THE STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
VR87 OF 2009
IN THE MATTER of an application under the
Legal Profession Act, 2008 s. 428(1):
Referral of matter to SAT by the Legal Profession Complaints Committee
Legal Profession Complaints Committee
…………………………………Applicant
And
Ni Kok Chin (Nicholas)
………………………………………………….Respondent
Written submission by the Respondent for
hearing before His Honour Judge Sharp on 11th day of October, 2011 at 10.00 am copied to Associate of Justice
Murray and State Solicitor Office in relation to CIV 1689 of 2011 (the test
vexatious proceedings case)
Your Honour
CHRONOLOGY OF EVENTS[1]
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No.
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Date
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Description of Events
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1
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28.12.2003
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Respondent admitted by the Supreme Court of Western
Australia as a barrister and solicitor (admission as practitioner).
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2
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7.1.2005
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Respondent completed his restricted practice with Mr. Veselko
V Ozich of Ozich & Co at No. 156 Vincent Street
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3
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19.7.2006
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1) A full Board of 4 members or more of the real Legal
Practice Board of 52 members of Western Australia and purporting to be acting
with the majority consent of the real Legal Practice Board is in fact with
respect a Pseudo Board. This is
because it was not able to produce the valid minute of its authority when
prompted by the counsel of the Respondent
2) If it is a Pseudo Board by accident
3) The three occasions when the malice of the Pseudo Board
is reasonably observed to have interfered with the human rights to work of
the Respondent are: 19.7.2006
4) On 19.7.2006
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4
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12.9.2006
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Judge Eckert in VR137 of 2006 with respect persecuted the Respondent
to the extent that he was “guilty” only of deficiency in his professional
knowledge and Her Honour did not comply with the requirements of the law as
contained in the former LPA to take away the Respondent independent status as
a qualified legal practitioner without a finding of Professional misconduct
or unsatisfactory Conduct (the unlawful findings) .
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5
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26.9.2007
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The Legal Practice Board conceded to the unlawful findings
before the then Justice Steytler in CACV 43 of 2007 to it set aside (the
Steytler Consent Judgment).
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6
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3.4.2008
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The Pseudo Board posing as a “legitimate Inquiry Committee”
deliberated on the res judicata issues of the unlawful findings and expressly
reneged on the terms of the Steytler Consent Judgment. Thus
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7
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2.5.2008
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The Pseudo Board again posing as the “Special Committee” of
the Pseudo Board sat to confirm the decision of the vexatious proceedings of
the Pseudo Board (the confirmation).
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8
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27.10.2008
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In due deference to the Deputy President of SAT Chaney J
in CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252
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9
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29.10.2008
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1) With respect
2) The prejudgment contains the error in that His Honour refused
to recognize on the evidence available to him that the Respondent was the
salvour of the Mt. Lawley and Hazelmere Properties of Nancy Hall in CIV 1142
of 2005 and also refused to recognize the fact that David Taylor falsified
the court records in CIV 1131 of 2006 (the Sanderson error).
3) The prejudgment and the Sanderson error have manifestations
of partiality towards the Plaintiff to the detriment of both defendants
4) The prejudgment does not take into account the Audrey
Hall fraud in that her late husband mortgage of Nancy’s Mt. Lawley and
Hazelmere Properties is a sham to defeat creditors and this had been admitted
by both Nancy in her Affidavits
5) The prejudgment
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10
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6.11.2008
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1) Hasluck J in CIV 1903 of 2008 No.1 or RE MICHELIDES; EX
PARTE CHIN [2008] WASC 256 granted to the Respondent the Review
Order pursuant to s.36 of the Magistrates Court Act
2) The Review Order seeks to review the Order of
Magistrate Michelides in FR417 of 2007 that was made with manifestations of
partiality to Thies and decided not in accordance with the law (the first
Review Judge).
3) Registrar Wilde entered knowingly into a
duress-vitiated consent order dated 7.6.2007 between the Respondent and
solicitor Thies where $11
4) The detriment relates to the following fact:
4.1. Thies held Respondent and his son Paul
4.2. Thies made a stranglehold caveat over Paul’s Thornlie
Home without the specificity of that property written into the solicitor
costs agreement which is the basis for the false debt claim.
4.3. Thies put a costs escalating clause into the
duress-vitiated consent judgment of Registrar Wilde in which the learned
Registrar was also under duress.
4.4. Paul was stressed with the shock of an oppressive
ransom claim that his mental condition deteriorated and this caused the
Respondent to succumb to that threat.
4.5. The duress-vitiated consent judgment settlement did
not remove the unlawful caveat that is without caveatable interests.
4.6. The Respondent sued Thies in a Minor Case Provision
claim that was dismissed by Magistrate Musk in FR944 of 2007 (the Musk
decision).
4.7. The Musk Decision appeal in Appeal No.6 of 2008 was
dismissed by Commissioner Herron without taking into account the
duress-vitiated Registrar Wilde Consent Judgment in FR417 of 2007.
4.8. Registrar Wilde Consent Judgment was appealed to
Magistrate Michelides and was dismissed.
4.9. Michelides decision was reviewed by Hasluck J in CIV
1903 of 2008 No.1.
5. Hasluck J granted Respondent the s.36 Magistraes Court
Act
6. Thies did not comply with Hasluck J Order to show cause
within the time of the essence deadline and when he finally did
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11
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30.6.2009
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Ms. Mc Cahon as a legal officer of the LPCC began to
prosecute the Respondent on the same issues of the vexatious proceedings by
making an application pursuant to s.438(1) of the LPA and seeking
consequential orders pursuant to ss. 438
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12
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7.7.2009
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1). This is the decision of Pullin and Newnes JJA in CACV105 OF 2008
or CHIN -v- LEGAL PRACTICE BOARD
WESTERN AUSTRALIA [2009] WASCA 117. In the State of Victoria[2]
or elsewhere
2) This hurdle needs to be repealed because it bars the
international human right of legal practitioners to work by preventing them from
accessing justice through the judicial system thus infringing their rights to
justice such that they are unnecessarily restricted by persons who are imbued
with improper motives to deprive them of their independent status as legal
professionals (the fodder for law reform on misconduct of judiciary by the State
Attorney General).
3) Non compliance with r. 32(4) Supreme Court (Court of
Appeal) Rules
…If he had commenced proceedings by an irregular process
which had any separate or different merit from the matters which have already
been determined by the court
4) The issue of bad faith due to the Pseudo Board acting
for an improper purpose has been avoided by the decision makers (the
avoidance).
5) The alleged offensive and vexatious grounds cannot be
reasonably so construed when they are true and relevant to the issues at
hand. The court cannot hold the
Respondent as having abused the process of court when in the words of the
Honourable Minister Mischin the Respondent had stated the issues
“exhaustively and intensively” before the court but is the subject of
avoidance by the decision makers.
