My ref: VR87 OF 2009
Your ref: S232/09
17th day of March, 2010.
The Legal Profession Complaints Committee
Atten: Legal Officer: Ms. Caroline Brookes
PO Box: Z5293, St. Georges Terrace, PERTH WA 6831 Fax: 08 9461 2265
Your ref: S232/09
Dear Sir
RES JUDICATA POINT JUDGMENT GIVEN BY THE PRESIDENT OF SAT
JUSTICE CHANEY ON 4.11.2009 IN VR 87 OF 2009
I acknowledge the receipt of your response dated 15th March, 2010 to my letter of the same date responding to your letter dated 11.3.2010. I would like to respond to it as follows:
a) If the LPCC were to respect the principle of the rule of law that I am entitled to my defence of res judicata, then it should not seek to mislead the tribunal any further.
b) The LPCC could just remedy the wrongs that were partly occasioned by its counsel Ms. Le Miere by way of omission when she was before the learned President at the stage before the pronouncement of the res judicata judgment by the tribunal through the learned President Justice Chaney.
c) The LPCC could remedy these wrongs by informing the tribunal that it is bound by the law in that it is not able to seek the “further remedy” of prosecuting me for professional misconduct when it had already persecuted me for the nebulous “deficiency in my professional knowledge” in the past.
d) The LPCC should also understand that my defence of res judicata and issues estoppel prevent the learned Deputy President Judge Pritchard for further hearing the res judicata proceedings. The reason is that there are no longer in existence, issues of facts and law, triable before the tribunal. These have already merged into the previous judgments, irrespective of whether I have unsuccessfully or successfully appealed them. Therefore, it is unnecessary for the LPCC to further persecute me with the fabricated evidence of Mrs. Mathias.
e) The LPCC should know that I have made an application in CIV 1019 of 2010 in the Supreme Court of WA invoking prerogative writ orders to prevent the abuse of powers of the tribunal and to stay the res judicata proceedings; this application is scheduled to be heard on 6.4.2010 at 10.00 am. It therefore operates as a stay of the res judicata proceedings and any further directions hearing by the tribunal in defiance of this stay is a wrong administrative decision by the tribunal through its learned President.
f) The LPCC should inquire together with me from the learned President for his written answers to my 21 questions as contained in my letter dated 15.3.2010, failing which the LPCC and the learned President is reasonably seen to be conspiring with each other for the purpose of persecuting me for an illegal purpose or for a secret agenda which the LPCC has an obligation to explain to members of the public as to why it is utilizing public funds and public amenities for a private purpose.
g) The LPCC should be prosecuting Mr. Timothy Robin Thies, Mr. David Taylor and Mr. Pino Monaco for professional misconduct and why it is not doing so in the interests of the public but is persecuting me to serve a secret agenda which it has secret knowledge of. Are the former Presidents of the Law Society of WA so powerful that they are invincible to any prosecution by the LPCC?
h) Why did the learned President condone the pillaging and plundering of legal professionals against innocent members of the public as in the case of Mr. Alessandro Bertini and Dr. Kheng Su Chan and my son Paul Chung Kiong Chin. These people are still seeking justice but justice is not being seen to be done. As a consequence, the onus of proof of this secret knowledge is therefore reversed.
i) Are there warlords in the justice system of Western Australia which a lawyer must pay obeisance to, in order to be able to practice the law without persecution?
Yours faithfully
NICHOLAS N CHIN
c.c.
The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099
Atten:
The Associate to the President of SAT: Ms. Toni Sherwood
The Associate to Deputy President of SAT: Ms. Alexandra Turner
The Principal Registrar
Mr. Keith Frederick Chapman
Supreme Court of WA Stirling Gardens, Barrack Street PERTH WA 6000 Associate: Tel: 08 9421 5302 Fax: 08 92218350
Your Ref: CIV 1019 of 2010: Ex-parte Nicholas N Chin
Thursday, February 3, 2011
MY QUESTIONS TO THE LEARNED PRESIDENT OF SAT JUSTICE CHANEY'S HAVING ASSISTED THE LPCC TO PERSECUTE ME IN VR87 OF 2010 REMAINS UNANSWERED TILL TODAY
My ref: VR87OF2009
Your ref: S232/09
15th day of March, 2010.
