Thursday, October 13, 2011
CHRONOLOGY OF EVENTS LEADING UP TO TRIAL OF VR87 OF 2009 THAT WAS TRIAL BEFORE A SAT PANEL ON 11.10.2011
1.
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5.1.2008
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Respondent filed Draft Chronology in CACV 105 of 2008 depicting 120 items of events for the period ending on 10.1.2009.
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2
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12.7.2008
(refer to items 4 and 22 below)
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1) Letter from Mrs. Michele-Maree Gannaway (daughter of Nancy Hall) to Maurice Law indicating that Mrs. Audrey Hall’s (Michele’s aunty) mortgage is a sham (the sham).
2) The former is executor of estate of
3) David Taylor and Registrar Powell falsified the court records in CIV1131 of 2006 by pretending to have complied with Justice Jenkin’s Order in CIV 1142 of 2005 No.1 (the falsifications).
4) The falsifications have the legal effect that it was not Respondent who removed Spunter Pty Ltd (Maurice’s) Caveats from the two properties of Nancy Hall
5). The lawyer for
6). The first fraud is the result of Mrs. Hall using the sham through Mr. Anthony Prime to achieve a $2.3m claim against the estate of Nancy in CIV 2073 of 2007 (the first fraud).
7). The sham is the subject of the error of Master Sanderson’s judgment in CIV 1775 of 2008 on 29.10.2008 (the error).
8). The error on the one hand denied the Respondent salvour’s status which resulted from s.244 of the former LPA but on the other hand recognized that Mr. Anthony Prime is responsible for removing the Spunter’s Caveats on 29.10.2008 when it was the Respondent’s solicitor work for Nancy which removed it lawfully on 10.2.2006 (the salvour status).
9). The error also recognized that the sham has priority over the salvour status. The Respondent appealed the said error to the Court of Appeal but it was dismissed although there is a near perfect judgment except for Owen JA refusal to receive the fresh evidence of Registrar Powell’s letter dated 11.6.2009. This letter is an unsuccessful attempt by the learned Registrar to cover up the second fraud (the priority).
10). The High Court rarely grants special leave to appeal but it explains the reason for its dismissal in that the Respondent needs to prove a causal connection between his solicitor’s work for Nancy and the removal of the Spunter’s Caveats. This means the Respondent must prove the first fraud in order to succeed. This is done if the said priority is negated (the causal connection).
11). The error of Owen JA in refusing to accept the fresh evidence is inconsistent to the point of its being construed as reasonably ludicrous because His Honour expounded the law for its (the fresh evidence) acceptance and yet His Honour contradicts himself: fresh evidence must be received at the appeal stage if the second fraud is being unraveled or if the fresh evidence as a condition for its acceptance would have caused a reverse effect of the court of appeal decision in CACV 107 of 2008. This is the focused issue before Commissioner Sleight in CIV1877 of 2010 which was undecided on the ground that a brother judge has no prerogative writ powers over his brother judge of the same rank (the focused issue).
12). Both Maurice Law and Respondent applied for the focused issue or the error of law apparent on the court records to be effaced in CACV 107 of 2008 on 15.7.2011 (the error of law).
13). The first fraud caused a less than arms length expedited settlement of $702k between Mrs. Gannaway and her aunty but left debts of Nancy’e estate owing and payable to Maurice Law and Respondent
14). Mrs. Gannaway in CIV 2157 removed both the creditors New Caveats on the Hazelmere Property dated 28.2.2011 on 12.8.2011. Mrs. Hall promised to pay Respondent $20k to be kept in trust with her solicitor Mr. Anthony Prime of McCallum Donovan Sweeney on condition that the error of Master Sanderson is set aside. But setting aside the error involves continuing legal work for
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3
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2.11.2008
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Respondent’s letter to court of appeal Registrar re the Consent Judgment of Justice Steytler in CACV 43 of 2007 to set aside the decision of Judge Eckert in VR137 of 2006 (the res judicata issues). Respondent received a response from Dr. Narelle Morris which did not answer his questions thereby admitting them to be true. The Court of Appeal in CACV 105 of 2008 similarly did not answer the four issues (the four issues):
a) Why did Justice Chaney decide later on the res judicata issues again in VR107 of 2008 and arrived at the same decision as Judge Eckert in VR137 of 2006?