Nevertheless the Judiciary must be allowed its independence and not be
interfered with by the executive branch of the government (the integrity of
the judiciary).
6) The Respondent believe that the Judiciary will sort it
out and understand its mistake for there must be integrity
7) Its only fair that we allow Their Honours Pullins and
Newnes JA to understand their duties as Judges that they ought to respect
human rights
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13
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4.11.2009
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1) The Deputy president of SAT
2) Justice Chaney
Second Res Judicata Decision is contrary to the ratio of the famous res
judicata decision in Henderson v Henderson 3 Hare 100 where Sir James Wigram
VC said: “THE COURT REQUIRES THE PARTIES TO THAT LITIGATION TO BRING FORWARD
THEIR WHOLE CASE
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14
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9.12.2009
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1) The injustice of Master Sanderson caused by the
Sanderson Error and the Priority of the Fraud of Audrey Hall was appealed by
the Respondent to the Court of Appeal in CACV 107 of 2008 or CHIN -v- HALL
[2009] WASCA 216. On the
issue of Audrey’s Hall priority as decided by Jenkins J in CIV 2073 of 2003
when she was granted a judgment in her favour for $2.3m
2) This is a well-nigh
perfect joint judgment of McLure
3) Registrar Powell abused the powers entrusted to him as
a judicial officer by an exchange of personal benefit or friendship in that
he refused to prove his assertions as contained in his letter to the
Respondent dated and 4.6.2009 11.6.2009 when he was asked for the bank
records to prove that the personal cheque tendered by David Taylor on
10.2.2006 is not a fiction (he asserts but he does not want to prove).
4) Registrar Powell asserts but does not to prove that
part payment of court fees was made for Writ of CIV 1131 of 2006 was lodged by
David Taylor on 10.2.2006 instead of what actually happened on
16.2.2006. If this assertion were true
6) If Registrar Powell is willing to show the bank statement
stating that the $654.00 court fees constituted by the fictitious personal
cheque as contained in the false receipt of David Taylor appended to his
Affidavit sworn on 29.3.2007
7) In reality what actually happened is that there was
never a compliance with Jenkins J Order in CIV 1142 of 2005 delivered on
20.1.2006 to the effect that the Writ in Civ 1131 of 2006 was filed on
16.2.2006 (the reality).
8) Owen JA contradicted himself by stating the law that
the fresh evidence which will establish the reality can only be received by
the Court of Appeal upon conditions of fraud being unraveled or the reception
of the fresh evidence will make a turn-around of outcome of the appeal
decision (the contradictions of Owen JA).
9) The contradictions of Owen JA is causing this injustice
and this error of the law which is the subject of Commissioner Sleight
decision in CIV 1877 of 2011 and is also the subject of the separate
applications of Maurice Law and the Respondent to the Court of Appeal for the
effacement of errors of law apparent on the court records in CACV 107 of 2008
that was filed on 15.7.2011 (the errors of law effacement applications)
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15
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30.4.2010
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1) CIV 1019 of 2010 or RE PRESIDENT OF THE STATE
ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA (SAT)
2) This First Heenan J decision is an application for
Judicial Review made ex parte by the Respondent (the Ex-parte Application).
3) Heenan J explicitly converted the Ex-parte Application
into an inter-partes one for which the Respondent served the necessary papers
on the LPCC (the Inter-Partes application).
3) Subsequently
4) Contrary to what is indicated in his judgment
5) Heenan J did understand that Respondent do have a
reasonable cause of action and should not have dismissed it if His Honour had
not been interfered with by the Legal Practice through its Ms. Braesich. But His Honour has to give the usual answer
in that the prerogative Writ Orders cannot be implemented by a Supreme Court
Judge against his brother Judge
5) The reasonable prospect of success and the abuse of
process as the reason for dismissing the Inter Partes Application is just an
excuse of Heenan J because Prerogative Writ Orders do not work between judges
of the same rank in Western Australia due to judicial corruption. This pattern of decisions is confirmed by
the Chief Justice Wayne Martin decisions in CIV 3086 of 2009 and CIV 3068 of
2009 and also by the decision of Commissioner Sleight in CIV 1877 of 2011
delivered on 15.6.2011. It is also predicted
by Justice Heenan himself on 8.4.2009 in the Second Heenan decision
identified in item 18 below. This is
also portrayed in the decision of Allanson J in CIV 1491 of 2011 in relation
to the Thies case where Registrar Wallace attempt to convert the fees paid
into the District Court in Appeal No.6 of 2008 into security costs order fees
in the absence of the necessary repealed legislation.
6) His Honour also agreed with the Respondent that the
Supreme Court has jurisdiction to invoke its original and inherent
jurisdiction to review its own errors that has not been adopted by Heenan
J.
6) There is no abuse of process by Respondent because he
does not re-ligitate issues nor did he make a collateral attacks on those
previous decisions nor did he launch any frivolous or vexatious suits. His purpose was to get the justice system
to function equitably without any manifestations of partiality and that it
should be making its decision in accordance with the law and not to avoid the
issues that was before it (No abuse of process).
7) Heenan J therefore did not accord the Respondent his
independent rights of appeal the decision of Chaney J who made jurisdictional
errors having regard to the fact that the Respondent did not abuse the
process of court but it was Chaney J who with respect to him had abused the
process of court.
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16
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13.5.2010
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1) CIV 1112 of 2007 or THIES -v- CHIN [2010] WASC 111
is first started by the Plaintiff Timothy Robin Thies (Thies) in response to Respondent’s
son Paul CK Chin’s application to remove the Thies’ unlawful caveats on
Paul’s Thornlie home property under s. 138B of the Transfer of Land Act
2) The unlawful caveats was heard before Templeman J
before Thies commenced his FR417 of 2007 by holding the Respondent and Paul
to ransom over the fictitious debt that was never incurred. Templeman J denied Paul his natural justice
by failing to accept the argument that the Caveat was unlawful owing to Thies
lack of caveatable interests that is caused by the lack of specificity of the
equitable charge of Paul’s home property to him noted on the solicitor costs
agreement that he used to enforce his false claim for legal services
un-rendered (no services rendered) .
3) Paul was unrepresented before Templeman J and the
Respondent was not able to represent his son because the Pseudo Board took
away his independent status on account of a false perception that the
Respondent has a proclivity to make false allegations against Thies for
plundering and pillaging his clients by breaching the terms of the solicitor
costs agreement and advancing his own personal interests over his own
vulnerable client’s interest Paul Chin (Paul denied of his natural justice).
3) Despite the unlawful caveat
4) His Honour acknowledged the existence of the unlawful
caveats and ordered for it to be removed without any compensation to Paul for
Thies wrongdoings.
(See item 17 below).
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17
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8.7.2010
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1) CIV 1903 OF 2008 NO.2 or RE: MICHELIDES; EX PARTE CHIN
[No 2] [2010] WASC 169 is decided by Ken Martin J with a reasonably
apprehended biased mind (the prejudgment).