The Legal Profession Complaints Committee
Atten: Legal Officer: Ms. Caroline Brookes
PO Box: Z5293, St. Georges Terrace, PERTH WA 6831 Fax: 08 9461 2265
Your ref: S232/09
Dear Sir
RES JUDICATA POINT JUDGMENT GIVEN BY THE PRESIDENT OF SAT
JUSTICE CHANEY ON 4.11.2009 IN VR 87 OF 2009
I refer to your letter dated 11.3.2010 requesting my consent for Mrs. Mathias evidence to be given in person in the week prior to the trial. I do not consent to this method of giving evidence as Mrs Matthias cannot then be cross-examined by me as my accuser should be confronting me. I have to summon all my trepidations in order to write this letter at my own peril although I am fearful of the repercussions. I also do not agree that the res judicata trial should proceed as it is already the subject of my Application for stay of execution and for review in CIV 1019 of 2010. The conduct of Justice Chaney in proceeding with the directions hearing on 16.2.2010 implies that he is aware, perhaps that the Supreme Court itself is already prejudging my Application for Certiorari Orders in CIV1019 of 2010. I do place my trust in the Supreme Court as I believe that there is still some vestige of fair justice left for me.
I fail to understand as to why the LPCC is continuing to persecute me or to witch-hunt me for no rhyme or reason. Why is the LPCC not catching those real people who are defrauding innocent people like Mr. Timothy Robin Thies and Mr. David Taylor who is causing court records to be falsified? What monies have I defrauded Mrs Mathias and what intentions do I have in defrauding her to warrant this persecution. Why is it chasing after shadows in order to protect the real wrong doers?
With due respect to the learned Justice Chaney, I would like to state that the res judicata proceedings in VR 87 of 2009 did not receive my consent to proceed as the orders of Justice Chaney is not in conformity with the law and they are null orders given without jurisdiction by His Honour in an “ambushed” trial; who had lost his independence, integrity and impartiality as a judge. This is despite the fact that I have a suppressed wish that if I had been prosecuted for professional misconduct instead of being persecuted for the nebulous “deficiency” of my professional knowledge, I would not have been “imprisoned” in the legal abyss that is not of my own making. Despite the admissive conduct of the pseudo Full Board which is usurping the lawful authority of the regulator of the legal profession of WA, Justice Chaney is avoiding that particular issue in his judgment in VR107 of 2008.
If at all there is a going to be trial, it is not I who is going on trial but the learned Judge himself. I would like to know why there is a conspiratorial link between the LPCC and the learned Justice Chaney by my asking him to respond to the following questions:
a) Why did Justice Chaney adopt a pre-judgmental attitude to the case of VR 107 of 2008 when compared with the stance adopted by the former President of SAT the learned Justice Barker, before the former took over that case from the latter?
b) Why does Justice Chaney twist the facts to suit his agenda and do not present the truth or lie in his judgment in VR 107 of 2008 and in his res judicata point judgment in VR 87 of 2009?
c) Why did Justice Chaney prejudged on 4.11.2009 before trial of VR87 of 2009, that I was guilty of professional misconduct in having allegedly acted in conflict of interests with regard to the vendors of the Centenary Lunch Bar; he ought to have accepted my argument that the vendors gave me a written voluntary informed consent for me to act for them?
d) Why does Justice Chaney prejudge the issue I did not treat Mr. Pino Monaco with fairness and courtesy on 4.1.2005 when he was guilty of plundering and pillaging Dr. Kheng Su Chan with impunity? Is it not a duty of a solicitor to act for his client faithfully?
e) Why does Justice Chaney prejudge the issues of facts and law of my having acting in conflict of interests for Mr. Tylor who is my client and his two companions who accompanied him to see me?
f) Why does Justice Chaney prejudge the issue that I made improper allegations against Mr. David Taylor when the facts are clear that the latter had falsified court records and committed perjury while doing so in collaboration with the learned Registrar Powell?
g) Why does Justice Chaney descend into the arena of conflict and was blinded by the dust of the affray when he denied me the defence of “issue estoppel” which he himself admits is a good defence for me in the res judicata proceedings?
h) Why does Justice Chaney refuse to accept the fact that there are no issues of facts or law before Her Honour Judge Pritchard for the proposed trial of the res judicata proceedings as they have already merged into the previous judgments[1]?
i) Why does Justice Chaney culpably maintain that it is okay to persecute me for professional misconduct this time again, as his contention is that I am never so persecuted on those issues of facts and law in the past; he ought to have known that the LPCC cannot have a “further remedies”[2] on a subsequent prosecution as such a “strategy” is barred by the defence of res judicata?
