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THE SUPREME COURT OF
WESTERN AUSTRALIA
1903 of 2008
NICHOLAS NIK KOK CHIN
and
TIMOTHY ROBIN THIES and
PAUL CHUNG KIONG CHIN
KENNETH MARTIN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 13 MAY 2010, AT 9.36 AM
(In Chambers)
Continued from 17/6/09
The plaintiff appeared in person.
MR S. ELLIS appeared for the first defendant.
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(s&c)
THE ASSOCIATE: CIV 1903 of 2008, Chin.
KENNETH MARTIN J: Yes, now, Mr Chin, in 1903 you are appearing for yourself in person?
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Very well; and Mr Ellis?
ELLIS, MR: I appear on behalf of Mr Thies.
KENNETH MARTIN J: Yes, all right. So you're appearing for the first defendant.
ELLIS, MR: Yes.
KENNETH MARTIN J: And for the second defendant, Mr Paul Chin, there is no appearance; all right. Mr Chin?
CHIN, MR: Yes, sir?
KENNETH MARTIN J: Do you wish to make a submission to the court?
CHIN, MR: I have two submissions, your Honour. One is from Paul in CIV 1112 of 2007.
KENNETH MARTIN J: I'm not dealing with that matter yet. That's next.
CHIN, MR: Yes; and my submission on 10 May, that is in 1903, and this morning, yesterday night, I put new submission, a supplementary submission because I received a chamber summons that was served on me by Mr Thies asking for security for costs.
KENNETH MARTIN J: Yes.
CHIN, MR: My submission, your Honour, as far as the 1903 is concerned is that there was never any debt owing to Mr Thies. The evidence is very clear and my submission is that Registrar Wild in FR 417
KENNETH MARTIN J: Sorry, Registrar who?
CHIN, MR: Registrar Wild, W-i-l-d, of the Fremantle Magistrates Court, she entered into the consent judgment without jurisdiction.
KENNETH MARTIN J: All that is the subject of Commissioner Heron's judgment in the District Court.
CHIN, MR: That, sir
KENNETH MARTIN J: What I am dealing with is your section 36 Magistrates Court application which has been
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programmed by Hasluck J for further directions once Mr Thies has put in his affidavit material. Now, the question is, what further directions do I make in this matter?
CHIN, MR: Sir, the further direction is that Mr Thies has not complied with Hasluck J's order that he file his defence, affidavit and defence, within 21 days. Unless there is explanation for the delay, then he is not allowed to use those documents.
KENNETH MARTIN J: So there is a delay issue on the affidavit. Let's just say that I accept the affidavit. How is the matter to progress?
CHIN, MR: Sir, the court should not accept the affidavit unless there is explanation for the delay, and the delay must be reasonable.
KENNETH MARTIN J: All right, assume that I do accept the affidavit. How do we progress that matter?
CHIN, MR: There is nothing in the affidavit that detracts from my case that
KENNETH MARTIN J: What is the procedural error that you want quashed?
CHIN, MR: The procedural error is that the first consent judgment is to (indistinct) because Registrar Wild knows and I have informed her in writing and she has received it that there was duress; that we did not voluntarily pay the money that we wanted to pay and we have to pay because he kept escalating the cost and because my son has got to go to the hospital twice. My son was in hospital because Mr Thies
KENNETH MARTIN J: Mr Chin, you don't raise your voice in my court, ever.
CHIN, MR: Sorry; sorry, your Honour.
KENNETH MARTIN J: You understand that?
CHIN, MR: Sorry. My son, your Honour, has to go to hospital and be in prison in hospital because he became insane because Mr Thies wanted money from him for no reason and there is no way out of it. Everybody in the family was scared, everyone, including myself, and he is coming again and again, again and again, again and again, and he is doing that.
KENNETH MARTIN J: Mr Chin, you don't have to go on like that.
CHIN, MR: Sorry, your Honour. How can this court allow
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this injustice by any lawyer Mr Timothy Robin Thies? How
can it happen in Australia, democratic country? How can it ever happen when there was no money owing to him and he asked for money?
KENNETH MARTIN J: Just have a seat please. I'm not assisted by this submission one little bit. Mr Ellis?