b) Why the Pseudo Board
c) Why the Pseudo Board refused to bind itself by the terms of the Steytler Consent Judgment it had voluntarily entered into to set aside the decision of Judge Eckert?
d) Why did the Court of Appeal avoid the issues affecting the abuse of powers by the Pseudo Board and went on a frolic of its own to impose the hurdle of leave of appeal against the Respondent thereby denying him natural justice – by compromising on the unlawful and professional misconduct of David Taylor and Timothy Robin Thies?
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4
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12.2.2009
(refer to item 2 above)
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1). Letter from Mr. Anthony Prime in CACV 107 of 2008 to Respondent stating that the $20k promised by Mrs. Audrey Hall is being kept in trust by his form for the respondent and shall only be paid to the Respondent provided the error is set aside or the priority negated (the promise).
2. The Respondent expect that when Maurice Law application to review the decision of SAT in VR158 of 2011 is vindicated in accordance with the suggestions of the judgment of Commissioner Sleight in CIV 1877 of 2010 delivered on 15.6.2011 (Commissioner Sleight’s directions).
3. The promise and Commissioner Sleight’s directions shall vindicate the rights of the creditors once the said error and priority is set aright (righting the injustice).
4) Righting the injustice involves the estate of
5) Respondent duty of candidness to the court is paramount compared to his duty to the estate of Nancy Hall (the paramount duty).
6) The paramount duty involves the Respondent in righting the injustice by setting aside the error
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5.
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30.6.2009
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1) Persecution of Respondent by Ms. Mc Cahon of the LPCC in VR 87 of 2009 in the form of an Application to SAT by the LPCC under s. 428(1) of the LPA for the malicious purpose of finding the inconvenient untruths that the Respondent is guilty of professional misconduct misguidedly in terms of (the Application):
“a) s.438(1) of the LPA
b) consequential orders pursuant to s.438 or s.439 an/or s.441 of the LPA and
c) the practitioner pay the LPCC costs pursuant to subs. 87(2) of the SAT Act.”
2) The Application is an attempt by the LPCC to convert the “perceived deficiency” of the Respondent in his professional knowledge by Judge Eckert in VR137 of 2006 into some kind of professional misconduct and unsatisfactory conduct (the malicious attempt).
3) They latter imports some imaginary elements of dishonesty and recklessness or incompetency or lack of diligence respectively on the part of the Respondent (the non-existent elements).
4) The malicious attempt and the non-existent elements reek of a conspiracy by the LPCC and the Pseudo Board to protect its cronies
5) The cronyism is widespread and it covers judicial officers like Registrar Powell. There is a pattern of conduct of the LPCC and the Pseudo Board which is consistent with its insistence and persistence to refuse to provide the Respondent with an even playing field through such actors like Ms. McCahon and Ms. LeMiere (the persistency).
6) The persistency results from their common ambitions to cover up the wrong-doings that was initiated by Ms. Katherine Coombs since 19.7.2006 emanating from Pino Monoco’s plundering conduct on Dr. K S Chan that resulted in the Steytler Consent Judgment compromise with the Respondent in CACV 43 of 2007 of 26.9.2007 (the compromise).
7) The compromise resulted in the Respondent being continually restrained in his independent legal practice till today (the calumny).
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6.
