64 . Notice of originating motion (O. 54 r. 5)
IN THE SUPREME COURT OF WESTERN AUSTRALIA
HELD AT PERTH
In the matter of CIV 1903 of 2008 or RE MICHELIDES; EX
PARTE CHIN [2008] WASC 256 - Hasluck J granted the s.36 (Magistrates
Court Act, 2004) Review against to
Applicant on 7.11.2008 (Michelides No.1).
And
In the matter of CIV 1903 of 2008 or RE MICHELIDES; EX
PARTE CHIN [No 2] [2010] WASC 169 - Martin J granted the interlocutory
judgment of the Security Order Costs to First Respondent on 8.7.2010, thus stifling or reversing Michelides No.1 without
justification (Michelides No.2).
And
In the matter of CIV 1112 of 2010 or THIES -v-
CHIN [2010] WASC 111
- Martin J on 13.5.2010 (contradictory to the mandate to the Applicant in
Michelides No.1) disallowed Applicant’s right to represent the merged interests
of both himself and the Second Respondent (father and son) re the issue of the
unlawful caveat (the instrument of duress) in Michelides No.1 (the Mandate
Exclusion Caveat Case).
And
In the matter of CACV75 of 2010 or CHIN -v- THIES [2010] WASCA 230 - Pullin and Newnes JJA of the Court of
Appeal dated 23.11.2010 refused Application for leave to appeal Michelides No.2
thereby evading the relevant issues (the Appeal).
And
In the matter of Chin v Thies
& Anor (P50-2010) [2011] HCASL 25(9 March 2011) Gummow and Kiefel JJ indicates the law:
Security Costs Order (Michelides No.2) must predate the grant of the s.36
Review Order (Michelides No.1) – Michelides is illegal and therefore void (the
High Court Rationale).
And
In the matter of: 1) CIV 1491 of 2011 – Allanson J on
11.5.2011; 2) CIV 1877 of 2010 or RE HALL; EX PARTE CHIN [No 2] [2011] WASC 155, Commissioner Sleight on 4.4.2011 and 3) the Combo Decision
of CIV1981 of 2010 and CIV 1877 of 2010 or RE JUSTICE KENNETH MARTIN; EX PARTE
CHIN [2010] WASC 212,
Heenan J on 11.8.2010; all of their Honours respectively decided that all
Supreme Court Judges do not have jurisdictions in matters of Prerogative Writs
against his/her brother judges who are of the same rank as themselves (Unavailability
of Prerogative Writ Powers).
And
In the matter of the Ex-parte application in CIV 1903
of 2008 and the Mandate Exclusion Caveat Case: Application for Removal of
Errors Apparent on Court Records, pursuant
to RSC O 59 r 3. Supreme Court Act, 1935: (1) subs. 25(6) - Declarative Orders, (2) s.33 - cancel technical errors, (3) s. 43 Review of Errors; and s. 59 – New trials of particular issues (Removal
of Errors of Law Apparent on the Court Records).
BETWEEN
NICHOLAS NI KOK CHIN APPLICANT
AND
TIMOTHY ROBIN THIES FIRST RESPONDENT
PAUL CHUNG KIONG CHIN SECOND RESPONDENT
EX-PARTE: NICHOLAS NI KOK CHIN
------------------------------------------------------------------------------------------------------------
NOTICE OF MOTION FOR JUDICIAL REVIEW AND
FOR THE REMOVAL OF ERRORS OF LAW APPARENT ON THE COURT RECORDS BY WAY OF LEAVE
PURSUANT TO RSC O. 67 R.5
------------------------------------------------------------------------------------------------------------
Date of Document:
19thday of December, 2011.
Filed on behalf of: The Applicant
Date of filing: 19th day of December, 2011.
Prepared by:
NICHOLAS NI KOK CHIN Phone & Facsimile: 08 92757440
387, Alexander Drive Mobile
------------------------------------------------------------------------------------------------------------
TAKE NOTICE that the Supreme Court [or Court
of Appeal] will be moved at [Perth] on day the day of 2012 at the hour of in the noon,
or so soon thereafter as counsel can be heard,
by counsel on behalf of the Applicant Nicholas Ni Kok Chin for:
a) The Michelides
No.2 Case ; and
b) The Mandate
Exclusion Caveat Case;
be REVIEWED and/or be EXPUNGED from the
court records by the this Removal of Errors of Law Apparent On The Court
Records Application;
AND for the following declarative reliefs:
INDEX OF HEADINGS
PAGE NOS.
ORDERS SOUGHT:
- The Michelides
No.2 and Mandate Exclusion Caveat Case are illegal and void or voidable at
the option of the Applicant.
