AMENDED ERRATUM TO CHRONOLOGY IN CACV 75 OF 2010 SUBJECT OF COURT OF APPEAL DECISION ON 23.11.2010 BY PULLIN JA AND NEWNES JA

SUPREME COURT OF WESTERN AUSTRALIA           NO.: CACV: 75 OF 2010

 

COURT OF APPEAL

In the matter of an ex-parte Application made pursuant to subs. 60(1)(f)(3) of the Supreme Court Act, 1935 (WA) by the Applicant for Leave to Appeal the Interlocutory Decision of Justice Kenneth Martin (the Second Judge) now made inter-partes.  This Void judgment is the subject matter of this appeal dated first heard on 17.6.2010 and delivered on 8.7.2010 and is hereafter referred to in this document as the “Security Costs Order Case”.  

And

In the matter of a prior concomitant jurisdictional error of the Second Judge dated 13.5.2010, which is also the subject matter of this Appeal.  It is hereafter referred to as the “Mandate Exclusion Case.”

And

In the matter of the Unanimous Mandate of the court having been granted to the Applicant for the purpose of allowing him to defend his son, Paul.  That Mandate is being reasonably seen as not being delimited to the mediation process only.  However, that Mandate was unreasonably retracted by the Second Judge without any justifying circumstances (the Mandate).  

And

In the matter of the Mandate having arisen from the issue of the joinder of Paul in the first stage of the Prerogative Relief Proceedings as the Second Defendant whilst the Respondent and Applicant were similarly joined as the First Defendant and Plaintiff respectively.  This would give the Applicant the reasonable opportunity to seek the court’s permission for the amalgamation of Civ 1112 of 2007 or the Duress-Caveat Case into the Prerogative Relief Proceedings in accordance with Order 83 of the RSC so as to achieve the public interest of finality in these proceedings (the Consolidation).

And

In the matter of Justice Newnes having granted the Applicant Leave to Amend the Appellant’s Case on 15.10.2010 within 21 days

 NICHOLAS NI KOK CHIN                                                            -APPLICANT

V.

TIMOTHY ROBIN THIES                                                   - FIRST RESPONDENT

PAUL CHUNG KIONG CHIN                                      - SECOND RESPONDENT

AMENDED ERRATUM TO CHRONOLOGY FILED 1^ST NOVEMBER, 2010          

Date of document:                             15^th November, 2010.

Date of filing:                                     15^th November, 2010.

Filed on behalf of:                              The Applicant

Prepared by:

Nicholas N Chin                                 Phone & Fax: 08 9275 7440

387, Alexander Drive                        Email: nnchin@msn.com;nnchin1@gmail.com

