IN THE SUPREME COURT OF WESTERN AUSTRALIA
HELD AT PERTH CIV
3427 OF 2011
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
------------------------------------------------------------------------------------------------------------
AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION
OF NICHOLAS NI KOK DATED 19TH DAY OF DEMBER,
2011 AS AN APPLICATION FOR THE REMOVAL OF ERRORS OF LAW APPARENT ON THE COURT
RECORDS IN CIV 1903 OF 2008 or MICHELIDES NO.2 and CIV 1112 OF 2007 or MANDATE
EXCLUSION CASE, both BEING DECISIONS
OF MARTIN J
------------------------------------------------------------------------------------------------------------
Date of Document:
19th day 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
INDEX TO EXHIBITS OF DOCUMENTS
|
No.
|
Label
|
Date of Document
|
Description of Documents
|
Page Nos.
|
|
1
|
NNC-1 to NNC-7
|
15.12.2011
|
Email letter from Applicant to Attorney General of WA re
better governance of WA if INTEGRITY branch of government is added – the
brainchild of the Honourable Chief James J Spigelman AC Chief Justice of NSW.
Related to it is the Applicant’s email letter to DC Chief Judge Martino dated
5.9.2011 re the Order of Registrar Wallace dated 9.5.2011 together with Applicant’s
comments on Jurisdictional Errors of Magistrates Musk
|
|
|
2
|
NNC2
|
21.11.2011
|
Letter from Principal Registrar of Supreme Court of SA to
Applicant: CIV 1903 of 2008 shall be dismissed for want of prosecution if it
were to remain inactive for another six continous months.
|
1
|
|
3.
|
NNC3-1 to NNC3-2
|
13.10.2011
|
Facsimile and email letter from Applicant to Associate of
Deputy President of SAT in VR87 of 2009 copied to the LPCC re: “no
professional relationship between father and son” - therefore the rationale
for no conflict of interest in the MANDATE EXCLUSION CAVEAT CASE of CIV 1112
OF 2007. The Applicant as the free
agent should be allowed to represent his son as amicus curiae in relation to
the Thies dispute as part of the three-prong case with the regulator.
|
|
|
4
|
NNC4-1 to NNC4-2
|
15.7.2011
|
Application in an Appeal (r.44) and Form 9 by Applicant
filed with Ms. Cindy at the Court of Appeal Office of the SC for which there
has been no response. Attached to it is the 60 page Affidavit in support of
that Application.
|
|
|
5.
|
NNC5-1 to NNC5-4
|
11.5.2011
|
The unpublished judgment of His Honour Allanson J in
CIV1491 of 2011 re Unavailability of Prerogative Writ Powers.
|
|
|
6.
|
NNC6-1 to NNC6-11
|
2.5.2011
|
Written submission of the Applicant in CIV 1491 of 2011 with
CHRONOLOGY for hearing before His Honour Allanson J on 11.5.2011.
|
|
|
7
|
NNC7-1 to NNC7-5
|
15.11.2010
|
Written complaint from Applicant to LPCC copied to SAT in
VR87 of 2009 and the Court of Appeal Registrar barrister Scott Ellis
misleading Martin J in Michelides No.2 on 17.6.2010 re: NO EVIDENCE THAT
REGISTRAR WILDE WAS AWARE OF THE DURESS SITUATION IN THE FR417 OF 2007
COMPROMISE.
|
|
|
8
|
NNC8-1 to NNC8-12
|
1.11.2010
|
Re-filed Chronology and Amended Grounds of Appeal by Applicant
in CACV 75 of 2010 for hearing on 23.10.2010.
|
|
|
9
|
NNC9-1 to NNC9-4
|
13.5.2010
|
Further Outline of Submissions by Applicant in Michelides
No.2 and in the Mandate Exclusion Case in CIV1112 of 2007 before Martin J
|
|
|
10
|
NNC10-1 to NNC10-15
|
5.11.2010
|
Amended Outline of written submission in CACV 75 of 2010
for hearing on 23.11.2010 by Applicant.
|
|
|
11
|
NNC11
|
23.11.2010
|
Oral submissions by Applicant on the meaning of free trial
and justice according to the law before the Court of Appeal in CACV75 of 2010.
|
|
1.