2) His Honour came to decide this case as though he has a
prejudgment and a mission to fulfill coupled with the fact that Scott Ellis
as counsel for Thies misled the court of Ken Martin by stating erroneously that
there is no evidence before the Court that Registrar Wilde who had entered
into the consent judgment in FR417 of 2007 on 7.6.2007 was also under duress
(the court was misled by the learned Scott Ellis)
2) Ken Martin J imposed the stultifying security Costs
Order upon unwarranted grounds after being apprised of the fact that the
court was misled by the learned Scott Ellis to stifle the Review Order already granted by the
previous Review Judge Hasluck J (the stultification)
3) The stultification is a belated interference by Ken
Martin J as the Second Review Judge in
CIV1903 of 2008 No.2 dated 8.7.2010 occurred in the aftermath of the First
Review Judge decision dated 6.11.2008 (the obstruction of justice).
4) The obstruction of justice occurred in the aftermath
which is the unreasonable delay of the time of the essence Order of Justice
Hasluck which is an unreasonable period of 18 months (the unreasonable
delay).
5) The unreasonable delay is not appreciated by Ken Martin
J who did not heed the fact that Thies did not comply with the specific
orders of the First Review Judge (the non-compliance).
6) Despite the non-compliance
3) It is conceded by the Respondent that he was without a
current practice certificate and therefore he should not have used his title
barrister & solicitor in the documents lodged in these proceedings. It clear from the circumstances that the
Respondent had acted pro-bono for his son Paul - not as a solicitor but in his capacity as a
father helping his own son from the unconscionable strangle-hold grasp of an
avaricious solicitor on his vulnerable client. The relevant legislation and rules do allow
the Respondent to use the title “lawyer” despite his not holding a current
practice certificate (Respondent did make wrong use of title of lawyer).
4) However
5) Respondent is making a valid use of his title in his
private role and not in his public role because he is not performing the
public role of a court officer and he has no duties and obligations
pertaining to that public role towards members of the public. Therefore
6) Having regard to the above arguments
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18
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4.8.2010
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1). CIV:1877/2010 and CIV:1981/2010 are the two
applications for prerogative relief that was adjourned sini die in the
absence of the Respondent by Justice Heenan in his judgment in RE JUSTICE
KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212. This occurred in the aftermath of the first
Heenan J which is the subject of complaint by the Respondent (the adjourned
judgment).
2) CIV 1981 of 2010 is the Review Application by the Respondent
to have the stultification or obstruction of justice judgment by Ken Martin J
abrogated on the ground of his real and apprehended bias (the bias
application)
3) The bias application is the subject of the Principal
Registrar Application in CIV1689 of 2011 to prevent the Supreme Court from
listing the biased Application that was heard by Murray J and is referred to
in item 25 below. This matter is represented by the State Solicitor and its
purpose is to probe whether the Respondent is a frivolous and vexatious
litigant ( the State Solicitor representation).
4) The adjourned
judgment is the second judgment of the Heenan J after the Respondent has
appealed the first Heenan Decision to the Court of Appeal in CACV41 of 2010
identified in item 22 below and also the subject of the Respondent Complaint
to all Members of Parliament of WA and to the Attorney General of WA and the
CCC (the Attorney General’s attention)
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19
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7.12.2010
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1) CIV 75 of 2010 or CHIN -v- THIES [2010] WASCA 230 is
the joint judgment of Pullin and Newnes JJA of the Court of Appeal. It is appealed from the decision of Ken
Martin J that was appealed by the
Respondent from RE: MICHELIDES [2008] No.2 or CIV 1903 of 2008 No.2 which was
decided by Ken Martin J on 8.7.2010 granting the stultification order to
Thies (the stultification) .
2) The
stultification concerns Ken Martin’s reasonably biased decision in RE
Michelides; Ex parte Chin [No.2] [2008]
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20
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1.4.2011
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The Court of Appeal decision in CHIN –v- HALL
No 2] [2011] WASCA 96 has been decided by Pullin and Newnes
JJA erroneously in that Their Honours unanimously dismissed the Respondent’s
Application to suspend the costs orders arising from the injustice of Master
Sanderson and the contradictions of Owen JA in CIV 1775 of 2008 and CACV 107
of 2008 respectively (the null cost orders of Master Sanderson and Owen JA):
How could the null orders of Master Sanderson and Owen JA
be enforced by the Sheriff?
How could Registrar Powell who had shown an over-eagerness
to be involved in the taxation of the two null costs orders to the detriment
of both Mr. Maurice Law in the Sanderson Error and to the detriment of the
Respondent alone in respect of Owen JA Contradictions only; under
circumstances where there is evidence that the learned Registrar is the
originator of both null costs himself because he was involved with David
Taylor from the start to “punish” the Respondent? This is because David Taylor wanted the
Respondent to sacrifice the rights of Nancy Hall and the Respondent would not.
Registrar Powell has been told by both Maurice Law and the
Respondent in no uncertain terms that he could not be a judge of his own
cause and yet the learned Registrar persisted in being involved in its
taxation of those two null costs orders. This abuse of process has been reported
to the Attorney General of WA and that complaint is taking effect.
Although the Court of Appeal does not allow the suspension
Pullin JA clearly would not heed the Owen JA
contradictions in CACV 107 of 2007.
Further information could be obtained from the
Respondent’s blogspot at Google: NICHOLASNCHIN.
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21
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8.4.2011
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Respondent wrote to the LPCC copied to SAT dated 21.3.2011
raising the issues of inequity in CACV 41 of 2010 and querying the reasons as
to why the LPCC is not performing its public functions in helping the
regulator of the legal profession of WA.
Le Miere was supposed to give an explanation to SAT on the directions
hearing on 8.4.2011 but since its it did not answer as requested
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22
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4.5.2011
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1) This is the decision of CACV 41 of 2010 or CHIN -v-
LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2011] WASCA 110 that has
been decided by Newnes and Murphy JJA and Hall J of the Court of Appeal. Before the start of the hearing
2) The appeal case is against the decision of Heenan J in
CIV 1019 of 2010 or RE PRESIDENT OF THE STATE ADMINISTRATIVE TRIBUNAL
OF WESTERN AUSTRALIA (SAT)
3) It is obvious that the Court of Appeal is not willing
to do justice in the Appeal against the First Heenan decision due to
happenings which predicated the call for the disqualifications of Newnes JA
(the Unwillingness of the Court of Appeal to do justice)
3) The Unwillingensss of the Court of Appeal to do justice
is manifested by the elements of its judgments: a) an attempt to re-argue issues;
b) an abuse of process (the manifestations of its unwillingness).