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20.8.2009
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Respondent’s innocent reply to the calumny pursuant to order of SAT President
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7
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18.12.2009
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Receipt of a file of documents from the LPCC re the calumny. It is barred by the principle of res judicata on the ground that they are matters already decided by Judge Eckert in VR137 of 2006 on 12.9.2006 or matters that could have been raised with reasonable diligence by the LPCC at that time
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8
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15.12.2009
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1) Complaint by Respondent to Corruption Crime Commission (CCC) in a 24 page document by way of facsimile addressed to its Commissioner Len Robert-Smith QC re the falsifications.
2) A response was received from Roger Hellier copied to David Robinson. The Respondent answers dated 16.12.2009 addressed all the issues by Mr. Hellier.
3) The CCC would not investigate the falsifications on the ground that they are the subject of an application for Special Leave to the High Court in P1 of 2010 and it would only investigate after the High Court has already decided on those issues…..
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9
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20.12.2009
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1) Respondent’s written submission to Associate Ms. Lauren Butterly and Natalie Sinton for the consideration of the Chief Justice hearing of CIV3086 of 2009 filed 10.12.2009 heard on 22.12.2009 (the submission).
2) It involves the falsifications which predicated the outcome that prerogative writs orders is not amenable to a brother judge of the same rank by the Chief Justice (the common outcome).
4) The said common outcome should not preclude the invocation of the inherent jurisdiction of the Supreme Court to correct its own errors as confirmed by Commissioner Sleight in his judgment in CIV 1877 of 2011 delivered on 15.6.2011 (the other avenue).
5) The said common outcome and the said other avenue caused an injustice as the falsifications involving the alleged misconduct of a judicial officer and therefore the protocol requires a complaint to be lodged with the Chief Justice first before the WA Major Fraud Squad can begin a formal investigation into it. This is the step taken by Sergeant Gangin overseeing the falsification which is a criminal offence through the WA Police Commissioner at the initiation of the Attorney General of
6) Only after the Protocol has been performed by Chief Justice
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10
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8.1.2010
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1) Respondent’s letter to Parliamentary Inspector regarding how the Chief Justice and the CCC dealt with CIV 3068 of 2009 re the calumny and CIV3086 of 2009 re the falsifications (the PI).
2) The PI responded to Respondent on 5.1.2010 and 12.1.2010 that he is jurisdictionally restricted to oversee the investigation of the CCC but he cannot investigate the CCC for any wrongdoing (the powers of the PI).
3) Despite the restrictive powers of the PI
4) The Chief Justice has explained his positions and he bears me no malice. Therefore
5) Respondent’s email letter to PI dated 21.1.2010 indicating that Roger Hellier of CCC had indicated by email 22.12.2009 his promise to investigate both the calumny and the falsifications while waiting for the decision of the High Court in P36 of 2009 and P1 of 2010 respectively. Despite having received both the outcomes from the High Court
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11
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18.1.2010
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1) Respondent’s facsimile letter to the CCC Len Roberts-Smith imploring him to investigate the falsifications based upon the promise of CCC officer Roger Hellier together with a similar imploration to the LPCC to do the same by providing it with the 6 page Special Leave to Appeal to the High Court in P1 of 2010 which was filed on 4.1.2010.
2) By 25.1.2010
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12
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23.1.2010
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1) Respondent wrote an email to the State Ombudsman complaining about the Government Department of the State Attorney General of WA providing a comprehensive report of the falsifications.
2) By 28.1.2010 the PI wrote to the Respondent confirming that CCC Officer Roger Hellier shall be meeting with the Respondent to assess the evidence of the falsifications. By 9.2.2010
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13
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7.4.2010
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1) Respondent served the LPCC and SAT with a list of documents that was filed in CIV 1019 of 2010: Ex parte application for Certiorari Orders to set aside Judgment of Justice Chaney in VR 107 of 2008 and VR87 of 2009.
2) There are 9 batches of documents which cover the period from 29.12.2009 till the 6.4.2010.
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14
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2.5.2010
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Respondent’s email letter to the International Criminal Court copied to all members of parliament of
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15
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1.6.2010
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Respondent lodged a complaint against David Taylor re the falsifications.