DIANELLA WA 6059                       Mobile: 0421642735

No	Date	EVENT
	Instructions	Insert the relevant description of Events between the rows as indicated, for example: Item 21A between rows number 21; item 30A between rows number 30 and 31.
19A	10.5.2010	Outline of Written Submission filed by Paul CK Chin as the Second Respondent in the Duress-Caveat Case of CIV 1112 of 2007 before Ken Martin J prior to the Mandate Exclusion Case decision delivered on 13.5.2010. This document is found at pages 82 to 93 of the Affidavit of the Appellant in Event 23A as described below.  The learned trial judge denied the First Defendant in that case his natural justice in that Paul as a litigant in person is disallowed to argue his own case.  It is stayed as an abuse of process of court according to the learned trial judge.  It is a neither a here nor there situation for Paul: his father is not allowed to help him as a father or as a McKenzie friend and he is not allowed to plead his own case.  The result is a Void Judgment of the Mandate Exclusion Case decision.  The Appellant agrees and has made amends for his misconception in that he should not have use the label counsel or solicitor or barrister but could only use the label “Lawyer” if he were to make any representations on behalf of the Second Respondent.
19B	10.5.2010	A similar Outline of Written Submissions to that as indicated in Event 19A above, but this time couched in the name of the Appellant was accepted by Ken Martin J for the second stage of the proceedings in CIV 1903 of 2008.  This document is labeled as NNC-2A and is found at pages 82 to 93 of Event 23A.  Ken Martin J however did not accept the common law principle indicated at page 4 in footnote 9 to the effect that the Appellant need not enter the Duress Caveat Case as a party but he could enter it through the s.36 Review Case of Civ 1903 of 2008 case, failing his application for consolidating the two cases into one.  There is no reason given by the learned trial judge as to why he had refused this reasonable application for the just consolidation of the two cases so that justice can be seen to be done.  The issue of the Appellant never having acted in conflict of interests (as indicated in footnote 5 and footnote 10) for the second Respondent Paul at all material times, is never responsively addressed by the First Respondent nor is there any logical transgression of this argument of the Appellant except for the some irrationalities, with due respect to the trial judge Ken Martin J.
21A	14.5.2010	Order of Ken Martin J delivered on 13.5.2010 in CIV 1903 of 2008 dated 14.5.2010 found at page 79 of bundle of documents.  This bundle is filed by Appellant in his Application dated 28.6.2010 (the CIV1981 of 2010 documents) for the recusal Mandamus Orders of the trial judge (Order of Ken Martin J).
23A	26.5.2010	Appellant filed his Affidavit containing 140 pages in response to Respondent Affidavit sworn 12.5.2010 in his application for security orders in CIV 1903 of 2008.  This event is in compliance with the Order No.2 of the Order of Ken Martin J. The Affidavit materials was not considered by the by Ken Martin J in the Security Order Case.  This is an indication of the inadequacy of the reasons for judgment as the trial judge refused to take into account relevant considerations and did take into account irrelevant considerations.  This voided the Security Order Case judgment.
24A	10.6.2010	First Respondent complied with Order No. 3(a) of the Order Ken Martin J Order by filling his Outline of submissions dated 10.06.10 and is found at pages 87 to 92 of the CIV 1981 of 2010 documents. The Respondent, however, DID NOT COMPLY with Order 3(b) of Ken Martin J’s Order.  This is a material non-compliance by the First Respondent to Order of Ken Martin J as justice is required to be seen to be specifically done and it is not done. The Respondent had escaped from filing the affidavit materials that should materially respond to the Affidavit materials filed by the Appellant as indicated in Document No. 23A above dated and sworn 26.5.2010.  Without such a responsive affidavit, the First Respondent should be taken to have admitted to all the materials that are contained in the No.23A Document.  The trial judge discriminated the Applicant by dispensing with the due compliance of his Order No. 3(b) of the First Respondent but does not give such a dispensation to the Appellant. This is evidence of the apprehended bias of Ken Martin J.
25A	24.6.2010	The Appellant complied with Order No.4 of the Order of Ken Martin J by filing and serving his Outline of Submission dated 24.6.2010 labelled as NNC-12-7 found at pages 95 to 112 of the CIV 1981 of 2010 documents.  The learned trial judge denied the Appellant natural justice by ignoring the submissions of the Appellant when he delivered his judgment on 8.7.2010.  This denial of natural justice which makes the Security Order Case a nullity is being reflected in the inadequate reason for decision of that Security Case Order Judgment.
26	28.6.2010	Insert the underlined words in item No. 26 as follows: Applications for Prerogative Orders filed by Applicant in CIV 1981 of 2010 to prohibit the Second Judge from continuing to hear the second stage of the Prerogative Relief Proceedings on account of the learned trial judge’s apprehended bias in 126 pages.  It is the result of his Mandate Exclusion Decision Case and the then pending Security Order Decision that was finally delivered on 8.7.2010.
30A	22.7.2010	The Respondent was required by the learned trial judge in Order No.5 of the Ken Martin J’s Order dated 13.5.2010 to file within 14 days after the determination of the Security Order Application delivered on 8.7.2010.   The Respondent DID NOT COMPLY with the learned trial judge order to file and serve a Minute setting out matters that the Respondent accepts should be the subject of the Plaintiff’s s.36 Magistrates Court Act application as well as a draft agreed chronology of events for comments by the Appellant and his son Paul, the Second Defendant in CIV 1903 of 2008.  This non-compliance of the Respondent is also done with the tacit approval of the learned trial judge.  Order No. 5 is ordered by Ken Martin J against the Respondent and the latter’s compliance with it is not contingent and should not be made contingent upon the outcome of the Security Order Case and its ramifications on the ground that the Appellant had made an application for the trial judge’s recusal in CIV 1981 of 2010 on 28.6.2010.  This date predates the date of delivery of the judgment of the Security Order Case on 8.7.2010.  The trial judge was notified of the existence of the CIV 1981 of 2010 case on 17.6.2010 and this fact is recorded in the transcript.  Therefore, if the learned trial judge were to issue an order no.5, which order should be complied with by the party who is directed to obey.  The opposing party i.e. the Appellant is already appealing the impugned judgments.  If there were no appeal to the impugned judgments, there would then be justification for No.5 to be stayed for want of prosecution.
36	15.11.2010	Counsel for the First Respondent barrister Scott Ellis misled the Court in the Review Case before Ken Martin J on 17.6.2010 to the effect that Registrar Wilde was voluntary in entering the impugned Consent Judgment in FR417 of 7.6.2007.  This is not the case as both the learned trial judge and barrister Ellis have before them the Affidavit of the Appellant as described in Event 23A above.   This is the three page facsimile letter of the Appellant sent simultaneously by the Appellant to Registrar Wilde and to four others informing them that the impugned Consent Judgment scheduled to be entered into by Registrar Wilde on the following day is contaminated by duress.  This result in the Void Consent Judgment upon which the respective decisions of Magistrates Musk, Michelides and Commissioner Herron rest.  If the source is a jurisdictional error, every decision that rests upon it or that give effect to that source judgment is in turn a Void Judgment including the two Void Judgments of Ken Martin J in the Mandate Exclusion Case and the Security Order Case.  The only exception if the august and righteous judgment of Justice Hasluck in the first stage of that Review Case of CIV 1903 of 2008.  The evidence for this complaint in five pages is sent by way of facsimile to the Legal Profession Complaints Committee dated 15.11.2010 and copied to the Registrar of the Court of Appeal for the attention of the Justices in CACV 75 of 2010.   But for the court having been misled by barrister Scott Ellis as contained in page 33 of the transcript of those proceedings on 17.6.2010, at least the Security Order Case would not have been dismissed by the trial judge.

                         

Signed by: ………………………………… ….