HIS HONOUR JUDGE SHARP REQUEST FOR THE PRINCIPLE OF LAW THAT A SOLICITOR FATHER AS A LITIGANT IN PERSON ACTING PROBONO FOR HIS SON DOES NOT OWE PUBLIC DUTIES AS A LAWYER

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SAT VR87 OF 2009 LPCC V CHIN - CASE LAW REQUEST BY MEMBERS OF THE SAT TRIBUNAL ON 13.10.2011 AS ATTACHED

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Nicholas N Chin	Thu, Oct 13, 2011 at 6:03 PM
To: Legal Profession Complaints Committee
Ms Associate Campell to His Honour Judge Sharp State Administrative Tribunal 12 St. Georges Terrace PERTH WA 6000   Ph: 08 9219 3111                                           BY FACSIMILE: Fax:(08) 9325 5099 The Legal Profession Complaints Committee  Perth WA  Atten: Ms. Folonie and Mr. Fletcher    BY EMAIL Dear Ms. Associate and Counsels for the LPCC:  I refer to the above matter.   His Honour Judge Sharp had requested for the Case Law I mentioned today to be sent to him by email to the SAT Panel. I am not able to to that so I am faxing it through. That case law is found at the first Foot Note No.1 below indicated as DIAGNOSTIC............ I though the two excepts of my submissions below which I prepared for my other case and which touches on the topic A: Centenary Lunch Bar would illustrate my point in my submission today to the SAT Panel.   Cheers NICHOLAS N CHIN:   387, Alexander Drive, DIANELLA WA 6059 Phone: 09 92757440 Mobile: 0421642735 Emails: nnchin@msn.com.   NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON  1. There is no professional relationship of client and solicitor between myself as the father and Paul as my son and it has always been so in all our mutual dealings except for our relationship with Mr. Thies who is our common solicitor.  There is therefore no conflict of interests existing between me and my son Paul because I do not play the public role of a solicitor between a father and a son but only the private role of safeguarding my son’s own interests just as though it was my own interests[1].   2. My own interests as a father of Paul merged into the interests of my son Paul in our common capacity as the owner, his being legal and mine being equitable of Paul’s own home at 29, O’Dell Street, Thornlie in the State of Western Australia which is the caveat property being the subject of Mr. Thies’ unlawful caveat.  His unlawful caveat is devoid of any caveatable interests with its concomitant equitable interests.  To qualify for an equitable interests in the Caveat Property, Mr. Thies no doubt has to be able to prove that we are ad idem with him in so far as the Caveat Property has been properly identified in the disputed costs agreement we had both entered into with him for his legal services which came to an abrupt stop as soon as he was seen to be reneging on the terms of that contract.  3. The evidentiary materials are before this Court is that Mr. Thies had been engaged in unconscionable conduct against me and my son by abusing his powers as a fiduciary to exploit the vulnerabilities of Paul and to threaten us with fantastic costs escalation procedures, yet unheard of for the purpose of intimidating fear into our hearts such that we both did succumb to his duress; they were unconscionably inflicted upon Paul on account of his ignorance and myself on account of my fear that my son might suffer illness of a specified kind as a result of stress.  These fears are real as they had occurred in the past caused by Mr. Thies and were and are still likely to recur.     [1]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.  Also please find the attached document entitled:  A SOLICITOR FATHER ACTING IN SELF INTEREST NOT TO BE CONFUSED AS A SOLICITOR ACTING IN PERSON:  1. I refer to the Directions Hearing in both the Review Order Case (of CIV 1903 of 2008 cited as RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 made by me in accordance with my Application pursuant to s.36 of the Magistrates Court Act, 2004) and the Caveat Case in CIV 1112 of 2007, both cases coming before Your Honour on 30.4.2010.  Whence both parties were persuaded by Your Honour to study the transcript of that directions hearing before re-appearing for another directions hearing on 13.5.2010.   2. After serious consideration of the events that have transpired in that proceedings, I have today reached the irrefutable conclusion that it is a fact that Your Honour will need to recuse yourself from hearing both the Review Order Case and the Caveat Case in the interests of justice.   Your Honour should reach Your Honour’s own decisions with respect to recusal without calling on counsel to consent because a consent request of this nature would be "fraught with potential coercive elements which make this practice undesirable[1]." 3. This is based on the ground that having regard to the circumstances which I will take pains to outline below, there remains the fact that it would be impossible for Your Honour to bring an impartial mind[2] to the proceedings of these two cases as a judge.   4. As Your Honour should know that I am being made the Plaintiff of the further proceedings of the Review Order Case by His Honour Justice Hasluck on 17.6.2009 for obvious reasons; the fact that I have been appearing in this matter as a litigant in person for my own affairs with my son Paul C K Chin remaining in the background, right from the start.  