I, NICHOLAS
NI KOK CHIN (Lawyer, not in current
practice) of No. 387, Alexander Drive , DIANELLA WA
2.
I am filing this Affidavit in support of my Application
contained in my NOTICE OF MOTION dated 19th December, 2010 pursuant to RSC O 59 r 3 for the purpose of
seeking the Six Declarative Orders stated therein pursuant to s. 25(6) of the
Supreme Court Act (the Act) upon the Grounds as indicated above. This is my Application for the Removal of
Errors Apparent on the Court Records in my Application (My Current Application).
THE DOCUMENTS TO BE INCLUDED IN MY APPLICATION:
3.
I have also cited in My Current Application the relevant
Errors of Law in the two judgments of His
Honour Martin J namely Michelides No.2 and the Mandate Exclusion Caveat Case
[21] for the purpose of:
3.1.
the cancellation of the technical errors pursuant to
s.33 of the Supreme Court Act, 1935
(the Act);
3.2.
review those matters that are in dispute pursuant to
s.43 of the Act;
3.3.
and if necessary enable the Court of Appeal to have a
new trial for those areas of dispute that are not clear on the court records, pursuant to s.59 of the Act. [15];
4.
The facts herein are true and correct, to the best of my knowledge,
information and belief. Where I identify the source of facts stated
as other than from my own personal knowledge,
I believe such facts to be also true and correct.
5.
I wish to be included into My Current Applications my
prior applications referred to as CIV 1981 of 2010 and CIV1491 of 2011 for
Prerogative Writ Orders for:
5.1. the
recusal of His Honour Martin J from hearing the Michelides No.2 and the Mandate
Exclusion Caveat Case; and
5.2. the
hearing of the issues of dispute that arose after the Court of Appeal had
dismissed my Application for Leave to Appeal against the two judgments:
5.2.1.
of Martin J in CACV 75 of 2010 and the
5.2.2.
High Court pronouncements on CACV 75 of 2010 in P50 of
2010.
6.
The Prerogative Writs Applications referred to
collectively in paragraphs 5 above are no longer useful in the sense of the
UNAVAILABILITY OF PREROGATIVE POWERS mentioned above. But their contents are useful for My Current
Application.
7.
I also wish to include with My Current Application a
set of documents of documents which I left with Ms. Cindy at the Court of
Appeal Front Counter Office on the 15.7.2011.
It is an Application in CACV75 of 2010 in Form 9 pursuant to r.44 of the
Supreme Court (Court of Appeal) Rules,
2005 containing 62 pages of which 60 pages is the Affidavit in Support dated
and sworn before Stewart Vivyan Forbes on the same day. That Application is identified as Exhibit
No.4 in the Schedule to this Affidavit above.
If the Affidavit is missing,
please let me know so that I can replace it.
MICHELIDES NO.2
Note:
[references to paragraphs numbers within square brackets as indicated below]:
(Michelides No.2 is contained
within pages 10 to 21 of the CIV1491 of 2011 Documents).
8. I refer to paragraphs 13, 14A, 15, 21, 22, 24, 25, 26, 29, 30, 31, 32, 33, 35, 36
and 40 of the judgment of Martin J in Michelides No.2 for which, I am making some explanations in the Affidavit In
respect of Exhibit No.13, I would
like to state as follows:
8.1
My learned friend Timothy Robin Thies, the First Respondent in this Application evaded [13]
the issues in his show cause affidavit dated 6.10.2009 (the issues):
8.1.1.
the terminated contract,
8.1.2.
the escalating bills of legal costs after termination
and
8.1.3.
the collateral contract.
9.
Their Honours Magistrates Musk and Michelides and
Commissioner Herron (Musk,
Michelides, Herron) are the three
decision makers who also evaded or avoided the jurisdictional facts of the
issues [14A, 25, 26, 29, 30, 40].