4) The manifestations of its unwillingness is shown by its
avoiding the issues that is before it: the issues that was before Heenan J and
also before the Court of Appeal are the four perennial issues that has never
been decided by the judges right from Chaney J decision in VR 107 of 2008 to
CACV 105 of 2008 before Pullin and Newnes JJA
The Pseudo Board
and its unlawful authority in usurping the lawful authority of the real Legal
Practice Board and its taking away the human rights of the Respondent i.e.
his independent status as a legal practitioner (The Pseudo Board).
The Pseudo Board reneging its agreement in the setting
aside of the SASAT decision in VR 137 of 2006 by Judge Eckert to the effect
that the Respondent being deficient in his professional knowledge without any
findings of Professional Misconduct or Unsatisfactory Conduct can be robbed
of his independent status as a legal practitioner by the Pseudo Board (The Steytler
Consent Judgment);
The pillaging and plundering of Timothy Robin Thies of
Paul C K Chin as his client whose
vulnerability is being protected by his solicitor father who is being
adjudged guilty of making false allegations against the erring lawyer who is
allegedly guilty of advancing his own interests instead of his clients
interests in legal proceedings for which he is being engaged by the father
(the Professional Misconduct of Timothy Robin Thies).
The professional misconduct of solicitor David Taylor who
falsified court records in CIV113 of 2006 to give the appearance that he did
comply with the time of the essence order of Justice Jenkins dated 20.1.2006
within the time line of 10.2.2006 when he actually did not so comply
None of the four issues discussed above or defined as the
avoidance
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23
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15.6.2011
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1) The decision of Commissioner Sleight in CIV 1877 of
2010 or RE HALL; EX PARTE CHIN [No 2] [2011] WASC 155 is
a case which dismissed the Respondent Application for Certiorari Orders
against the injustice of Master Sanderson and the contradictions of Owen JA
(Commissioner Sleight’s decision).
2) Commissioner Sleight’s decision is to dismiss the
Respondent Application for sound reasons of judgment which has delivered
justice and which provide pointers on how the Respondent and Maurice Law
could proceed with the matter further (fair justice of Commissioner Sleight).
3) The fair justice of Commissioner Sleight explains the
usual answer that was answered by Heenan J
4) This inherent jurisdiction has been admitted by
Commissioner Sleight as being available to his Honour but he is exercising
his discretion not to use it.
Therefore
5) the principle of common law is that if a court if aware
of a fraud
6) Maurice Law and the Respondent have taken the necessary
steps to make their separate applications for the effacement of errors of law
from its records in CACV 107 of 2008 filed with Court of Appeal Registrar on
15.7.2008. The Court of Appeal
Registrar have written to Maurice Law and to the Respondent separately
addressing the issue the error of law effacement applications; those are
being perceived by her to be an abuse
of process and we i.e. Maurice and Respondent have jointly replied to her dated
17.9.2011 to the effect that it is not so. The WA Major Fraud Squad and the Chief
Justice have also been accordingly informed.
This letter is accessible at: http://wwwnicholasnchin.blogspot.com/2011/09/letter-to-registrar-eldred-from-both-mr.html.
(Response to Registrar Eldred’s concern).
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24
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4.8.2011
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1). The LPCC sent its decision letter to Mr. Maurice
Frederick Law to the effect that there is no credible evidence to make a
findings that David Taylor is guilty of professional misconduct or
unsatisfactory conduct re the falsifications (the decision letter) See: http://nicholasnchin.blogspot.com/2011/08/lpcc-is-not-making-right-findings-in.html
2) The decision letter results in Maurice Law making an
application to SAT for a Review of the decision re the falsifications in
VR158 of 2011 (the falsifications review).
3) The falsifications review resulted in Order No.2 the
President of SAT for Maurice Law to filed and serve a written submission dated
20.9.2011 that identifies the issues for review as contained in the decision
letter. See: https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgkm4HsGCdlkiKPfwKthbrUuc02k3_8ikSuBj3Gb6sUTQEGba4NdkyPp8pAcUAOvX86tGJih4ML2OrVibBLvANFmF1X1G2GAVkg4xLW0q1g53bzz0P45TDi67QV9yXFGGchMqKezpd6x4xb/s1600/sat++4-10-11-+taylor.jpg
(the written submission re falsification).
4) Respondent wrote to the LPCC copied to SAT for the
attention of Deputy President His Honour Judge Sharp dated 22.8.2011 and to
the LPCC request it to call off the trial of VR87 of 2011 scheduled before
Judge Sharp on 11.10.2011 at 10.00 am unless the LPCC is able to provide its
statement of reason to refrain from being dishonest and undertake to provide
a level playing field to Respondent.
Since then
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25
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12.8.2011
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1) Mrs. Michele-Maree Gannaway is the Plaintiff who took this action against both Defendants Maurice Law and Respondent in CIV 2157 of
2011 in GANNAWAY -v- CHIN [2011] WASC 252 to remove the New Caveats
of both Defendant respecting the estate of Nancy Hall for which Mrs. Gannaway
is the executor (the executor’s action).
2) Mr. CP Stokes is the solicitor and counsel for the
Plaintiff before Simmonds J for the executor action; the learned judge
decided to take away the separate New Caveats of both defendants dated
28.2.2011 on 12.8.2011. The caveats was to protect the rights of both
defendants as the legitimate creditors which has been abolished (the
creditors rights abolished)
3) The New Caveats was supposed to protect the rights of
Maurice arising from the legitimate debts of Nancy Hall to Spunter Pty Ltd or
Maurice Law and the salvour rights of the Respondent for the causal
connection between the solicitor works of the Respondent in CIV 1142 of 2005
and the removal of the Spunter’s Caveats for Nancy Hall by the Respondent
(the creditors rights).
4) There are three frauds on the courts which must be
unraveled:
4.1) the first fraud of Audrey Hall on the ground that she
knew that the Kenneth Duncan Hall mortgage is a sham as is being admitted by
Mrs. Gannaway herself through her solicitor Mr. C.P. Stokes in his letter to
Maurice Law dated 14.7.2008 bearing refer: CPS: 081065 (the first Audrey
Fraud).
4.2) the second fraud of David Taylor on the ground of the
falsifications of the court records which deprived the Respondent of his
independent status as a lawyer and his salvour status for Nancy’s estate (the
second fraud of David Taylor on Respondent).
4.2.1. On the other hand
4.3) the third fraud of Mrs. Gannaway who knowingly misled
the court of Simmonds J on 12.8.2011 to take away the New Caveats of both
Maurice Law and the Respondent and who connived at the first Audrey Fraud by
paying her aunty at a less than arm length dealing in paying her $702k in
exchange for the void judgment of $2.3m obtained by Mr. Anthony Prime in CIV
2073 of 2003 against the estate of Nancy Hall (the third fraud of Mrs.
Gannaway in CIV 2157 of 2011).