ELLIS, MR: Thank you, your Honour. We would say that the first step that ought to happen is for the first defendant's application for security for costs to be considered.
KENNETH MARTIN J: Yes.
ELLIS, MR: We have put in a
KENNETH MARTIN J: Can we deal with the question of the late affidavit.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: What is the position there?
ELLIS, MR: The affidavit was late. The purpose of the affidavit was to assist with a mediation and the purpose of the affidavit was to be directed towards some issues in relation to the question of costs that Mr Justice Hasluck thought might be helpful to be explained. The affidavit was late. It's a large affidavit. It's a complicated
KENNETH MARTIN J: I have looked at it, yes.
ELLIS, MR: Yes. There's a great deal of detail. To some extent it's sort of a situation of the cobbler's children have no shoes.
KENNETH MARTIN J: Yes.
ELLIS, MR: It was a matter that was substantially prepared by Mr Thies himself and it was late. We would say though that there is no substantial injustice to Mr Chin arising out of it. He has had the affidavit for some months. There have been - as I recall, at the directions hearing before Mr Justice Hasluck, dates for the mediation were deferred for some period of time because Mr Chin was overseas.
There has been a substantial I suppose gap in the progress of the matter since then. The delay is not something that we would say is of any significance in the overall conduct of the matter, so we would seek leave to have that affidavit, I suppose the time for filing that affidavit extended.
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KENNETH MARTIN J: Yes, all right. Then in terms of the substantive determination of the section 36 application, I hear what you say about a security for costs order and I will come to that.
ELLIS, MR: Yes.
KENNETH MARTIN J: What I have in mind though is trying to get some sort of handle on what is the jurisdictional error, bearing in mind that it's not a de novo review of any of the decisions below. It's something in the nature of prerogative relief by analogy but it certainly isn't prerogative relief.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: It doesn't seem to have been defined anywhere, other than the fact that Mr Thies has been given an opportunity to answer the ex parte application and has done so.
ELLIS, MR: To answer the judgment of
KENNETH MARTIN J: Yes.
ELLIS, MR: Yes. Perhaps I can take your Honour to the notice of originating motion which kicked the proceedings off. At page 3 of that document there is a list of the grounds of the application and those grounds ought to provide some assistance to the court in determining at least what the arguments are.
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I think as your Honour mentioned the last time this matter was before you there's, we would say, no jurisdiction to review the decision of Herron C. So we would say that the grounds (a), (b) and (d) can have no substance; and we would say in relation to Magistrate Musk that there was an appeal from her judgment, that was the appeal to Herron C. It would have been open to
KENNETH MARTIN J: It was essentially a summary dismissal, was it not, of
ELLIS, MR: Yes.
KENNETH MARTIN J: the application to set aside the administratively obtained consent to judgment based on the compromise and the deed of settlement.
ELLIS, MR: Yes; and she more or less said that she didn't think that she had jurisdiction to make that sort of order, particularly in light of the fact that decisions of registrars can be appealed to a magistrate.
KENNETH MARTIN J: Yes.
ELLIS, MR: She said, "No, I can't do that," and then there was an appeal from her decision to Herron C; and we would also say, and it's only one paragraph on page 3 but we would say that that was a matter that either could have been raised before Herron C or was raised before Herron C and either way Mr Chin shouldn't get a second bit at the cherry.
We would say that leaves us with paragraph (e) which deals with effectively there were two decisions of Magistrate Michelides and what he was considering was an appeal from the decision of the registrar to enter judgment in accordance with the compromise. The first thing he did was refuse Mr Chin an extension of time within which to make the appeal and secondly, he went on to deal with the merits of that application and we would say that's really the only matter which ought to be live before the court and perhaps it would be appropriate for the first defendant to make an application to strike out, so much of the application is to formally apply to strike out so much of the application as relates to the decisions of Herron C and Magistrate Musk for the reason that I have outlined.
KENNETH MARTIN J: Yes.
ELLIS, MR: Then we get to the question of the decision of Magistrate Michelides and it's a question of, as you have indicated, teasing out what it is about those grounds.
