APELLANT'S GROUNDS OF APPEAL IN CACV75 OF 2010 AS DECIDED BY THE COURT OF APPEAL, PULLIN JA AND NEWNES JA ON 23.11.2010

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 (for want of jurisdiction of the judge and of the subject matter) is the subject matter of this appeal dated 17.6.2010 (and is at the second stage or subs. 36(4) Magistrates Court Act, 2004 Proceedings in CIV: 1903 of 2008, cited as RE MICHELIDES; EX PARTE CHIN [No 2] [2010] WASC 169, also referred to as the Prerogative Relief Proceedings) 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 (in Mandate Exclusion Case of Thies v Chin [2010] WASC 111I) 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 (presided by the First Judge in the subs. 36(1) or the First Stage of the Prerogative Relief Proceedings by His Honour Justice Hasluck on 17.6.2009) having been granted to the Applicant for the purpose of allowing him to defend his son, Paul (in his capacity as a lawyer[1] and not as a legal practitioner on a pro-bono basis; thereby detracting from that role his public duty as a court officer; so as to make way, under just circumstances, for his so acting for his son, without conflicting interests).  That Mandate is being reasonably seen as not being delimited to the mediation process only (but is referable to the whole of those Prerogative Relief Proceedings including its second stage before the Second Judge).  However, that Mandate was unreasonably retracted by the Second Judge without any justifying circumstances (in the Mandate Exclusion Case which is reasonably seen to be a design in a series of judgments and conduct of His Honour, to precede the Security Order Case so as to achieve His Honour’s pre-judgmental decision to stultify those proceedings to the detriment of the Applicant (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.  (The ulterior purpose of the Mandate as intended by court of the First Judge was to prevent Paul’s vulnerabilities from being further exploited by the Respondent with the necessary ramifications: Applicant was given the role to defend primarily his own case as a litigant in person (and secondarily to defend his son’s case, who had been involuntarily drawn into the dispute by the Respondent who had seen it fit to exploit the son instead of the father on a pro-bono basis as a lawyer and not as legal practitioner on condition that Paul would remain inactive.  Paul would thereby be absolved from all liabilities for costs orders on account of his being inactive; Paul was to remain non-contactable by the Respondent except through the Applicant so as to prevent any further mental injury/harm to him.)  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-Cave 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 Amalgamation).

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 (such Amended Appellant’s Case should now only confine itself to the Interlocutory Appeal which covers only the relevant areas, namely: the Security Order Case, the Mandate Exclusion Case, the Amalgamation including the repeated oral and written calls for the Second Judge to abdicate himself from hearing the Second Stage of the Prerogative Relief Proceedings.  The latter having culminated in the Applicant’s Recusal Application for Prerogative Orders in CIV 1981 of 2010 dated 28.6.2010 now pending before the Court of Appeal.)

                                                                                   

 NICHOLAS NI KOK CHIN                                                            -APPLICANT

V.

TIMOTHY ROBIN THIES                                                   -FIRST RESPONDENT

PAUL CHUNG KIONG CHIN                                            -SECOND RESPONDENT

                                               

AMENDED GROUNDS OF APPEAL

Date of document:                             1^st November, 2010

Date of filing:                                     1^st November, 2010.

Filed on behalf of:                              The Applicant

Prepared by:

Nicholas N Chin                                 Phone: 08 9275 7440

Litigant in person                               Fax: 08 92757440

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

DIANELLA WA 6059                       Mobile: 0421642735

His Honour, Justice Kenneth Martin is in jurisdictional excesses when he erred in the Mandate Exclusion Case, the Security Order Case, his refusal to comply with the request for Amalgamation of CIV1112 of 2007 into the CIV 1903 of 2008 case and his refusal to heed the calls for his recusal for his apprehended bias against the Applicant, under circumstance where there is an apparent pattern in his persistent conduct to favour one party to the dispute in those proceedings before him, on the following grounds:

SECURITY ORDER CASE:

1.      In both mixed law and facts when he misconceived that there were unmet legal costs owing by the Appellant to the Respondent in the courts below and that the Rules of Supreme Court 1971 Order 25 r.2(g) gives him that authority to make that Security Costs Order against the Appellant in favour of the Respondent in the following terms:  

1.1.   The First Judge had already stayed the execution of the Costs Orders of the courts below. This particular Order has not been varied by the Second Judge or the latter did not provide any justifying circumstances for the First Judge’s Order to be varied.  But he had issued a threat to vary them if his Security Costs Order and his Mandate Exclusion Order were to fail to quieten the Applicant.