4.4. The salvour status of the Respondent is a continuing
state of affair for which the Respondent is continually directing the affairs
of the estate of Nancy under conditions of necessity to preserve the estate
of Nancy and which must be paid for from the estate of Nancy Hall in terms of
what Buzz JA said in CACV 107 of 2008 referred to in item 14 above
“67: It is unnecessary to decide in this appeal whether
work performed by a legal practitioner (including the prosecution of legal
proceedings)
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26
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29.08.2011
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1) His Honour Murray J heard CIV 1689 of 2011 which is a
probe by the Principal Registrar to determine if the Respondent is a
vexatious litigation under s.4 of the Vexatious Proceedings Restriction Act
2) Murray J’s probe is important because the learned
Justice will be able to oversee that the Respondent is not a vexatious
litigant in all these proceedings listed in these documents and the reasons
why the Respondent has not abused the process of court. The overseer role of Murray’s J is
important for justice to be seen to be done (Murray J’s role).
3) The learned Principal Registrar of the Supreme Court of
WA must be congratulated for his role in enlisting the help of the State
Solicitor to put into action Murray’s J role and Murray J’s probe (the
Principal Registrar’s role).
3) In order to facilitate the Principal Registrar’s role
4) The Respondent’s defence to Civ 1689 of 2011 is that he
cannot be a vexatious litigant if all his claims are based on truths and not
falsehoods and are relevant to the issues at hand. He did not make collateral attacks on the
court decisions nor did he seek to re-litigate issues barred by res judicata
(the Respondent’s defence).
5. The Respondent’s defence is to correct the prejudice
and the biased decisions of Heenan and
Chaney JJ
6. The prejudiced
minds of some of the Honourable Judges are confused by their own obfuscation of
the issues before them or are avoiding them (the obfuscation)
7) As proof of their obfuscations
4) In order to enable justice to be seen to be done
5) The task of His Honour Murray J and the Principal
Registrar shall be done in the vexatious proceedings when the said Justice is
done or is accomplished to every one’s satisfaction. This covers the four issues that have been
avoided so far and they shall no longer be avoided by our judges. The rationale for deciding them must be
recorded in the written judgments for posterity to note and study.
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FURTHER,
I HUMBLY SUBMIT AS FOLLOWS:
- The
LPCC is in jurisdictional error and had abused its powers[3]
when it decided to prosecute me for the same res judicata[4]
matters in VR87 of 2009 when these matters are already decided by Her
Honour Judge Eckert in VR137 of 2006 on 12.9.2006[5].
- VR87
of 2009 is a matter of re-litigating[6]
the same matters and perhaps other matters which should have been raised
in VR137 of 2006 or even in VR107 of 2008[7].
- There
is a public interest in the finality[8]
of litigation[9]
and that my licence as a lawyer should be returned to me as it is my
legitimate expectation[10]
that the regulator should have no malice in disallowing me to earn my
livelihood.
- The
regulator had already settled with the Respondent when it reached the
Steytler Consent Judgment on 26.9.2007 in CACV43 of 2007 and from thence
on it should have restored the Respondent’s independent position as a
lawyer[11]
unless there is a conspiracy to allow cronies to commit acts which are
detrimental to the public interests.
- The
Court of Appeal in CACV 105 of 2008
- The
regulator through its Pseudo Board has no authority by legislation to take
away the independent status of the Respondent as a lawyer on the pretext that
he is not a fit and proper person[15]
without first making a finding that he is guilty of professional
misconduct or unsatisfactory conduct[16]
or without complying with the prescribed procedure[17]
- The Respondent was defamed by the Pseudo Board in the
following terms:
7.1.
It
causes the publication of an untruth that the Respondent is not a fit or proper
person as a legal practitioner (the untruth).
7.2.
It is
defined as a Pseudo Board although it has the number of members of a Full Board
yet it is not empowered by the valid minutes of the real Board of 52 members to
deal with the untruth[18]
(Pseudo Board defined).
7.3.
The
Pseudo Board defined admits on three separate occasions that it did not have
the valid minutes authorizing it to deal with the untruth (the admissions).
7.4.
The
Pseudo Board through the admissions has the opportunity to get out of the rut
of being pseudo in nature and it refused.
Instead, it is reasonably
found to be acting clandestinely and co-operatively with the LPCC to put its
malicious intent into action to help its cronies dishonestly and contrary to
s.18 of the LPA thereby causing detriment to the Respondent (its culpability).
7.5.
The
Pseudo Board is an agent of the Department of the Attorney General of the
government of WA and is therefore the executive branch[19]
of the Government of Western Australia. Its culpability renders it liable
through the Crown Suits Act, 1947 to the Respondent in damages for
defamation and the pain and suffering it had caused him (the liability of the
State Government of Western Australia for damages).
7.6.
The
procedure for the Respondent to access his claim for the liability of the State
Government of Western Australia for damages is within the jurisdictions of this
tribunal to make monetary orders[20]
to be enforced through SAT[21] (the
SAT Orders).
7.7. The SAT Orders may be enforced through the Crown Suits Act,
1947[22]. This
liability of the Crown stems from the non-compliance of the Pseudo Board with
s.10 and 11 of the former LPA and rr. 17 & 18 of the Legal Practice Board Rules,
2004 (the non-compliance).
7.8. The non-compliance caused the publication of
the untruths emanating from the Pseudo Board unrelenting and persistent efforts
to calumniously defame the Respondent since the 12.9.2006 with the contemplated
malicious intent to ruin his reputation as an admitted legal practitioner. This unmeritorious conduct of a regulator of
the profession precipitated the damages suffered by the Respondent that
resulted from the wilful destruction of the Respondent’s good reputation as a
lawyer[23]. It was caused by the regulator acting
co-operatively with the LPCC to achieve the same outcome (the publication).
- By
virtue of the admitting conduct of the LPCC and the regulator
8.1. Special
Damages for Loss of Income as an independent lawyer in Western Australia
8.2. General
Damages for pain and suffering caused by the malice of the LPCC et al;
8.3. Special
Damages in terms of the capped non-economic loss for defamation[24]
motivated by malice[25] of
the Pseudo Board and the LPCC targeted against the Respondent and capped in accordance
with s 35(1) of the Defamation Act 2005
(WA) in the sum of $325, 000.00 as at
1.7.2011.
8.4. Out of pocket expenses incurred by the Respondent
as a litigant in person for all these to be assessed.
8.5. Any
other relief which the Tribunal thinks fit.
Signature of the Respondent:
NICHOLAS NI KOK CHIN ……………………………………………….
Dated the th day of October, 2011.
[1] It tells the story of how the Respondent has been
calumniously maligned in his reputation and how he has been deprived of his
human rights to work as an independent lawyer. Further information on this
matter maybe obtained from my blogspot by Googling “NicholasNChin”
[2] In Osland
v Secretary to the Department of Justice [2010] HCA 24, Chief Justice French, and
Justices Gummow and Bell
‘The
jurisdiction and powers of the Court of Appeal:
17.
