APPLICATION - SPECIAL LEAVE - HIGH COURT OF AUSTRALIA IN P36 OF 2009

Form 23 Application for leave or special leave to appeal (rule 41.01.1)
IN THE HIGH COURT OF AUSTRALIA No.P36 of 2009
[PERTH REGISTRY]
BETWEEN:
NI KOK (NICHOLAS) CHIN Applicant
and
LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA Respondent

APPLICATION FOR SPECIAL LEAVE TO APPEAL
1. The applicant applies for special leave to appeal the whole of the judgment of Justice Pullin JA and Newnes JA of the Court of Appeal of Appeal, Supreme Court of Western Australia given on 26.6.2009 and published on 7.7.2009 in CACV 105 of 2008. This case is also cited as CHIN V LEGAL PRACTICE BOARD WESTERN AUTRALIA [2009] WASCA 117 (the judgment below).
Grounds
2. The judgment below is wrong because it refused the Applicant’s Application for Leave to Appeal and unjustifiably dismissed the Appeal proper at the same time, on the following grounds:
i) It exceeded its jurisdiction by failing to make the necessary decision (on the issue of the legal effects as distinct from the practical effects) of the Applicant having been maliciously deprived of the independent practice of his vocation by the false full Board which usurped the rightful authority of the Respondent, contrary to subs.105(13) of the State Administrative Tribunal Act, 2004 (the Act), thereby denying him natural justice.
ii) It prejudged the incomprehensive coverage of the essential issues of the Applicant’s cause in the five-page Grounds of Appeal by utilizing his obvious obsequiousness to meet the court’s unreasonable demands for succinctness in the reformulation of the twenty-six page Grounds of Appeal through first inducing him to displace the latter for the former and subsequently it reasonably failed to fulfill its promise to the Applicant that the former will be used as submission to buttress the latter. It erred by incorrectly stating that the Applicant was unable to distinguish between evidence and submission (the Grounds).
iii) It did not apply the correct test as to whether the Applicant’s case has a reasonable prospect of success. Rather, it was merely narrowly thinking that the Applicant would not possibly succeed. Had the former been broadly applied, it would reasonably have arrived at the foregone conclusion that the Applicant’s Grounds are not merely fanciful, nor hopeless, nor entirely without merit. This broad interpretation of judicial discretion would have promoted the development of the law but instead the narrow interpretation it had injudiciously and unreasonably used had the effecting of chilling the development of the law. Thus this form of judicial reasoning runs counter to the very notions of the common law itself.

iii) It failed to appreciate that the tribunal in hearing de novo the Applicant’s case must be constrained by the statutory limitations of its public duty to seek and to promote the common and public good rather than by denigrating itself through being reasonably seen by the public to be pandering to some clandestine forces of the false full board of the Respondent to protect the some reasonably obvious intentional wrongdoings of some of its members who are reasonably seen to be promoting untruths and falsehoods to the detriment of the Applicant, in the following (the intentional wrongdoings):

a. s. 18 of the former LP Act protects the Respondent from liability to the Applicant’s claim for damages only in circumstances when it had not acted in bad faith (the bad faith);
b. S.91 of the State Administrative Tribunal Act, 2004 (the SAT Act) requires the tribunal to declare the obvious acts of bad faith of the false full Board of the Respondent even though it was without power to award the Applicant compensation for damages.
c. S.9 of the SAT Act imposes the statutory duty on the tribunal to solve this legal problem for the Applicant expeditiously, fairly, economically and according to the substantial merits of the case which it blatantly erred to do so.

iv) It failed to consider the intentional wrongdoings of the Respondent in the following:
a. It only considered the two grounds of the Respondent not having acted appropriately and having calumniously defamed the Applicant, shorn of their particulars (the Two Grounds);
b. It is not positively satisfied that the Two Grounds do have a rational and logical prospect of succeeding because it did not define them reasonably thus leading it to a fundamental error in judgment below in the following (the error):

a) they are not reasonably irrational,
b) they are not reasonably fanciful;
c) they are not reasonably absurd;
d) they have a real and reasonable prospect of success;
v) The error led it to commit a substantial miscarriage of justice against the Applicant in terms of the following (the miscarriage of justice error):
a. the error caused the simultaneous dismissal of the leave to appeal and the appeal proper.
b. the dismissal of the appeal proper prevents the proper determinations of the appeal.
c. The lack of proper determinations of appeal by a court of integrity is leaving the deliberate wrongdoings to the Applicant without a remedy.
d. Nothing can be vexatious if it is true and therefore good for the public and the intention to harass is missing;
e. Nothing can be offensive if it is true and therefore good for the public and it is used as a shield and not as a sword.
f. Nothing can be prolix if the words used by the Applicant are necessary for the purpose of conveying the desired meanings for his case to be established in a court of law which has the right to make judicial determinations of his case equitably and accord him with fair justice in accordance with the applicable laws as extant in Western Australia.
g. The error caused the Legal Profession Complaints Committee to re-persecute the Applicant by re-litigating res judicata matters under s.428(1) of the Legal Profession Act, 2008 in VR 87 of 2009 on 30.6.2009 and as such is an abuse of the process of the courts.
h. The error caused the Respondent to realize that it is against public policy that litigation be so prolonged; hence the reason why the tribunal ordered for a mediation process to begin by 14.9.2009 whilst at the same time, requiring the Applicant to respond to the re-persecuting process which the Applicant did in protest by 20.8.20009.
vi) It failed to consider the errors of the usurping false full board which encompasses “the six matters that involves the ultimate conclusion that the Applicant did not have a proper appreciation of and did not observe the standards of conduct expected of legal practitioners” (the six matters) in the following terms:

a. “the phantom deficiency syndrome” , “the particular issues considered by the tribunal” and the “value judgments”.
b. their essentialities are captured within items 1.4 of Ground 1, 2.03 of Ground 2 and 1.5 of Ground 1 respectively in the Optional Grounds.
c. their elaborations are in the twenty-six page Grounds promised to become the submission of the Applicant’s case by Pullin JA. When not considered in the judgment below it had resulted in the miscarriage of injustice in terms of the following:
 Ubi jus, ibi remedium - where there's a right, there must be a remedy. This has been ignored by a court of integrity.
 Forms must not be allowed to triumph over substance. The ends must not be justified by the means.


Order(s) sought
The Applicant seeks the grant of:
i) an Extension of Time to File an Application for Special Leave to appeal to the High Court;
ii) a Special Leave to Appeal to the High Court; and
if both Applications as described above were granted to the Applicant and if the Appeal were successful including special order as to costs, in terms of the following:
a) Set aside the decision of the Court of Appeal.
b) Remit the matter for reconsideration to the tribunal.


Dated this 28th day of August, 2009.

..................signed)...................... ( Applicant or Applicant's solicitor )

To: The Respondent
5th Floor, Kings Building
533 Hay Street, PERTH WA 6000
Telephone: (08) 6211 3600
Facsimile: (08) 9325 2743
Email: general@lpbwa.com

TAKE NOTICE: Before taking any step in the proceedings you must, within 14 DAYS after service of this application, enter an appearance in the office of the Registry in which the application is filed, and serve a copy on the applicant.
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