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 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 OUTLINE OF WRITTEN SUBMISSIONS BY APPELLANT
FOR APPELLANT’S GROUNDS OF APPEAL AND LIST OF AUTHORITIES
Date of document: 1st November, 2010
Date of filing: 1st 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
INDEX PAGE NUMBERS
APPLICANT NOT IN DEFAULT FOR UNMET COSTS ORDERS 4
REPEATED CALLS FOR THE SECOND JUDGE TO RECUSE HIMSELF: 9
DENIAL OF NATURAL JUSTICE BY THE SECOND JUDGE TO THE APPLICANT RESULTS IN HIS VOID JUDGMENTS: 11
THE CONSOLIDATION OF CIV 1112 OF 2007 INTO THE CIV 1903 OF 2008: 12
CONCLUSION: SECURITY ORDER AND MANDATE EXCLUSION ORDER VITIATED 12
Your Honour
APPLICANT NOT IN DEFAULT FOR UNMET COSTS ORDERS
1. The Second Judge relied upon his primary reason for ordering the Security Costs Order against the Applicant and it does not work as that reason is not available to him.
2. In accordance with Order 25 r.2(g) of the RSC the Applicant is not in any default of any costs orders either from District Court Appeal No.6 of 2008, or the Costs Orders FR944 of 2007 and FR 417 of 2007 of the Magistrates Courts below as those judgments are VOID JUDGMENTS as they are based upon the original VOID JUDGMENTS of Registrar Wilde Involuntary Consent Judgment in VR417 of 2007 . The grounds are:
2.1. Commissioner Herron directly admitted in his judgment that he is without jurisdiction to enter into that judgment which he knew would be void for want of jurisdiction on his part. Despite this, he did enter into that judgment and therefore his Costs Orders are of null effect. His Honour, in his good conscience should have remitted the matter to the Supreme Court in accordance with the dictates of s.77 of the District Court Act, 1969, WA. Faced with this situation, His Honour could reasonably have simply washed his hands off the whole matter instead of becoming tainted by it a VOID JUDGMENT and His Honour chose not to do so. Hence the mysterious reason for the disappearance of that judgment from the District Court of WA website. The Applicant invites the Respondent to invoke the powers of the District Court or the powers of the Supreme Court to enforce that costs order as a debt as it can be litigated again (the Herron’s Jurisdictional Error) .
2.2. The Herron’s Jurisdictional Error impinges on the jurisdictional error of the learned Magistrate Musk in FR944 of 2007 when she summarily dismissed the Application of the Applicant to set aside the Involuntary Registrar Wilde Consent Order affecting the sham compromise . This event happened when $11,500.00 exchanged hands between the oppressed Applicant and the duress-vitiated Magistrate Court action of the Respondent making illegal demands for monies based on a Zero Sum Debt in FR 417 of 2007 in a sham compromise (the Musk Jurisdictional Error).
2.3. The learned Magistrate Michelides is in jurisdictional error when he denied the Applicant natural justice by dismissing his Appeal against the sham compromise of Registrar Wilde’s Involuntary Consent Order in FR417 of 2007. His Honour did this on the purported ground that that Appeal was made out of time although there are reasonable grounds before His Honour for extension of time and this was subsequently vouched for by the First Judge in his Review Judgment (the Michelides Jurisdictional Error) .
2.4. Justice Kenneth Martin treated the Applicant dissimilarly (on the similar issue of an Application for extension of time in the Show Cause Affidavit, this time by the Respondent in CIV 1903 of 2008 instead of by the Applicant in FR417 of 2007 before Magistrate Michelides) to the way the Applicant was treated in the Michelides Jurisdictional Error.
2.5. The delay of the Respondent in failing to file his Show Cause Affidavit on time had caused detriment to the Applicant in that the mediator at the First Stage of the Prerogative Proceedings was without the guidance of the Show Cause Affidavit of the Respondent and he therefore was unsuccessful in achieving an amicable settlement between the parties and this is contrary to the intentions of the First Judge.
2.6. That Show-Cause Affidavit should have been filed on the 8.7.2009 but it was done only on the 7.10.2009 and it was therefore not ready and in time for the mediation process to take place before Registrar Rimmer, which occurred on 11.9.2009 (the Apprehended Bias of both the Second Judge and Magistrate Michelides).
2.7. The Applicant, in contrast utilized the proper procedure of advancing his Minor Claim for $6,000.00 through the Minor Claim Procedure of the Magistrates Court (Civil Proceedings) Act, 2004 whereas the Respondent advanced his Zero Debt Claim using the General Procedure Claim. This is contrary to the legislative intentions of Parliament when enacting those Minor Cases Provisions .
