Re Hall; Ex Parte Chin [No 2]

[2011] WASC 155

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 Hall [2009] WASCA 216

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 Ltd v Hall [No 2] [2007] WASC 239

The State of Western Australia v Wallam [2008] WASCA 117(S)

1. COMMISSIONER SLEIGHT:  The application of Mr Chin in this matter seeks a review of matters previously dealt with by the Court of Appeal in Chin v Hall [2009] WASCA 216 on the basis that an alleged fraud had been committed which led to the Court of Appeal being misled.

2. To explain the application of Mr Chin in this matter, it is necessary to give some explanation of a complex history of litigation.  A fuller description of that history is contained in the decision of Owen JA in Chin v Hall. 

3. Mrs Nancy Hall was the registered proprietor of two Perth properties, one in the suburb of Hazelmere and one in the suburb of Mount Lawley.  The properties were subject to a registered mortgage in favour of Engineering Facilities Pty Ltd arising from a mortgage dated and stamped 23 December 1992.  The benefit of the mortgage was transferred to Mr Kenneth Duncan Hill (now deceased) and this transfer was registered on 19 March 2002.

4. On 26 July 2002, Spunter Pty Ltd (Spunter) lodged caveats against the Hazelmere and the Mount Lawley properties, claiming an interest as 'equitable chargee' arising from a deed dated 1 November 2000.  Nancy Hall disputed the entitlement of Spunter.  Spunter made an application under s 138 of the Transfer of Land Act 1983 (WA) seeking an extension of its caveats over the two properties.  On this application, Nancy Hall was represented by Mr Chin.  On 20 January 2006, Jenkins J made an order that the caveats be extended subject to Spunter commencing proceedings and prosecuting those proceedings in a timely manner:  Spunter Pty Ltd v Hall [2006] WASC 6. The order required Spunter to commence proceedings within 21 days (that is, by 10 February 2006).

5. The question of whether Spunter commenced proceedings within the 21 day period is critical to Mr Chin's current application.  The court records show that on 10 February 2006 (21 days after Jenkins J's order), Spunter commenced proceedings (CIV 1131 of 2006) against Nancy Hall claiming by way of relief a declaration of an equitable interest in the two properties. 

6. Mr Chin claims that these proceedings were not commenced on 10 February 2006 and claims that the court records were altered as a result of a fraudulent conspiracy between Mr David Taylor (a solicitor acting for Spunter) and Registrar David Powell.  I will return to this issue later in this summary of the context of Mr Chin's application.

7. In 2003, Mrs Audrey Hall (as executrix of the Will of Kenneth Duncan Hall (dec)) commenced an action against Nancy Hall as mortgagee seeking an order that Nancy Hall pay the principal sum under the mortgage of $350,000 plus interest and an order that Nancy Hall deliver up the Hazelmere and Mount Lawley properties so that the plaintiff, Audrey Hall could exercise the mortgagee's power of sale pursuant to the mortgage.  Judgment was granted by Jenkins J in favour of Audrey Hall, so as to enable Audrey Hall to proceed with the mortgagee's power of sale:  Audrey Francis Hall as Executrix of the Will of Kenneth Duncan Hall (Dec) v Hall [2007] WASC 34 (Hall v Hall ).

8. Mr Chin on 7 February 2006 lodged a caveat for his professional fees against the properties held in the name of Nancy Hall.  The caveat was based upon an alleged solicitor's lien on the basis of professional services provided to Nancy Hall on the application by Spunter for an extension of its caveat:  Spunter v Hall. 

9. On 30 June 2008, Audrey Hall (as executrix of the Will of Kenneth Duncan Hall (dec)), commenced an action against Mr Chin and Spunter seeking the removal of the caveats.  An application for summary judgment was heard by Master Sanderson on 29 October 2008.  The application was granted and an order was made for the removal of both caveats.  In relation to Mr Chin's caveat the Master, after referring to a concession of counsel for Audrey Hall that a solicitor is entitled to lien over property which is recovered or preserved by the efforts of the solicitor and in the interests of the client, found that Mr Chin had done nothing to preserve the property:  Audrey Francis Hall as Executrix of the Estate of Kenneth Duncan Hall v Chin [2008] WASC 255 (Hall v Chin  (Master Sanderson)).  The Master also stated:

   The plaintiff's mortgage was in place well before he [Mr Chin] began to act for Ms Hall. No lien could have arisen which would defeat the plaintiff's position. The plaintiff was entitled to summary judgment [6].

