IN THE HIGH COURT OF AUSTRALIA
PERTH REGISTRY No. P50 of 2010
ON APPEAL FROM THE COURT OF APPEAL OF THE SUPREMECOURT OF WESTERN AUSTRALIA IN CACV 75 OF 2010 IN CHIN V THIES [2010] WASCA 230 HEARD 23.11.2010 AND DELIVERED 7.12.2010.
BETWEEN:
NI KOK (NICHOLAS) CHIN Appellant
and
TIMOTHY ROBIN THIES First Respondent
and
PAUL CHUNG KIONG CHIN Second Respondent
DRAFT NOTICE OF APPEAL
1. The appellant appeals, pursuant to Special Leave to Appeal granted on .................[date] from the Joint Judgment of Pullin and Newnes JJA (THE COURT BELOW1), which dismisses the appeal of the Appellant in CACV 75 of 2010 and which also confirms the interim judgment of the Second Judge His Honour Justice Kenneth Martin in RE MICHELIDES; EX PARTE CHIN [NO.2][2010] WASC 169 heard 17.6.2010 and delivered 8.7.2010 (THE RE: MICHELIDES NO.2).
Grounds
2. The Grounds of Appeal are as follows:
2.1. The Appellant was denied his natural justice by the COURT BELOW when it refused to decide the following issues, that was presented before it:
2.the consolidation of the two cases: Civ 1112 of 2007 and Civ 1903 of 2008 pursuant to Order 83 of the Rules of Supreme Court, 1971 (WA); advanced by the Appellant for the purpose of quieting all claims arising from the single issue of the fraudulent ZERO SUM FALSE DEBT CLAIM of the First Respondent against the Second Respondent and his father the Appellant in the Magistrates Court FR 417 of 2007 and FR944 of 2008 and the District Court Appeal No.6 of 2008 below (THE COURTS BELOW2).
2.1.2.the unreasonable, unjustified and unlawful stifling of the second stage of the subs.36(4) Review Proceedings in the interim judgment of MICHELIDES NO.2 by the Second Judge (which contradicts its counter-part subs. 36(1) Order of the First Judge of those proceedings) under unwarrantable circumstances, by an unwarranted Security Costs Order.
2.2.by siding with the "wronging" party thereby condoning the unconscionable conduct of the First Respondent committed against the “wronged” party namely the Appellant and his son the Second Respondent - without its exercising its proper regard for the basic principle of justice in that the law only can only exist for the purpose of securing justice and fairplay to litigants who come before it seeking that it does play its adjudicative role faithfully and in the public interest, and that it must not fail the public in the execution of its public duty such that justice is palpably seen to be done in a court of law, having regard to the fact that the First Judge had already made known the fact that he was already a subject of the improper and undue influence exerted on him, by the First Respondent through his former solicitor.
2.1.4.the about turn decision of the Second Judge contradicting the stance already taken by the righteous First Judge without the former advancing any reasonable reasons therefor for his departure from the normal approach as dictated by the common law and the conscience of the court.
2.1.5.the proper reprimand by Second Judge in RE: MICHELIDES NO.2 of its officer, Barrister Scott Ellis, as counsel for the First Respondent for the latter's improper conduct in misleading the former to the effect that there was no evidence to show that Registrar Susan Wilde in FR417 of 2007 of the THE COURTS BELOW was the subject of the improper and undue influence of the First Respondent in entering into the compromised Consent Judgment. This is the bone of contention in the s.36 Review Proceedings, thus rendering RE: MICHILIDES NO.2 a void judgment with null effects. Therefore, there exists in THE COURTS BELOW some non-judgment debts, which cannot be used by the Second Judge as an excuse for enforcing the Security Costs Order of RE: MICHELIDES NO.2 (the Null Effects).
2.1.6.the Null Effects of the Second Judge in RE: MICHELIDES NO.2 (my due respect to His Honour) is based on those non-existing debt; see: [2], [3],[4],[7], [36] and particularly at [38] wherein O25 r(2)(g) does not and should not have enlivened the Second Judge's jurisdiction to make that impugned Security Costs Order, which is now the subject matter of this Appeal.
2.1.6.the single GOLDEN THREAD OF CONSISTENCY - GROUND OF APPEAL interwoven into the fabric of the many Sub-grounds of Appeal does not render nugatory the Appeal of the Appellant against the decision of the Second Judge for an alleged failure of the Appellant to comply substantially with r. 43(2)(g)(i) (in that it does have a reasonable prospect of success) or r.43(2)(g)(ii) (in that “Forms” was erroneously interpreted by THE COURT BELOW to have precedence over the substance of the law) for the Appellant to obtain justice; both rules emanating from the Supreme Court (Court of Appeal) Rules 2005, which normally does not require strict compliance given the circumstances prevailing.
2.1.7.The prejudgment that the Second Judge had not been biased nor prejudiced against the Appellant, occasioned by its failure to await the outcome of Civ 1981 of 2010, which is a Mandamus application by the Appellant re-scheduled for hearing before a Court of Appeal Judge at the direction of the Court of Appeal Registrar. This is because His Honour Justice Heenan did admit in his judgment in RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212 heard 4.8.2010 and delivered 8.4.2010 at [9] that he did not have the necessary jurisdiction to deliver prerogative orders against Justice Kenneth Martin as the latter is of the same ranking as himself and he had therefore adjourned the matter sini die.
