IN THE SUPREME COURT OF WESTERN AUSTRALIA OM NO: 1019 OF 2010
HELD AT PERTH
In the matter of an application for Certiorari Orders Nisi to review and quash the decision of the learned President of the State Administrative Tribunal of Western Australia (SAT), the learned Justice Chaney in his res judicata point judgment delivered on 4.11.2009 and the stay of his consequent orders; the res judicata proceedings commenced by the Legal Profession Complaints Committee in VR 87 of 2009 on 30.6.2009 be STAYED pending the decision of this Application.
EX PARTE: NICHOLAS NI KOK CHIN
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Date of document: 29th December, 2009.
Date of filing: 29th December, 2009.
Filed on behalf of: The Ex parte Applicant
Prepared by:
NICHOLAS NI KOK CHIN Phone: 08 92757440;
387, Alexander Drive, DIANELLA Mobile: 0421642735
WA 6059 Emails: nnchin@msn.com;
nnchin09@tpg.com.au
NOTICE OF ORIGINATING MOTION
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TAKE notice that the Supreme Court will be moved at [Perth] on day the
day of 20… at the hour of in the noon, or so soon thereafter as counsel can be heard, by counsel on behalf of NICHOLAS NI KOK for the Orders Nisi to be made absolute, in terms of the following:
TABLE OF CONTENTS PAGE NUMBERS
CERTIORARI ORDERS NISI 2
RES JUDICATA DECISIONS OF THE LPCC 2
RES JUDICATA DECISION OF THE PAC THROUGH THE PSEUDO FULL BOARD: 2
RES JUDICATA DECISION OF JUDGE ECKERT IN VR 137 OF 2006 ON 12.6.2006: 2
RES JUDICATA DECISION OF THE INQUIRY PANEL AND ITS RATIFICATION BOARD 2
RES JUDICATA DECISION OF JUSTICE CHANEY IN VR 107 OF 2008 2
REMAINING ISSUES TO BE DECIDED BY THE HIGH COURT 2
Costs: 2
CERTIORARI ORDERS NISI:
1. The Legal Profession Complaints Committee of Western Australia as the Applicant in VR 87 of 2009 be and is debarred from further persecuting the Applicant in the res judicata and issues estoppel matters on the ground that it is in the public interests that litigation should end (the malicious persecution).
2. The malicious persecution is the re-litigation of matters that has already been decided by the following:
a) the court-like tribunal of the former Legal Practitioners Complaints Committee (the LPCC);
b) the court like tribunal of Professional Affairs Committee of the Legal Practice Board (the PAC);
c) The State Administrative Tribunal in VR 137 of 2006 by the learned Judge Eckert;
d) The Inquiry Panel on 3.4.2008 and the Ratification Panel on 2.5.2009.
e) The State Administrative Tribunal in VR 107 of 2008 by the President of SAT, Justice Chaney ;
f) Remaining Issues to be decided by the High Court in P36 of 2009 which affects the Court of Appeal Decision in CACV 105 of 2008 in refusing leave to appeal and dismissing the appeal from the decision of the Justice Chaney in VR 107 of 2008.
3. The Orders of the President of SAT, Justice Chaney, delivered in the res judicata point judgment in VR 87 of 2009 on 10th day of November, 2009 be stayed pending the decision of this Application on the ground of errors in law and in facts.
RES JUDICATA DECISIONS OF THE LPCC
4. 7.2.2006 – It investigated the Applicant for professional misconduct confined only to the following four matters of a trivial nature (the trivialities):
A. Applicant’s ethical conduct with regard to his dealings with the Centenary Lunch Bar;
B. Applicant’s persecution caused by F.H. Walter working at the behest of persons unknown through the improper influence of Pino Monaco on the pseudo Full Board of the PAC as a cover up for his misconduct against Dr. Kheng Su Chan;
C. Applicant’s ethical conduct with Mrs. Nalini Mathias;
D. Applicant’s non-existent trust account pertaining to the transit monies of M& J Metals;
5. 4.7.2006 – It resolved that the Applicant did not commit any professional misconduct at that stage;
6. 4.7.2006 – It therefore resolved to persecute the Applicant through F.H.Walter using the pretext of s.40 of the former LP Act basing on its error in incorrectly attributing to the Applicant its:
a) fallacious and irrational perception of the Applicant’s phantom deficiency of his professional knowledge syndrome (the falsity);
b) the falsity cannot be so illogically and irrationally attributed to any legal practitioner who is locally qualified;
c) the falsity is so illogical and irrational under circumstances there were no finding of the concomitant professional misconduct of the Applicant;
d) the falsity are never being practised on any legal practitioner in the past except the Applicant;
e) the falsity is the result of the persecuting malice of the pseudo Full Board which cannot prove that it is the genuine Full Board carrying out the statutory duties of the regulator of the legal profession in the State of Western Australia without persecuting malice.