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16
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8.6.2010
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Respondent received a letter bearing reference 197/10 from Senior Legal Officer Ms. G. McCahon of the LPCC that it intends to deal with my complaint regarding David Gerald Taylor efficiently and expeditiously as is practicable but this turns out to be a false assertion.
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17
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11.6.2010
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1) Respondent filed an Ex-parte Application for Certiorari Orders in CIV1877 of 2010 that was heard before Commissioner Sleight.
2) Although it was dismissed on the ground of the said outcome but His Honour provides rationale on how the matter could be pursued further in RE HALL; EX PARTE CHIN [No 2] [2011] WASC 155.
3) As a result
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18
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16.7.2010
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1) Respondent received letter from Ms. Mc Cahon of the LPCC regarding Complaint against David Taylor and requiring the Respondent to make a written submission within 21 days.
2) Respondent responded on 20.7.2010. This shows that the LPCC is not providing a level playing field to the Respondent.
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19
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30.9.2010
(See item No.31 below)
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1) Respondent filed Notice of Originating Motion in CIV 1981 of 2010 and CIV 1877 of 2010 which was adjourned sini die by Heenan J on 4.8.2010 on the ground of the said outcome as first indicated by the Chief Justice above but the issue before the court is always left undecided without resorting to the availability of the said other avenue agreed to by Commissioner Sleight (the courts refusing to do justice or avoiding the issue).
2) The purpose of the former case is for the Respondent to seek recusal of Ken Martin J in CIV 1903 of 2008 No.2 which denied the Respondent his natural justice. His Honour imposed a stultifying security costs order against Respondent on 8.7.2010 that restricted the flow of justice from the very fount of justice sought by the Respondent in CIV 1903 of 2008 No.2 owing to the reasonably apprehended bias of Ken Martin J (the bias proceedings).
3) CIV1689 of 2011 is the proceedings instituted by the principal registrar of the Supreme Court of WA through the State Solicitor of WA to probe whether the falsifications
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20
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19.10.2010
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Maurice Law complained to the LPCC through Mr. M.D. Evans regarding the falsifications.
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21
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30.11.2010
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Respondent reported to WA Police concerning the criminal conspiracy of Pseudo Board working against the public interest to perpetuate injustice in the legal system in WA by taking away Respondent’s independent status as a lawyer (the second police report).
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22
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16.2.2011
(refer to item 2 above)
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The Deputy Sheriff of the Sheriff’s Office of the Central Law Courts tried unsuccessfully to enforce the void judgments of the said error and the said priority
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23
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28.2.2011
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Maurice Law responded to Mr. D Evans of the LPCC re the falsifications.
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24
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11.3.2011
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Respondent provided an oral written submission before the Court of Appeal in CACV 41 of 2010 on only four issues of the calumny to be tried: 1) Pseudo Board 2) Timothy Robin Thies and bias of Ken Martin J
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25
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8.4.2011
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1) Respondent’s letter to Mr. Anthony Prime in respect of the suspension of the enforcement of null court orders caused by the error and the priority in CHIN -v- HALL [No 2] [2011] WASCA 96 dated 1.4.2011.
2) The Respondent’s also canvasses the issues:
1. his entitlement to the $20k as promised by the Mrs. Audrey Hall as a condition for the upliftment of the Respondent’s first caveat in CACV 107 of 2008
2. his further costs in defending the CACV107 of 2008 under conditions of necessity which is to be borne by Nancy’s estate
3) Buzz JA alluded to the possibility of the Respondent in law for being paid for further works under conditions of necessity to pursue justice for the estate of Nancy Hall.
3) The Respondent lodged this matter with the WA Police on the same day followed by a detailed letter to Senior Constable Williams dated 12.4.2011 (the second police report).