10. Mr Chin appealed against the Master's decision.  Mr Chin's contention was that proceedings in CIV 1131of 2006 were not initiated by 10 February 2008, but some later date and as a consequence Spunter did not comply with Jenkins J's order of 20 February 2006.  Mr Chin contended that as a result of non‑compliance with the order of Jenkins J the caveat lodged by Spunter automatically lapsed as at 11 February 2008.  Mr Chin claims that because the caveat lapsed pursuant to Jenkins J's order, Mr Chin, by representing Nancy Hall in such proceedings before Jenkins J, had preserved the land by his professional services and was therefore entitled to a lien.  He claimed that lien took priority over any prior registered mortgage.

11. The Court of Appeal in Chin v Hall rejected Mr Chin's appeal.  Owen JA (with whom McLure P & Buss JA agreed) concluded the effect of Jenkins J's order was not that the caveat of Spunter automatically lapsed by non‑compliance with the order.  Owen JA concluded that the caveat remained in place until the order was made for its removal by order of Master Sanderson:  Chinl v Hall [47].  The Court of Appeal also dealt with the issue of whether the court records had been falsified to show that proceedings had been commenced by Spunter by 10 February 2006.  Mr Chin presented to the Court of Appeal a letter from the Deputy Registrar which Mr Chin  submitted supported Mr Chin's contention that action CIV 1131 0f 2006 was not commenced on 10 February 2006.  Owen JA dealt with this contention as follows:

    The letter does not establish that the action was not commenced on 10 February 2006. It indicates that the writ was filed on 10 February 2006 and, through an oversight, the filing fee paid was 20 cents short of the proper amount. The underpayment was brought to Spunter's solicitor's attention and the correct amount was paid. This does not mean that the writ was not filed until the correct fee was paid [55].

12. Owen JA went on to find that it does not 'necessarily follow that a document is deemed not to be "filed" merely because as a result of oversight, the correct fee has not been paid' [56]. Owen JA did not see it necessary to consider the alternative ground of Master Sanderson's decision that even if Mr Chin did have a caveatable interest, it could not take priority over the prior registered mortgage of the deceased, Kenneth Duncan Hall. Also, the Court of Appeal did not see it necessary to consider the question of whether the properties were relevantly recovered or preserved by Mr Chin representing Nancy Hall in the proceedings before Jenkins J so as to entitle him to a lien claim.

13. Mr Chin sought special leave to appeal to the High Court against the decision of the Court of Appeal, but was not granted leave.

14. It is in the context of this background that Mr Chin seeks remedies by way of an Notice of Originating Motion which came before me  for hearing.

15. The application by Mr Chin is for 'certiorari orders nisi to be made absolute'.  The orders sought and the grounds of the application are set out in Mr Chin's application as follows:

    1.Registrar David Powell covered‑up for David Taylor Solicitor's falsifications of the Court Records in CIV 1131 of 2006.

    2.Registrar David Powell committed a corrupt act in accordance with subs 27(3)(c) of the Crime Corruption Commission Act, 2003 as a result of the cover‑up.

    3.David Taylor Solicitor committed perjury in accordance with s.124 of the Criminal Code Act, 1913.

    4.Justice Owen was misled by Registrar Powell's corrupt act as contained in his letter dated 11.6.2009 and relied upon by him in paragraphs 54 and 55 of the judgment in CACV 107 of 2008.

    5.The ruse of the belated payment of court fees by David Taylor Solicitor in CIV 1131 of 2006 in having its purported and fraudulent intended legal effect for the commencement date of 10.2.2006 instead of 16.2.2006 in CIV 1131 of 2006 misfired, and thereby it became a fraud committed upon the court by David Taylor Solicitor.