7. 6.2.2007 – It resolved to postpone the lawful prosecution of the Applicant:
a. It was not able to find any professional misconduct of the Applicant to enable it to lawfully prosecute him since the 4.7.2006;
b. It was looking for some future professional misconduct of the Applicant and by way of implication, it was imbibing a persecuting malice;
c. It was illogical and irrational because it was consumed by an over-whelming desire to prosecute the Applicant but it could not do so and as a result it ended up persecuting him with the s.40 persecution.
d. It is like a policeman looking for a criminal who has not committed a crime and is attributing to the Applicant a crime which he had not committed, by persecuting him, albeit maliciously.
8. 12.6.2006 – It added extra matters that was not within its contemplation at the time when it initiated the s.40 persecution:
a. The Tylor and Fleay conflict of interests affairs;
b. The false allegations that the Applicant has a proclivity to make false allegations against fellow practitioners Timothy Robin Thies and David Gerald Taylor.
c. The Clohessy affairs;
d. The Nancy Cloonan Hall affairs;
e. The disrespect to judicial officers affairs: writing to the Chief Justice, answers to questions regarding the learned Justice Jenkins in the Powell’s case and writing to the Chief Magistrate in relation to David Taylor affairs.
9. 30.6.2009 – It decided to carry out its persecuting malice that was in its contemplation since 4.7.2006 by making Application VR87 of 2009 to SAT to re-persecute the Applicant but this time on professional misconduct on the res judicata and issue estoppel matters (the malicious re-persecution process).
10. 30.6.2009 – The malicious re-persecution process is carried out knowingly despite the stark absence of the constitutional elements of professional misconduct which are vital for ensuring success in a lawful prosecution (the gravamen), in respect of the clients or former clients of the Applicant:
a. Monies or properties must have been defrauded or deprived by the Applicant.
b. Vulnerabilities must have been exploited by the Applicant.
c. The Applicant must have abused his powers as a legal practitioner.
RES JUDICATA DECISION OF THE PAC THROUGH THE PSEUDO FULL BOARD:
11. 24.2.2005 – It resolved to accept the premature complaint of Pino Monaco’s letter to curb the independent practice of the Applicant dated 19.1.2005 at a time when Applicant was still a restricted practitioner with the firm of V. Ozich & Co;
12. 24.2.2005 – Its resolution in jurisdictional excess to receive Pino Monaco’s complaint because it is not the function of the PAC “judge” to receive the Complaint as the “policeman” LPCC must independently do its statutory job first and not be improperly influenced by the PAC.
13. 19.7.2006 – Its resolution was based on its excess-of-jurisdictional-powers pretext under s.40 of the former LP Act and not under professional misconduct which it could not then find.
14. 12.6.2006 – Its agent, the then secretary of the Board gave an illegal order to Judge Eckert to illegally and wrongfully close down the independent law practice of the Applicant using the s.40 pretext, without observing the proper procedure and contrary to the provisions of s. 155 and 156 of the former LP Act with persecuting malice;
RES JUDICATA DECISION OF JUDGE ECKERT IN VR 137 OF 2006 ON 12.6.2006:
15. The trivial matters in paragraph 4 were expanded and decided by the learned Judge Eckert to include the following:
A. The case of Timothy Robin Thies’ unprofessional conduct - later determined by Justice Hasluck in RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 contrary to Judge Eckert’s incorrect perception.
B. The case of Mr. David Taylor unprofessional conduct - later determined by the Court of Appeal of Owen JA, McLure P and Buss JA in CHIN -v- HALL [2009] WASCA 216. This is not quite finalized with regard to the error of fact affecting the misleading letter of Registrar Powell dated 11.6.2009 relevantly affecting paras 54 and 54 at page 16 and 17 of that judgment, which shall be finalized by the High Court (Justice Owen’s error).