It is necessary to refer to the nature of the jurisdiction and powers of the
Court of Appeal in an appeal from an order of the Tribunal. That jurisdiction
and those powers continued to define the functions of the
Court on the remitter of the appeal for further hearing. The relevant jurisdiction
and powers are set out in s 148 of the VCAT Act,
which provides, inter alia:
“Appeals from the Tribunal
(1) A party to a
proceeding may appeal, on a question
of law, from an order of the
Tribunal in the proceeding—
(a) to the Court of
Appeal, if the Tribunal was
constituted for the purpose of making the order by the President or a Vice
President, whether with or without
others; or
(b) to the Trial
Division of the Supreme Court in any other case—
if the Court of Appeal or the Trial Division,
as the case requires, gives leave to
appeal.…
if the Court of Appeal or the Trial Division
(7) The Court of Appeal
or the Trial Division, as the case
requires, may make any of the
following orders on an appeal—
(a) an order affirming, varying or setting aside the order of the
Tribunal;
[3] See: the
case of Craig v South Australia
"If such
an administrative tribunal falls into error of law which causes it to identify
a wrong issue, to ask itself the
wrong question, to ignore relevant
material, to rely on irrelevant
material or, at least in certain
circumstances, to make an erroneous
finding or to reach a mistaken conclusion and the tribunal's exercise or
purported exercise of power is thereby affected,
it exceeds its authority or powers. Such an error of law is jurisdictional
error which will invalidate any order or decision of the tribunal which
reflects it."
[4] The usual starting point in a discussion relating to
abuse of process or res
judicata is the rule in Henderson
v Henderson
"[W]here a given
matter becomes the subject of litigation in,
and of adjudication by, a court of
competent jurisdiction, 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, only because they have,
from negligence, inadvertence, or even accident,
omitted part of their case. The 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."
[5] For res judicata to bar the institution
of a subsequent action, the
following requisites must concur: (a) the former judgment must be final; (b) it
must have been rendered by a court having jurisdiction of the subject matter
and the parties; (c) it must be a judgment on the merits; and (d) there must be
between the first and second actions identity of parties,
identity of the subject matter, and
identity of cause of action. (Custodio
v. Corrado, G.R. No. 146082, July 30,
2004, 435 SCRA 500).
[6] The narrow rule was expanded in Yat Tung Investment Co. Ltd v Dao
Heng Bank Limited [1975] AC
581 to include relitigating matters which could have been raised in previous
proceedings.
"The second
question depends on the application of a doctrine of estoppel, namely res judicata. Their Lordships agree with
the view expressed by McMullin J that the true doctrine in its narrower sense
cannot be discerned in the present series of actions,
since there has not been, in the
decision in no 969, any formal
repudiation of the pleas raised by the appellant in no 534. Nor was Choi Kee, a party to no 534,
a party to no 969. But there is a wider sense in which the doctrine may be
appealed to, so that it becomes an
abuse of process to raise in subsequent proceedings matters which could and
therefore should have been litigated in earlier proceedings."
[7] The rule was further explained by the court of appeal
in Barrow v Bankside Agency
Ltd [1996] 1 WLR 257
"The rule in Henderson v Henderson ,
when a matter becomes the subject of litigation between them in a court of
competent jurisdiction, to bring
their whole case before the court so that all aspects of it may be finally
decided (subject, of course, to any appeal) once and for all. In the absence of
special circumstances, the parties
cannot return to the court to advance arguments,
claims or defences which they could have put forward for decision on the first
occasion but failed to raise. The rule is not based on the doctrine of res
judicata in a narrow sense, nor even
on any strict doctrine of issue or cause of action estoppel. It is a rule of
public policy based on the desirability,
in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that
a defendant should not be oppressed by successive suits when one would do. That
is the abuse at which the rule is directed."
[8] Under the
doctrine of res judicata, therefore,
a final judgment or decree on the merits rendered by a court of competent jurisdiction
is conclusive of the rights of the parties or their privies in all later suits
and on all points and matters determined in the previous suit: (Dela Cruz v. Joaquin,
G.R. No. 162788, July 28, 2005,
464 SCRA 576).
[9] The leading case is the House of Lords' decision in Johnson v Gore Wood & Co.[2002] 2
AC 1 where the lords held that there was
"a public interest in the
finality of litigation and in a defendant not being vexed twice in the same
matter; but that whether an action was an abuse of process as offending against
the public interest should be judged broadly on the merits taking account of
all public and private interests involved and all the facts of the case, the crucial question being whether the Plaintiff
was, in all the circumstances, misusing or abusing the process of the court" (cf. Lee Ming Mang Sharon v Ng Siew
Seng Richard & Ors, HCA
1536/2006).
[10] See also: Para . 81 of the Craig v South Australia supra, where both
Justices quoted Brennan J in the case
of Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39 in the
following words:
"So long
as the notion of legitimate expectation is seen merely as indicating 'the
factors and kinds of factors which are relevant to any consideration of what
are the things which must be done or afforded' to accord procedural fairness to
an applicant for the exercise of an administrative power,
the notion can, with one important
proviso, be useful. If, but only if,
the power is so created that the according of natural justice conditions its
exercise, the notion of legitimate
expectation may usefully focus attention on the content of natural justice in a
particular case; that is, on what
must be done to give procedural fairness to a person whose interests might be
affected by an exercise of the power. But if the according of natural justice
does not condition the exercise of the power,
the notion of legitimate expectation can have no role to play. If it were
otherwise, the notion would become a
stalking horse for excesses of judicial power."
[11] Lord Bingham
in Johnson v Gore Wood supra said:
"In one respect, however,
the principle goes further than the strict doctrine of res judicata or the
formulation adopted by Sir James Wigram V-C,
for I agree that it is capable of applying even where the first action concluded
in a settlement. Here it is necessary to protect the integrity of the
settlement and to prevent the defendant from being misled into believing that
he was achieving a complete settlement of the matter in dispute when an
unsuspected part remained outstanding."
[12] Lord Bingham
in Johnson v Gore Wood supra further adds:
"However this
may be, the difference to which I
have drawn attention is of critical importance. It is one thing to refuse to
allow a party to relitigate a question which has already been decided; it is
quite another to deny him the opportunity of litigating for the first time a
question which has not previously been adjudicated upon. This latter (though
not he former) is prima facie a denial of the citizen’s right of access to the
court conferred by the common law and guaranteed by article 6 of the Convention
for the Protection of Human Rights and Fundamental Freedom (1953)."
[13] The doctrine
is also known as estoppel per rem
judicatam and involves both cause of action estoppel and issue
estoppel. The purpose of the doctrine is two-fold - to prevent unnecessary
proceedings involving expenses to the parties and wastage of the court's time
which could be used by others, and
to avoid stale litigations as well as to enable the defendant to know the
extent of the claims being made arising out of the same single incident. (S. Sime, A Practical Approach To Civil Procedure, (1994 Ed.),
Blackstone Press Ltd., London, p. 391).
