JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE HALL; EX PARTE CHIN [No 2] [2011] WASC 155
CORAM: COMMISSIONER SLEIGHT
HEARD: 4 APRIL 2011
DELIVERED : 15 JUNE 2011
FILE NO/S: CIV 1877 of 2010
MATTER :The wrongful removal of the applicant's caveats in the Hazelmere and Mount Lawley Properties of late Ms Nancy Cloonan Hall by Master Sanderson in CIV 1775 of 2008.
And
The falsifications of the court records in CIV 1131 of 2006 by David Taylor Solicitor.
And
The judgment of the Court of Appeal of the Supreme Court of Western Australia in CACV 107 of 2008, particularly at pars 54 and 55 relying on the letter of Registrar Powell dated 11 June 2009.
And
The rationale of the High Court in Special Leave Dispositions of the High Court of Australia in P1 of 2010 of 2010 providing the legal basis for the causal connection between the Applicant's Solicitors Work in CIV 1142 of 2006 and the removal of the caveats of Spunter's Pty Ltd in order to enable the Applicant to establish a statutory first charge over the salvaged properties under s 224 of the former Legal Practice Act 2003 (WA)
EX PARTE
NICHOLAS NI KOK CHIN
Applicant
Catchwords:
Certiorari - Applications for prerogative remedies against judicial officers of Supreme Court - Avenue of appeal exhausted - Certiorari only available against inferior court or tribunal - Finality of judgment of Court of Appeal - Exception of alleged fraud - Whether matter should be referred to the Court of Appeal
Legislation:
Supreme Court Act 1935 (WA), s 23, s 24, s 33, s 43
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Solicitors:
Applicant: In person
Case(s) referred to in judgment(s):
Audrey Francis Hall as Executrix of the Estate of Kenneth Duncan Hall v Chin [2008] WASC 255
Audrey Francis Hall as Executrix of the Will of Kenneth Duncan Hall (Dec) v Hall [2007] WASC 34
Barnesly v Powel (1748) 1 Ves sen 119; 27 ER 930
Birne v Hartpole (1717) 5 Bro PC 197; 2 ER 624
Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221
Chin v Hill [No 2] [2011] WASCA 96
D J L v Central Authority [2000] HCA 17; (2000) 170 ALR 659
Elliott v The Queen [2007] HCA 51; (2007) 82 ALJR 82
Flower v Lloyd (1877) 6 Ch D 297
Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145
Girerson v The Queen [1938] HCA 45; (1938) 60 CLR 431
Harrison v Schipp [2002] NSWCA 78
Hip Foong Hong v H Neotia and Company [1918] AC 888
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211(S)
R v Grey; Ex parte Marsh (1981) 157 CLR 351
Re Justice Kenneth Martin; Ex Parte Chin [2010] WASC 212
Spunter Pty Ltd v Hall [2006] WASC 6
Spunter Pty…
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- Case
- [2011] WASC 155
- Decision Date
CaseChat Overview and Summary
The legal issues at hand centred on the availability of certiorari as a remedy against the judicial officers and whether the allegations of fraud presented a substantial new issue that could justify referring the matter to the Court of Appeal. The court had to consider the finality of the Court of Appeal's judgment and whether the doctrine of res judicata applied. The court also needed to assess the sufficiency of the evidence presented to support the fraud allegations.
In addressing the legal issues, the Supreme Court found that the allegations of fraud were not supported by any new evidence. The affidavits submitted by Mr Chin and Mr Law, the latter being the former owner of Spunter, did not provide any factual basis for the fraud claims. The court noted that the alleged fraud had already been considered and rejected by the Court of Appeal. Moreover, the court emphasised that the applicant, Mr Chin, was not a party to the previous proceedings and thus was not formally bound by the Court of Appeal's findings. Given the lack of new evidence and the finality of the Court of Appeal's judgment, the Supreme Court concluded that the application for prerogative remedies should be dismissed.
The Supreme Court, therefore, upheld the finality of the Court of Appeal's judgment and declined to refer the matter back to the Court of Appeal. The court found that the doctrine of res judicata applied, and the applicant's allegations of fraud did not present a substantial new issue. As such, the application for prerogative remedies was dismissed, and no further relief was granted to Mr Chin.
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