Re Hall; Ex Parte Chin [No 2]

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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…

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Details
Case
[2011] WASC 155
Decision Date

CaseChat Overview and Summary

The case of Re Hall; Ex Parte Chin [No 2] involved an application for prerogative remedies against judicial officers of the Supreme Court. The applicant, Mr Chin, sought relief based on alleged fraud committed by Mr Taylor, a solicitor, and Registrar Powell. Mr Chin contended that the writ in a related case was not filed on the date recorded but was backdated, a claim that had previously been rejected by the Court of Appeal. The Supreme Court was required to determine whether Mr Chin's allegations of fraud constituted a substantial new issue that warranted reconsideration of the Court of Appeal's decision.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Lack of evidence of fraud 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; and3.an affidavit of Mr Chin sworn on 7 April 2011. 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. 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. 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. 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. 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. The alleged fraud raises no substantial new issue 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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