[14] See: DEAKIN V WEBB [1904] HCA 57; (1904) 1
CLR 585 (3 November 1904) per Griffith , C.J quoting Hodges J in the following words:
“A Court of
law performs the double function of declaring the law, and of
applying it to the facts. When the legal principles which govern the case are
in controversy, it is the practice
of English Courts not to content themselves with a statement of their
conclusion, but to express their
reasons, which,
in the case of Courts of Appeal, are
ordinarily accepted by other Courts upon whom the decision is binding, as an authoritative exposition of the law on the
point under consideration. If the reasons may be disregarded and treated as
mere obiter dicta, because,
in the opinion of the Court, the
same conclusion might have been reached by another road,
the value of judgments as expositions of the law would be sensibly
diminished….”
[15] S.38 (4)(b) Refusal of application
(1) The Board must refuse to issue a practice certificate
if —
(a) the application is not made in accordance
with section 37; or
(b) the applicant is a disqualified
person.
(2) The Board may refuse to
issue a practice certificate if an order in respect of the legal practitioner
has been made under section 177 or 185 and —
(a) a fine imposed by the order has not been paid;
(b) costs awarded against the legal practitioner by the
order have not been paid; or
(c) expenses payable by the legal practitioner pursuant to
an order made under section 177(2)(e) or section 87 or 88 of the State Administrative Tribunal
Act 2004 in relation to
proceedings commenced under this Act have not been paid.
(3) The Board may refuse to issue a practice certificate under
regulations made under section 247 as to professional indemnity insurance.
(4) The Board may refuse to issue a practice certificate if —
(a) the applicant for the
practice certificate has not been a certificated practitioner during the
5 years preceding the application; and
(b) the Board is not
satisfied that the applicant is a fit and proper person and competent to
practice in this State.
[16] LEGAL
PRACTICE ACT 2003 - SECT 177
177 . Summary professional
disciplinary jurisdiction
(1) The Complaints Committee has,
and subject to the consent of the legal practitioner concerned may exercise, jurisdiction summarily to find, after an inquiry under this Part, that a legal practitioner is guilty of
unsatisfactory conduct.
(2) If the Complaints Committee makes a finding under
subsection (1) the Complaints Committee may —
(a) order the legal practitioner to pay to the Board a fine
not exceeding $2 500;
(b) reprimand the legal practitioner;
(c) order that the legal practitioner seek and implement, within a period specified in the order, advice from the Board,
or from a person specified in the order,
in relation to the management and conduct of the practice,
or the specific part or aspect of the practice,
specified in the order;
(d) order that the legal practitioner,
within such limits (if any) as may be fixed by the rules,
reduce or refund any fees, charges
or disbursements in respect of business to which the inquiry relates; or
(e) order that the legal practitioner pay all or any
specific part of the costs of either or both the complainant or the Complaints
Committee in relation to the inquiry.
(3) The Complaints Committee may take action under one or
more of the paragraphs of subsection (2).
(4) An order may be made under subsection (2)(e)
even where no finding is made under subsection (1) against the legal
practitioner, if the Complaints Committee
is of the opinion that the conduct of the legal practitioner gave reasonable
cause for the inquiry.
(5) An order made by the Complaints Committee may be
enforced in the same manner as an order of the State Administrative Tribunal
made under this Act.
LEGAL PRACTICE ACT 2003 - SECT 178
178 . Finding where legal practitioner
convicted of an offence
(1) Without limiting its jurisdiction under section 177, the Complaints Committee may make a finding that a
legal practitioner is guilty of unsatisfactory conduct on it being shown
that —
(a) the legal practitioner has been convicted of an offence
by or before a court exercising jurisdiction in any place,
whether in Australia
(b) the conviction occurred within the period of 10 years
before the commencement of the proceedings under this Act in which that finding
may be made.
(2) In any matter to which subsection (1) relates the
Complaints Committee —
(a) is not required to inquire as to the propriety of the
conviction; and
(b) may inform itself as to the circumstances giving rise to
the conviction from the transcripts or other records of —
(i) the court which convicted the legal practitioner; or
(ii) any court which dealt with the conviction on appeal,
and may make such inquiries or requests as are necessary to obtain
those transcripts or records.
(3) Where an appeal against the conviction of the legal
practitioner is pending the Complaints Committee may defer further
consideration of the consequences of the finding that the legal practitioner is
guilty of unsatisfactory conduct until the determination of the appeal.
(4) Where in any proceedings to which subsection (1)
relates a finding (the adverse
finding ) is made founded
upon a conviction that is subsequently quashed,
set aside or changed the Complaints Committee must reconsider the adverse
finding and —
(a) if the conviction was changed,
may change the nature of the adverse finding; and
(b) if the conviction was quashed or set aside, must quash or set aside the adverse finding and
any order made consequential on that finding.
(5) Despite subsection (4),
the Complaints Committee may continue the original inquiry relating to the
matter.
[17] LEGAL
PRACTICE ACT 2003 - SECT 154
154 . Power of Board to appoint legal practitioner
to inquire into and report on practice
(1) The Board may at any time appoint in writing —
(a) a certificated practitioner; or
(b) in the case of an inquiry into a registered foreign lawyer, a certificated practitioner or a registered
foreign lawyer,
to inquire whether or not a legal practitioner is, for any reason,
incapable of properly conducting the practice carried on by that legal
practitioner, and to report on that
inquiry to the Board.
(2) The Board’s appointee may require —
(a) the legal practitioner to whom the inquiry relates; and
(b) any employee,
officer or agent of the legal practitioner,
to produce to the Board’s appointee any records relating to the
practice that, in the opinion of the
Board’s appointee, may be reasonably
necessary for the purposes of the inquiry.
(3) Despite any rule of law to the contrary,
the Board’s appointee may require a bank in which the legal practitioner to
whom the inquiry relates has an account to —
(a) disclose every account of that legal practitioner that, in the opinion of the Board’s appointee, may be relevant to the inquiry; and
(b) permit the making of a copy or extracts of any such account.
(4) A power under subsection (2) or (3) must not be
exercised before the Board’s appointee has,
if so required, produced the
instrument by which the appointment in respect of the practitioner was made.
(5) A person who, being
required to do anything under subsection (2) or (3), without lawful excuse,
proof of which lies on that person —
(a) refuses or fails to do the thing required; or
(b) hinders or obstructs the Board’s appointee in the
exercise of a power under this section,
commits an offence.
Penalty: $5 000.
LEGAL PRACTICE ACT 2003 - SECT 155
155 . Board may apply to State Administrative
Tribunal for an order
The Board must consider a report received from the Board’s
appointee and may where the circumstances so require apply to the State
Administrative Tribunal for an order under section 156.