j) Why is Justice Chaney so eager to make wrongful administrative decision in “directions hearings” such that he could control the future of the res judicata proceedings which he knows ought not to be proceeded with as they are outside the jurisdiction of SAT?
k) Why does Justice Chaney prejudge the issues of facts and law regarding Mrs. Nalini Matthias when he ought to have known that I did not abuse my powers as her solicitor, did not exploit her vulnerabilities if any, but was exploited by her and did not defraud her of any monies?
l) Why did Justice Chaney prejudge the issues of facts and law with regard to my communication with Ms. Pryer who is the Associate of Justice Jenkins which was in turn expediently communicated to Mr. David Taylor, for the purpose of securing the rights of my client, the late Ms. Hall?
m) Why did Justice Chaney prejudge the issues of facts and law relating to “trust monies” when they were monies in transit acted upon by me in accordance with my client’s instructions?
n) Why does Justice Chaney prejudge the issues of facts and law with regard to the allegedly “scandalous” accusations in accordance with my client’s instructions in the Clohessy affair when they are true and relevant and therefore are never legally scandalous?
o) Why does Justice Chaney prejudge the issues of facts and law with regard to non-existent trust monies when legal fees were received by me from my clients after work had been completed for them?
p) Why does Justice Chaney order me to comply with his orders to respond to the res judicata Application of the LPCC which I did in protest, but he does not require it (the LPCC) to reply to my response as specifically ordered by him to do so, and as a result, he left me in a lurch?
q) Why does Justice Chaney after becoming aware as the judge in VR 107 of 2008 that the essential elements of professional misconduct are missing in the issues of facts and law that were before him, still insists that I be persecuted for the “further remedy” of the res judicata proceedings?
r) Why does Justice Chaney knowing that it is well-nigh impossible for him to convert his previous findings that I was not guilty of any professional misconduct now has a change of mind: his is the resolute will to impute dishonestly and unreasonably into very those self-same issues of facts and law he had found before, with the impossible qualities of my “substantial” and “consistent” failure to reach a standard of competence and diligence expected by members of a reasonable legal practitioner? He waves a magic wand and hey presto, the conversion is done according to his wishes?
s) Has Justice Chaney forgotten to do his duties as a duly appointed judicial officer to do fair justice?
t) Is Justice Chaney unaware as a judicial officer that he has abused the process of court in ordering for the abusive res judicata proceedings to be proceeded with?
u) Is Justice Chaney unaware that even SAT which is not a court has an inherent jurisdiction to stay the abused process of court because it sought to re-litigate issues that had already been disposed of by other proceedings[3]?
The High Court of Australia has refused my Application for Special Leave to Appeal in P36 of 2009 on 10.3.2010 upon the ground that the credibility of Justice Chaney remains un-impeached in VR 107 of 2008 but not in VR 87 of 2009[4]. Therefore it is logical for me to apply for a review in the High Court if necessary, later, to impeach the credibility of Justice Chaney in the High Court only if the learned Justice Chaney were to answer the questions enumerated from (a) to (u) above. If, however, those questions remain unanswered, it would be reasonably presumed that the expected answers to those questions are reasonably expected to be admitted by Justice Chaney.
As my final humble gesture of defiance of an order that is issued by SAT without jurisdiction, I respectfully quote Dean Alfange's Creed:
"I will not trade freedom for beneficence nor my dignity for a handout. I will never cower before any earthly master nor bend to any threat. It is my heritage to stand erect, proud and unafraid; to think and act for myself, enjoy the benefit of my creations and to face the world boldly and say - ‘This, with God’s help, I have done."
Yours faithfully
NICHOLAS N CHIN
c.c.