    6.The fraud upon the court has the effect of repulsing the Applicant to stop his further solicitor work until the fraud is corrected by the wrong doer - this stoppage of work legally and synergetically [sic] created the causal connection between the Applicant's solicitor work and the final removal of the Caveats of Spunter Pty Ltd.

    7.Master Sanderson's summary judgment in CIV 1775 of 2008 therefore did not remove the Spunter's Caveat.

    8.The Costs Orders of Master Sanderson and of the Court of Appeal in CACV 107 of 2008 be stayed pending the determination of this Application.

    9.The Applicant be entitled to a first statutory charge under s.244 of the former Legal Practice Act, 2003 for his Solicitor Work in CIV 1142 of 2006 on the salvaged Hazelmere and Mt Lawley Properties thereby justifying his caveatable interests in Caveat J614059.

    10.Damages and Other relief this Honourable Court may deem fit.

    11.Costs.

    And Further take Notice, that the grounds of this application are:

    1)The letter of Registrar David Powell dated 11.6.2009 to the Applicant in response to the latter's letter dated 5.6.2009 (at page 136 of the Yellow Appeal Book of the Applicant in CACV 107 of 2008 filed and served 22.6.2009) is a cover-up by Registrar Powell for Mr. David Taylor who falsified the court records by David Taylor Solicitor in CIV 1131 of 2006 (Registrar Powell's Cover‑Up).

    2)Registrar Powell's Cover-Up is a corrupt act in accordance with s.27(3)(c) of the Crime Corruption Commission Act, 2003 because Registrar Powell is reasonably found to have conspired with David Taylor Solicitor contrary to s.121 of the Criminal Code Act, 1913 (WA) (the Criminal Code) (Registrar Powell's Corrupt Act).

    3)David Taylor Solicitor conspires with Registrar Powell by swearing an Affidavit on 27.3.2007 to the effect that he filed the Writ of Summons in CIV 1131 of 2006 on 10.2.2006 at the Registry of the Supreme Court of WA by paying the court fees in two sums of $654.00 with a cheque and 20 cents in cash on 10.2.2006 and he thereby falsified the court records in that case to this effect, contrary to s.85 of the Criminal Code (David Taylor Solicitor's Falsification of Court Records).

    4)Were there the non‑existent Registrar Powell's Corrupt Act and the non‑existent David Taylor Solicitor's Falsification of Court Records, Justice Owen judgment in CACV107 of 2008 would not have been misled in his judgment in CACV 107 of 2008 (Justice Owen being Misled by Registrar's Powell's Corrupt Act).

    5)Justice Owen is being Misled by Registrar's Powell's Corrupt Act is reasonably seen at paragraphs 54 and 55 of Justice Owen's judgment to the effect that the Writ of Summons in CIV 1131 of 2006 was deposited with the Supreme Court Registry on 10.2.2006 but due to a purported mistake by David Taylor Solicitor in not paying the 20 cents component of the full court fees of $654.20 on time, the purported payment of $654.00 made with a cheque of $654.00 was replaced with a credit card payment of $654.00 and a 20 cents cash payment made at the belated date of 16.2.2006 (the Ruse of a Belated Payment of Court Fees).

    6)The Ruse of a Belated Payment of Court Fees caused Master against the to remove the matter to the Supreme Court for the purpose of Sanderson to act in excess of his jurisdiction and to deny the Applicant his natural justice thereby causing the Applicant to lose the causal connection between his Solicitor Work in CIV 1142 of 2006 for and on behalf of the late Ms. Nancy Cloonan Hall and the Removal of the Caveats of Spunter Pty Ltd in accordance with the High Court Special Leave Dispositions in P1 of 2010 (the Rationale of the High Court).

    7)The Rationale of the High Court empowers the Applicant to have a first charge over the salvaged Hazelmere and Mt. Lawley Properties of the late Ms. Nancy Cloonan Hall and the Applicant should therefore not be subject to the tyrannical and unjustified Costs Orders of both Master Sanderson in CIV 1775 of 2008 and CACV1O7 of 2008 threatened to be enforced by Mr. Anthony Prime as solicitor for the Plaintiff in CIV 1775 of 2008 (the Tyrannical Costs Orders).