KENNETH MARTIN J: Looking at Hasluck J's reasons on the ex parte application where he considered one side of the
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9.45
material before him and in his comprehensive reasons
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: indicated that the only thing that was really troubling him was the question of how in the context of the deed of settlement and the compromise that was apparently reached, at least for a time in 2007, a bill of costs at a certain level could be issued then withdrawn and then be reissued, in effect, at a higher level and that was essentially, as I understand it, the point that he gave - or he wanted to hear the other side and that's what Mr Thies's affidavit deals with.
ELLIS, MR: Yes. We say of course that the issue really is whether there's a bona fides claim for the amounts and whether there was a genuine compromise.
KENNETH MARTIN J: A sustained bona fides compromise.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: Yes.
ELLIS, MR: That's the way we see it.
KENNETH MARTIN J: I'm just struggling to see the jurisdictional or procedural fairness error associated with that.
ELLIS, MR: Yes. It's really an assertion that the magistrate should have come to a different conclusion, which of course isn't a jurisdictional error.
KENNETH MARTIN J: No.
ELLIS, MR: I mean, the difficult will be, with respect to Mr Chin, obtaining grounds which identify the error in jurisdictional terms rather than grounds which go to the merits.
KENNETH MARTIN J: It seems fairly obvious to me that until we define the area of dispute in proper terms from a jurisdictional perspective tied back to section 36
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: that the potential for this to go off the rails into irrelevant areas, areas that have been decided and put to bed and should not be reopened, is massive.
ELLIS, MR: Yes. It's just a question of identifying a mechanism which will confine the arguments to jurisdictional arguments.
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KENNETH MARTIN J: Bearing in mind the position of the parties, we will come to the security for costs in a moment but it seems to me that what should happen is that I think you on behalf of the defendant should identify what, if anything, the subject of a section 36 inter partes determination.
ELLIS, MR: Yes.
KENNETH MARTIN J: And that should be sent to Mr Chin for his consideration and then in due course I need to set the parameters of what's to be ventilated under section 36. Then in that context we can deal with the question of security. I notice there's some late materials that have come in at the eleventh hour. The most I can do this morning, I think, is just make some programming orders.
ELLIS, MR: Yes, your Honour, that's all we expected would happen.
KENNETH MARTIN J: Yes.
ELLIS, MR: The minute of proposed directions is about programming that application.
KENNETH MARTIN J: Yes. All right, thanks. I understand that then.
ELLIS, MR: Thank you, your Honour.
KENNETH MARTIN J: Mr Chin?
CHIN, MR: Yes, sir?
KENNETH MARTIN J: We need to crystallise the section 36 issue.
CHIN, MR: Yes. The section 36 issue revolves around the abuse of power of Registrar Waugh, Magistrate Musk, Magistrate Michelides and their Honours - Herron C. Magistrate
KENNETH MARTIN J: You can't touch Herron C's decision under section 36 of the Magistrates Act
CHIN, MR: Yes, I understand, sir.
KENNETH MARTIN J: because he's acting as a judge of the District Court.
CHIN, MR: I understand, sir. This court, section 36 has no jurisdiction on Herron C's decision but Herron C's decision was made as an abuse of power and without jurisdiction and therefore when the root has been cut off there is the leaf and the stem is no longer standing; it falls, as the root has fallen. There is no more root
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because Magistrate Michelides and Magistrate Musk both of them agreed to withdraw their decision and their decision is no longer standing.
KENNETH MARTIN J: No. They are still valid decisions until I or some member of the court quashes them under section 36. At the moment those magistrates have indicated to the court that they will abide by the decision of the court and they are not playing an active part in proceedings.
CHIN, MR: Yes. In order
KENNETH MARTIN J: You would have a substantive determination whether any quashing should be made or not.
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CHIN, MR: In there is no reason why this honourable court should not quash those decisions when the magistrates themselves who make the decision has quashed them.
KENNETH MARTIN J: See, that's the very question and I have to determine that at a hearing. It's not a matter of just saying that it should happen. It's a matter of considering an argument and evidence.