2.8. If those Costs Orders were not improper or they were not tainted by bias, they are debts properly recoverable by the Respondent like those of ordinary debts. The Respondent has the power to request the Second Judge to make judicial determinations for their recoveries from the Applicant before the Second Judge instead of seeking the Second Judge to make the Mandate Exclusion Case Order and the Security Order Case in sequence as though they were pre-meditatively made to achieve a clandestine purpose. One can see a design in these two Orders as they transpired on 13.5.2010 and 17.6.2009 . It is reasonably observed that the Second Judge is unconscionably and unreasonably deciding to put the cart before the horse.
2.9. The Second Judge does have the same powers to make proper judicial determinations of costs orders in accordance with the law . Until this is done, His Honour should not be taking any steps reasonably seen as biased action in the Prerogative Relief Proceedings to stultify its continuing prosecution at its second stage . These proceeding were initiated by the Applicant and they have already received the sanctions of the First Judge and they should be brought to finality under just circumstances by the Second Judge by adopting the normal approach .
2.10. The Second Judge should know that costs on a party and party basis and costs between solicitor and client (subject to cost agreement provisions of the LP Act) are regulated by the applicable costs determinations and is claimable from the Applicant by the Respondent subject to the common law affecting their contractual rights and obligations, which must first be determined in accordance with the law.
REPEATED CALLS FOR THE SECOND JUDGE TO RECUSE HIMSELF:
3. The judicial disqualification or the recusal of the Second Judge has been made repeatedly by the Applicant in the course of the Second Stage of the Prerogative Relief Proceedings . The Second Judge should have abstained from further participation in those legal proceedings due to his conflict of interest on the ground that he is seen to be palpably biased against the Applicant as evidenced by the transcript and the letter of the Applicant dated 28.5.2010 written by the Applicant to the Chief Registrar of the Supreme Court.
4. The conflict of interests of the Second Judge occurred because he is involved in multiple interests and one of which could possibly corrupt his motivation for his act of further participating in those legal proceedings.
5. This conflict of interests occurred because the Second Judge is entrusted with some impartiality in his public office and a modicum of trust is necessary to create that public office .
6. The presence of the conflict of interests is independent from the execution of his improper act to stultify the legal proceeding with improper orders of the Mandate Exclusion Case and the Security Order Case.
7. Therefore, it is the duty of the court including the Second Judge himself to voluntarily uncover it and to voluntarily defuse it before any act of corruption occurs.
8. The Second Judge must at all costs be prevented from abusing his public power of office as a Justice of the Supreme Court for personal gain, especially so in the case of the Respondent who had committed grievous wrongs to his clients and he has to conform to the applicable statutes or the canon of ethics which addresses those questions about his conduct that differentiates his intentions, his decisions, and his actions between those that are good (or right) and bad (or wrong) i.e. about concepts as good and evil, right and wrong, virtue and vice and justice.
9. Lastly, it is justice that the Applicant is seeking from this court and justice is concerned with the concept of moral rightness based on ethics, rationality, law, natural law, religion, fairness and equity . The Second Judge said to the Applicant that it is not for him to question his irrationality but it for His Honour to question and interrogate the Applicant .
.
DENIAL OF NATURAL JUSTICE BY THE SECOND JUDGE TO THE APPLICANT RESULTS IN HIS VOID JUDGMENTS:
10. Owen J in Ex parte Fealey (1897) 18 NSWLR (L) 282 at 288-289 defines “denial of natural justice” in these terms:
“A decision contrary to natural justice is where the presiding Judge or Magistrate [THE SECOND JUDGE] denies to a litigant[THE APPELLANT] some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings [THE SUBS.36(4) PROCEEDINGS], as for instance where a Magistrate refuses to allow a litigant to address the Court[FOR EXAMPLE: TO BE HEARD IN HIS OWN CAUSE IN THE CAVEAT CASE OR TO CONSOLIDATE THE CAVEAT CASE INTO THESE PROCEEDINGS AND HE REFUSED TO SEE THAT THE AFFIDAVIT OF THE FIRST DEFENDANT IS CONCISE WITH REGARD TO THE ISSUE OF THE NON-CONSENSUALITY OF THE VARIED SOLICITOR COSTS AGREEMENT ENTERED INTO BETWEEN THE APPELLANT AND HIMSLF], or where he refuses to allow a witness to be cross-examined, or cases of that kind. That conduct is said to be contrary to natural justice, and is a ground for the interference of this Court” [EMPHASIS ADDED].
