Tuesday, May 29, 2012

MR. CHIN WRITTEN SUBMISSION BEFORE SAT IN VR 87 OF 2009


IN THE MATTER OF Legal Profession Act, 2008

LEGAL PROFESSION COMPLAINTS
COMMITTEE ………………………………………………………….Applicant

And

NI KOK CHIN ………………………………………………………..Respondent

Matter Number: VR 87 OF 2009
Application lodged: 30 June, 2009.


RESPONDENT’S SUBMISSION ON PENALTY AND COSTS


Date of Filing:  31st May, 2012

Filed on behalf of the Legal Profession
Prepared by: NI KOK CHIN
Address for service:                                                      Phone: 08 92757440
387, Alexander Drive                                                   Mobile: 0421642735
DIANELLA WA 6059                                                Email: nnchin1@gmail.com
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INDEX TO LIST OF HEADINGS                                                   PAGE NUMBERS

Showing Summary of Jurisdictional Errors[1] in [2012] WASAT77 – VR 87 of 2009 – LPCC v CHIN delivered 24.4.2012 (Judgment).
Item Nos.
Para. Nos. of Judgment
Nature of Jurisdictional
Errors.
Order Number  of
Judg-ment
Nature of Order
1
15 and 19 thru 52.   
1. PRE-CULPABLE:
1. Mr. Wally Ozich as mentor [15] supervised the Respondent as trainee lawyer and agent for himself in performing the legal work for the Vendors as he has been appointed the solicitor for the Vendors by the Vendors [19].
2. The Respondent [23] as agent for the mentor is thus immune from prosecution for any willful misconduct under the principle of vicarious liability (the trainee lawyer).
3. The Vendor Mrs. Kim Wiles [31] did attend at the office of the mentor and thereby by her conduct did acknowledge the mentor was her solicitor by paying him the legal fees of $400.00 [27] (evidence provided to tribunal) for his service as solicitor for protecting the interests of the Vendors [34] (Vendor’s conduct).  
4. Respondent as the trainee lawyer acted as agent for his mentor as Vendor’s Solicitor also acted as free agent for his son Paul Chin as Purchaser (pro-bono). 
5. A probono free agent as distinct from a trainee lawyer does not public duties as a court officer to the Vendors whose interests were already protected by the mentor.
5. Consequently, the Respondent as the probono free agent did not have conflicting interests with those of the Vendors [31].  
1(i)
Result: No factual circum-stances which can indicate that the
Respon-dent acted in a conflict of interests situation and there-fore no penalty.  
The Respon-dent is NOT guilty of Profes-sional Miscon-duct[2]:
1. Pupil- Lawyer acting for the vendors of Centenary Lunch Bar.
2. Pupil- Lawyer a likely witness to the dispute of the sale of business.

2
15, 19 through 52.

2. PRE-CULPABLE:
1. The pro-bono free agent of the Purchaser [19] offered to pay Mr. Thies a lawyer [44(g)] the quantified sum for his solicitor’s supervisory work of the probono free agent in DCA No. 2065 of 2004 (the offer).
2. The offer [46, 47] of a quantified sum was made to Mr. Thies on the ground that the mentor would be acting in conflict of interests if he were to supervise the free agent whilst he was at the same time acting as solicitor for the Vendors [15, 19] (Offer to Mr. Thies).
3. Twenty five percent of the non-contingent successful party and party costs in DCA 2065 of 2004 [50] is proposed by the offeror as a measure of the quantified sum so as to avoid future dispute between Mr. Thies and the Respondent (the quantified sum).
4. The remuneration to the offeree Mr. Thies shall be paid from the offeror’s own pocket irrespective of outcome of the DCA 2065 of 2004 [47] (the payout for Mr. Thies supervisory work).
5. Mrs. Thies conduct [48] shows that he did not accept the offer of the Respondent or that he breached the fundamental terms of the contract. This gave the Respondent the option to EITHER choose to have the contract on foot and sue him for damages OR to abandon the contract and sue for damages [47] (the rights of the Respondent).
6. There is no willful professional misconduct [49] on the part of the pro-bono free agent as he is not under the jurisdiction of the Applicant in that capacity.  Besides, there is no dishonesty of the free agent which caused him to deprive funds or misappropriate funds from any person including Mr. Thies (No dishonesty or fraud).   
 7. Vendors Costs did not eventuate and it was never intended by Respondent to use it to pay Mr. Thies for work he did not do. The work he was to perform is to supervise the Free Agent’s work and not the trainee lawyer work.