As such they are making errors within their respective jurisdictions by refusing
to make findings of facts which are relevant or jurisdictional [33] (Errors of
Law Apparent on the Court Records).
9.1.
I refer to Exhibit No.1 in the Schedule above which
contains my Comments on the legal references with regard to the Musk, Michelides,
Herron and Martin Jurisdictional Errors onto the Associate to District Court Chief
Judge Peter Martino email dated 5.9.2011 which records my telephone
conversation with one Leon about the District Court abiding by my request not
to pay the security costs of $100.00 to the Second Respondent as a result of
the Order of Registrar Wallace dated 9.5.2011 (the email with my comments).
9.2.
I sent the email with my comments to the State Attorney
General of WA requesting for the better governance of Western Australia
especially exploring the idea of His Honour Justice Spigelman that there be
INTEGRITY in the Judiciary branch of government in WA as the State Ombudsman
and the Corruption Crime Commission are not performing the INTEGRITY services for
the government with competence and in a meritorious way.
9.3.
I believe there was a scrambling for cover when I first
pointed out at my blogspot that the High Court in P50 of 2010 decision to
reject my application for leave to appeal the Court of Appeal decision in
CACV75 of 2010 is pointing out an anomaly of Michelides No.2. The anomaly of putting the disproportionate
Security Costs Decision of Michelides No.2 at a late stage on 8.7.2010 when the
s.36(1) Review Order was granted by Haslcuck J on 7.11.2008. That scrambling
had caused Registrar Wallace on 9.5.2011 to order for the $100.00 that I should
not have paid for security costs of the DCA 6 of 2008 on 24.1.2008 when I first
lodged that Appeal for the clandestine purpose of making the irregularity of Michelides No.2 regular.
9.4.
The laws of Jurisdictional Errors of Law from which I
had drawn those comments in the emails with my comments as indicated above and
it is presented by the Honourable Justice James Spigelman entitled Jurisdiction and Integrity - The
Second Lecture in the 2004 National Lecture Series available
at: http://www.ipc.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman050804. This lecture provides the understanding of
the law with regard to jurisdictional facts and errors of law apparent on the
court records in the two judgment of His Honour Martin J in Michelides No.2 and
the Mandate Exclusion Caveat Case (the Integrity Aspects) [24, 25, 29, 30, 31, 32, 33, 35, 36, 38, 39, 42].
9.5.
The Magistrates Courts in FR944 of 2007 and in FR417 of
2007 (FR944, FR417) and the District
Court of Western Australia in DCA 6 of 2008 (DCA6) are inferior courts founded
by statute law in WA, namely the
Magistrates Court Act, 2004 (WA) and
the Magistrates Court (Civil Proceedings) Act,
2004 (WA) and the District Court Act,
1969 (WA).
9.6.
These statutes together grant the powers to the
decisions makers and they must use their powers with competence and authority to
promote the fidelity of their holding of their public positions for the purpose
of promoting the common good of all Australians (the Powers of the Decision
Makers).
9.7.
Musk,
Michelides and Herron fall in jurisdictional errors when they mistakenly assert
or deny the existence of their respective jurisdictions or misuse the Powers of
the Decision Makers for their own personal advantages or just because they are
showing deference to Thies or his friends or to other members of the legal profession
who are promoting Thies’s cause dishonestly and it is against the public
interests for them to do so. In this regard,
Musk and Herron said in their separate judgments in FR944 and DCA 6
respectively that they have no jurisdictions (the Admissions of Musk and Herron).
9.8.
The rationale for the admission of Musk is that the
Registrar Wilde’s FR417 of 2007 Duress-vitiated Compromise (the Wilde Compromise)
[13, 14A,
15, 20,
21, 22,
23, 24,
25, 29,
31. 32, 33,
35] is appealable only to Michelides and not to Musk. The latter is not the Magistrate in the
hierarchy for dealing with the Wilde Compromise but the former is. Musk is
dealing with FR944 of 2007 whereas Wilde is dealing with FR417 of 2007 (the
Rationale for the Admission of Musk).
9.9.