THE CONSOLIDATION OF CIV 1112 OF 2007 INTO THE CIV 1903 OF 2008:
12. There is no basis for the refusal of the Second Judge to refuse to consolidate the Caveat Case into the current proceedings so that they can be dealt with efficaciously because there is only one transaction or event. They revolves around the Zero sum debt claim with its handmaid of extortion, the Caveat case.
13. The consolidation of these two actions CIV 1903 of 2008 and CIV 1112 of 2007 into just one case is for simplicity of proceedings and is to enable the Applicant to represent his son Paul in those proceedings on the ground that Paul is never a voluntary participant in those proceedings and that the Respondent is reasonably found to be misusing his position as a court officer to exploit the vulnerabilities of his client Paul.
14. The Applicant being a litigant in person pursuing his own personal interests in those two cases and is not acting in conflict of interests as he does not play his public role as a court officer in standing in for his son Paul .
15. These are all well and in accord with Order 83 of the RSC which has the force of law.
CONCLUSION: SECURITY ORDER AND MANDATE EXCLUSION ORDER VITIATED
16. The question before this court is whether this Interlocutory Appeal is likely to succeed. If the answer is yes, then leave should indeed be granted as the two decisions of the Second Judge aimed at stultifying these proceedings are indeed vitiated by his lack of impartiality in those proceedings. The two decisions of the Second Judge are indeed vitiated by His Honour lack of impartiality in those proceedings.
Signed by: ………………………………… ….
LIST OF AUTHORITIES
Websites or Journals:
1. Blogspot of Nicholas N Chin for information of legal documents filed with the Supreme Court of WA regarding my current proceedings at: http://nicholasnchin.blogspot.com/.
2. Konow, James. 2003. "Which Is the Fairest One of All? A Positive Analysis of Justice Theories." Journal of Economic Literature 41, no. 4: page 1188 http://en.wikipedia.org/wiki/Justice#cite_note-1;
3. Morison, W L --- "Fuller, The Morality of Law" [1965] SydLawRw 14; (1965) 5(1) Sydney Law Review 181, 183 http://www.austlii.com/au/journals/SydLawRw/1965/14.html;
4. 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
REGULATIONS:
1. Legal Profession Regulations, 2009 See: Column 1 in the Table of regulation 5(2);
2. Rules of Supreme Court 1971 WA Order 25 r.2 (g)
STATUTES & BILLS
1) The Supreme Court Act, 1935 WA: Subs. 60(1)(f)(3); 58(1)(a); 59(1), (3), (4) and (6);
2) The Magistrates Court Act, 2004: Subs. 36(1); Subs. 36(4).
3) The Magistrates Court (Civil Proceedings) Act, 2004: subs. 25(9) and 31(1).
4) District Court Act Act, 1969 subs. 64(1) and s. 77.
5) Legal Profession Act 2008 s. 25(2)
6) The Magistrates Court (Civil Proceedings) Bill, 2003: EXPLANATORY MEMORANDUM: Clause 25(5)
Subclause (5) ensures that where a matter that is within the minor cases jurisdiction is commenced in the general jurisdiction the costs that can be awarded are the very limited costs that would be allowed had the action been commenced in the minor cases jurisdiction. The intention is to ensure that a defendant in a case that could have been commenced in the small cases jurisdiction is not thereby disadvantaged.
Subclause (8) is derived from the Litigants In Person (Costs and Expenses) Act 1975 (UK) and allows a person who represents themselves to recover any expenses or losses incurred if they are successful in recovering costs.
Subclause (9) is effectively a penalty clause and relieves a person from some or ‘all of costs if the lawyer involved has improperly incurred them or wasted them due to misconduct or default. The lawyer can also be required to make payments to the party if that party is liable to another party due to the actions or omissions of the lawyer. Under subclause (10) a Court cannot make an order under subclause (9) unless it has informed the lawyer and allowed the lawyer to call evidence and make submission in relation to the proposed order. Subclause (11) provides that if an order is made under proposed subsection (9)© disentitling a lawyer to costs, the lawyer must not charge and cannot recover the costs concerned.
Clause 31 – Costs
It is the intention of the Bill to keep costs payable in relation to minor cases to a
minimum.
Subclause (1) defines “allowable costs” for the purposes of this proposed section to mean court fees and service fees and the costs of enforcing a judgment.