1(ii)
Result:
No willful profess-sional miscon-duct[3] as the the work to be performed by Mr. Thies is for supervise the Free Agent legal work and not the work of the Trainee lawyer which is being supervised by the Mentor. 2) Vendors Costs not used to pay Mr. Thies. No dishonesty and No fraud. No Penalty.  

Respon-dent guilty of Professional Miscon-duct by:
1).Making a proposal to Timothy Thies that he avail himself of costs for work he did not perform.
2) The Defendants or the Vendors of the Centenary Lunch Bar, in the Case of DC 2065 of 2004 is to pay for the proposed costs.
3.

17, 53 thru 69
3. PRE-CULPABLE:
1. Amongst the 331 pages [17] delivered to the tribunal is Book 1 of the Notice of Originating Motion filed in CIV2210 of 2006 before Master Sanderson and dated 14.10.2006 but later filed in CACV43 of 2007 (Book 1). 
2.At pages 222 to 223 of Book 1, the report of Mr. Roy Gascoigne who was the Private Investigator and also a former Police Officer.  The report is accompanied by an Accountant’s Report at pages 224 to 224.
3. At pages 225A through 225D in four pages, Dr. K.S. Chan in turn explained at length the predatory nature [54 (e),(f), (h), 60] and particularly also at sub-paragraph (l) of page 225B, she said the following words: 
“I was DOUBLE-CHARGED and had DOUBLE-PAID $11,349.46 for Legal Fees to Katherine Whitehead and Pino Monaco for Forrestal when the bill of costs pursuant to the local court orders had been ALREADY PAID.”  
4. The investigator is not unidentified [66] and not nameless [68].
5. The Respondent is therefore NOT GUILTY, at 69, of having “failed to treat a professional colleague with the utmost fairness and courtesy and that he made allegations of improper conduct against fellow practitioners without a reasonable or proper basis for doing so…”
6. No penalty because the Respondent did not commit any offence wilfully and therefore no professional misconduct.  
2
Result: 1) No willful profess-sional miscon-duct as there is no malice or false allegations. The allega-tions are justified by the factual circum-stances. 
No penalty.
2) The reasona-ble basis is evi-
denced by the documentation of Dr. K.S.
Chan herself.  
Profes-sional Miscon-duct:
1).fail to treat a fellow practi-tioner Mr. Pino Monaco with utmost courtesy and fairness by making allega-tions of improper conduct.
2). No reasona-ble or proper basis for making such allega-tions.
4