    8)The issue of the fraud upon the court by David Taylor Solicitor in CIV 1131 of 2006 has been refused litigation by Master Sanderson and is therefore never res judicata and needs to be litigated again in this Application.

    9)The ensuing tyrannical Costs Orders by Master Sanderson and Justice Owen is a wrong exercise of discretion for costs by the former and an error of law and facts by Justice Owen.

16. The application in this matter was initially filed by Mr Chin on 11 June 2011 in the form of a Notice of Originating Motion seeking 'orders nisi to be made absolute' in terms of the orders listed above.  On 24 June 2011, Mr Chin filed an amended Notice of Originating Motion seeking 'certiorari orders nisi to be absolute' in terms of the orders as stated above.

17. The first observation I make is that the amended Notice of Originating Motion is not in a form which complies with the Rules of the Supreme Court 1971 (WA) in relation to an application for a writ of certiorari. The amended Notice of Originating Motion does not name the person against whom the relief is sought (O 56 r 1(2) and (3)). Further, the orders sought by Mr Chin do not accord with the Supreme Court Common Forms. Common Form 47, in relation to an application for a writ of certiorari, provides for an order nisi requiring an individual to show cause why a writ of certiorari should not issue against the inferior court or tribunal to remove an order to the Supreme Court for the purposes of having the order quashed.

18. The fact that Mr Chin's application does not comply with the Rules of the Supreme Court and the Supreme Court Common Forms is indicative of the fact that Mr Chin's application is misconceived as pointed out by E M Heenan J on 4 August 2010, when Mr Chin's application first came before the court.

19. Mr Chin's application came before E M Heenan J on 4 August 2010.  Mr Chin did not appear on this date and E M Heenan J adjourned the application sine die:  Re Justice Kenneth Martin; Ex Parte Chin [2010] WASC 212. The application before E M Heenan J also included an application for a writ of certiorari seeking a remedy in relation to a decision of Kenneth Martin J. That application is not a part of the application before me. E M Heenan J made the following comments in his decision:

    In passing, however, I do not wish to be taken as acknowledging that there is potential merit in either of the pending applications.  There is, it would seem, an insuperable obstacle to both of them.  It is that the prerogative remedies of certiorari, prohibition and mandamus do not lie to courts of general jurisdiction against a decision of another Judge or judicial officer of the same court.  Putting aside matters arising under federal jurisdiction and the constitutional writs of prohibition and mandamus, which do not arise here, the established principle is that judicial review by prerogative remedies does not lie against a State Supreme Court or against a Judge of a State Supreme Court by another Judge of the same court.  Authority for that includes Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 174 - 175 (Brennan, Deane, Toohey, Gaudron & McHugh JJ), and a recent decision of the Supreme Court of New South Wales in Application of Cannar Re Eubanks [2003] NSWSC 802 (Bell J). The rule is set out in a passage from the reasons of Deane J in Re Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351, 385 quoted at [22] of her Honour's judgment in Application of Cannar Re Eubanks.  Other decisions to the same effect are Re Western Australian Industrial Appeal Court; Ex parte Carter (1992) 7 WAR 348, 354; (1992) 44 IR 171; Barton v Walker [1979] 2 NSWLR 740, 755; and Mayor of London v Cox (1867) LR 2 HL 239. The same principle applies to applications for mandamus and prohibition: Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595.

    Subject to any submissions from Mr Chin addressing those decisions, it seems likely that these applications are doomed to failure, but I will not dismiss them at this stage.  I will simply adjourn them sine die [9] ‑ [10].

20. If Mr Chin was entitled to apply for a writ of certiorari, a single judge could make the order nisi returnable to the Court of Appeal. Section 58(1)(c) of the Supreme Court Act 1935 (WA) vests in the Court of Appeal jurisdiction to hear and determine 'rule nisi and orders to show cause' returnable before the Court of Appeal. A single judge may, on an application for a writ of certiorari, make an order to show cause returnable to the Court of Appeal (O 36 r 2(b)(ii)).