Subclause (2) provides that the successful party in a minor case is entitled to an order in relation to their allowable costs but not in relation to the other party’s costs though under subclause (3) the Court can make an order in relation to the other party’s costs if satisfied that it is reasonable to make such an order.
CASE LAW:
1) ALLCOCK V. ALLCOCK, 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).
2) BROWN V. BLANCHARD, 39 Mich 790.
3) CALVIN V CARR[29] [1979] UKPC 1; [1980] AC 574 at 589-590;
4) 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.
5) EBNER V OFFICIAL TRUSTEE IN BANKRUPTCY (2000) 205 CLR 337;
6) EX PARTE FEALEY (1897) 18 NSWLR (L) 282 at 288-289;
7) FORBES V NEW SOUTH WALES TROTTING CLUB LTD [1979] HCA 27; (1979) 143 CLR 242 at 277 per Aickin J
8) FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97
9) GOETZE DCJ in RODWELL & ANOR -v- HUTCHINSON [2009] WADC 180
10) GUDGEON V BLACK ; EX PARTE GUDGEON (1994) 14 WAR 158 at 178 – 179);
11) JOHNSON V JOHNSON (2000) 201 CLR 488 at [11],
12) JOHNSON V. DISTRICT COURT, 674 P.2d 952 (Colo.1984);
13) KANDA V. GOVERNMENT OF MALAYA (1962) AC 322, at p 337.
14) KOVACHEFF V LANGHART, 147 Colo. 339, 343-44, 363 P.2d 702, 705 (1961);
15) LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. V. HUNT, 39 Mich 469.
16) LIGON V. WILLIAMS, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist. 1994);
17) LINN V. ROBERTS, 15 Mich 443;
18) LIVESEY V. NEW SOUTH WALES BAR ASSOCIATION [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294;
19) LYNCH V. PEOPLE, 16 Mich 472.
20) MA PRODUCTIONS PTY LTD V AUSTARAMA TELEVISION PTY LTD [1982] 1 ACLC 404,
21) MILLIKEN V. MEYER, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).
22) MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS V BHARDWAJ [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 (14 March 2002) per Gleeson CJ at para. 45:
23) PEOPLE EX REL. BRZICA V. VILLAGE OF LAKE BARRINGTON, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994).
24) PEOPLE V. BOTHAM, 629 P.2d 589, 595 (Colo. 1981);
25) R V LEICESTER CITY JUSTICES; EX PARTE BARROW [1991] 3 All ER 935.
26) RAYNEY V AW [2009] WASCA 203 [24] - [27] ;
27) RE CAREY; EX PARTE EXCLUDE HOLDING PTY LTD [2006] WASCA 219 at [129]; (2006) 32 WAR 501 at 527,
28) RE JRL; EX PARTE CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986) Dawson J said in at para.2.
29) RE MARRIAGE OF MANN, 655 P.2d 814 Colo.1982);
30) RE MICHELIDES, EX PARTE CHIN [2008] WASC 256;
31) RE: AN APPLICATION UNDER THE MAGISTRATES COURT ACT, 2004; EX PARTE BRECKER [2007] WASC 151 at para.58 per Beech J
32) RE: MICHELIDES; EX PARTE CHIN [No.2] [2010] WASC 169
33) RODWELL -v- HUTCHINSON [2010] WASCA 197 as per Pullin JA Newnes JA and Murphy JA at para. 20
34) SLAVIN V OWNERS CORPORATION STRATA PLAN 16857 [2006] NSWCA 71.
35) THIES V CHIN [2010] WASC 111;
36) TUBE CITY MINING & MILLING CO. V. OTTERSON, 16 Ariz. 305, 146 P. 203 (1914)
37) WAHL V. ROUND VALLEY BANK 38 Ariz. 411, 300 P. 955 (1931);
38) WEST’S PROCESS ENGINEERING PTY LTD (ADMINISTRATOR APPOINTED) (ACN 002 498 142) & ORS V WESTRALIAN SANDS LTD (ACN 008 675 016) & ORS [1998] WASC 108 (15 April 1998) per White J at para.2
FOOTNOTES:
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.