70 thru 102.
1. CULPABLE:
1. Spunter Pty Ltd [76(a)] or its director Maurice Law (Spunter) [71] had subpoenaed its former solicitor Mr. Taylor to file on or before 29.11.2011 at the tribunal in VR158 of 2011 the bank statement (the Subpoena).
2. The purpose of the Subpoena is to establish the fact that the hitherto disputed court fees of CIV1131 of 2006 for $654.20 was indeed paid into the Supreme Court Registry on 10.2.2006 by Mr. Taylor [79,  84] as solicitor for Spunter Pty Ltd at [71, 76(b), 91, 147, 148, 149, 150, 151,152] thereby giving validity to the Writ of Summons of that case as of that date (the Impugned Court Fees).
3. The Impugned Court Fees is in relation to the confusion created by Registrar Powell in supporting the false story of Mr. Taylor
[71, 76, 79, 94] that CIV1131 of 2006 was filed on time in compliance with the order of Justice Jenkins in CIV 1142 of 2005 No.1 [151,152,156,158,161] in which the Respondent was acting as solicitor for Nancy Hall (Confusion of Registrar Powell).
4) The Confusion of Registrar Powell is in relation to matters referred to in this judgment [75,76,79,82,88,89,92,96,99,102] (the Credibility of Registrar Powell).
5. The Credibility of Registrar Powell [87, 88,97] has ramifications in the miscarriages of justice to both the Respondent and Spunter in terms of the following:
5.1. the disputed and unenforceable costs orders of Master Sanderson in CIV 1775 of 2008 against both Spunter and the Respondent (Master Sanderson’s costs).
5.2. the disputed and unenforceable costs orders of Owen JA in CACV 107 of 2008 against the Respondent alone because he is the only Appellant in that case (Owen JA’s Costs).
5.3. the deprivation of the Respondent of his rights as the s.244 LPA 2003 Salvour [71] in the estate of Nancy Hall in the Hazelmere and Mt. Lawley Properties as agreed to by Justice Pullin in CACV 107 of 2008 in the sum of $20k plus continuing Continuing Salvour’s costs (the Salvour’s Costs);
5.4. the deprivation of the rights of Spunter as the legitimate creditor of the estate of Nancy Hall in DCA 2509 of 2002 handed down by DCJ Sweeney on 11.8.2011 (the Legitimate Creditor’s Rights).
5.5. the deprivation of the caveatable interests of both Spunter and the Respondent in the Hazelmere and Mt. Lawley Properties of Nancy Hall Estate vis a vis the rights of its administrator Mrs. Gannaway through her solicitor Mr. Christopher Stokes in the decision of Justice Simmonds in CIV2157 of 2011 (the Caveatable Interests of Creditor and Salvour’s Costs).
 5.6. the probable cause for the resignation of Registrar Powell as a result of his attempt to become the taxation master of the Master Sanderson Costs and Owen JA Costs as a judge in his own cause (the Resignation).
5.7. The CIV1397 of 2012 application by Spunter for the Judicial Review of the Errors of Justice Chaney in VR158 of 2011 for the purpose of setting aright the falsification of court records in CIV1131 of 2006 (the Subpoena). 
5.8. The joint Application of Spunter and the Respondent in CIV1275 of 2012 to set aright all the Jurisdictional Errors arising from the falsification of court records in CIV1131 of 2006 and the Credibility of Registrar Powell Issue (the Judicial Reviews).
5.9. The issue of the Credibility of Registrar Powell and the Falsification of Court Records has never been decided in previous decisions and is therefore a live issue for the Judicial Reviews in the Judicial Reviews (non Res Judicata issue).
3.Result: No willful profess-sional miscon-duct be-cause the allega-tions of the under-hand tactics and the delibe-rate mis-leading of the court by of Mr.  Taylor is true. Up until to-day the impugned court fees in CIV1131 of 2006 has never been paid despite the false receipts in the Affidavit of Mr.  Taylor dated 29.3.2007 found in CIV-1131 of 2006 provided by Simmonds J to Nancy Hall in CIV1142 of 2005 No.2 and handed over by Nancy to the Respondent.  
Respon-dent was solicitor for CIV1142 of 2005 No.1 and not the solicitor on record for CIV 1131 of 2006.  No dishonesty, no fraud. No penalty.
Profes-sional Miscon-duct:
1. Solicitor David Taylor had used underhand tactics to falsify court documents in CIV1131 of 2006 that the legal fees of $654.20 were paid on 10.2.2006 when it was never paid until today.
2. David Taylor had deliberately misled Registrar Powell about that falsifica-tions and that the Respondent was the solicitor on record for Ms. Nancy Hall in CIV1131 of 2006 when he was not.  
5
103 thru
110.
4. PRE-CULPABLE:
1).The Respondent [15,103] as trainee lawyer has no culpability as he was then under supervision by his mentor in the preparation of a “will” for Mrs. Mathias.  He is immune from any bad faith prosecution by the Applicant under the principle of vicarious liability for any imputation for any willful misconduct [106, 107,108] because he did not go on a frolic of his own or breached his fiduciary duties (Immunity of a trainee lawyer).
2) The “will” which he prepared was subject to the confirmation and rectification by his mentor but before that could happen, the disputed instructions [106, 107,108] to the Respondent was withdrawn [134] from him on the ground that the client had by then realized that she had incurred too much legal costs and wanted to get out of the situation [109, 110] (the Mistakes of Mrs. Mathias). 
3) The Mistakes of Mrs. Mathias caused her to attend at the office of the mentor and voluntarily asking for her Complaint to be settled by 19.10.2004 by way retracting her complaint voluntarily in the aftermath of her having in bad faith lodged a complaint with the Applicant on 1.9.2004 (the Mrs. Mathias Conduct).
4) As a follow-up to Mrs. Mathias Conduct, she contacted the Respondent by telephone voluntarily on 18.10.2004 [142].  She arranged for the terms of the settlement
[143] with the Respondent on 19.10.2004 with no bad faith from the Respondent. This fact was recorded in writing by the Respondent dated 19th October, 2004 [142] which indicates that she wishes to withdraw the complaint [138 to 145] voluntarily (the Retracted Complaint Occurred after the Complaint).  
5) The Mentor reprimanded the Respondent that he should not be “reinventing the wheel” which was accepted by the latter in good faith for which just chastisement he is ever remorseful.  His remorse has resulted in the common good of his improved efficiency in performing the legal services of writing wills for his clients (the Chastisement).
4(i)
Result:
No willful profess-ional mis-conduct as there is no decep-tion or dis-
honesty. Respon-dent is remorse-ful and accepts the repri-mand of his mentor and is ready to make amends.
The retrac-tion of the complaint occurred after the complaint is not a subversion of the jurisdiction of the Appli-cant as it came voluntarily from Mrs. Mathias.   
Professional Misconduct in failing to reach or maintain a reasonable standard of competence and diligence in drafting:
a) a will; and b) a trust deed for Mrs. Naili Mathias.