1.2.   The learned Mr. Commissioner Herron admitted in his judgment that he had no jurisdiction to deal with the District Court Appeal No. 6 of 2008 in his judgement.  In the light of such an admission, his judgment made when he knew he should not be making it, is therefore a nullity and the consequent costs orders are unenforceable not only on the ground that it is a void judgment but it also contradicts the legislative intentions of the Minor Case Provisions of the Magistrates Court (Civil Proceedings) Act, 2004.  He should have remitted that case to the Supreme Court as per s.77 of the District Court Act, 1969, and he is in dereliction of his duty to do so.    

1.3.   The Second Judge was repeatedly called upon by the Applicant to recuse himself from hearing the Mandate Exclusion Case and the Security Order Case orally on 30.4.2010, 13.5.2010 and 17.6.2010 and by letter addressed to the Chief Registrar dated 28.5.2010, which sets out twelve grounds for his reasonably-apprehended bias.  He did not heed to these repeated calls and therefore his judgements in the Mandate Exclusion Case and the Security Order Case are nullities.

1.4.   The Second Judge’s retaliatory conduct to the Applicant by virtue of his  sustained calls for his recusal: he immediately delivered his judgment of the Mandate Exclusion Case on 13.5.2010 against the Applicant only one day after the Application for Security Orders was filed by the Respondent on 12.5.2010.  Yet he delivered his reasons for that judgment only on 26.5.2010.

1.5.   The Second Judge delivered his Security Order Case judgment against the Applicant on the 17.6.2010 but delivered his written reason for his judgment only on the 8.7.2010.

1.6.   The time lag between the delivery of the two judgments and the handing down of his reasons for decisions is 13 days and 21 days respectively.  This time lag is “ruminating time” that reasonably provides an opportunity for His Honour to find fake reasons in order to create fake judgments and not to make honest judgments which is His Honour’s bounden duty to do so.  The time lag and other reasonably perceived circumstances reasonably impinge on the credibility and integrity of the Second Judge (the fake judgments).

1.7.   The Applicant filed his Application for Prerogative (Mandamus or Prohibitory) Orders against the Second Judge calling for his recusal on 28.6.2010 in CIV 1981 of 2010.  This event occurred on a date before the delivery of the Security Costs Order judgment on 8.7.2010 but His Honour was not aware of it until he was apprised of it by the Applicant on the 8.7.2010 and he expressed his surprise to it.    

1.8.   The Second Judge is reasonably perceived to be exposing his two judgments as fake, by un-justifying circumstances, inter alia, for on 13.5.2010 he varied the First Judge’s Orders dated 17.6.2009 in order to extend time for the filing of the Respondent’s Show-Cause Affidavit which should have been filed on or before 8.7.2009.  He thereby discriminated the Applicant for the second time in these proceedings, the first of such occasion occurred when Magistrate Michelides refused to accept the Applicant’s reasonable reasons for delay in appealing the VOID CONSENT JUDGMENT of Registrar Wilde in FR417 of 2007 after he had gone before Commissioner and came back before Magistrate Michelides. The second time when the Respondent was dissimilarly treated on the issue of delay to comply with the First Judge’s Show Cause Order issued to the First Respondent.    

1.9.   This delay of the Show Cause Affidavit had caused detriment to the Applicant by its botching up the mediation process before Registrar Rimmer on 1.9.2009.   

1.10.                    That Show Cause Affidavit did not pay respect to the First Judge’s intention expressed on 17.6.2009 that the Show Cause Affidavit should assist the mediation process by its expressing concisely and precisely the core issues (escalation of costs and whether the emails correspondence modified the solicitor-client agreement), but instead its delay was aided by the Second Judge to be used as an instrument of oppression and injustice by the Respondent working towards the detriment of the Applicant.   

MANDATE EXCLUSION CASE:

2.      In both mixed fact and law when His Honour refused to take into account relevant considerations but took into account irrelevant considerations in arriving at his Mandate Exclusion Decision thereby denying the Appellant his natural justice in terms of the following:

2.1.   by refusing to recognise the law and facts as presented in the Applicant’s Affidavit opposing the Respondent’s Application for Security Costs Order dated and filed 26.5.2010 in 140 pages, which was required by His Honour to be filed by the Applicant on or before the 3.6.2010.