CHIN, MR: They have admitted unless they come to this court and defend themselves and say "our decision still stands" and still
KENNETH MARTIN J: Wasn't
CHIN, MR: Sir, they're not allowed to blow hot and cold. They cannot say, "I decided I'm for Hasluck J in this," and then they cannot say, "I cannot" - because once they make the decision they have made the decision and the decision is made on the advice of the state solicitor.
KENNETH MARTIN J: Mr Chin, it seems to me that you are in extreme need of proper legal assistance in order to put your case and that you are not doing a very good job at the moment because you don't actually understand what's going on. It just seems to me that you are out of your depth at this point in time in pursuing this application. My advice to you would be to get some legal assistance by someone who actually understands administrative law and understands section 36 of the Magistrates Court Act.
CHIN, MR: Sir, if there's no justice for me I don't want to touch law any more. I have done everything that I want to do and it is for this court to dispense the justice. I have no money to spend.
KENNETH MARTIN J: You are arguing over, as I understand it, $6000.
CHIN, MR: It's $6000 that belongs to me and I'm arguing
KENNETH MARTIN J: It's the Supreme Court of Western Australia.
CHIN, MR: Yes.
KENNETH MARTIN J: You are running up massive amounts of cost over a relatively small amount of money paid in 2007.
CHIN, MR: The provision of section 25 and 31 of the Magistrates Court (Civil Proceedings) Act says that because I began the case that is under seven thousand five is a minor case and unless I do something wrong then I'm not liable for any cost, there is no not going to be any
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9.52
security for costs because the case that was a zero cost and then there was a disputed $3500 costs. They're all under the provisions of the minor case provisions and the minor case provision says exactly that
KENNETH MARTIN J: That's all very well and good in the Magistrates Court but it doesn't apply in the Supreme Court.
CHIN, MR: It applies even to the Supreme Court because it start from there.
KENNETH MARTIN J: No. No.
CHIN, MR: Sir, I have studied this case
KENNETH MARTIN J: You need legal assistance, Mr Chin. You just obviously don't understand.
CHIN, MR: I have studied this case. I have studied this case. I know the ins and outs of everything in this case. Sir, you have just been into this case and you have not - you are not acquainted with everything there. You can find
KENNETH MARTIN J: Mr Chin, that's inappropriate. I'm not hearing that.
CHIN, MR: I'm sorry, sir.
KENNETH MARTIN J: There was a mediation in this matter that failed.
CHIN, MR: Say again?
KENNETH MARTIN J: There was a mediation that was unsuccessful in this matter. Correct?
CHIN, MR: Yes. It is not I who doesn't want to mediate. I'm prepared to mediate. Any time I'm prepared to mediate. Now, I want to say these sections 25 and 31 that is being - before it is being legislated, the legislative intention of parliament is that those section, even if you bring it to the highest court of the land, all costs incurred will not be incurred by me. That is the legislative intent of those minor case provisions and that is in my submission and is everywhere within the (indistinct) materials that is before this court.
KENNETH MARTIN J: Yes. All right. Have a seat, Mr Chin.
Mr Ellis, how are you placed in June for a directions hearing?
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ELLIS, MR: Yes, I can attend the directions hearing.
KENNETH MARTIN J: 17 June?
ELLIS, MR: Sorry, your Honour. That's fine, your Honour.
KENNETH MARTIN J: Thank you. Mr Chin?
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Sorry, you were motioning. You would like something?
CHIN, MR: Three weeks. Yes, that will be suitable. What is the date, sir?
KENNETH MARTIN J: I have in mind another directions hearing on 17 June 2010.
CHIN, MR: 17 June is okay for me, sir.
KENNETH MARTIN J: It's more than a month from now.
CHIN, MR: Yes. Sir, what do we prepare for the directions hearing?
KENNETH MARTIN J: I'm just about to tell you, so have a seat. If you have the minute that Mr Ellis submitted overnight - I'm not sure that you do. Do you have a copy of the materials that were submitted yesterday by the first defendant?
CHIN, MR: Yes. Sir, I would like to say this: there is no reason for security of costs because
KENNETH MARTIN J: We have to have a determination about that.
CHIN, MR: (indistinct)
KENNETH MARTIN J: We will hear an argument about that.