6.
116 through 126
5. PRE-CULPABLE:
1).The legal work was required by Mrs. Mathias and it was performed for her accordingly by the Respondent as a trainee lawyer under supervision [116, 122]. The justified costs for the extra work was inserted as an afterthought after the costs agreement was written alone justifies the Insertion made at the time of the drafting of the costs agreement but before signature (the Justified Insertion). 
2) The Justified Insertion needs to be done in the “squeezed space” [123], otherwise it would not be called an Insertion. The fact that it was not initialed [124, 125] could mean that it could have been made before signature rather than after signature [122] (The nature of an Insertion). 
3) The Respondent could not remember the exact sequence of which comes first, the signature or the Insertion because it was never significant to him.  All he could remember was that the research work needs to be done and it was taking the hours and after the costs agreement was written, something important that was discussed earlier was left out.  The Respondent made it clear that as soon as it was signed or INSERTED a copy was provided to Mrs. Mathias. WHERE IS THAT COPY? THIS COULD PROVE WHETHER THE INSERTION WAS DONE BEFORE OR AFTER SIGNATURE. That costs agreement is never meant by the drafter to be telling a lie about itself (the Disputed Sequence of the Insertion).
3) The bargain was struck and the work was performed and therefore the costs had to be paid.  Mrs. Mathias Conduct in the aftermath as explained by the Mistakes of Mrs. Mathias as cited above including her refusal to attend the hearing of this judgment shows that she no longer wants to complain and is satisfied with the status quo [119, 121].
4) No willful professional misconduct coupled with the fact that the complaint was voluntarily retracted and there was no dishonesty, nor any misappropriation of funds [126].

4(ii)
Result:
No willful miscon-duct as no property has been misappro-priated, no dishonesty and fraud.   The Respon-dent is remorse-ful of his innocent mistakes. The com-plaint has been with-drawn and there is no subver-sion of the jurisdic-tion of the Applicant. Client non-consent for the Insertion is not proven. 
Professional Misconduct:  1) inserting any additional provisions into a costs agreement
2) without his client’s consent.
7.

