Nicholas Ni Kok Chin-LAWYER, LL.B.; B.Econs.(Business & Accountancy), Post. Grad., Dip (Business Law)
My ref: VR87OF2009
The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
GPO Box U1991 Perth 6845
Phone (08) 9219 3111 1300 306 017
Fax: (08) 9325 5099
ATTEN: The Associate to JUDGE SHARP
2nd November, 2010.
Dear Sir FACSIMILE TRANSMISSION
VR 87 0F 2009: LPCC V CHIN
I refer to the directions hearing before the learned Deputy President of SAT Judge Sharp on the 1st day of October, 2010 at 9.35 am when I was present appearing as a litigant in person with Ms. Le Miere appearing for the Committee. I have since received a copy of the 10 page transcript of those proceedings. In anticipation of the further directions hearing before His Honour scheduled on the 12.11.2010 at 9.30 am, I would like to state the following:
a) At the last paragraph of page 4 and para. 1 of page 5 of the transcript Ms. Le Miere was raising the issue of the 70 year old witness, one Mrs. Nalini Mathias which relates to the allegedly new complaint of the Committee after Justice Chaney’s decision in LEGAL PROFESSION COMPLAINTS COMMITTEE and CHIN [2009] WASAT 219 delivered on 4.11.2009.
b) At the last paragraph of page 5 and para.1 of page 6, His Honour Judge Sharp was referring to the new issue that had developed after Justice Chaney’s decision which dismissed my claim that those issues in VR87 of 2009 are barred by the principles of res judicata.
c) Ms. Cahon of the LPCC was relieved by Ms. Caroline Brookes who wrote to me on 15.12.2009 regarding the new issue of Mr. John D Gregory, a handwriting expert, who had prepared a report on the case of Mrs. Nalini Matthias dated 6.7.2009 (the handwriting expert) (See Annexure: NNC-1).
d) The trial before Justice Chaney is by ambush as the handwriting expert’s report was available before the time of the above decision but it was never disclosed to me; and upon reflection, it might have been disclosed to Justice Chaney.
c) His Honour Judge Sharp states at page 6 of the transcript that I have not addressed this issue of the handwriting expert as this is a new issue. This is incorrect as I have already responded to Ms. Brookes letter in my letter dated 17.12.2009. This document is Doc.54 at page 529 of my Application in CIV 1019 of 1019 before Justice Heenan (See Annexure: NNC-2).
d) Would the Committee confirm with me that it had recently written to the tribunal requesting for its decision as to what issue shall be addressed in VR87 of 2009 as a result of my letters to the Associate of both Judge Pritchard and Judge Sharp. I
have misplaced this document? Please provide me with a copy of this letter. I would like to know the response of the tribunal to this letter of the LPCC.
e) Justice Heenan dismissed my Application in CIV 1019 of 2010 for prerogative Orders against the Void Judgment of the President of SAT for jurisdictional excesses in the case of RE PRESIDENT OF THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA (SAT), JUSTICE CHANEY; EX PARTE CHIN [2010] WASC 89 on 21.4.2010.
f) Before this event, Justice Heenan ordered the Committee to provide answers to my questions as contained in my 6 page Amended Minute of proposed Certiorari Orders dated and filed the 25th March, 2010 together with my bundle of documents that was served upon it (the CIV 1019 of 2010 Application). I would like to know why the Committee refused to answer that specific order of Justice Heenan although it was not made obligatory by His Honour upon the LPCC and why did Justice Heenan made an about-turn in his Order to the LPCC?
f) I would suggest the Committee do provide to His Honour Judge Sharp with a copy of my CIV 1019 of 2010 Application so that he would not be misled on the facts of the case before in preparation for future directions hearing.
g) I do not believe that there are any more outstanding or new issues that need to be decided by this tribunal as I am crying out “res judicata” which covers the defences of merger in judgment, cause of action estoppel and issue estoppel which protect the public and private interests in the finality of litigation (the extended doctrine of res judicata).
h) You will note that I am raising issues that were refused litigation by the Court of Appeal in CACV 107 of 2008, the court like tribunals of the LPCC and the regulator of the legal profession in WA including the VR137 of 2006 Judge Eckert and the VR107 of 2008 of Justice Chaney which are more specifically described in my Proposed Certiorari Orders in CIV 1019 of 2010 filed and dated 25.3.2010 (See Annexure: NNC-3-1 to NNC-3-6).