The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099
Atten:
The Associate to the President of SAT: Ms. Toni Sherwood
The Associate to Deputy President of SAT: Ms. Alexandra Turner
The Principal Registrar
Mr. Keith Frederick Chapman
Supreme Court of WA Stirling Gardens, Barrack Street
PERTH WA 6000 Associate: Tel: 08 9421 5302 Fax: 08 92218350
Your Ref: CIV 1019 of 2010: Ex-parte Nicholas N Chin
The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099
[1] It is well settled, so far as civil proceedings are concerned, that, if a "judicial determination directly involv(es) an issue of fact or of law ... that (issue) cannot afterwards be raised between the same parties or their privies" ((77) Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 per Dixon J See Hoysted v. Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 at 561 where Higgins J (dissenting) first used the term "issue- estoppel". With regard to the development of the doctrine in English law, see Thoday v. Thoday (1964) P 181 at 197-198 per Diplock L.J; Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630; Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No.2) (1967) 1 AC 853.). That rule, or "issue estoppel" as it is generally called, is different from "res judicata " or "cause of action estoppel" which occurs when a cause of action passes into judgment so that "it is merged and has no longer an independent existence" ((78) Blair v. Curran (1939) 62 CLR at 532.) and "no other proceedings can thereafter be maintained on (it)" ((79) Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. See also Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 at 597; Chamberlain v. Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 507.). The rule with respect to res judicata or cause of action estoppel is embodied in the Latin maxim transit in rem judicatam.
[2] See the "extended principle" in Henderson v. Henderson ((94) [1843] EngR 917; (1843) 3 Hare 100 at 115 [1843] Eng R 917; (67 ER 313 at 319).) which would allow that:
"(t)he plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but 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".
[3] In Walton v. Gardiner ((130) [1992] HCA 12; (1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process:
"extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". Their Honours gave three examples of such an abuse of process ((131) ibid.). One of them is the case where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings ((132) See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath ((133) (1889) 14 (133) (1889) 14 App Cas 665.) is the paradigm example of such a case.”
[4] SEE THE WEBSITE OF THE HIGH COURT OF AUSTRALIA HTTP://WWW.AUSTLII.EDU.AU/AU/CASES/CTH/HCASL/2010/4.HTML IN CHIN V LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2010] HCASL 4 (10 MARCH 2010) AT PARA: 2 WHICH STATES:
“The Tribunal rejected the applicant's submissions, including that the respondent did not have jurisdiction to impose the conditions without some finding of incapacity or unfitness or some disciplinary proceedings being successful against the practitioner and, alternatively, that the conditions were not necessary. The Tribunal concluded that the applicant did not have the proper appreciation of, and did not observe, the standards of conduct expected of legal practitioners.”
POSTED BY NICHOLAS N CHIN AT 8:34 PM
Your ref: S232/09
15th day of March, 2010.
The Legal Profession Complaints Committee
Atten: Legal Officer: Ms. Caroline Brookes
PO Box: Z5293, St. Georges Terrace, PERTH WA 6831 Fax: 08 9461 2265
Your ref: S232/09
Dear Sir
RES JUDICATA POINT JUDGMENT GIVEN BY THE PRESIDENT OF SAT
JUSTICE CHANEY ON 4.11.2009 IN VR 87 OF 2009
I refer to your letter dated 11.3.2010 requesting my consent for Mrs. Mathias evidence to be given in person in the week prior to the trial. I do not consent to this method of giving evidence as Mrs Matthias cannot then be cross-examined by me as my accuser should be confronting me. I have to summon all my trepidations in order to write this letter at my own peril although I am fearful of the repercussions. I also do not agree that the res judicata trial should proceed as it is already the subject of my Application for stay of execution and for review in CIV 1019 of 2010. The conduct of Justice Chaney in proceeding with the directions hearing on 16.2.2010 implies that he is aware, perhaps that the Supreme Court itself is already prejudging my Application for Certiorari Orders in CIV1019 of 2010. I do place my trust in the Supreme Court as I believe that there is still some vestige of fair justice left for me.
I fail to understand as to why the LPCC is continuing to persecute me or to witch-hunt me for no rhyme or reason. Why is the LPCC not catching those real people who are defrauding innocent people like Mr. Timothy Robin Thies and Mr. David Taylor who is causing court records to be falsified? What monies have I defrauded Mrs Mathias and what intentions do I have in defrauding her to warrant this persecution. Why is it chasing after shadows in order to protect the real wrong doers?
With due respect to the learned Justice Chaney, I would like to state that the res judicata proceedings in VR 87 of 2009 did not receive my consent to proceed as the orders of Justice Chaney is not in conformity with the law and they are null orders given without jurisdiction by His Honour in an “ambushed” trial; who had lost his independence, integrity and impartiality as a judge. This is despite the fact that I have a suppressed wish that if I had been prosecuted for professional misconduct instead of being persecuted for the nebulous “deficiency” of my professional knowledge, I would not have been “imprisoned” in the legal abyss that is not of my own making. Despite the admissive conduct of the pseudo Full Board which is usurping the lawful authority of the regulator of the legal profession of WA, Justice Chaney is avoiding that particular issue in his judgment in VR107 of 2008.