2.1.7.The non-existent costs order against the Appellant under the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 in the proceedings of THE COURTS BELOW, which prevents the First Respondent from claiming any profit or legal costs against the Appellant as the original First Respondent Claim in FR417 of 2007 is based on a ZERO SUM FALSE DEBT. This is coupled with the Appellant's own claim against the First Respondent in FR944 of 2008 which also falls under those Minor Claims Provisions, the latter being the source of those s.36 Review Proceedings. These Minor Cases Provisions prevents the “wronging” party from claiming legal costs against the “wronged” party, even if these proceedings were eventually decided by the highest court of the land, except for out of pocket expenses, which is to be compensated for by the losing party to the winning party.
2.1.8.The facts of the FALSE DEBT CLAIM being based on the original non-consensual solicitors cost agreement entered into by the First Respondent and jointly by the Second Respondent and the Appellant which becomes the subject of FR417 of 2007 is made subject to the pre-contractual terms that have already been defined by both parties and admitted to by the First Respondent as true and correct.
2.1.9.The First Respondent had unjustifiably and unconscionably clogged up the equity of the Second Respondent without any legal or equitable interests to found for himself a caveatable interests of the home property of the Second Respondet in CIV1112 of 2007 and by dint of his persistent and unreasonable refusal to unleash his unlawful caveat which he had used unconscionably as his weapon of threat for the purpose of extorting the sum of $11,500.00 successfully from both the Appellant and the Second Respondent. For these wrongdoings, the First Respondent is now liable to the Second Respondent for compensation in the form of statutory damages as provided for under s. 140 of the Transfer of land Act, 1893 (WA).
Orders sought
3.1.The COURT BELOW do allow the appeal of the Appellant:
3.1.1. against the interim Security Costs Orders of the Second Judge in the subs. 36(4) Review proceedings in CIV 1903 of 2008 or the RE: MICHELIDES NO.2 by reversing its first order.
3.1.2. the First Respondent do pay the Appellant's costs of the appeal in the COURT BELOW to be taxed, in accordance with the Minor Claim Provisions of the Magistrates Court (Civil Proceedings) Act, 2004, by reversing its second order.
3.2.The subs. 36(4) or the second stage of the Review Proceedings in CIV 1903 of 2008 insofar as it is heard by the Second Judge in RE:MICHELIDES NO.2 be reviewed and its orders be set aside and that it be heard again by another judge in conformity with the normal approach of the common law with regard to the interpretation of the s.36 Review Proceedings; such that the injustices arising from the Orders of Magistrates Michelides in FR417 of 2007 and Magistrate Musk in FR944 of 2008 and from Commissioner Herron in the District Court Appeal No.6 of 2008 be put aright with those incongruent orders be set aside.
3.3.The CIV1112 of 2007 and the CIV 1903 of 2008 proceedings be consolidated into one single proceedings under Order 83 of the RSC WA so as to quiet all claims that arise under one proceedings such that justice may be seen to be done on the ground that it is impossible for the Second Respondent to begin fresh proceedings against the First Respondent for his unconscionable conduct against the former by virtue of the fact that the latter had already exploited the former's vulnerabilities and that he should now no longer be allowed by this Honourable Court to further exploit the former again.
3.4.The First Respondent be liable to the Second Respondent for statutory damages under s.140 of theTransfer of Land Act, 1893 (WA) for clogging up the latter's equity and for having used it as a weapon of threat of extortion against both the Appellant and his son the Second Respondent, such damages to be calculated at the rate of 8.00% p.a., based on the marketable value of the clogged property from the date of the inception of that unlawful Caveat arising from his his associated unconscionable conduct until it was removed by the Second Judge.
3.5.The First Respondent do pay to the Appellant and the Second Respondent the extorted sum of $11,500.00 together with interests and do compensate them for all costs and damages arising from all the actions taken by the Appellant in THE COURTS BELOW, for proceedings taken before the First and the Second Judge in the s.36 Review Proceedings and for proceedings in this court for and on behalf of his son the Second Respondent and his own behalf as if they were proceedings taken by the Appellant himself on his own behalf as a litigant in person having regard to the circumstances as to why the Second Respondent has been ordered by the First Judge to remain inactive in all these proceedings.
3.6.Any other relief which this Honourable Court deems necessary for the purpose of enabling both the Appellant and the Second Respondent to obtain justice.
3.7.Costs.
Dated 12th day of January, 2011
................(signed)....................
NI KOK (NICHOLAS) CHIN AS APPELLANT IN PERSON
TO:
The Court of Appeal Registrar
COURT OF APPEAL
SUPREME COURT OF WESTERN AUSTRALIA
Spring Gardens
Barrack Street
PERTH WA 6000,
The First Respondent
No. 7, Yalgoo Avenue,
WHITE GUM VALLEY WA 6152
AND TO:
The Second Respondent
387, Alexander Drive, DIANELLA WA 6059
(The Second Respondent is to remain inactive pursuant to the Orders of Court in
RE:MICHLIDES NO. 1 of the First Judge.
The Appellant’s is a litigant in person3
Ni Kok (Nicholas) Chin
387, AlexanderDrive, Dianella WA 6059 4
Phone and Fax: +61892757440
Mobile: 0421642735 or 0431398973
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