See: Oshlack v Richmond River Council (1998) 193 CLR 72: the High Court upheld the decision of
Stein J who made no order as to costs on the grounds of public interest.
See also: Ruddock v Vadarlis [2001] FCA 1865: The latter case illustrates that the awarding of costs is a matter of
judicial discretion and that public interest is only one factor in the exercise of that discretion. The other factors are:
the Plaintiff has virtually no interests but is acting pro bono for his son and the Second Defendant and the case raise
novel questions of law.
See the case of McWilliam and Civil Aviation Safety Authority [2005] AATA 1148 (11 November 2005) at para. 35 per Deputy President of AATA, SA Forgie quoting the case of Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 the reasoning of Gaudron and Gummow JJ, with whom McHugh concurred, in the following words:
"... a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. ..."
Beazley J in the quoted case, refers to the following factors to be taken into account by the court whether to order security for costs [my emphasis within brackets and in italics]:
(i) whether the application for security has been brought in a timely fashion [well, it did not].
(ii) the strength and bona fides of the case: [the First Defendant does not have a bona fide claim in FR417 of 2007 nor in FR944 of 2007 nor in DC Appeal No.6 of 2008];
(ii) whether the poor financial situation of the applicant results from the respondent’s conduct [ the reverse is the case].
(iv) whether the application for security is oppressive, in the sense of denying of an person without means or organization a right to litigate[it is oppressive having regard to the circumstances].
(v) whether there is anyone supporting the applicant who is likely to benefit and be willing to provide the security [None, except for his learned Counsel barrister Scott Ellis, who must be cautioned by this Court, lest he be reasonably found to be misleading this Court on a frivolous and vexatious case for the Firs6t Defendant].
Latoudis v Casey [1990] HCA 59.
http://legal-dictionary.thefreedictionary.com/just
Counsel Scott Ellis for the First Defendant explained the delay by likening it to a situation of a cobbler not finding the time to make shoes for his own children. Contrast this situation with the more stringent test required by His Honour Magistrate Michelides denying me natural justice by refusing to accept the reasons for the delay in my appeal against the Null Order of Registrar Wilde Consent Judgment. My reason for delay is that I have to access justice through an appeal of Magistrate Musk’s decision in FR944 of 2007 through Commissioner Herron first at the District Court and then after getting the cue from learned Commissioner, I had then to come back to Magistrate Michelides to do the Appeal in FR417 of 2007.
This pre-judgment of the learned Justice Kenneth Martin took into account irrelevant matters and did not take into account relevant matters without making Orders from which the Plaintiff could appeal against. Some of the matters are untrue and is defamatory as it cast aspersions on the character of the Plaintiff.
In re: Michelides ex parte Chin, Justice Hasluck at para. 144 did explain that the Plaintiff had justifications for his delay in appealing Registrar Wilde Consent Judgment after having gone to the District Court before Commissioner Herron and come back, in the following terms:
“I am of the view also that, in this complicated area of the law concerning challenges to or the setting aside of perfected judgments, the applicant did not act unreasonably in seeking to commence fresh proceedings (FR 944/07) with the result that time went by before he reverted to what is arguably the correct course, namely, an appeal against the registrar's decision in the original proceedings (FR 417/07). There is therefore an explanation for delay before Magistrate Michelides sufficient to justify an extension of time.”
See S.36(4)( c) of the Magistrates Court Act which provides:
(c) make any necessary consequential orders.
See s.36(7) of the MCA which provides as follows:
“(7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004 , the District Court considers that a review order ought to be made it may —
(a) remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or
(b) adjourn the appeal to enable an application to be made to the Supreme Court —
(i) under subsection (1); or
(ii) under the District Court of Western Australia Act 1969 section 76.
See also s. 77 of the District Court may remit to Supreme Court which provides:
“Where it appears to a District Court judge that any action or matter brought before the Court ought from its nature, or magnitude, or by reason of the question of law involved to be heard and determined by the Supreme Court, he may make an order, remitting the action or matter to the Supreme Court.”
See pages 506 to 510 of Vol.2 of the Affidavit of the First Defendant sworn 6.10.2009 when the treating psychiatrist crossed out paragraph 5 (iv) of the settlement agreement and the former was found to be exerting undue pressure on the latter who signifies that the Second Defendant was “appearing” to sign freely and voluntarily.