If at all there is a going to be trial, it is not I who is going on trial but the learned Judge himself. I would like to know why there is a conspiratorial link between the LPCC and the learned Justice Chaney by my asking him to respond to the following questions:
a) Why did Justice Chaney adopt a pre-judgmental attitude to the case of VR 107 of 2008 when compared with the stance adopted by the former President of SAT the learned Justice Barker, before the former took over that case from the latter?
b) Why does Justice Chaney twist the facts to suit his agenda and do not present the truth or lie in his judgment in VR 107 of 2008 and in his res judicata point judgment in VR 87 of 2009?
c) Why did Justice Chaney prejudged on 4.11.2009 before trial of VR87 of 2009, that I was guilty of professional misconduct in having allegedly acted in conflict of interests with regard to the vendors of the Centenary Lunch Bar; he ought to have accepted my argument that the vendors gave me a written voluntary informed consent for me to act for them?
d) Why does Justice Chaney prejudge the issue I did not treat Mr. Pino Monaco with fairness and courtesy on 4.1.2005 when he was guilty of plundering and pillaging Dr. Kheng Su Chan with impunity? Is it not a duty of a solicitor to act for his client faithfully?
e) Why does Justice Chaney prejudge the issues of facts and law of my having acting in conflict of interests for Mr. Tylor who is my client and his two companions who accompanied him to see me?
f) Why does Justice Chaney prejudge the issue that I made improper allegations against Mr. David Taylor when the facts are clear that the latter had falsified court records and committed perjury while doing so in collaboration with the learned Registrar Powell?
g) Why does Justice Chaney descend into the arena of conflict and was blinded by the dust of the affray when he denied me the defence of “issue estoppel” which he himself admits is a good defence for me in the res judicata proceedings?
h) Why does Justice Chaney refuse to accept the fact that there are no issues of facts or law before Her Honour Judge Pritchard for the proposed trial of the res judicata proceedings as they have already merged into the previous judgments[1]?
i) Why does Justice Chaney culpably maintain that it is okay to persecute me for professional misconduct this time again, as his contention is that I am never so persecuted on those issues of facts and law in the past; he ought to have known that the LPCC cannot have a “further remedies”[2] on a subsequent prosecution as such a “strategy” is barred by the defence of res judicata?
j) Why is Justice Chaney so eager to make wrongful administrative decision in “directions hearings” such that he could control the future of the res judicata proceedings which he knows ought not to be proceeded with as they are outside the jurisdiction of SAT?
k) Why does Justice Chaney prejudge the issues of facts and law regarding Mrs. Nalini Matthias when he ought to have known that I did not abuse my powers as her solicitor, did not exploit her vulnerabilities if any, but was exploited by her and did not defraud her of any monies?
l) Why did Justice Chaney prejudge the issues of facts and law with regard to my communication with Ms. Pryer who is the Associate of Justice Jenkins which was in turn expediently communicated to Mr. David Taylor, for the purpose of securing the rights of my client, the late Ms. Hall?
m) Why did Justice Chaney prejudge the issues of facts and law relating to “trust monies” when they were monies in transit acted upon by me in accordance with my client’s instructions?
n) Why does Justice Chaney prejudge the issues of facts and law with regard to the allegedly “scandalous” accusations in accordance with my client’s instructions in the Clohessy affair when they are true and relevant and therefore are never legally scandalous?
o) Why does Justice Chaney prejudge the issues of facts and law with regard to non-existent trust monies when legal fees were received by me from my clients after work had been completed for them?
p) Why does Justice Chaney order me to comply with his orders to respond to the res judicata Application of the LPCC which I did in protest, but he does not require it (the LPCC) to reply to my response as specifically ordered by him to do so, and as a result, he left me in a lurch?
q) Why does Justice Chaney after becoming aware as the judge in VR 107 of 2008 that the essential elements of professional misconduct are missing in the issues of facts and law that were before him, still insists that I be persecuted for the “further remedy” of the res judicata proceedings?
r) Why does Justice Chaney knowing that it is well-nigh impossible for him to convert his previous findings that I was not guilty of any professional misconduct now has a change of mind: his is the resolute will to impute dishonestly and unreasonably into very those self-same issues of facts and law he had found before, with the impossible qualities of my “substantial” and “consistent” failure to reach a standard of competence and diligence expected by members of a reasonable legal practitioner? He waves a magic wand and hey presto, the conversion is done according to his wishes?
s) Has Justice Chaney forgotten to do his duties as a duly appointed judicial officer to do fair justice?
t) Is Justice Chaney unaware as a judicial officer that he has abused the process of court in ordering for the abusive res judicata proceedings to be proceeded with?
u) Is Justice Chaney unaware that even SAT which is not a court has an inherent jurisdiction to stay the abused process of court because it sought to re-litigate issues that had already been disposed of by other proceedings[3]?