i) These are non-res judicata issues that are currently being raised in CIV 1981 of 2010, CIV 1877 of 2010, CACV 41 of 2010 and CACV 75 of 2010. In contrast, those res judicata issues raised by the Committee in VR 87 of 2009 cannot avail themselves of the extended doctrine of res judicata because they are estopped in that they have already been decided by the tribunals of the past and are more specifically referred to in the Proposed Certiorari Orders. For the Committee to further indulge in these res judicata issues, it is undermining the finality of those earlier judgements and they constitute an abuse of process.
i) I am not appealing the VOID JUDGEMENT of Justice Chaney as I using Certiorari. I went before Justice Heenan and he dismissed my CIV 1019 of 2010 Application. I then went before Justice Le Miere and His Honour dismissed my CIV1604 of 2010 as the matter is not before him and he is right because the matter had been appealed to CACV 41 of 2010 at the time of my appearance before him as it is now still before the Court of Appeal.
j) Most recently, Justice Heenan in his judgment in RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212 delivered 4.8.2010 and published 11.8.2010 ruled that a justice of the General Division of the Supreme Court of Western Australia like himself having the same rank as Justice Chaney do not have the jurisdiction to make Royal Prerogative orders against another judge of the same rank. Indirectly, Justice Heenan has indirectly admitted that he is in jurisdictional error when he dismissed my CIV 1019 Application on 21.4.2010 and therefore that decision is a VOID JUDGMENT.
k) Res judicata is not a two-edged sword for those who are not working on the truth as the justiciable issues are not before the courts or the tribunals. Thus it denies the Committee to attack me with that sword of res judicata issues but it is available for me to use it as a weapon of attack to protect my rights against the Void Judgment of Justice Chaney based on those issues which have been denied litigation or were not properly brought before those tribunals or those court-like tribunals or because they were avoided by the judge or those issues have never been decided at all although they were before the courts or the tribunals on the grounds that the reasons of their judgments did not answer those questions.
l) A "void judgment" grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack. 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, I as a 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. On certiorari the Court of Appeal may not review questions of fact because it is not at liberty to determine disputed facts nor to review the weight of the evidence but Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain.
k) I would like to quote again what Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at p. 115 said of that Henderson principle which prevents the Committee from bringing up the issue of the handwriting expert in the following words:
"... when a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction [INCLUDING THOSE COURT-LIKE TRIBUNALS], the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward ... The plea of res judicata applies, except in special cases ... to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time". [EMPHAS ADDED]
See the source: A Closer Look at Henderson v Henderson at the site hosted by the Supreme Court of New South Wales: http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_handley_061201a
l) Those issues that are not res judicata but form the substance of my attack against the VOID JUDGEMENT of Justice Chaney are now in the hands of the Court of Appeal in CACV 41 of 2010, CACV 75 of 2010 and CIV 1981 of 2010 and CIV 1877 of 2010.
m) The hand writing expert evidence was not brought forward before Justice Chaney and the Henderson principle disallows it to be brought forward again. I do not agree with the Committee that is being voiced by Ms. Le Miere on this new issue of the handwriting expert for which I do not want to run away as I have put in my response in writing. To refuse to heed and to continue to prosecute on this non-issue constitutes malicious persecution by the Committee.
n) It is impossible for the law to function without morality. Morality means the judge must be able to distinguish between what is right and what is wrong and what is just and unjust and what is good and what is bad. For a judge to perform his duties honourably, he must be neutral as far as the interpretation of the statute law and the principles of the common law are concerned. But as far as it concerns the internal morality of the law, the judge must not remain neutral but must be on the side the party who has been wronged or who has been mistreated with malicious intentions or who has been treated with injustice on account of cronyism.
n) If there are issues regarding my having held out that I am entitled to be engaged in legal practice contrary to subs. 13(1) of the Legal Profession Act, 2008, that issue is being addressed in the three documents filed and dated 1.11.2010 at the Order of His Honour Newnes JA in CACV75 of 2010 delivered on 15.10.2010. These documents are accessible at my blogspot by Googling NICHOLASNCHIN at http://nicholasnchin.blogspot.com/. The documents to look at are as follows:
a) Amended Submissions.
b) Amended Grounds of Appeal in
c) Statement of Chronology.
Finally, I would like to state that I shall not be available after the 1st day of December, 2010 until
Mid February, 2010.
Yours faithfully
NICHOLAS N CHIN
c.c. to: .
The Legal Profession Complaints Committee
PO Box: Z5293,
St. Georges Terrace,
PERTH WA 6831
Facsimile: 9461 2265
Atten: Ms. Le Miere
Your ref: S232/09
Office: 387 Alexander Drive, DIANELLA WA 6059, AUSTRALIA. Contact: ph & fax: +6189275 7440; mobile: 0421642735; emails: nnchin09@tpg.com.au ; nnchin@msn.com; nnchin1@gmail.com.
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