The rationale for the admission of Herron is that he is
hearing an appeal from the Musk decision in FR944 and not an appeal from the
Wilde Compromise decision in FR417 of 2007 as the appeal of the latter case is
to Michelides and not to Herron (the Rationale for the admission of Herron).
9.10. FR417
is an abuse of process of Thies because he is making a claim based on a ZERO
SUM debt. This is a jurisdictional fact
that is not being considered by Musk,
Herron and Martin and is an Integrity aspect to be considered by the decision
makers in this My Current Application (the abuse of process of Thies) [13, 14A, 15, 25, 26, 29, 30, 31, 32, 33, 35, 36].
9.11. Michelides
failure is his refusal to assess the Integrity Aspects of the abuse of process
of Thies in that he failed to use his discretionary powers to extend the
Applicant’s extension for time to appeal which is warranted by the extenuating
circumstances. The extenuating circumstances are that the Applicant went before
Herron after he had been before Musk and then came back to Michelides to appeal
the decision of Wilde. Wilde is honest
and in unwilling to perform the administrative task of entering into the
duress-vitiated compromise but she is compelled by the duress-and dilemma
circumstances faced by the Applicant and his son Paul to enter into it under
importunate circumstances. That explains
the delay from mid April 2007 till 7.6.2006 when it became no longer bearable
for the Applicant to delay anymore. The dilemma was to bear the consequences of
the costs escalating (and why should it be escalating in the first place?) and
the imminent danger of Paul becoming sick again,
the fact is that he was already sick caused by Thies’ threat in the past) and
the fear of losing Paul home which is the subject of the Caveat. In these
circumstances, Michelides exceeded
his authority in this regard and this grounded his Jurisdictional Error. At
that stage, appealing the Herron
decision is no longer viable as the cue from Herron is to return to Michelides
and Michelides stopped it unconscionably. A ludicrous stage is reached when the
courts are supposed to be helping the victims to attain justice in accordance
with the law but Mr. Justice is not there to assuage the sufferings of the
victims but to allow the victims being “robbed” again and again with impunity (the
Michelides Failure).
9.12. The
Issues, the Integrity Aspects, the Statutes,
the Admissions of Musk and Herron,
The Rationale for the Admission of Herron,
The Rationale for the Admissions of Musk,
the Abuse of Process of Thies, and
the Michelides Failure all results in the errors of law apparent on the court
records caused by the abandonment of the duties of judicial officers in the
persons of Musk, Michelides and
Herron and Martin in refusing to take relevant considerations of the
unconscionable conduct of the Thies into account (the Jurisdictional Error of
Musk, Michelides and Herron and
Martin).
9.13. The
Jurisdictional Error of Musk,
Michelides, Herron and Martin J [25]
are based on their respective assumptions or denial of jurisdiction or
misconception or their disregard of the nature or the limits of their
respective jurisdictions. What Musk and Michelides should have done is to
administer the law of equity which prevails over the common law as provided for
by ss.23 and 24 of the Supreme Court Act,
1935 to be read together with Statutes and to take into account the Minor Cases
Provisions.
9.14. If
she had done this, she would have
ordered for Thies to return the money which Thies had “robbed” from the
Applicant literally at “gunpoint” using the unlawful caveat of the Mandate
Exclusion Caveat Case. She would also
have ordered for the return of the component sum of $5, 500.00
which Thies had also “robbed” from the Second Respondent Paul. Commissioner
Herron on the other hand would have deferred to s.77 of the District Court Act, 1969 and ordered for the matter to be determined
by the Supreme Court of Western Australia. As such both Musk and Herron had
deserted or abandoned their duties as judicial officers and have committed
errors of law apparent on the court records (The Errors of Law Apparent on the
Court Records by Musk, Michelides, Herron and Martin).
9.15. The
The Errors of Law Apparent on the Court Records by Musk,
Michelides, Herron and Martin caused
their respective decisions to become null and void. There is no necessity for the Applicant to
appeal [32] the Musk, Michelides and
the Herron decisions to the Supreme Court.
It suffices that the Applicant had made the s.36 Magistrates Court Act, 2004 Review Order which resulted in Michelides
No.1.