The High Court of Australia has refused my Application for Special Leave to Appeal in P36 of 2009 on 10.3.2010 upon the ground that the credibility of Justice Chaney remains un-impeached in VR 107 of 2008 but not in VR 87 of 2009[4]. Therefore it is logical for me to apply for a review in the High Court if necessary, later, to impeach the credibility of Justice Chaney in the High Court only if the learned Justice Chaney were to answer the questions enumerated from (a) to (u) above. If, however, those questions remain unanswered, it would be reasonably presumed that the expected answers to those questions are reasonably expected to be admitted by Justice Chaney.
As my final humble gesture of defiance of an order that is issued by SAT without jurisdiction, I respectfully quote Dean Alfange's Creed:
"I will not trade freedom for beneficence nor my dignity for a handout. I will never cower before any earthly master nor bend to any threat. It is my heritage to stand erect, proud and unafraid; to think and act for myself, enjoy the benefit of my creations and to face the world boldly and say - ‘This, with God’s help, I have done."
Yours faithfully
NICHOLAS N CHIN
c.c.
The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099
Atten:
The Associate to the President of SAT: Ms. Toni Sherwood
The Associate to Deputy President of SAT: Ms. Alexandra Turner
The Principal Registrar
Mr. Keith Frederick Chapman
Supreme Court of WA Stirling Gardens, Barrack Street
PERTH WA 6000 Associate: Tel: 08 9421 5302 Fax: 08 92218350
Your Ref: CIV 1019 of 2010: Ex-parte Nicholas N Chin
The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099
[1] It is well settled, so far as civil proceedings are concerned, that, if a "judicial determination directly involv(es) an issue of fact or of law ... that (issue) cannot afterwards be raised between the same parties or their privies" ((77) Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 per Dixon J See Hoysted v. Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 at 561 where Higgins J (dissenting) first used the term "issue- estoppel". With regard to the development of the doctrine in English law, see Thoday v. Thoday (1964) P 181 at 197-198 per Diplock L.J; Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630; Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No.2) (1967) 1 AC 853.). That rule, or "issue estoppel" as it is generally called, is different from "res judicata " or "cause of action estoppel" which occurs when a cause of action passes into judgment so that "it is merged and has no longer an independent existence" ((78) Blair v. Curran (1939) 62 CLR at 532.) and "no other proceedings can thereafter be maintained on (it)" ((79) Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. See also Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 at 597; Chamberlain v. Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 507.). The rule with respect to res judicata or cause of action estoppel is embodied in the Latin maxim transit in rem judicatam.
[2] See the "extended principle" in Henderson v. Henderson ((94) [1843] EngR 917; (1843) 3 Hare 100 at 115 [1843] Eng R 917; (67 ER 313 at 319).) which would allow that:
"(t)he plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but 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".
[3] In Walton v. Gardiner ((130) [1992] HCA 12; (1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process:
"extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". Their Honours gave three examples of such an abuse of process ((131) ibid.). One of them is the case where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings ((132) See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath ((133) (1889) 14 (133) (1889) 14 App Cas 665.) is the paradigm example of such a case.”
[4] SEE THE WEBSITE OF THE HIGH COURT OF AUSTRALIA HTTP://WWW.AUSTLII.EDU.AU/AU/CASES/CTH/HCASL/2010/4.HTML IN CHIN V LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2010] HCASL 4 (10 MARCH 2010) AT PARA: 2 WHICH STATES:
“The Tribunal rejected the applicant's submissions, including that the respondent did not have jurisdiction to impose the conditions without some finding of incapacity or unfitness or some disciplinary proceedings being successful against the practitioner and, alternatively, that the conditions were not necessary. The Tribunal concluded that the applicant did not have the proper appreciation of, and did not observe, the standards of conduct expected of legal practitioners.”
POSTED BY NICHOLAS N CHIN AT 8:34 PM
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