2.2.   by refusing to recognise the fact that the Paul was involuntary in entering into a solicitor client relationship with the Respondent at all material times.  Hence that solicitor-client relationship can be reasonably construed as one that subsists between the Applicant and the Respondent only (and not on a tri-partite basis).  Its subsistence lasts for the duration of the period when both parties expresses themselves to be ad idem.

2.3.   by refusing to recognise the fact that the Respondent was pursuing Paul as his victim for the purpose of advance his own interests over his client’s interests and for exploiting his supposed client’s (Paul’s) vulnerabilities.

2.4.   by refusing to recognise the fact that the reason for the joinder of Paul as an inactive Second Defendant, his absolution from liability for costs orders and his non-contactability by the Respondent, reflects the court’s desire to avoid the further exploitation of the vulnerabilities of Paul.  The court also expressed its wish to enable the Applicant to defend his son Paul as his lawyer[2] and not as a barrister or solicitor or counsel, not confined to merely the mediation process but the whole Prerogative Relief Proceedings.

2.5.   by refusing to recognise the fact that the Caveat case of CIV1112 of 2007 was being used as an instrument of oppression against Paul as his “duress gun”, working hand in hand with the oppressive suit of a Zero Sum Debt in FR417 of 2007 for the purpose of achieving the sham compromise before the involuntary Registrar Wilde who was continually being updated of those oppressive events to the effect that she also became the subject of oppression and duress just as the treating psychiatrist of Paul was, but both of them acted reasonably and gave in for fear that further mental injury may be inflicted once too many times on Paul.  

2.6.   by failing and refusing to understand the psychology of the Applicant pursuing this action against the Respondent as this is no laughing matter as the Applicant had been deprived of his independent legal practice by the regulator of the legal profession on account of the aberrant behaviour of the Respondent for which he seems to have no recourse in a court of justice in the face of a biased judge. 

2.7.   by refusing to allow Paul to represent himself as a litigant in person with the help of his McKenzie friend who happens to be his father, the Applicant.

2.8.   by refusing to recognise that the Applicant as a lawyer and not as solicitor or counsel or legal practitioner for Paul does not play the public role of a court officer and he therefore cannot be seen to be acting in a conflict of interests situation, when so acting pro-bono for his son, Paul as mandated by the First Judge.

2.9.   by refusing to allow the amalgamation of the Duress-Handmaid Caveat Case into the Prerogative Relief Proceedings of CIV 1903 of 2008 so as to quell all problems arising from one matter i.e. issue of the sham compromise.

2.10.                    by refusing to recognise that the Respondent did not have a caveatable interests in the Duress-Handmaid Caveat Case and had therefore unlawfully lodged the impugned caveat and should be liable for damages to Paul under s.140 of the Transfer of Land Act, 1893 (WA).

2.11.                    by stating that the Applicant has an inherently weak case without any justifying circumstances for such irrational conclusion.  

Signed by the Appellant: ………………………………………….

                                    (NICHOLAS NI KOK CHIN)

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[1] See Column 1 in the Table of regulation 5(2) of the Legal Profession Regulations, 2009 which entitles the Applicant to represent himself as a “lawyer” and not as a barrister & solicitor or legal practitioner since he is without a practice certificate as a result of conditions imposed upon him restricting his independent legal practice by the regulator of the legal profession in WA which currently forms the subject matter of his appeal in CACV 41 of 2010.  That restriction disentitles the Applicant to hold himself out as being entitled to be engaged in legal practice contrary to subs. 13(1) of the Legal Profession Act, 2008 WA, which attracts a fine of $20,000.00.  The Applicant has since 7.10.2010 been served with a Prosecution Notice for this strict liability subs. 13(1) offence but a diligent inquiry by him found that this Notice, strangely enough, is not lodged with the Magistrates Court at Perth.  The Applicant’s defence to this offence is that despite receiving a mandate from the First Judge in these proceedings, he was also labouring under a mistake of fact that although not entitled to practice, he is allowed to act for himself as a litigant in person in all affiliated legal proceedings with the Respondent upon the ground that his son Paul was never a voluntary participant in these proceedings and that the Applicant himself was involved in matters that affected his own personal interests and that his son Paul was the subject of exploitation by Mr. Thies who saw it fit to entice Paul to be so involved so that he could gain from him financially, thus advancing his own personal interests against that of his own client or potential client or unwilling client.  This is the professional misconduct of Mr. Thies.  Currently, the dispute of the Applicant with the regulator revolves around three issues:

1)      The existence of the Pseudo Board which usurps the role of the role of the real Full Board of the regulator to persecute him in its VOID judgment to restrict his independent legal practice. 