127 thru 133.
6. PRE-CULPABLE:
1) The work [138] for the “will” and trust deed originally claimed at $1,732.00 [130]
and the Mondial Insurance Claim at $350.00 [132] totaling $2,032.00 was discounted by the Respondent as agent for his Mentor in the settlement sum of $300.00 received by his employer on the settlement day on 19.10.2004 (Receipt of $300.00).
2) The Receipt of $300.00 represents a generous discount of $1,732.00 is misapprehended by the Applicant that the Respondent had a consciousness of guilt (the Imputed Consciousness of Guilt).
3) The Misapprehension is the prosecutorial misconduct of the Applicant because it is impregnated with malice based on the Imputed Consciousness of Guilt and the Invalid assumptions that relates to the above argument of Justified Insertion and to the Impugned excessive charge of $350.00 [132] for the Mondial Insurance Claim (The Misapprehension).
3) The Misapprehension is refuted by the Justified Insertion and the Non-Excessive Charge [132]:  Legal fees of $350.00 is warranted on the ground that the condition of the impugned Mondial Costs Agreement states that $300.00 is payable if the compensation payout is $1,000.00 or less but the actual compensation payout exceeds that limit at $1,591.00 [129]. (However, the fact remains that there is no original intention of the parties to treat this as a contingency payment) (Misapprehension Explained).
4) No intention to derive any pecuniary advantage [130, 132] (limited to the Receipt of $300.00 for the mentor) by the Respondent for himself as he was a trainee solicitor working under supervision of his Mentor (No intention to defraud).  
5) Respondent as trainee lawyer was not the solicitor but the agent for the mentor and has no culpability as he did not receive any payments for the job he had done under supervision of his mentor.
4(iii)
Result:
No Profes-sional Miscon-duct as only one settlement sum of $300.00 was received for the two transactions.  No willful miscon-duct on the ground of the misappre-hension of the Appli-cant’s prosecutorial misconduct based on bad faith.
No disho-nesty or fraud.
No penalty.
Professional Misconduct:
Charging Mrs. Mathias excessive fees.
8

134 thru 137.
7. PRE-CULPABLE:
1). The situation is that of the reasonable subjective perception of an indignant novice lawyer in the person of the Respondent feeling distraught and outraged by Mrs. Mathias unreasonable termination of her Mandate to him (The Outrage).
2) The Outrage is the result of the Respondent having been frustrated in his first embarkation on the journey of a novice lawyer in the preparation of the inchoate “will” and trust document to suit the personal circumstances of Mrs. Mathias that was pending the approval of the Mentor (the Frustration).
3) Any novice lawyer in the shoes of the Respondent would have been subjected to such subjective feelings of the Outrage and the Frustration (the Reasonable Conduct).
 4) The Respondent is remorseful of his writings and his conduct [135, 136,137] having regard to the Outrage, the Frustration and the Reasonable Conduct and sincerely apologizes to the Regulator and the Applicant that such misconduct shall not be repeated in the future (the Apology).
5) The Respondent is immune to prosecution under the cover of vicarious liability. 
4(iv)
Result: Guilty of Unsatisfactory Conduct only if found to be culpable but is seeking an apology.
No dishonesty or fraud.    
Professional Misconduct:
Using intemperate and offensive language in a letter to Mrs. Mathias.
9.

8. PRE-CULPABLE:
1). There is no “subversion of the jurisdiction” of the Applicant on the following grounds:
1.1. The benefit of the doubt of the alleged impropriety of the Insertion [125] should be given to the Respondent.
1.2. The imputed bad faith [124,125] of Mrs. Mathias ameliorates the blameworthiness of the alleged Insertion before signature with her consent.   
1.2. It is not good law to say that Mrs. Mathias do not have a right to retract her own complaint [140, 141] as expressed by Member Gerard Butcher of the Victorian Civil and Administrative Tribunal should be heeded by this tribunal in Legal Services Commissioner v Brasse (Legal Practice) [2008] VCAT 842 (8 May 2008) in these words:
“It may well be that matters which are the subject of complaint can be resolved between the legal practitioner and the client or indeed other person who has made the complaint and it would never be said that this should not be attempted”   
4(v)
Result: No willful misconduct as there is no such  jurisdic-tion of Applicant to be subvert-ted by the Respon-dent. The law permits the retraction of the Com-plaint.
Professional Misconduct:
Respondent attempted to subvert the jurisdiction of the Legal Profession Complaints Committee.
10