9.16. The
Court of Appeal can now act on the basis of that decision to grant the
Applicant his Application for the Removal for the Errors of Laws Apparent on
the Court Records by issuing the declarative Orders under s. 25(6) of the
Supreme Court Act, 1935 (WA) which
cannot be objected to by the First Respondent (The Declarative Orders).
9.17. Nicholas
complained to the LPCC about the misconduct of fellow lawyer Thies in a
three-prong dispute. The dispute with
the regulator concerns the misconduct of solicitors namely, Pino Monaco ,
David Taylor and Thies which has sprung back upon Nicholas. They are currently being resolved in the
current actions in VR87 of 2009 with the LPCC and with the State Solicitor of
WA in CIV1689 of 2011 and with Maurice Law interposing in the David Taylor’s
misconduct in VR158 of 2011.
9.18. The
Plaintiff of CIV 1689 of 2011 is the Principal Registrar who is anxious to see
that all the complicated matters are being resolved and had begun proceedings
through the State Solicitor of WA under s.4 of the Vexatious Proceedings Act, 2002 WA against me. The complicated matters are all the
unresolved proceedings that have been commenced by the Applicant in relation to
his three prong case with the regulator of the legal profession in WA. All I can
say is that I am not guilty of any vexatious proceedings and I have made my
defence before His Honour Justice Murray and its decision is being
reserved. More information can be
obtained from my blogspot at Nicholasnchin.
9.19. The
three prong matters had resulted in what I perceived to be the unauthorized
acts of a Pseudo Board emerging in the
regulator of legal profession in WA inter-meddling the affairs of the regulator
by taking away Nicholas’ independence as a lawyer. The then mediation with
Thies [22] could not be proceeded with as it would result in the problem of
Nicholas’ status as an independent solicitor remaining unsolved with the
regulator. That problem arose from the allegations of the regulator that the
Applicant is complicit in a false allegation against solicitor Thies [22].
9.20. The
similar one against Taylor
9.21. Gordon
Turriff Q.C., the President of the
Law Society of British Columbia QC made a finding that the independence of both
the BAR and the BENCH is a pre-requisite for Australian democracy and that
Australian democracy is lagging behind Canada , 2009 and made the findings that the WA regulator
is repressing the independence of lawyers in the State and you can read this at:
http://nicholasnchin.blogspot.com/2011/12/speech-of-goron-turiff-qc-and-president.html
and also at the site of the Malaysian Bar at: http://www.malaysianbar.org.my/speeches/speech_by_gordon_turriff_president_law_society_of_british_columbia_at_the_conference_of_regulatory_officers_perth_australia_in_september_2009.html.
(This implications on the lawyer independence of Nicholas).
9.22. The
declarative Orders sought by the Applicant for the Removal of the Errors of Law
Apparent on the Court Records caused by the dereliction of duties of Martin J shall
correct the injustice to both Nicholas and Paul in the following terms (Justice
to Paul and Nicholas):
9.22.1.
Paul to be returned the sum of $5, 500.00
“robbed” by Thies from Paul;
9.22.2.
Paul to be compensated for the unlawful clogging up of
his equity in his home property at No. 29,
O’Dell Street, Thornlie WA 6108 by
the unlawful caveat the subject matter of the Mandate Exclusion Caveat Case –
Martin J recognized this remedy for Paul and denied him justice by letting
Thies off the hook by getting Thies to remove the unlawful caveat in 2010.
9.22.3.
Nicholas to be compensated the sum of $6, 000.00 “robbed” by Thies from Nicholas.
9.22.4.
Nicholas to be returned his right to independence
practice as a lawyer by the regulator of the profession by this Court
communicating with Judge Sharp of SAT in VR87 of 2009 who has reserved his
decision together with Justice Murray in CIV1689 of 2011.
9.22.5.
Costs and other relief as appropriate.
MANDATE EXCLUSION CAVEAT CASE (the Caveat Case):
NOTE: (references
to paragraph numbers this judgment found at pages 81 to 86 of the of my
Application in CIV1981 of 2010 filed and dated 28.6.2010 are within round
brackets).