RSC: Order 25 r.2 (g) states:
2. Grounds for ordering
“ Without limiting the generality of the preceding Rule the Court may order security for costs to be furnished where the plaintiff —
g)“is in default in respect of any costs ordered to be paid by him in any proceedings previously brought by him against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter”
All the three judges subsequent to Registrar Wilde knew that the Registrar Wilde Involuntary Consent Order in FR417 of 2007 entered into by the parties of which the Applicant is a non-consenting party notwithstanding that it has the appearance of consent is a Void Order or Judgment. Thereafter any court decisions basing itself upon that VOID CONSENT JUDMENT are also VOID. Any Costs Orders deriving those VOID JUDGMENTS are also similarly of null effect: “Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 (14 March 2002) per Gleeson CJ at para. 45:
It is sometimes convenient to ask whether administrative decisions which involve reviewable error are either void or voidable, the former signifying that the decision is "ineffective for all purposes" and the latter that it is "valid and operative unless and until duly challenged but ... deemed to have been void ab initio." Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242 at 277 per Aickin J. The tendency to conceptualise erroneous administrative decisions as voidable rather than void may be the result of the need to treat a decision as having at least sufficient effect to ground an "appeal" or other legal proceedings. Thus, it was said by Lord Wilberforce in Calvin v Carr that:
"Their Lordships' opinion would be, if it became necessary to fix upon one or other of [the] expressions ['void' or 'voidable'], that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent."Id. [29] [1979] UKPC 1; [1980] AC 574 at 589-590
77 . District Court may remit to Supreme Court
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 para. 29 of the judgment of GOETZE DCJ in RODWELL & ANOR -v- HUTCHINSON [2009] WADC 180 which refers to the District Court Act Act, 1969 s.64(1) which provides:
“Except as hereinafter provided in this Act, the costs of any action or proceeding shall be in accordance with any costs determination (as defined in the Legal Profession Act 2008) and shall be paid by or apportioned between the parties in such manner as the District Court judge directs and in default of such a direction shall abide the event.
(2) The costs may be recovered in like manner as a debt adjudged by the Court to be paid.
(3) Subject to this Act, a District Court judge has the same power in relation to the payment of costs by any party as a judge of the Supreme Court has."
Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock, 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).
Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court, People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994).
A "void judgment" as we all know, grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack (thus here, by ). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97. On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain. Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469.
“Subclause 25(5) of the Explanatory Memoranda to the Magistrates Court (Civil Proceedings)Bill2003 provides:
Subclause (5) ensures that where a matter that is within the minor cases jurisdiction is commenced in the general jurisdiction the costs that can be awarded are the very limited costs that would be allowed had the action been commenced in the minor cases jurisdiction. The intention is to ensure that a defendant in a case that could have been commenced in the small cases jurisdiction is not thereby disadvantaged.”
Reference made by White J to the case of MA Productions Pty Ltd v Austarama Television Pty Ltd [1982] 1 ACLC 404, where court listed some matters which go to the proper exercise of proper discretions:
5.3.1. The strength and bona fides of the Plaintiff’s case as attested to by the First Judge.
5.3.2. Whether the opposite party is being oppressive to deny the impecunious his right to litigate;
5.3.3. No money was owing to the First Defendant or there is Zero Sum False debt being claimed by the First Defendant.
5.3.4. The security of costs order is stultifying the Appellant’s action that was confirmed by the First Judge in the s.36 proceedings to have a strong case as opposed to the Second Judge’s view that it is an inherently weak case.
THIES -v- CHIN [2010] WASC 111
RE MICHELIDES; EX PARTE CHIN [No 2] [2010] WASC 169
The Second Judge knows that the Respondent has no justiciable issue before him and has not presented his justiciable issues. He knows that those judgments below are void because no justiciable issue is presented to the court through proper pleadings, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist. 1994) as those pleadings are red herrings that serve to confuse the courts below. They do not go to the point of the issue of the consensus ad idem of the parties to ground liability for profit costs claimed by the Respondent against the Applicant.
The law with regard to Security Costs Orders is found in the case of: West’s Process Engineering Pty Ltd (Administrator Appointed) (ACN 002 498 142) & Ors v Westralian Sands Ltd (ACN 008 675 016) & Ors [1998] WASC 108 (15 April 1998) per White J at para.2 – question of whether the court could exercise its discretion to Order for Security of Costs.
RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 (7 November 2008)
White J further quoted the case of Cowell v Taylor (1885) 31 Ch D 34 - Court of Appeal held that there is a general rule that the Court does not require security for costs to be given by a plaintiff … even where he is in insolvent circumstances. Bagallay LJ said, at 37: “But the rule is that any one may sue without giving security, in any but certain excepted cases. Until lately, security was never required in Chancery unless the plaintiff was abroad, and if there were two co-plaintiffs, one of whom only was abroad, security was not ordered.”
RE: AN APPLICATION UNDER THE MAGISTRATES COURT ACT, 2004; EX PARTE BRECKER [2007] WASC 151 at para.58 per Beech J
“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.”