1. However, as stated by EM Heenan J in Re Justice Kenneth Martin; Ex parte Chinthere appears an insuperable obstacle to Mr Chin's application by virtue of the fact that a writ of certiorari does not lie to courts of general jurisdiction against a decision of another judge or judicial officer of the same court.  In the matter of Application of Cannar Re Eubanks [2003] NSWSC 802, Bell J (then of the New South Wales Supreme Court), considered she did not have power to grant relief in the nature of certiorari to quash a decision made by a judge of that court [23]. Her Honour in her reasons referred to a number of High Court decisions in support of this conclusion which are also cited by EM Heenan J.

2. In Craig v The State of South Australia (1994) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), in observing that the writ of certiorari only went to an inferior court or to certain tribunals exercising government powers stated:

   Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record' (175 ‑ 176).

3. The authorities cited by EM Heenan J in Re Justice Kenneth Martin; Ex Parte Chin are consistent with the historic use of the writ of certiorari.  The writ was used as a means by which inferior courts and tribunals could be reviewed on petition to the sovereign through the Lord Chancellor's court:  R v Grey; Ex parte Marsh (1981) 157 CLR 351, per Deane J at 387. However, it was acknowledged by Deane J that the traditional role of certiorari to provide a remedy to review decrees of inferior courts and tribunals could be altered by statute.

4. Mr Chin's submissions are that s 23, s 24 and s 33 of the Supreme Court Act provide a statutory exception to the rule that certiorari lies only to review a decree of an inferior court or tribunal. In broad terms, s 23 and s 24 vest in the Supreme Court of Western Australia the full equitable jurisdiction that existed in the courts in England. Section 33 provides for the correction of a judgment under the so‑called 'slip rule'. There is nothing in these sections which creates an exception so as to provide a certiorari remedy against a decree of a superior court.

5. On this basis, the application of Mr Chin for a writ of certiorari should be dismissed. 

6. However, Mr Chin's submission is that his application should be heard on a wider ground that the Supreme Court has an inherent jurisdiction to review an earlier decision where it is based upon a fraud.  Mr Chin submits that I ought to refer the matter of the original decision in Chin v Hall back to the Court of Appeal under s 43 of the Supreme Court on the basis of an alleged fraud committed by Mr Taylor and Registrar Powell. Section 43 provides:

   (1)Any judge, whether sitting in court or in chambers, may, in the exercise of civil or appellate jurisdiction, at any time before final judgment, and whether before or after argument, reserve any case, or any point or question in a case, for the consideration of the Court of Appeal, or may at any such time as aforesaid direct any case, point, or question to be argued before the Court of Appeal, or may give judgment in any cause or matter subject to the judgment of the Court of Appeal on any point or question arising in such cause or matter, and may reserve such point or question for such judgment, and the Court of Appeal shall thereupon hear and determine such case, point, or question.

   (2)Any judge, whether sitting in court or in chambers, may, when granting a rule nisi or order to show cause, make the same returnable before the Court of Appeal.

7. The starting‑point to Mr Chin's submission is the maxim that 'fraud unravels all'.  In Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Denning MR stated:

   No judgment of a court, no order of a minister can be allowed to stand if it is obtained by fraud.  Fraud unravels everything.  The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all the transactions whatsoever (712).

8. In Hip Foong Hong v H Neotia and Company[1918] AC 888 Lord Buckmaster (at 894) stated:

   In all applications for a new trial the fundamental ground must be that there has been a miscarriage of justice.  If no charge of fraud or surprise is brought forward, it is not sufficient to show that there was further evidence that could have been adduced to support the claim of the losing party; the applicant must go further and show that the evidence was of such a character that it would, so far as can be foreseen, have formed a determining factor in the result.  Such considerations do not apply to questions of surprise, and still less to questions of fraud.  A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail; in the present case their Lordships are unable to say that such a case has been established.  They think that the judgment of the Supreme Court was in its conclusion correct.

9. It should be noted that the cases of Lazarus Estates Ltd v Beasley and Hip Foong Hong v H Neotia and Companywere not applications for a writ of certiorari, but rather appeals to an appellate court which had jurisdiction to hear appeals from an inferior court.