- The
High Court Rationale voids or renders Michelides No.2 and the Mandate
Exclusion Caveat Case void and illegal (the High Court Rationale).
- The
Costs Order of Commissioner Herron in DCA 6 of 2008 is void and illegal
for jurisdictional excesses.
- The
Order of Registrar Wallace of the District Court of WA dated 9.5.2011 to
pay the one hundred dollars misapprehended as security costs of the
Applicant to the First Respondent with the obvious motive to restore the
legality of Michelides No.2 is void and illegal.
- The
First Respondent abused the process of court via his frivolous and
vexatious claim in FR417 of 2007 with the malicious intention to
traumatize the Applicant and the Second Respondent and this therefore
warrants damages to compensate the victims.
- The First
Respondent disobeyed the show-cause Orders in Michelides No.1 and this therefore
warrants his (the First Respondent’s) defence (or show-cause affidavit) to
be summarily dismissed and judgment be for the Applicant and/or the First
Respondent be committed for contempt of court.
And further TAKE NOTICE that the GROUNDS of
this application for each of the above declaratory reliefs are as follows:
GROUNDS FOR ORDER SOUGHT NO. 1:
- Martin
J is biased against the Applicant and had denied the Applicant his natural
justice (the bias).
- Refer
to the Ex-Parte Notice of Originating Motion in CIV 1981 of 2010 with
affidavit in support (138 pages) filed and dated 28.6.2010 relating to the
bias of Martin J. This case is
adjourned sini die by His Honour
Heenan J. It requested for the
pre-judgment recusal of His Honour Martin J in Michelides No.2. It was filed after the Mandate Exclusion
Caveat Case was decided on 13.5.2010 (the CIV 1981 of 2010).
- Refer
also to the Ex-Parte Notice of Originating Motion in CIV 1491 OF 2011 with
affidavit in support (129 pages). It was filed on 2.5.2011 and was heard
before Allanson J on 11.5.2011 with a draft judgment in 4 pages (the CIV
1491 of 2011).
- Refer
to Application pursuant to s.58(1)(a) of the Act in the Court of Appeal of
the Supreme Court of WA in Form 9 and r.44 of the Supreme Court (Court of
Appeal) Rules
- “RSC O
25(2)(g)” does not trigger Michelides No.2 and it therefore annuls
Commissioner Herron’s costs order in DCA 6 of 2008 because there was no
antecedent debt (the Negative Effect of RSC O 25(2)(g)).
- S 37 of
the Supreme Court Act
- RSC O 25 r3(a) also does not trigger Michelides 2
because the prima facei merits of Applicant’s case is reasonably found in
Michelides No.1 (the Negative Effects of RSC O25 r3(a));
- Counsel for the First Respondent Scott Ellis misled
Michelides No.2 on the issue of non-availability of evidence of duress in the
duress-vitiated Registrar Wilde’s compromise dated 7.6.2007 – the subject
of Applicant complaint to the LPCC (Barrister Scott Ellis misleading Martin J).
- The law mandates that Michelides No.2 must not overturn
Michelides No.1 when it is reasonably apprehended that there are no
justifying circumstances to do so (Michelides No.1 Cannot Be Reversed
Without justification).
- Michelides No.2 is reasonably found to be obstructing
justice instead of solving the injustices brought about by FR944 of 2007
- The Security Costs Order of Martin J requiring the
Applicant to pay $20k into the Court within 48 hours is disproportionate
to the possible claims of Allowable Costs only claimable by the First
Respondent under the Minor Claim Provisions because FR417 of 2007 and
FR944 of 2007 are both Minor Claims.
GROUNDS FOR ORDER SOUGHT NO.2:
- The High Court Justices
“Prior to the s.36 review the first
respondent sought an order for security for costs of that proceeding. On 8 July 2010,
Martin J ordered that the applicant pay the sum of $20, 000
into court for security for the first respondent’s costs in the proceedings in
the Supreme Court. His Honour’s view was that the applicant’s case was
inherently weak…..”
2. The High Court Rationale is that Michelides
No.2 must precece Michiledes No.1 i.e. any security costs order of Martin J must
precede the grant of the s.36 Review of Hasluck J,
or any belated application for security order of the First Respondent is
ineffective or illegal as it must be done early in the proceedings (the High
Court Rationale).
GROUNDS FOR ORDERS SOUGHT NO.3:
- The
shield of s.37 protects the Applicant as a Minor Case Claimant in FR944 of
2007.
- The
shield of s.37 also protects the Applicant as the Defendant because FR417
of 2007 is made into a General Claim by the First Respondent as its
Claimant without the consent of the Applicant by reason of the frivolous
and vexatious claim of a zero sum debt.