10.
Martin J in the Mandate Exclusion Caveat Case[21] is in
jurisdictional error as he had refused to make findings of jurisdictional facts
pertaining to the independent lawyer status of Nicholas and the Implications on
the lawyer independence on Nicholas. He
is also not making reasonable findings of jurisdictional facts on the
dereliction of duties of Musk,
Michelides and Herron in Michelides No.2 (The Jurisdictional error of Martin J)
[38, 39,
40, 42].
11
The Errors of Law Apparent on the
Court Records by Musk, Michelides, Herron and Martin is the result of all the
decision makers respectively exceeding their powers conferred upon them by the
statute and the laws if they were to do the following acts which cause them:
11.1. to
identify the wrong issue;
11.2. to
ask themselves the wrong questions;
11.3
to ignore relevant material;
11.4.
to rely on irrelevant material; or at least in some circumstances
11.5. to make an erroneous finding ;
11.6.
or to reach a mistaken conclusion.
12.
Such an error of law is jurisdictional
error which will invalidate any order decision of His Honour and will make not
make him ex-functus officio BUT WILL
LEAVE HIS HONOUR WITH OBLIGATIONS TO PERFORM THE UNDISCHARGED FUNCTIONS.
13.
Specifically,
the Jurisdictional error of His Honour Martin J in this Mandate Exclusion
Caveat Case is of the following JURISDICTIONAL FACTS:
13.1. No conflict interests exist between the father
(Applicant) and the son (the Second Respondent) on the following grounds:
13.1.1. the
father’s interests at all material times merged with the son’s interests
because the son was under the father’s undue influence by reason of the fact
that the son was an unwilling client of Thies and the father was the only the
willing client (the merged interests);
13.1.2. By virtue of
the merged interests, the Applicant
have personal interests in the Caveat Case at all material times because he
advanced the $5, 500.00 portion of
the Registrar Wilde Compromise monies to Paul from his borrowings from his wife
(the Applicant’s personal interests).
13.1.3. The Applicant
is not in a professional relationship as solicitor and client with his son Paul
at all material times (no professional relationship).
13.1.4. There is no
public duty owed by the Applicant as an officer of the court in his
relationship as the free agent of his son and as amicus curiae of the court
which resulted from the “no professional relationship”.
13.1.5. By virtue of
the existence of the collateral contract between Thies and the Applicant, Nicholas should not be stopped by Martin J from
representing his own interests and Paul’s interests in the Caveat Case as he is
a party to the case (1, 6).
13.1.6. The mandate
given by Hasluck J to Nicholas to represent his son in the mediation case
extends to the Caveat Case by virtue of the impossibility to mediate with Thies
and by virtue of the above reasoning.
13.2. I made
the mistake of using the title Barrister & Solicitor but was later
convinced that I was able to use my title Lawyer. This mistake is ameliorated by the fact that
I at all material times had made the necessary disclaimer in those court
documents and the necessary import is that I do not practice as a solicitor for
reward and I am allowed to but I did not
apply for my practice certificate. The
impediments imposed on me are of a temporary nature as I am restricted in my
legal practice for the wrong reasons. In
short, I never intend to act as the
solicitor for Paul but as his free agent and to use my knowledge of the law to
free my son from the entanglement that I had inadvertently brought him into the
unconscionable grasp of Thies who is no doubt guilty of advancing his clients
interests for his own personal interests by taking advantage of the especial
vulnerability of Paul. I realized this mistake of using my title which has
never been taken away from me and thereafter changed those impugned documents
in favour of Paul himself acting as a litigant in person. I am loath to do this because Thies will take
advantage of him again within my sights.
This does not detract from the fact that I am still the free agent and
the amicus curiae for the Caveat Case (The admitted mistake)(3, 4, 5, 7, 8, 9, 10):
13.2.1.
My dispute with the regulator of the profession has
been indicated as a three-pronged one,
and this Thies dispute is one of its prongs.
This dispute must be settled before I can become an independent
solicitor again and therefore it is wrong to conclude that I have a desire to
chase this case doggedly or with a passion for revenge.