10. The recognition that a decision based upon fraud can be impeached is consistent with the practice in Chancery which always allowed a litigant to impeach a decree obtained by fraud by an original bill in Chancery (see Harrison v Schipp [2002] NSWCA 78 [18]; Birne v Hartpole (1717) 5 Bro PC 197; 2 ER 624; Barnesly v Powel (1748) 1 Ves sen 119; 27 ER 930).

11. In the High Court decision of Burrell v The Queen [2008] HCA 34; (2008) 82 ALJR 1221, the plurality recognised that the tenet that a judgment once obtained must not be reopened was subject to a few narrowly defined exceptions such as fraud [15]. Otherwise, the plurality ruled that the Court of Appeal in New South Wales, based upon the statutory scheme in that State, had no jurisdiction to reopen an appeal which it had heard upon the merits and finally determined [24] (also see Girerson v The Queen [1938] HCA 45; (1938) 60 CLR 431 and Elliott v The Queen [2007] HCA 51; (2007) 82 ALJR 82, 85).

12. In the Court of Appeal decision of The State of Western Australia v Wallam [2008] WASCA 117(S), the court, based upon Burrell's case, ruled that it had no power to reopen an appeal against sentence where a subsequent decision of the Court of Appeal had changed the interpretation of the law.  At [16] ‑ [17] McLure P stated:

    My understanding of the law is that, in the absence of a statutory provision to the contrary and subject to certain narrow exceptions that do not apply in this case, a formally recorded order made by an intermediate appellate court cannot be reopened or reconsidered.

    There is no general power, express or implied, given to the Court of Appeal in the Supreme Court Act, the Criminal Appeals Act, the rules of court or any other statute to which we were referred to reopen and reconsider perfected orders, civil or criminal [16] ‑ [17].

13. Although McLure P did not elaborate on what she meant by 'subject to certain narrow exceptions', I believe this was a reference to the exception that arises in the case of fraud.  Her Honour had earlier cited in support of her conclusions the High Court decision in D J L v Central Authority [2000] HCA 17; (2000) 170 ALR 659. In that case, the High Court considered the issue of a court's inherent jurisdiction to review orders that had been finalised. D J L's case concerned an issue of whether the Family Court, which was created by statute and accordingly had no inherent jurisdiction, could alter a perfected order. The position of the Family Court is different because the States' Supreme Courts which have conferred upon them the same jurisdiction as the courts of Westminster (see s 20 and s 24 of the Supreme Court Act 1935 (WA)). In the course of their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ examined the equitable jurisdiction of the Court of Chancery to review judgments fraudulently obtained and the extent that this power has been transposed to the superior courts in Australia. At [35] ‑ [37] their Honours stated:

    The Court of Chancery had power to reopen and rehear cases which had been tried before it, even after the decree had been entered.  The right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction.  Sir George Jessel MR so concluded in Re St Nazaire Co.  However, that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK).  The structure it provided included the Court of Appeal.

    The Court of Chancery also had had jurisdiction to enjoin, by a species of common injunction, the enforcement of judgments fraudulently obtained, including those recovered in the common law courts, or to oblige the holder of such a judgment to enter satisfaction of it upon the judgment roll of the common law court.  The exercise of this jurisdiction involved the institution of a separate proceeding. In dealing with the matter, the Court of Chancery might send the issues respecting the alleged fraud to a common law court for trial by a new jury.It is unsettled whether this jurisdiction might have been invoked to set aside judgments by reason of the availability of 'fresh evidence'.

    A mainspring of the equity jurisdiction was the view taken in Chancery of the deficiencies of the common law procedures, particularly with respect to appeal processes and the absence of a record of the evidence which had been called before the jury.  It is significant that this was at a time before the creation of the modern statutory appellate structure in England.  The equity jurisdiction remains in Australia, at least with respect to the impeachment of judgments for fraud, but the preferable course remains the institution of a separate proceeding.  That was the view expressed by Barwick CJ in McDonald v McDonald [35] ‑ [37].