76, 93, 94, 121, and 147 thru  165.    
2. CULPABLE:
1). The unilateral communication [152] between the Associate of Jenkins J and the Respondent is short-lived [164] as explained [156] and as evidenced at page 40 of the Book 1 referred to at item 4 above.  The purpose of the short-lived unilateral communication [160] is for the Respondent to use it as a Shield instead of a Sword against the anticipated underhand tactics of David Taylor [157, 158, 159] to hide his default through the court machinery of his non-compliance with the time of the essence Order of Jenkins J dated 20.1.2006 in CIV 1142 of 2005 No.1 (Jenkins Order) [151] (The Strategy of the Shield)
2) The Strategy of the Shield is devised by the Respondent for the purpose of protecting himself from the future effects of the words of Mr. Taylor when he exuded confidence in himself that he has his way with the judicial system by his words to the effect: You can do what you like.  I do not care. I do not want to compromise with you on this issue of the falsifications of the filing date.
2) Up till today and still continuing, the  undisputed fact remains that the Impugned Court Fees for CIV1131 of 2006 was NEVER paid into the Registry of the Supreme Court Registry on 10.2.2006, nor on 16.2.2006 but was paid some three years later on 19.5.2009 and then withdrawn on the same day. The purpose of this payment was to enable Mr. Taylor to obtain the false receipt No.202483 referred to by Registrar Powell as having been paid by credit card on 16.2.2006.  This is the false receipt provided by Mr. Taylor in his false affidavit dated 19.3.2007 filed in CIV1131 of 2006 (the False Receipt). 
3) This fact of the False Receipt came to light as the inevitable truth in VR158 of 2011 on 29.11.2011 but it was tampered with and is now at the time of writing being considered by the Supreme Court in CIV 1397 of 2012 (the Missing Bank Statement). 4) The Missing Bank Statement shows that the Impugned Court Fees was never paid on 16.2.2006, never paid again on 19.5.2009 and that the receipt bearing No.202483 dated 16.2.2006 is a the proof of the falsifications of court records in CIV1131of 2006 and therefore the extension of the Caveats of Jenkins J Order in CIV1142 of 2005 No.1 is Null and Void. Similarly, the Orders of CIV1142 of 2005 No.2 by Simmonds J is also null and void as it is tainted by the fraud of Mr. Taylor (the Fraud on the Court by Mr. Taylor).
5) The Invoice obtained by Maurice Law from the Supreme Court Registry available at my blogspot is the evidence of the Fraud on the court by Mr. Taylor found at
3) If the impugned court fees are never paid, it is a fiction for Registrar Powell, David Taylor, Their Honours Owen JA in CACV 107 of 2008, Master Sanderson in CIV 1775 of 2008, and Simmonds J in CIV 1142 of 2005 No.2 and CIV 2157 of 2011 to admit to the validity of the falsified Writ of Summons in CIV1131 of 2006 that bears the commencement date of that action on 10.2.2006 for the purpose of signifying due compliance with Jenkins J Order.  The Evidence of the Falsifications is the proof of the Fraud on the Court [151,152]. (Non-Compliance with Jenkins J Order).
4) The Respondent’s communication with Jenkins J for the purpose of exposing the Non-Compliance with Jenkins J Order and for averting the impending disaster in defence of his then vulnerable and disabled client in the person of Ms. Nancy Hall (who died grieving the miscarriage of justice) was taken up seriously through the prosecutorial misconduct of the Applicant to favour Mr. Taylor and Registrar Powell (the Mr. Taylor Prosecutorial Misconduct).   
5) Another example of the prosecutorial misconduct happened when the Applicant look with askance at [162, 163] upon the complaint of serious professional misconduct by Mr. Dean Elek-Roser for writing a non-shortlived unilateral communication to His Honour Justice Hasluck in CIV1903 of 2008  bearing complaint No.164 of 09.  This matter was revealed to the Applicant by the Honourable Justice Hasluck himself to the Respondent and this revelation is contained in the transcript of those proceedings and yet it does not merit any serious reprimand at all by the Applicant as it was considered a triviality. See the stark contrast [164, 165] of the prosecutorial misconduct of the Applicant (the Prosecutorial Misconduct with Mr. Roser).   
 
