mr Law seeks an injunction to prevent the solicitor, Mr Stokes, from allegedly unlawfully executing a costs order of Simmonds J in CIV 2157 of 2011.  The judgment of Simmonds J has already been referred to.  It occurred in an action called Gannaway v Chin & 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.

9. That action concerned an application by the plaintiff in which Ms Gannaway was successful in obtaining orders for the removal of caveats lodged by both defendants and in obtaining a consequent order for costs.  I am informed that the costs in those proceedings have been taxed and that steps have been taken to enforce the costs order against Mr Chin and Mr Law.  It is a result of that attempted enforcement that this application for an injunction to stop the solicitor acting for Ms Gannaway in seeking enforcement of those orders is made.

10. There is no basis to conclude that the attempted execution of the costs order is in any way unlawful.  The decision of Simmonds J is 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 having been made, 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.

11. 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.  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 the 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.

12. 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 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 questions of the efficacy of that mortgage and related matters have been before the court in many earlier proceedings and have wound their way to various conclusions in judgments which are final.

13. 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 previous judicial determination and that it is not a res judicata and that 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.

14. Assuming for the moment that it does, it would mean that, subject to questions of issue estoppel and res judicata and possibly limitation periods, there may be scope to commence proceedings to resolve an issue which has never previously been determined by the courts.

15. Taking the very favourable and unsupported 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.

Costs

1. The solicitor for Ms Gannaway who appeared on her behalf on both these applications has sought orders that Messrs Chin and Law should pay his client's costs of the applications, including his appearance.  Mr Chin has opposed any costs order on the basis that it was only ever intended that each application should be dealt with on an ex parte basis and that the solicitor for Ms Gannaway need not have attended.

2. It is very difficult to ascertain from the papers exactly the scope and reach of the applications before the court brought by Mr Chin and Mr Law, but it is clear enough that in CIV 2157 of 2011 there was an application for the suspension of the execution of a costs order in the proceedings based on the judgment and orders of Simmonds J which have been mentioned several times today and in which Ms Gannaway is the judgment creditor.

3. 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 costs order.  Although they were intitled as ex parte applications, notice of each of them was given to the solicitor Mr Stokes and to Ms Gannaway by being served by email upon his office.

4. 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.