14. Again, the inherent jurisdiction to review a final order in the case of fraud was recognised in Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, where Aickin J said:

    When an appeal has been finally disposed of in a Court of Appeal by an order duly entered it has no inherent power to reopen the case on an application made after the order has been entered.  That general proposition is no doubt subject to the rule that a judgment apparently regularly obtained may be impeached upon the ground of fraud, and there would seem to be no reason why that rule should not also apply to judgments on appeal ...

15. The question then is whether I should refer the matter back to the Court of Appeal pursuant to s 43 to hear Mr Chin's application which is, in effect, to set aside the orders of Master Sanderson in Hall v Chin and the Court of Appeal in Chin v Hall on the basis of the alleged fraud committed by Mr Taylor and Registrar Powell.

16. For the following reasons, I conclude that I should not refer the matter back to the Court of Appeal pursuant to s 43 of the Supreme Court Act.  My reasons for doing so are as follows:

1. Lack of evidence of fraud

1. There is nothing in the affidavit material filed by Mr Chin in support of his application which presents any evidence of the alleged fraud.  Mr Chin filed the following affidavits:

   1.an affidavit of Mr Chin sworn on 30 September 2010;

   2.an affidavit of Maurice Law sworn on 7 April 2011; and

   3.an affidavit of Mr Chin sworn on 7 April 2011.

2. The last two affidavits were filed after the hearing before me on 4 April 2011.  During the hearing, Mr Chin sought leave to call Mr Law to give oral evidence.  Leave was refused, but I granted leave for Mr Chin to file an affidavit from Mr Law.  No order was made by me for Mr Chin to file a further affidavit, but, notwithstanding this, I will take into account his affidavit sworn on 7 April 2011.

3. The affidavit of Mr Chin sworn on 30 September 2010 contains the front page of the writ in CIV 1131 of 2006.  The front page has the date of filing stamped as 10 February 2006.  It also contains a fees stamp, originally dated 10 February 2006, but amended to 16 February 2006.  This change to the fee payment date was explained in a letter by a registrar of the court dated 11 June 2009, which was considered by Owen JA in Chin v Hall[54] ‑ [56] and is referred to earlier in this decision.

4. The affidavit also refers to an opinion of the daughter of the late Ms Nancy Hall that the writ was not filed on 10 February 2006.  This, of course, is not evidence, but simply an expression of opinion and, accordingly, cannot be taken into account.

5. The affidavit of Mr Law sworn on 7 April 2011 does not provide any additional evidence of the alleged fraud committed by Mr Taylor and Registrar Powell.  Mr Law effectively was the owner of Spunter.  Spunter was represented by Mr Taylor in Spunter Pty Ltd v Hall and in action CIV 1131 of 2006.  The affidavit of Mr Law annexes to it various items of correspondence, which include correspondence between Mr Law and the Legal Practitioners Complaints Committee (to whom Mr Law had lodged a complaint concerning his former solicitor, Mr Taylor).  It is clear that Mr Law has fallen out with his former solicitor, Mr Taylor, and supports Mr Chin in the application in this matter.  The material annexed to the affidavit of Mr Law does not provide any evidence of a fraud by Mr Taylor and Registrar Powell, although the affidavit contains material which repeats the allegation of such a fraud having been committed. 

6. The affidavit of Mr Chin sworn on 7 April 2011 is more in the nature of submissions and contains no evidence supporting the allegations of the alleged fraud.

1. The alleged fraud raises no substantial new issue

1. The alleged fraud committed by Mr Taylor and Registrar Powell was in the form of falsification of the court records.  Although the allegation of fraud was not expressly raised by Mr Chin before the Court of Appeal, he, in effect, raised the allegation by presenting evidence for the Court of Appeal in Chin v Hall to support the allegation that the writ in action CIV 1131 of 2006 was not filed on 10 February 2006, but on 16 February 2006.  This allegation was expressly rejected by Owen JA (with whom McLure P and Buss JA agreed), as mentioned earlier in this decision.  Also, it should be noted that the same argument that Spunter did not commence proceedings in action CIV 1131 of 2006 within the 21‑day period specified by Jenkins J was raised by Ms Nancy Hall in Spunter Pty Ltd v Hall [No 2] [2007] WASC 239 (Simmonds J). Ms Hall gave evidence on affidavit that she had waited all day on 10 February 2006 in the Central Office of the Supreme Court and that action CIV 1131 of 2006 was not filed on that day [107] ‑ [111]. However, the evidence contradicted the evidence of Spunter's then solicitor, Mr Taylor, and the date stamp on the writ which indicated that the writ was filed on 10 February 2006. Simmonds J rejected the evidence of Ms Hall and found that the writ had been filed on 10 February 2006. As pointed out by Owen JA in Chin v Hall [50], Mr Chin was not a party to that action, so he is not formally bound by the finding.