LEGAL PRACTICE ACT 2003 - SECT 156
156 . Power of State Administrative
Tribunal
(1) If the State Administrative Tribunal,
on the application of the Board, is
satisfied that there are reasonable grounds for believing that a legal
practitioner is, for any reason, incapable of properly conducting the practice
carried on by that legal practitioner,
the Tribunal may —
(a) suspend the legal practitioner from practising for the period
specified in the order or, in the
case of a registered foreign lawyer,
suspend the registration of the registered foreign lawyer for a period
specified in the order;
(b) restrain the legal practitioner and the bankers of that
practitioner and their respective employees,
officers and agents from dealing in all or any of the bank accounts of the
legal practitioner, subject to such
terms and conditions as the Tribunal thinks fit;
(c) authorise the Board to appoint a supervising solicitor;
(d) authorise the Board to suspend the legal practitioner
from practising until further notice or,
in the case of a registered foreign lawyer,
to suspend the registration of the registered foreign lawyer until further
notice;
(e) make an order containing any other provision of a kind
referred to in section 187 and such further or other orders as the
Tribunal thinks fit.
(2) Section 153 applies to an order made
under subsection (1)(b) as if the order were made under
section 150.
(3) If the State Administrative Tribunal authorises the Board to
appoint a supervising solicitor under subsection (1) the Tribunal
may —
(a) order that the supervising solicitor is empowered to
withdraw moneys from any bank account of the legal practitioner; and
(b) make an order like that which may be made under
section 150.
(4) The State Administrative Tribunal may, on the application of the Board, the legal practitioner,
or any person interested, by further
order revoke or vary an order made under subsection (1) or (3).
(5) The Board must give a legal practitioner notice of any
application made by the Board under subsection (1) or (4) in respect
of the legal practitioner.
(6) A legal practitioner who makes an application under
subsection (4) must give the Board notice of the application.
(7) An interested person who makes an application under
subsection (4) in respect of a legal practitioner must give the Board and
the legal practitioner notice of the application.
(8) The legal practitioner,
the bankers of that legal practitioner,
and their employees, officers
[18] "All sober inquirers after truth,
ancient and modern, pagan and
Christian, have declared that the
happiness of man, as well as his
dignity, consists in
virtue."[John Adams]
"Forge
thy tongue on an anvil of truth and what flies up,
though it be but a spark, will have
light." [Pindar]
"I know that most men, including those at ease with problems of the
greatest complexity, can seldom
accept even the simplest and most obvious truth if it be such as would oblige
them to admit the falsity of conclusions which they have delighted in
explaining to colleges, which they
have proudly taught to others, and
which they have woven, thread by
thread, into the fabric of their
lives." [Leo Tolstoy]
[19]
Anthony Gray (Associate Professor, School of Law , University
of Southern Queensland ), Canberra
“… George Winterton
states that in the monarchies of the British Commonwealth,
the Crown is shorthand for executive government: Parliament,
The Executive and The Governor-General (Melbourne University Press, 1983) 207…”;
[20] Costs
of all the proceedings as listed in the Chronology to be made by SAT in
accordance with s.87, 88 and 89 of
the State Administrative Tribunal Act,
2004 WA.
[21] 85. Monetary orders, enforcement of
(1) A
person to whom payment is to be made under a monetary order may enforce the
order by filing in a court of competent jurisdiction —
(a) a copy of the order that the executive officer
has certified to be a true copy; and
(b) the person’s affidavit as to the amount not
paid under the order and, if the
order is to take effect upon any default,
as to the making of that default.
(2) No charge is to be made for filing a copy of an
order or an affidavit under this section.
(3) On filing,
the order is taken to be an order of the court,
and may be enforced accordingly.
[22]
The executive branch of the government of WA’s liability is founded upon s. 5, 8 and 10 of the Crown Suits Act, 1947 (WA) which provides as follows:
5 .
Crown to sue and be sued as subject
(1) Subject to this Act, the Crown may sue and be sued in any Court or
otherwise competent jurisdiction in the same manner as a subject.
(2) Every proceeding shall be taken by or against the
Crown under the title “the State of Western
Australia
8 . Joinder of the Crown in
proceedings between subject and subject
(1) When in any action,
use or proceeding between litigants in any civil Court in Western Australia in
which the Crown is not a party it appears to the Court that the constitutional
rights of the Crown may be directly or indirectly affected, or any question arises as to the constitutional
validity of any Act of Parliament of the State,
the Crown may obtain leave by its Attorney General to intervene, or the Court may order that the Crown be joined as
a party.
(2) Where any such question arises in any civil Court, except the Supreme Court,
the Supreme Court or a judge thereof may,
on the application of a party or of the Attorney General,
remove the proceedings into the Supreme Court for trial and determination.
(3) Every such intervention or joinder or removal shall be
on such terms and conditions as the Court shall deem just.
(4) In this section Act
of Parliament includes an
ordinance passed before the grant of responsible government to the State.
10 . Method of recovering judgment
against the Crown
(1) No execution or other process in the nature of execution
shall be issued out of any Court against the Crown,
but after any judgment has been given against the Crown the Registrar of the
Supreme Court shall give to the party in whose favour the judgment is given a
certificate of such judgment in the prescribed form and sealed with the seal of
the Supreme Court.
(2)
On the receipt of such certificate the Governor shall cause to be charged
to the Consolidated Account the amount of such judgment and costs to the person
entitled to recover the same.
[23] LEGAL PRACTICE
ACT, 2003
Protection from liability
(1) An action in tort does not lie against —
(a) the Board;
(b) a member of the Board; or
(c) an employee of the Board,
for anything that the Board or person has done, in good faith,
in the performance or purported performance of a function under this Act.
(2) The protection given by subsection (1) applies even
though the thing done as described in that subsection may have been capable of
being done whether or not this Act had been enacted.
(3) In this section a reference to the doing of anything
includes a reference to the omission to do anything.
(4) A person who —
(a) performs any function in relation to an inquiry before
the Board under this Act; or
(b) is otherwise concerned in an inquiry before the Board
under this Act,
has, in respect of any
such function or concern, the same
protection and immunity as a member or an officer of the Supreme Court, or a witness or a party before the Supreme Court, would have in respect of a function or concern of
a like nature related to the jurisdiction of the Supreme Court.
[24] In McCarey v. Associated Newspapers Ltd. (No.2)
((71) (1965) 2 QB 86, at p 107.) Diplock LJ said:
"The injuries that (a
plaintiff) sustains may be classified under two heads: (1) the consequences of
the attitude adopted towards him by other persons as a result of the diminution
of the esteem in which they hold him because of the defamatory statement; and
(2) the grief or annoyance caused by the defamatory statement to the plaintiff
himself. It is damages under this second head which may be aggravated by the
manner in which or the motives with which the statement was made or persisted
in."
[25] Ibid.
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