2)      The vindication of his human rights in that he was accused by the regulator of having a proclivity of making false allegations against fellow practitioners, namely Solicitor David Taylor for having falsified court records in CIV 1131 of 2006 and Solicitor Timothy Robin Thies  of having extorted monies from him and his son in a sham compromise in the Void Consent Judgment of Registrar Wilde in FR417 of 2010.  Those ensuing judgments of Magistrate Musk in FR944 of 2007 and Magistrate Michelides in FR417 of 2007 and Commissioner Herron’s Judgment in District Court Appeal No.6 of 2008 are also VOID JUDGMENTS as they are based on the VOID judgment of Registrar Wilde as indicated above and VOID as well on the ground that the Respondent is without justiciable issues before the court as he did not comply with the intentions of the First Judge and the Second Judge was reasonably seen to be accommodating him in his multiplicity of roles thus acting in conflict of interests.     

[2] The Applicant is legally entitled to use his title as legal practitioner, counsel, barrister or solicitor but he has decided that he should be erring on the safe side by refraining from using those titles until he gets the “green light” to do so in the future.  The Applicant is without a practice certificate not through his own fault but through a VOID JUDGMENT of the regulator acting through its Pseudo Board which  status had been admitted by its conduct on many occasions when it was so addressed by counsel for the Applicant, Mr. Timothy Stephenson who had asked for the relevant minutes of authority to be produced to show that its decision had been authorized by the majority consent of the 52 members of the Board.  The LPCC is still disputing that those issues that forms the subject matter of the VOID JUDGMENT of the regulator are res judicata issues.  They have already been decided too many times since 2006 and is currently being recited again in a new malicious suit instituted by it  in VR87 of 2009 which the President of SAT Justice Chaney had pronounced his judgment that they are not res judicata. The current SAT Deputy President Judge Timothy Sharp is being informed of the latest developments of this case   most recently and as a result His Honour is keeping track of it in my blogspot in Google NICHOLASNCHIN.  There will be further directions before His Honour scheduled on 12.11.2010 and I believe His Honour is ready to deal with it soonest possible but the pending proceedings before the Court of Appeal must be disposed of  first before any headway can be made in SAT.  The CACV 41 of 2010 is an appeal from the decision of Justice Heenan in CIV 1019 of 2010 who dismissed the Prerogative Orders Application by the Applicant against Justice Chaney of SAT.  This Applicant explains whey the VR87 of 2010 is pursuing res judicata issues which the LPCC refused to answer when it was ordered to do so by Justice Heenan, resulting in His Honour dismissing it by reneging upon his Orders.

Further, as a result of the Prerogative Orders Application in CIV 1981 of 2010 and in CIV 1877 of 2010 referred to elsewhere, Justice Heenan himself has since admitted in RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212 that a General Division Justice of the Supreme Court has no jurisdictions to make Prerogative Orders decision in respect of other judges of equal rank to himself.   Hence this is an indirect admission that His Honour’s decision in CIV1019 of 2010 that is currently being appealed in CACV41 of 2010 has been made without jurisdiction and is therefore of null effect.  The Court of Appeal Registrar has been informed of this accordingly.  My Application in CIV 1981 of 2010 for Prerogative Orders against Justice Kenneth Martin has been directed by the Court of Appeal Registrar to be made before a Court of Appeal Justice through the Supreme Court.  Similarly, my Application before Justice Heenan  in CIV 1877 of 2010 for the rectification of the technical error of the Court of Appeal in CACV 107 of 2008 in relation to the falsifications of the court records by solicitor David Taylor in CIV 1131 of 2006 has been made before a Court of Appeal Justice pursuant to s.33 of the Supreme Court Act, 1935. Both of these cases are pending. I have objected to Justice Heenan hearing my case and as a result, His Honour had adjourned the two applications in his judgment in my absence on 4.8.2010 sini die.