4) This is followed by the Respondent complaining to all members of Parliament regarding the disparity in the enforcement of rules by a failing judicial system
5) Maurice Law also wrote to Mr. Anthony Prime seeking a return of monies paid for the wrongful costs orders of Master Sanderson in CIV 1775 of 2008 resulting from the falsifications of court records by David Taylor.
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26
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8.4.2011
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1) Transcript of the proceedings before SAT when Ms. Le Miere for the LPCC before His Honour Judge Sharp who made references for Ms. LeMiere to quicken the matter so that the Respondent could get his practice certificate back.
2) This matter was similarly broached by the Tribunal on 26.11.2010. Reference was also made by Respondent with regard to his letter to the Tribunal and the LPCC dated 21.3.2011 with reference to the 8 questions that the Respondent had asked of Ms. Le Miere regarding the inequity of the LPCC to which she was not answering by the 8.4.2011.
3) Not answering is an admission of the truths implicit in those rhetorical questions. Refer also to email of Respondent dated 10.5.2011.
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27
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16.4.2011
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1) Respondent’s complaint to LPCC regarding Mr. Anthony Prime keeping the $20k that was promised to be paid to the Respondent after his solicitor’s lien caveat on
2) That Caveat was caused by the error and the priority and therefore it should not have been lifted by Master Sanderson’s Order in CIV1775 of 2008.
3) The Respondent is reasonably perceived to be continuing to be working for the estate of Nancy Hall under conditions of necessity
4) The restraint was set aside by Justice Steytler in CACV 43 of 2007 on 26.9.2007.
4) The Pseudo Board continues to defame the Respondent in the aftermath of 26.9.2007 by relying on misinformation that the Respondent was making false accusations against David Taylor and Timothy Robin Thies when it is plain and apparent that the wrongdoers were them instead of the Respondent.
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28
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11.5.2011
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1) Respondent reported to the Major Fraud Squad of the WA Police Sergeant Gangin re the falsifications after WA Police has investigated it upon the prompting of the State Attorney General in the first and second police reports.
2) This shows the malicious intent of the LPCC.
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29
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13.5.2011
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1) The Respondent provided the LPCC with sufficient information on the focused issue of the falsifications
2) This caused Maurice Law to make his VR 158 of 2011 Application to SAT on 13.9.2011 which was heard by Justice Chaney.
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30
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17.5.2011
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1) The State Attorney General responded to the email of the Respondent by stating that the judiciary and the executive government are independent of each other and therefore he cannot intervene.
2) However
3) This has prompted the Attorney General to launch the law reforms which is currently in process affecting the issues of misconduct of judicial officers.
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31
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19.5.2011
(See item No.19 above)
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1) Respondent reported to Sgt Gangin regarding Her Honour Registrar Wallace’s decision to regularize the irregular or to rectify the cart before the horse anomaly situation.
2) This security sum of $100.00 is not a deposit for security costs fees as the relevant legislation was repealed at the time of its payment.
3) The First stage Review Proceedings was first granted by His Honour Justice Hasluck but was discontinued by Justice Ken Martin. The matter was discussed in ex parte proceedings for prerogative writs in CIV 1491 of 2011 before Allanson J who decided that he has no powers against his brother judge of the same rank for prerogative writ powers (no powers)
4) Heenan J also arrived at no powers conclusion in CIV 1981 of 2010 and Civ 1877 of 2010 on 11.4.2010 but adjourned the two cases sini die. 5) Registrar Wallace’s sudden decision to regularize the irregular is like a bolt from the blue sky. It is caused by the rationale of the High Court decision in P50 of 2010 in that security costs order not be delayed such that His Honour Ken Martin J had stultified the proceedings by putting the cart before the horse or the anomaly situation.
5) Ken Martin J in that second stage process of the Review Order manifested less than impartiality to the Respondent and did not decide the issue in accordance with the law. This offends the two pillars of justice (the injustice by Ken Martin J).