See the judgment of the Court of Appeal by PULLIN JA NEWNES and JA MURPHY JA at para. 20 in RODWELL -v- HUTCHINSON [2010] WASCA 197 which states:
“20 I should say that there is, in my view, no inconsistency between [s. 280(2) of the Legal Profession Act, 2008] and s 25(8) of the Magistrates Court (Civil Proceedings) Act. Section 280(2) provides, in effect, that costs, both on a party and party basis and (subject to the costs agreement provisions) as between solicitor and client, are regulated by the applicable costs determination. Section 25(8) of the Magistrates Court (Civil Proceedings) Act provides, in effect, that in the Magistrates Court party and party costs are regulated by the applicable costs determination.”
I quote the American case of Johnson v. District Court, 674 P.2d 952 (Colo.1984) which says when the Second Judge should have recused himself from the legal proceedings before him :
“Ordinarily, the question of whether a judge should be disqualified in a civil case is a matter within the discretion of the trial court. In re Marriage of Mann, 655 P.2d 814 Colo.1982). However, where an attorney for one of the litigants signs a verified affidavit alleging conduct and statements on the part of a trial judge which, if true, show bias or prejudice or the appearance of bias or prejudice on the part of the trial judge, it is an abuse of discretion if that judge does not withdraw from the case, even though he or she believes the statements are false or that the meaning attributed to them by the party seeking recusal is erroneous. In such a case, the judge should not pass upon the truth or falsity of the facts alleged in the affidavit, but only upon the adequacy of the motion as a matter of law.
‘The motion and supporting affidavit speak for themselves and the only question involved is whether the facts alleged are sufficient to compel the judge to disqualify himself.’Kovacheff v Langhart, 147 Colo. 339, 343-44, 363 P.2d 702, 705 (1961).
The motion and affidavits are legally adequate if they ‘state facts from which it may reasonably be inferred that the judge has bias or prejudice that will prevent him from dealing fairly’with the party seeking recusal. People v. Botham, 629 P.2d 589, 595 (Colo. 1981).”
The law in Australia for the recusal of the Second Judge is found in the case of : Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 where it is stated:
”The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”
See the judgment of Asher J in the case of: 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 as indicted below:
[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 have 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.
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 . . . .
Konow, James. 2003. "Which Is the Fairest One of All? A Positive Analysis of Justice Theories." Journal of Economic Literature 41, no. 4: page 1188.
Morison, W L --- "Fuller, The Morality of Law" [1965] SydLawRw 14; (1965) 5(1) Sydney Law Review 181.
At Page: 183: “The ethos of the judge's office demands that he should remain neutral regarding the substantive aims of a statute he is called on to apply, but with regard to the law's "internal morality"-the morality that makes law possible-he must not remain neutral.”
In Rayney v AW [2009] WASCA 203 [24] - [27] Mc Lure JA said that the Supreme Court’s Power under s 36 of the Magistrates Court Act is a judicial review power, as distinct from an appeal or review on the merits. The Second Judge therefore has a duty to test the jurisdictional errors of the judges in the courts below to ensure that they are indeed abuses of process or on some grounds might have justified an order for Certiorari. However, His Honour decided not to delve into those cases to exercise his duties but merely stay within its peripheries by making interlocutory decisions stultifying the proceedings thereby causing a travesty of justice to the Applicant.
The English Court of Appeal in R v Leicester City Justices; Ex parte Barrow [1991] 3 All ER 935. confirmed the right of every party to litigation to have a 'friend' present in court to assist by prompting, making notes or quietly giving advice on the conduct of the case. The court held that this sort of assistance should only be restricted where it is unreasonable in nature or degree, or not bona fide or is inimical to the proper and efficient administration of justice.
I quote what Dawson J said in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986) at para.2 said the following: “See Kanda v. Government of Malaya (1962) AC 322, at p 337. It is the latter possibility which is important in this case because it is not suggested that the parties did not, in the events which transpired, have an opportunity to be heard. What is suggested by the husband is that he is reasonably entitled to entertain an apprehension of lack of impartiality on the part of the judge. If that is so, then it is enough to vitiate the proceedings because it is established that a judge ought not to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial mind to the resolution of the questions involved in it: Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 2 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:
3) 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.
4) 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.