13.2.2.
But injustice caused to me by Thies must be resolved as
the aim of this court is to deliver justice to me. (3).
13.2.3.
There is no unmet debt owing to Thies and he abused the
process of court in FR417 of 2007 and in CIV 1112 of 2007.
13.2.4.
The law does not restrict the Applicant to do probono
job for his son. Even if it is true that
I prepared those documents for my son,
it is perfectly all right for me to do this as I does not contravene the law as
there are no conflicting interests between his own interest and his son’s
interests as they are merged interests.
13.2.5.
There is no abuse of process (11).
13.2.6.
I have followed up my oral application for the recusal
of Martin J in CIV 1981 of 2010 but it has been heard by Heenan J which
explains the UNAVAILABILITY OF PREROGATIFE POWERS referred to above and it was
adjourned sini die (14).
13.2.7.
I have now abandoned this PREROGATIVE POWERS claim but
is just seeking a review or new trial or a cancellation of the technical
mistakes of the disputed issues.
13.2.8.
It is not correct for Martin J that I have not
confronted those obstacles but justice takes a long time to come by; but I am
now seeing the light at the end of the tunnel and I am still waiting for Judge
Sharp and Murray J judgment. They are being reserved and the Thies result is crucial
to it (15, 16).
COURT OF APPEAL JUDGMENT IN CACV 75 OF 2010
(Judgment in CACV 75 of 2010 is found at pages 24 to 32 of the CIV 1491
of 2011 Documents). NOTE: {the paragraphs referred to is within curly brackets}
14.
The Court of Appeal is in jurisdictional excesses when
it refuses to find the jurisdictional facts,
which are as follows:
14.1.1.
Thies has no caveatable interests and FR417 is an abuse
of process {4. 5, 6, 7, 8, 9, 10, 11, 12, 14, 19, 20, 28, 29, 31,
33}.
14.1.2.
The law requires the specificities of the caveat
property to be clearly described in the impugned Thies solicitor costs
agreement and this issue has been evaded {4}.
14.1.3.
There is no debt owing to Thies by either Applicant or
the Second Respondent at all material times {6}.
14.1.4.
The Registrar Wilde Compromise is duress-vitiated {7, 8, 9}.
14.1.5. Small
Claim cannot be converted into a General Claim without the permission of Applicant
{10}.
14.1.6. Applicant
was “robbed” at gunpoint of threat to take away son’s home and a real harm to
son’s mental capacity proven by past events {11,
12}.
14.1.7. Facts of duress not recognized by Musk and
she did not deliver justice according to the law. The rule of law is being
ignored: the twin pillars of justice are that the decision maker must bring to
the case a fair mind and deliver justice according to the law. If Musk or any of the decision makers is seen
to give the right judgment while appearing not to do so,
she and they are not doing their jobs and they should not be judges. She and
they did not exercise their conscience at the unfairness of the deal which
Thies has caused to the Applicant and his son. The injustice caused by Thies to
Nicholas and Paul is crying out aloud. Applicant’s presence before Martin J, Musk,
Michelides, Herron and Martin J in court is riddled with partialities. Except for Hasluck J,
their Honours Michelides, Musk, Herron and Martin did not appear to be fair or
impartial and they are not useful to the judicial process as I did not get
justice. If I lose my case, I would
still get justice because my case has been fairly dealt with and the reasons of
judgments have explained all the issues to me.
In this case, at all levels
of the proceedings except for Justice Hasluck,
the respective judges have avoided or evaded the issues. As a consequences,
the Applicant cannot be barred by the principles of res judicata to have these
outstanding issues re-litigated too the extent that the respective justice have
explained their positions to the Applicant. The contents of CIV 1981 of 2010 are
replete with the partialities of Martin J {14,
18, 19,
20, 28,
29, 30,
31, 33}.
SWORN by the Deponent
at Perth
In the State of Western Australia
This day of December,
2010 ]……………………………………………..
Before me:
…………………………………..
Justice of Peace/ Commissioner of
the Supreme
Court for Taking Affidavit
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