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32
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13.6.2011
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1) Two letters of the same date from Sgt. Gangin of Major Fraud Squad of WA Police to Respondent indicating that the matter of the falsifications and the separate issue of stultification by Ken Martin J has been referred to the Chief Justice under its Policy Guidelines (the Protocol).
2) The Major Fraud Squad can investigate only after the Protocol.
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33
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11.7.2011
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The Honorable Michael Mischin MLC as Parliamentary Secretary to the Attorney General responded to the President of the Unity Party of WA Mr. Eddie Hwang stating that “Mr. Chin’s case has been argued extensively and intensively” and should be left at that; he implies thereby that the executive branch of the government of WA should not interfere with the independence of the judiciary in meting out justice to Mr. Chin.
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FURTHER SUBMISSIONS BY RESPONDENT IN VR87 OF 2009 BEFORE SAT ON 11.10.2011
THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
VR87 OF 2009
IN THE MATTER of an application under the Legal Profession Act, 2008 s. 428(1): Referral of matter to SAT by the Legal Profession Complaints Committee
Legal Profession Complaints Committee …………………………………Applicant
And
Ni Kok Chin (Nicholas) ………………………………………………….Respondent
Further written submission by the Respondent for hearing before His Honour Judge Sharp on 11th day of October, 2011 at 10.00 am
Your Honour
- I have received at 3.42 pm on 10.10.2011 the written communication from the LPCC by Mr. R.I Fletcher in 15 pages. Their contents are an abuse of process[1], intended to cause delay and are frivolous and vexatious and consist of trivialities that does not cause any harm to any of the parties involved. Neither are they characterized by any elements of dishonesty or misconduct or of a fraudulent nature of deceit where pecuniary advantage has been taken of any party involved. I have thus not been given 48 hours notice and have been taken by surprise in accordance to Rule 22 of the Consolidated Practice Directions of the Supreme Court of WA 2009. These rules are law and must be obeyed. The court may therefore proceed without reference to these late documents. Therefore they must be impugned from the court records.
- The current proceedings in VR 87 of 2009 is also an abuse of process as it is therefore barred by the extended principle of the doctrine of res judicata derived from Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and recognised by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 2) (1981) 147 CLR 589[2].
- The policy underlying res judicata and compromise is that there should be finality in the litigation[3]
- I am seeking to strike out VR87 of 2009 because there already exists a compromise on 26.9.2007 before His Honour Steytler J in CACV 43 of 2007 on 25.9.2007. The basis for doing this is the law of Compromise quoted by Corboy J in Rajanasaroj (supra) where His Honour said at para. 37 the following:
The effect of a compromise
37 A compromise represents the end of the disputes from which it arose and the court will not permit the compromised issues to be raised afresh in a new action. The disputes are disposed of by the compromise: The Law and Practice of Compromise at 601 and 602.
- I am calling for the proper administration of justice and for preventing abuse of process by the LPCC just as Corboy J said at para 39:
…That is because the principle recognised in Henderson v Henderson and Port of Melbourne Authority
6. My claim against the LPB and the LPCC merges in the compromise in the same way that my cause of action merges in the consent judgment of CACV43 of 2007. The compromise consist of the setting aside Judge Eckert Judgment in VR137 of 2006. This judgment makes a finding that the effect of a breach of that compromise by the LPB is explained in The Law and Practice of Compromise at 803 and 804 at para. 41:
... the usual consideration furnished in the context of a compromise is the promised or actual forbearance of one party to pursue a claim against another in return for some promised or actual act by the other. If the promised or actual forbearance to pursue the claim is construed as being in return for the promised performance of some act by the other party, such agreement will be regarded as one involving the immediate discharge of the claim. Where, however, the promised or actual forbearance is construed as being in return for the actual performance of some act by the other party, the claim foreborne will not be discharged until such performance takes place ...Where there is a clear and unconditional discharge, abandonment or release of a claim by one party in return for the promised performance by the other of a series of acts, that original claim can never be revived. Where the agreement involves merely the suspension of the claim pending the carrying out of the acts by the other party then the claim may not be lost forever. (emphasis added)
Beech J said in STEWART -v- BIODIESEL PRODUCERS LTD [2009] WASC 145 (28 May 2009) at para.52:
52 Anshun estoppel rests on the principle that parties to litigation should bring forward their whole case, so that the court will not permit a party to reserve a claim and make it later when it could and should have been made in the earlier proceedings. The starting point for the principle is the often cited statement of Wigram VC in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100, 115; [1843] EngR 917; (1843) 67 ER 313, 319 as follows:
[W]here a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
53 This principle was approved by the High Court in Anshun's Case (598).
54 Different views have been expressed on whether the principle in Henderson New South Wales Court of Appeal have agreed) has applied the statement in Henderson Henderson Dawson
55 Anshun's Case considered the principle in Henderson
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few (602 - 603).
56 Their Honours emphasised the significance of the potential for conflicting judgments as an important factor in this context. They said as follows:
The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By 'conflicting' judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity (603 - 604).
Conclusion: It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity (603 - 604).
7. The LPB abused the process of court and that is the reason why the Eckert Judgment is set aside.
8. The Pseudo Board, the Consent Judgment, Timothy Robin Thies and David Taylor are the four issues where the LPCC abused the process of court.
9. Why the LPCC refused to answer my questions regarding the abuse of process by LPB and LPCC on 8.4.2011 at the directions hearing before His HOnour Judge Sharp. Is this inability to answer a confirmation that they have abused the process of court?
Signature of Respondent
Dated 11th October, 2011.
[1] In ROJANASAROJ -v- RACHAN [No 2] [2011] WASC 271 (30 September 2011) Corboy J quoted the Plaintiff in stating at para.25:
It was an abuse of process for the defendant to attempt to ventilate again assertions that had merged in the agreement to settle and dismiss the First Action, reference being made to Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd [2001] NSWSC 431. In particular, Palmer J stated at [36] that the category of abuse of process represented by 'Anshun estoppel', in so far as it is applicable to a plaintiff, is concerned with the situation which arises when that plaintiff prosecutes a cause of action to its conclusion by judgment or settlement and later that plaintiff ... seeks to prosecute against the same defendant another cause of action which should reasonably have been prosecuted in the first proceedings.
[2] Ibid: at para. 27 His Honour again said at para 30:
An odd aspect of the application is that it is the plaintiff who asserts that the defendant is estopped from now raising his claims notwithstanding that it was her action that was dismissed by the consent order made in the First Action. That does not necessarily mean that res judicata and its related doctrines do not apply. In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 the High Court observed that:
The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring an action at a later date ... but the principle of res judicata holds good in such a case (508).
[3] 35 Ibid: Corboy J at para. 35 said:
In Minero Pty Ltd v Redero Pty Ltd (Unreported, NSWSC, 29 July 1998) Santow J observed that the overlapping doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process reflect three related policy concerns: finality and litigation, the unfairness of being harassed twice for the same cause and the 'scandal' of conflicting judgments (and see D'OrtaEkenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 on the significance of finality to the administration of justice. Those policy concerns are also reflected in the law relating to compromise: see Foskett D, The Law and Practice of Compromise (6th ed, 2005) 6-02; Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, 31 (Lord Bingham of Cornhill).
HIS HONOUR JUDGE SHARP REQUEST FOR THE PRINCIPLE OF LAW THAT A SOLICITOR FATHER AS A LITIGANT IN PERSON ACTING PROBONO FOR HIS SON DOES NOT OWE PUBLIC DUTIES AS A LAWYER
SAT VR87 OF 2009 LPCC V CHIN - CASE LAW REQUEST BY MEMBERS OF THE SAT TRIBUNAL ON 13.10.2011 AS ATTACHED
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| Nicholas N Chin | Thu, Oct 13, 2011 at 6:03 PM | |
To: Legal Profession Complaints Committee | ||
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