RSC: Order 25 r.2 (g) states:
2. Grounds for ordering
“ Without limiting the generality of the preceding Rule the Court may order security for costs to be furnished where the plaintiff —
g)“is in default in respect of any costs ordered to be paid by him in any proceedings previously brought by him against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter”
All the three judges subsequent to Registrar Wilde knew that the Registrar Wilde Involuntary Consent Order in FR417 of 2007 entered into by the parties of which the Applicant is a non-consenting party notwithstanding that it has the appearance of consent is a Void Order or Judgment. Thereafter any court decisions basing itself upon that VOID CONSENT JUDMENT are also VOID. Any Costs Orders deriving those VOID JUDGMENTS are also similarly of null effect: “Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 (14 March 2002) per Gleeson CJ at para. 45:
It is sometimes convenient to ask whether administrative decisions which involve reviewable error are either void or voidable, the former signifying that the decision is "ineffective for all purposes" and the latter that it is "valid and operative unless and until duly challenged but ... deemed to have been void ab initio." Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242 at 277 per Aickin J. The tendency to conceptualise erroneous administrative decisions as voidable rather than void may be the result of the need to treat a decision as having at least sufficient effect to ground an "appeal" or other legal proceedings. Thus, it was said by Lord Wilberforce in Calvin v Carr that:
"Their Lordships' opinion would be, if it became necessary to fix upon one or other of [the] expressions ['void' or 'voidable'], that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent."Id. [29] [1979] UKPC 1; [1980] AC 574 at 589-590
77 . District Court may remit to Supreme Court
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 para. 29 of the judgment of GOETZE DCJ in RODWELL & ANOR -v- HUTCHINSON [2009] WADC 180 which refers to the District Court Act Act, 1969 s.64(1) which provides:
“Except as hereinafter provided in this Act, the costs of any action or proceeding shall be in accordance with any costs determination (as defined in the Legal Profession Act 2008) and shall be paid by or apportioned between the parties in such manner as the District Court judge directs and in default of such a direction shall abide the event.
(2) The costs may be recovered in like manner as a debt adjudged by the Court to be paid.
(3) Subject to this Act, a District Court judge has the same power in relation to the payment of costs by any party as a judge of the Supreme Court has."
Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock, 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).
Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court, People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994).
A "void judgment" as we all know, grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack (thus here, by ). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97. On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain. Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469.
“Subclause 25(5) of the Explanatory Memoranda to the Magistrates Court (Civil Proceedings)Bill2003 provides:
Subclause (5) ensures that where a matter that is within the minor cases jurisdiction is commenced in the general jurisdiction the costs that can be awarded are the very limited costs that would be allowed had the action been commenced in the minor cases jurisdiction. The intention is to ensure that a defendant in a case that could have been commenced in the small cases jurisdiction is not thereby disadvantaged.”
Reference made by White J to the case of MA Productions Pty Ltd v Austarama Television Pty Ltd [1982] 1 ACLC 404, where court listed some matters which go to the proper exercise of proper discretions:
5.3.1. The strength and bona fides of the Plaintiff’s case as attested to by the First Judge.
5.3.2. Whether the opposite party is being oppressive to deny the impecunious his right to litigate;
5.3.3. No money was owing to the First Defendant or there is Zero Sum False debt being claimed by the First Defendant.
5.3.4. The security of costs order is stultifying the Appellant’s action that was confirmed by the First Judge in the s.36 proceedings to have a strong case as opposed to the Second Judge’s view that it is an inherently weak case.
THIES -v- CHIN [2010] WASC 111
RE MICHELIDES; EX PARTE CHIN [No 2] [2010] WASC 169
The Second Judge knows that the Respondent has no justiciable issue before him and has not presented his justiciable issues. He knows that those judgments below are void because no justiciable issue is presented to the court through proper pleadings, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist. 1994) as those pleadings are red herrings that serve to confuse the courts below. They do not go to the point of the issue of the consensus ad idem of the parties to ground liability for profit costs claimed by the Respondent against the Applicant.
The law with regard to Security Costs Orders is found in the case of: West’s Process Engineering Pty Ltd (Administrator Appointed) (ACN 002 498 142) & Ors v Westralian Sands Ltd (ACN 008 675 016) & Ors [1998] WASC 108 (15 April 1998) per White J at para.2 – question of whether the court could exercise its discretion to Order for Security of Costs.
RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 (7 November 2008)
White J further quoted the case of Cowell v Taylor (1885) 31 Ch D 34 - Court of Appeal held that there is a general rule that the Court does not require security for costs to be given by a plaintiff … even where he is in insolvent circumstances. Bagallay LJ said, at 37: “But the rule is that any one may sue without giving security, in any but certain excepted cases. Until lately, security was never required in Chancery unless the plaintiff was abroad, and if there were two co-plaintiffs, one of whom only was abroad, security was not ordered.”