- The DCA
6 of 2008 costs orders of Commissioner Herron did not take into account
the s.37 Requirements
- Commissioner
Herron is biased in that he denied the Applicant his natural justice by
refusing to consider the duress-situation of Registrar Wilde Consent
Judgment compromise in FR417 of 2007.
GROUNDS FOR ORDERS SOUGHT NO.4:
1.
The one hundred dollars security deposit was deposited
by the Applicant on 24.1.2008 at the District Court Registry when DCA 6 of 2008
was commenced (the deposit).
2.
The deposit is not required by the District Court
Rules 2005 which supplanted the repealed District Court Rules 1996 on 24.1.2008
because O. 8 r. 6 of the latter Rules has this requirement. So the deposit should be returned to
Applicant (the illegal payment).
3.
The High Court
Rationale is the more likely than not the motive for the existence of the One
Hundred Dollars Security Costs to supplant the belated security costs of
Michelides No.2 (the hidden motive).
4.
The hidden motive is to remove the taint of illegality
of Michelides No.2 but is rendered illegal by the illegal payment (the
removal).
5.
The Applicant objected to the removal by his letters
dated 14.5.2011 and 16.5.2011 to the learned Registrar Wallace, the Chief Judge of the District Court Martino, and Chief Justice Wayne Martin (the objection).
6.
The Principal Registrar of the Supreme Court of WA
caused the State Solicitor to proceed with the abuse of process proceedings
against the Applicant in CIV 1689 of 2011.
7.
The objection reasonably caused the Chief Registrar of
the Supreme Court to advise the Applicant that CIV 1903 of 2008 is about to
expire if not pursued further as a result of the objection.
GROUNDS FOR ORDERS SOUGHT NO.5.
1.
The abuse of process is procured by the First
Respondent holding the Applicant and his son the Second Respondent to ransom in
that former was reasonably using his unlawful caveat of the Mandate Exclusion
Caveat Case as his weapon of duress and utilizing his knowledge of the of the
especial vulnerability of the Second Respondent to his good use (the
exploitation).
2.
The exploitation results in the Applicant and the
Second Respondent exchanging $11, 500.00
to resolve the fictitious debt of $25, 000.00
and to resolve the unlawful caveat which was not removed after the compromise
sum was paid to the First Respondent (the continuing gun of duress).
3.
The exploitation and the continuing gun of duress
wielded by the First Respondent is leveled at the Applicant, the Second Respondent and Registrar Wilde because she is continually
being updated of the duress situation by the Applicant. The result is the Registrar-Wilde Consent
Judgment of $11, 500.00 being
extorted from the hands of the Applicant into the hands of the First Respondent
(the extortion).
4.
The Applicant was guilt ridden by the extortion and
that is how his own personal interests merged into the interests of the Second
Respondent and he became the pro-bono free agent for the latter. But there was no public obligation/duties as
a court officer for the Applicant as he is never a lawyer for the Second
Respondent whose merged interests conflict with the Applicant’s personal
interests.
5.
The Applicant is a litigant in person fighting his own
case and this is mandated in Michelides No.1.
Martin J stopped this role of the Applicant but is reasonably found to
be in conflict with His Honour’s own decision in that he released the troubling
unlawful caveat of the First Respondent,
thus setting the Second Respondent free but ignoring the damages caused by the
First Respondent to the Second Respondent by the unlawful caveat (the
discrepancy).
6.
The Applicant did enter involuntarily, with his will being suppressed by his apprehended
anxiety:
6.1.to prevent
the Second Respondent’s (his son) home from being stolen by the First
Respondent; and
6.2.to prevent
the recurrence of the mental harm that had already scarred the Second Respondent
on previous occasions by the First Respondent;
into the duress-vitiated Registrar
Wilde Consent Judgment dated 7.6.2007 in FR417 of 2007 for $11, 500.00.
7. The
learned Registrar was being constantly apprised of the developments of the
duress-situation until it reached a stage when she was forced to put into legal
effect the compromise for a lower sum than the fictitious debt of some $25k.
8. It
is untrue that Wally Ozich mediated in the compromise although the Applicant did consult him about it and did
asked Mr. Ozich to talk to the Second Respondent about it without Mr. Ozich
knowing that there was a fictitious debt involved in the deal.
GROUNDS FOR ORDERS SOUGHT NO.6:
- Michelides
No.2 ignored the compromised quality
- The
First Respondent evaded the issue of how a zero sum debt can come up to
near $25k with impunity. It is not a matter of $6
(Signed)
NICHOLAS NI KOK CHIN as the Applicant
C.D. of [agent for
of ] Solicitor for the abovenamed [applicant].
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