CHIN, MR: Yes. It is in my submission here and sections 25 and 31 is there and all the evidentiary materials
KENNETH MARTIN J: We are not going to determine it now. I'm going to determine it in the future.
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Have a seat.
CHIN, MR: Thank you.
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10.00
KENNETH MARTIN J: Mr Ellis, what I propose by reference to the terms of the first defendant's minute of proposed directions of yesterday is as follows, I will make order 1 in these terms: the time to file and serve the affidavit of Mr Thies be extended to 7 October 2009 (sic) and Hasluck J's orders be varied to allow the receipt of that affidavit.
ELLIS, MR: Thank you, your Honour.
KENNETH MARTIN J: Then by reference to the terms of your minute the second order will be the former order 1, which will be that the plaintiff do on or before 3 June 2010 file and serve any affidavit material upon which he proposes to rely in relation to the first defendant's summons of 12 May 2010. That will be my proposed order 2. Order 3 will be the former order 2. Order 4 will be the former order 3. I won't make an order in terms of the proposed paragraph 4.
I propose, Mr Ellis, to augment draft order 5 about the draft agreed chronology by adding as follows: after the words "do file and serve" it would "a minute setting out the matters, if any, that the first defendant contends should be the subject of the plaintiff's section 36 Magistrates Court application as well as" - and then it will run as you have it - "a draft agreed chronology of events for comment by the plaintiff and the second defendant."
ELLIS, MR: Perhaps it might be more appropriate to word that "the first defendant accepts might reasonably be the subject" because we don't of course contend that any of it's appropriate.
KENNETH MARTIN J: Yes. "The first defendant accepts should be the subject of the plaintiff's section" - that may well entail a striking out of certain matters within the originating summons, as you foreshadowed, on the basis that there's no jurisdiction to deal with those matters. So I see that is embraced within amended order 5.
ELLIS, MR: Yes, thank you.
KENNETH MARTIN J: Then I propose to bring the matter back for directions on 17 June at 9.15 with a view to setting a time for argument in regard to the security for costs application. We will deal with the other matter. Maybe we should deal with the security for costs before but I will be assisted in the security application by knowing the ambit of the matters in dispute.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: All right. So that's what I have in mind.
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ELLIS, MR: Thank you, your Honour.
CHIN, MR: I would like to add one order. There must be a legal determination on the crux of the matter. The crux of the matter is that no debt was ever owing. There was no debt. If there was no debt, why all this
KENNETH MARTIN J: Mr Chin, there's a judgment for a debt. That's the problem. It hasn't been set aside by any court.
CHIN, MR: Sir, there was a judgment for debt that was an abuse of power
KENNETH MARTIN J: That's your argument and that argument hasn't been upheld or finally decided by any court to date. What we are programming is a basis upon which we can get to the point of making a decision on that argument, if you are allowed to make it within the confines of section 36 of the Magistrates Court Act.
CHIN, MR: We need to make that determination first because if we don't make that determination, we are going on and on.
KENNETH MARTIN J: Mr Chin, we are going on and on because you are the protagonist making it go on and on, and I'm trying to get to a point of determining it on the basis that each side has their point of view put.
CHIN, MR: The point is there was never any debt. That is the point which the court must determine.
KENNETH MARTIN J: Mr Chin, that is in dispute.
CHIN, MR: There was no dispute about it because he admits it. How can - he admits it himself. How can it be a dispute?
KENNETH MARTIN J: There are two sides to every story, Mr Chin, and that's one side of the story but it is strongly refuted on the other side.
CHIN, MR: It is not his side of the story. It is his own admission that
KENNETH MARTIN J: Mr Chin, you would be very wise to get some independent legal advice to assist you. I will also make an order that the transcript of today be provided to the parties. That will be order 7. The costs will be in the cause. That will be order 8. All right. Orders in these terms will be made. My associate will make a record of them and they will be provided to the parties.
ELLIS, MR: Thank you, your Honour.
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KENNETH MARTIN J: All right. That concludes CIV 1903 of 2008.
AT 10.08 AM THE MATTER WAS ADJOURNED UNTIL
THURSDAY, 17 JUNE 2010
13/5/10 66
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