2. However, the Court of Appeal held that even if Mr Chin were able to prove that action CIV 1131 of 2006 was not commenced on 10 February 2006, it would not have produced a different result, as the caveat remained [47] ‑ [57].  See also Chin v Hill [No 2] [2011] WASCA 96 [3]. Given the conclusions of the Court of Appeal in Chin v Hall, in my view, it not be appropriate to refer the matter back to the Court of Appeal, when the Court of Appeal has already ruled that the commencement date of action CIV 1131 of 2006 would make no difference to the outcome.  

1. Section 43 is inappropriate to investigate any allegation of fraud

1. Even if there was evidence of such fraud, the Court of Appeal should not be placed in the position of a court exercising originating jurisdiction, as opposed to an appellate function to resolve the allegation of fraud raised by Mr Chin.

2. In Hip Foong Hong, Lord Buckmaster stated as follows:

   They have only to add that where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute.  The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, then the whole issue can be properly defined, fought out, and determined, through a motion for a new trial is also an available weapon and in some cases may be the more convenient (894).

3. In Flower v Lloyd (1877) 6 Ch D 297, the plaintiff, who had lost in the Court of Appeal, applied by motion for the court to rehear the appeal on the ground of fraud and for leave to adduce further evidence. The court refused the motion on the ground that it sought an exercise of original jurisdiction which the court did not possess, its only original jurisdiction being incidental to the exercise of its appellate jurisdiction. All members of the court referred to the remedy by action to set aside or rescind a judgment for fraud.

4. In Harrison v Schipp (supra ) Handley JA in relation to the jurisdiction of the Supreme Court of New South Wales, concluded at [66]:

   The jurisdiction of a court of equity to entertain an action to set aside a judgment for fraud was not affected by the legislative changes here or in England because such proceedings are based on a cause of action under the general law [66].

5. The decision went on to state that where the aggrieved party wished to produce simply new evidence, then the only recourse was by way of an appeal to the appellate court.  However, proceedings based upon fraud were in a different category of cases because the alleged fraud provided a cause of action under the general law.  See also DJL's case at [37] referred to earlier in this decision.

1. Slip rule does not apply

1. Finally, I reject the submission of Mr Chin that the matter should be referred back to the Court of Appeal under the so‑called 'slip rule'. Mr Chin relies upon s 33 of the Supreme Court Act which provides:

   If any judgment or order of the Court contains a clerical mistake or any error arising from an accidental slip or omission, the Court may correct the judgment or order without an appeal.

2. Order 21 r 10 of the Rules of the Supreme Court is framed in almost identical terms.

3. In Storey and Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, the New South Wales Court of Appeal construed the New South Wales equivalent of O 21 r 10 which is in materially the same terms. The court held that an omission or mistake should not be treated as accidental if the proposed correction requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist. It should be such that had the matter been drawn to the court's attention at the time, the correction would have been made at once. The Storeytest in relation to the slip rule was approved by the Court of Appeal in Western Australia in the decision of Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211(S) per McLure P at [8], with whom Buss JA and Murray AJA agreed.

1. In Burrell's case, the plurality stated in relation to the power to alter accidental slips at [21] as follows:

   The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.

2. In this matter, the contention of Mr Chin that a fraud has been committed which lead to the Court of Appeal being mislead is clearly not an error which could be described as an accidental error applying the Storey test. Accordingly, s 33, or the slip rule, has no application.

Conclusion

1. Accordingly, for the above reasons, I conclude that Mr Chin's application, either in the form of an application for a remedy of certiorari or on an application on the wider basis of an inherent jurisdiction of the court, should be dismissed.