There was never any requirement imposed upon me as an officer of the court to be impartial in these proceedings[3].  If there was, I would indeed be disqualified, just as any judge would be disqualified if he is indeed less than impartial.   5. I am the protagonist in this matter by virtue of my own rights as a litigant in person having a personal claim against the Respondent.  Consequently there are no issues of my being“hopelessly conflicted[4]” at all material times as I am my own boss looking after my own personal affairs as a litigant in person with my son appearing as the boss in legal terms remaining in the background under legally permissible circumstances.  5. At all material times, the interests of my son Paul as the legal owner coincides with my own interests as the equitable owner of his interests, just as any father would undoubtedly have equitable ownership over his son’s property.  I have never been my son’s solicitor although I am his solicitor father but I am entitled to use my label “barrister & solicitor” to indicate my social status although I have not applied for a current practice certificate, which I am entitled to with conditions imposed.  6. I have all the characteristics of a solicitor but at all material times, I am the father of Paul and have the natural inclinations just as any other natural father would have, to protect the interests of his own son. 7. This Honourable Court must divest my personality as a solicitor serving the interests of a member of a public who happens to chose me as his or her solicitor from that of a natural father who unlike most others, happens to be possessed of a legal mind.  The father can be working for a member of the public to earn his living or he can be working on a pro bono basis for his own son to protect his own or his son’s interest or their mutual interests, which invariably merge or coincide to form some collective interests belonging together to both the father and son but mutually divestible from each other, in the legal sense. 7. The only criteria for the concept of conflict of interests[5] to exist is to prevent the father from becoming impartial[6] in the execution of his duties as an officer of the court when advocating for his son.  Here, he is advocating for his own interests and hence that supposed conflict of interests is non-existent.    [1] 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 . . . . [2] Dawson J, 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” [3] Id. [4] This is the word of Mr. Thies himself when he informed me that Ms. C. Coombs of the LPCC was telling him so in the context of my trying to act for my son in the proceedings in the District Court matter in relation to the Vendors of the Centenary Lunch Bar with whom I had acted as the common settlement agent for both Vendors and Purchaser who is my son with written informed consent from both parties.  In order to avoid the potential conflict of interests, I engaged Mr. Thies as our solicitors and it was like jumping from the frying pan into the fire for us.  Further, it must be understood that I am never “hopelessly conflicted” whenever I act for my son in both the Review Order Case and the Caveat Case.  See Footnote 8 below for an explanation of the meanings of “conflicts of interests” in administrative law as opposed to public law. [5]  Justice X cannot be correct when he said that I have a conflict of interests even if I have applied for a practice certificate which I have not.  I can still have my name as a barrister and solicitor because I am what I am irrespective of whether I am practicing law or not. There is a conflict of interests if: (a)  I owe separate duties to act in the best interests of my son Paul Chin if I were to be practicing law and if I were to be paid by my son Paul for my legal services rendered to him.  But to have a conflict of interests in relation to Mr. Thies, I must have agreed to act for  Mr. Thies in his best interests in relation to the same or related matters and he must have paid me. Then only such circumstance can I be said to be acting in conflict of duties or  those duties conflict, or there is a significant risk that those duties may conflict; or (b) My duty to act in the best interests of my son Paul as His Mc Kenzie friend does not  conflicts with the interests of Mr. Thies, nor there is a significant risk that it may conflict, with Mr. Thies’ interests in relation to the Review Order Case or the Caveat Case. (c) But we have been Mr. Thies clients or we have been his former clients and he owes us a duty to work in our best interests not to mislead this Honourable Court or tell lies to this Honourable Court and he must do so to protect  interests in relation to Paul’s interests and not to pillage and plunder Paul or to harass him or to harm him further. (d) If I have not applied for a practice certificate I am still not a judge in both the Review Order Case and the Caveat Case and I do not owe a duty to the public to be fair, but I still want to be fair to Mr. Thies when I pursuing justice for both myself and for my son’s own interests.  (d) As long as I did my work on a pro-bono basis as a MeKenzie friend for my son Paul in his Caveat Case, I cannot be faulted for practicing as a lawyer without a practice certificate.  [6] Id.