C. The learned Chief Justice in CIV 3068 of 2009 on 22.12.2009 had agreed with the Applicant with regard to Justice Owen’s error and that decision should be reversed at the High Court of Australia. An application for special leave to appeal has been lodged at the Perth Registry of the High Court on 23.12.2009.
D. .The Tylor, Fleay and Powell conflict of interest issues.
E. The issue whether s.40 of the former LP Act is a pretext to persecute the Applicant for no professional misconduct.
F. Nancy Cloonan Hall issues affecting Justice Jenkins and David Taylor.
G. The non-existent trust account where transit monies is only relevant for M & J Metals.
H. Judge Eckert accepted the argument of counsel for the pseudo Full Board, of my learned friend Peter Quinlan to the effect that falsehoods, deceit and wrongdoings, imaginary and the dream world as opposed to reality, truths and good deeds and justice can be accepted as the basis for the value arguments presented by him to make the s.40 persecution “stick” on the Applicant.
RES JUDICATA DECISION OF THE INQUIRY PANEL AND ITS RATIFICATION BOARD
13. 3.4.2008: The Pseudo Full Board acting as the Inquiry Panel was not able to provide the validating minutes as provided for under s.11 of the former LP Act indicating that it has the valid authority to further persecute the Applicant;
14. 3.4.2008: The Pseudo Full Board decided without the valid authority to do so to impose the s.40 conditions on the Applicant but relaxing the former stringent condition that enables the Applicant to be supervised by a sole practitioner firm;
15. 2.5.2008: The Pseudo Full Board did not have the authority to validate the Report of the Inquiry Panel because it is ill-constitute as it did not have quorum of 4 on account of the fact that three of its members were already members of the Inquiry Panel. As a consequence, it cannot ratify its own report.
RES JUDICATA DECISION OF JUSTICE CHANEY IN VR 107 OF 2008
13 The decision of SAT in CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252 delivered on 27/10/2008. It decided on the following issues:
A. Both sections 40 and 39 of the former LP Act to be read together for the purpose of discerning professional misconduct instead of using the s.40 as a pretext to persecute the Applicant for the phantom deficiency of professional knowledge syndrome with persecuting malice and Justice Chaney fell into this trap;
B. The damages issue for the unlawful closure of the Applicant’s independent law practice caused by persecuting malice;
C. The existence of the pseudo Full Board of the Legal Practice Board for the purpose of fulfilling its ambition of persecuting malice in the PAC; the Pseudo Board took the forms of the Inquiry Panel on 3.4.2008 and the Ratification Panel of the Inquiry Panel Report on 2.5.2008.
D. The David Taylor and Timothy Robin Thies issues that were later decided by Justice Hasluck and the Court of Appeal otherwise perfect judgment by Justice Owen, McLure and Buss as indicated above.
E. The phantom deficiency in the professional knowledge of the Applicant and the concomitant excuse for the Applicant to be engaged in supervised practice that is reasonably impossible to perform.
F. The need for a judge to divest himself from making value judgments and to judge objectively on the facts.
G. The pseudo Full Board must not be seen to be moving the “goal-posts” whenever it discovers itself to be in an untenable position as it did on 25.9.2007; it entered into the consent judgment in CACV 43 of 2007 with the Applicant and later re-emerged from it in the form of an Inquiry Panel on 3.4.2008; it persistently refused to honour its commitment to renew the practice certificate of the Applicant with persecuting malice.
REMAINING ISSUES TO BE DECIDED BY THE HIGH COURT
14. The Court of Appeal through Pullin JA and Newnes JA delivered its judgment in the case of CHIN -v- LEGAL PRACTICE BOARD WESTERN AUSTRALIA [2009] WASCA 117 on 26/06/2009 and published on 7.7.2009 the Applicant’s appeal against Justice Chaney’s decision in VR 107 of 2008. The Grounds of Appeal are the contentious issues that were dismissed together with the issue of the Leave to Appeal (the Remaining issues).
15. The Remaining Issues are now the subject of the Special Leave to Appeal to the High Court in P 36 of 2009 (the High Court issues). If VR87 of 2009 deals with the High Court issues, they would not res judicata. Any other issues are barred by res judicata.
Costs:
The costs of and incidental to this Application for these Certiorari Orders Nisi be cause in the cause.
NICHOLAS N CHIN – SOLICITOR LITIGANT IN PERSON
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