RE: AN APPLICATION UNDER THE MAGISTRATES COURT ACT, 2004; EX PARTE BRECKER [2007] WASC 151 at para.58 per Beech J
“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.”
See the judgment of the Court of Appeal by PULLIN JA NEWNES and JA MURPHY JA at para. 20 in RODWELL -v- HUTCHINSON [2010] WASCA 197 which states:
“20 I should say that there is, in my view, no inconsistency between [s. 280(2) of the Legal Profession Act, 2008] and s 25(8) of the Magistrates Court (Civil Proceedings) Act. Section 280(2) provides, in effect, that costs, both on a party and party basis and (subject to the costs agreement provisions) as between solicitor and client, are regulated by the applicable costs determination. Section 25(8) of the Magistrates Court (Civil Proceedings) Act provides, in effect, that in the Magistrates Court party and party costs are regulated by the applicable costs determination.”
I quote the American case of Johnson v. District Court, 674 P.2d 952 (Colo.1984) which says when the Second Judge should have recused himself from the legal proceedings before him :
“Ordinarily, the question of whether a judge should be disqualified in a civil case is a matter within the discretion of the trial court. In re Marriage of Mann, 655 P.2d 814 Colo.1982). However, where an attorney for one of the litigants signs a verified affidavit alleging conduct and statements on the part of a trial judge which, if true, show bias or prejudice or the appearance of bias or prejudice on the part of the trial judge, it is an abuse of discretion if that judge does not withdraw from the case, even though he or she believes the statements are false or that the meaning attributed to them by the party seeking recusal is erroneous. In such a case, the judge should not pass upon the truth or falsity of the facts alleged in the affidavit, but only upon the adequacy of the motion as a matter of law.
‘The motion and supporting affidavit speak for themselves and the only question involved is whether the facts alleged are sufficient to compel the judge to disqualify himself.’Kovacheff v Langhart, 147 Colo. 339, 343-44, 363 P.2d 702, 705 (1961).
The motion and affidavits are legally adequate if they ‘state facts from which it may reasonably be inferred that the judge has bias or prejudice that will prevent him from dealing fairly’with the party seeking recusal. People v. Botham, 629 P.2d 589, 595 (Colo. 1981).”
The law in Australia for the recusal of the Second Judge is found in the case of : Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; see also Slavin v Owners Corporation Strata Plan 16857 [2006] NSWCA 71 where it is stated:
”The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”
See the judgment of Asher J in the case of: 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 as indicted below:
[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 have 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.
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 . . . .
Konow, James. 2003. "Which Is the Fairest One of All? A Positive Analysis of Justice Theories." Journal of Economic Literature 41, no. 4: page 1188.
Morison, W L --- "Fuller, The Morality of Law" [1965] SydLawRw 14; (1965) 5(1) Sydney Law Review 181.
At Page: 183: “The ethos of the judge's office demands that he should remain neutral regarding the substantive aims of a statute he is called on to apply, but with regard to the law's "internal morality"-the morality that makes law possible-he must not remain neutral.”
In Rayney v AW [2009] WASCA 203 [24] - [27] Mc Lure JA said that the Supreme Court’s Power under s 36 of the Magistrates Court Act is a judicial review power, as distinct from an appeal or review on the merits. The Second Judge therefore has a duty to test the jurisdictional errors of the judges in the courts below to ensure that they are indeed abuses of process or on some grounds might have justified an order for Certiorari. However, His Honour decided not to delve into those cases to exercise his duties but merely stay within its peripheries by making interlocutory decisions stultifying the proceedings thereby causing a travesty of justice to the Applicant.
The English Court of Appeal in R v Leicester City Justices; Ex parte Barrow [1991] 3 All ER 935. confirmed the right of every party to litigation to have a 'friend' present in court to assist by prompting, making notes or quietly giving advice on the conduct of the case. The court held that this sort of assistance should only be restricted where it is unreasonable in nature or degree, or not bona fide or is inimical to the proper and efficient administration of justice.
I quote what Dawson J said in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986) at para.2 said the following: “See Kanda v. Government of Malaya (1962) AC 322, at p 337. It is the latter possibility which is important in this case because it is not suggested that the parties did not, in the events which transpired, have an opportunity to be heard. What is suggested by the husband is that he is reasonably entitled to entertain an apprehension of lack of impartiality on the part of the judge. If that is so, then it is enough to vitiate the proceedings because it is established that a judge ought not to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial mind to the resolution of the questions involved in it: Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294”
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