The statement by Justice Kenneth Martin at paragraph 5 of the pre-judgment in the following words is therefore misconceived: “Materials filed in this action indicate that Mr. NK Chin is not respecting those constraints.”
See: Diagnostic Medlab Ltd V Auckland District Health Board, Waitemata District Health Board, Counties-Manukau District Health Board And Ors Hc Ak Civ 2006-404-4724 [2007] NZHC 177 (20 March 2007) at paragraphs: 122 and 123 per Asher J:
[122] A conflict of interest arises when a person carries out a particular function with two or more interests in conflict. In administrative law, a conflict of interest exists when a person has a private interest in a decision where that person also has a public role. In such a case the person's public role and private interest are in conflict. The result can be a poor decision because private concerns that has nothing to do with the public duty have influenced the decision.
[123] The concept of a conflict of interest is well known in the common law. It has developed particularly in the context of professional and fiduciary duties, the classic example being a solicitor's duty not to be in a conflict of interest with a client. It is also well understood in public law where its usual expression is under the heading of bias or apparent bias.
Prohibition on engaging in legal practice when not entitled
(1) In this section —
legal work means —
(a) any work in connection with the administration of law; or
(b) drawing or preparing any deed, instrument or writing relating to or in any manner dealing with or affecting —
(i) real or personal estate or any interest in real or personal estate; or
(ii) any proceedings at law, civil or criminal, or in equity;
public officer has the meaning given in The Criminal Code.
(2) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.
Penalty: a fine of $20 000.
(3) Subsection (2) does not apply to engaging in legal practice of the following kinds —
(a) legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth;
(b) legal practice engaged in by an incorporated legal practice in accordance with Part 7 Division 2;
(c) the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 8;
(d) appearing or defending in person in a court;
(e) drawing or preparing a transfer under the Transfer of Land Act 1893 ;
(f) a public officer doing legal work in the course of his or her duties;
(g) a person doing legal work under the supervision of an Australian legal practitioner, as a paid employee of a law practice or in the course of approved legal training;
(h) legal practice of a kind prescribed by the regulations.
(4) It is a defence to a prosecution for an offence against subsection (2) in relation to the doing of legal work to show that the person who did the legal work has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work so done (the unpaid work ).
(5) Subsection (4) does not apply if the person directly or indirectly receives, expects or is promised, pay or remuneration for or in respect of other work or services relating to, connected with or arising out of the same transaction or subject matter as that to which the unpaid work relates.
(6) A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection (2).
(7) A person may recover from another person in a court of competent jurisdiction, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person did in contravention of subsection (2).
(8) The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to persons engaged in legal practice of a kind referred to in subsection (3) (other than subsection (3)(a) and (b)).
This issue is reserved for another forum in Civ 1604 of 2010 where the Plaintiff is seeking Mandamus Orders and CACV 41 of 2010 where the Plaintiff is appealing to the court of appeal on the ground that the trial judge had refused to decide the issue of the Pseudo Board which had unlawfully usurped the lawful authority of the real regulator of the legal profession. Although this matter had reached the High Court of Australia but this issue had never been decided in any fora before.
Those paragraphs of that Affidavit have headings which are specifically entitled as:
1) Applications by Plaintiff to be included as Second Defendant in CIV 1112 of 2007; and
2) Reasons why CIV1903 of 2008 and CIV 1112 of 2007 needs to be consolidated.
Boyle, S in her article in the Murdoch Law School Electronic Journal found at http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html entitled: CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED said at para.1 that:
“proprietary interest in land will always be sufficient to found a caveatable interest, but a proprietary interest is not necessary for the establishment of a caveatable interest. Consequently, an equitable interest of the sort often dismissed as in the nature of a claim in personam, a mere personal right, is a caveatable interest”.
At para.2 of that article, she further identified four categories of caveatable interests in relation to s.137 of the Transfer of Land Act, 1893 (WA) in the following terms:
“The section identifies four categories of caveatable interests. They are:
(a) any estate or interest in land under the operation of this Act;
(b) any estate or interest under any:
i) unregistered instrument;
ii) document; or
iii) writing
in any lease mortgage or charge;
(c) any estate or interest in any equitable mortgage or charge by a deposit without writing; and
(d) any estate or interest which arises
i) by devolution in law; or
ii) otherwise.”
If Mr. Thies did not have a caveatable interest in the Caveat property, he has no legal basis for his caveat and it must be ordered to be removed together with the concomitant damages as quantified to be made good by him. He can only have the caveatable interest if he has an equitable mortgage or charge over that Caveat property. The only way for him to get an equitable charge or equitable charge over that Caveat Property is for him to enter into a costs agreement with the name of the Caveat property specifically identified in that agreement, failing which he can never be said to have an equitable charge or an equitable mortgage. The law is clear on this point. See the case of: Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475.
Beech J in the case of BASHFORD -v- BASHFORD [2008] WASC 138 at paragraph 50 said the following:
“ 50 The balance of convenience is a factor to be considered in an application to extend the operation of a caveat. However, interlocutory removal of a caveat will be unusual where an arguable case as to the existence of a caveatable interest has been demonstrated. That is because the purpose of a caveat is the protection of a proprietary interest. Removal of the caveat will, in many cases, have the effect of destroying the benefit of the proprietary interest claimed in the caveat: Custom Credit (50).
Id at footnote No.17..
In the case of Ex-parte Brecker as indicated below, Beech J said at paragraph 59, the following words:
“59 Underlying this approach to the exercise of discretion may be the fundamental significance of a finding of excess of jurisdiction. As Hayne J observed in Re McBain; ex parte Catholic Bishops Conference (2002) 209 CLR 372 at 473 [284] (Gummow and Gaudron JJ agreeing at [80]), leaving aside the decisions of superior courts of record, the act of a public authority that is beyond power is as a general rule of no legal effect. Thus it is that a finding of excess of jurisdiction will, absent facts or circumstances justifying the contrary, lead to a setting aside of the act or decision by way of certiorari.”
CJE Opinion No. 92-1 of The Massachusetts Judicial Branch: Judicial Ethics Opinions: Hearing De Novo Retrials of Cases Tried by Judge's Father,an ADA, and Trials Involving The District Attorney's Staff found at http://www.mass.gov/courts/sjc/cje/92-1h.html, quoting the relevant text as follows:
The relevant Canons of Judicial Ethics are Canons 3(C)(1) and (3)(D), which provide in relevant part:
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to instances where: . .
(d) . . . a person within the third degree of relationship …(ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding . . .
.
Justice Hasluck in Re: Michelides exparte Chin at paragraph 145 said:
“145 It emerges, then, that it is arguable, having regard to these matters, that Magistrate Michelides ought to have extended time for an appeal against the registrar's decision. It is arguable that he ought then to have set aside the consent judgment upon the basis that the underlying agreement, being the agreement reflected in the settlement deed, was voidable for duress. It is arguable, having regard to the passage from Seaman, that in a case of allegedly unconscionable conduct, it is open to challenge the validity of a prior judgment in fresh proceedings (such as action FR 944/07), and it may amount to a jurisdictional error by a judicial officer to disregard that possibility.”
A red herring introduced by my learned friend, the First Defendant:
Eastland Technology v Whisson (2003) 28 WAR 308 at 311.
His Honour Beech J at paragraph 58 of Ex parte Brecker said:
“58 However, I do not accept the respondent's submission that an applicant for prerogative relief who has demonstrated a jurisdictional error must then satisfy the court that the circumstances call for a favourable exercise of discretion. In my opinion, the position is to the contrary. In the setting of an application for prerogative relief, the discretion may be said to be a discretion to withhold relief, rather than a discretion to grant it. So, for example, in Re Carey; ex parte Exclude Holding Pty Ltd [2006] WASCA 219 at [129]; (2006) 32 WAR 501 at 527, Martin CJ observed (citing Gudgeon v Black; ex parte Gudgeon (1994) 14 WAR 158 at 178 – 179) that an appropriate starting point in the consideration of the exercise of the discretion to grant prerogative relief is that once it is found that the Tribunal exceeded its jurisdiction the court will normally exercise its discretion in the applicant's favour. Thus, it will normally be for those opposing the grant of relief to point to factors which justify a departure from that approach.”
His Honour Beech J said at paragraph 57 in Ex-parte Brecker, the following words:
“57 I accept that consideration of the approach taken by courts in relation to the exercise of discretion to grant prerogative relief may be of assistance in considering the exercise of power under s 36(4) in circumstances where the ground upon which an act is sought to be set aside is that it was done without jurisdiction.”
Order 5 of Justice Hasluck in Re: Michelides exparte Chin states as follows:
“This review order operates as a stay of the proceedings specified in Order 1 until further order by this Court.”
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