5:
Result: No profess-sional miscon-duct as a result of the Prose-cutorial Miscon-duct of the Appli-cant and its bad faith towards the Respon-dent.  Mr. Elek-Roser writing unilateral letter to Justice Hasluck  for an ulterior purpose is consi-dered a triviality whereas the Respon-dent’s writing to Jenkins J for a good purpose is a profes-sional miscon-duct.
David Taylor was notified of this commu-nication 2 days later not as a sword but as a shied to defend an innocent and disabled client, Nancy Hall.
No Dis-honesty or fraud. No Penalty.
Professional Misconduct:  1). writing to Justice Jenkins who had delivered her judgment in CIV1142 of 2005;
2). seeking legal advice in a matter of which the Respondent was retained by Nancy Hall;
3) without notifying David Taylor as solicitor for Spunter Pty Ltd. 
11
166 thru 176.
3. CULPABLE:
My response letter to Ms. Anna Buckley bearing the ref. A15/06 and dated 26.5.2006 at item (1) M & J Metals Ltd (open file) states the following facts:
1). On 9.2.2005, I started work for M&J and by 8.3.2005, Respondent was paid $500.00 as my legal costs that was originally agreed at $1,000.00 but was reduced after work had been performed for the Creditor Client (First Non-Contingent Fee Payment for work done).
2) The judgment sum due from Mr. White on 11.8.2005 was $8,418.90 as at the 11th day of August, 2005 due for an amicable settlement including interests and payments are to be made to the Respondent as per the terms at 166 through 169 (Quantum of Debt before Compromise).
3).M & J at time of compromise on 11.8.2005 agreed to the Debt to be paid by an upfront payment followed by 8 monthly installments with the last installment being $935.65 instead of $1,000.00 for each of the seven Installments, taking into account interests charges (the Compromised Payment at the Directions of Client Creditor).
4) The $2,000.00 [168,169] upfront payment is for the satisfaction of the Respondent Non-Contingent Legal Costs for legal work performed for the Creditor Client up to 11.8.2005 (the Second Non-Contingent Legal Costs Payment).
5) A separate arrangement was made between the Client Creditor and the Respondent for the commission to be paid for the debt collection of the Eight Installments which has nothing to do with the legal work performed by the Respondent for his Creditor Client.  The Commission for the Installment Debt Collection is struck at 30 per cent [171(e), 173] (the Debt Collection Commission).
6). Respondent wanted to go to Malaysia for a three month reading in chambers stint from 5.9.2005 and returning on 5th day of December, 2005.  Respondent therefore issued a cheque representing the advance payment of $700.00 to cover the payment of the first installment of debt collection due on 12.8.2012 as he was relying on the bonafides of the debtor to bank in the first installment to honour his part of the bargain during his temporary absence. This is in accordance with the s.137 Directions of the Creditor Client with regard to the mode of debt collection for the eight installments (Advance Payment for the First Installment).   
7).When Respondent returned to Perth on 5.12.2005, he found that the debtor had reneged on Compromise of the Debt Collection Arrangement.  The first Installment due on 12.8.2005 was not paid in September, 2005, nor the installment due on the 1.10.2005 nor the one on 1.11.2005 but he paid his first installment. As a result of the Respondent chasing up the debtor, he paid his first installment on 11.1.2006 and the second installment of $500.00 only on 23.3.2006 followed by another payment of $100.00 on 3.5.2005 (Debtor Reneging on the Compromise).  
8) Thereafter, Mr. White the debtor was unable to pay and at the same time he was applying for deregistration of his corporate body debtor Finebeam Pty Ltd. The Respondent then applied on behalf of the Creditor Client for the deferment of the deregistration of Finebeam, which was granted to M & J for 180 days (Deferment of Deregistration).  
9). After further legal works to pursue the debtor company, the Client Creditor M & J  indicated its desire no longer to pursue the matter.  In the result, M & J is indebted to me in the sum of $700.00 to the Respondent for the advanced payment made to it by the Respondent on 12.8.2006 as all payments made by Debtor were promptly paid over to the Client Debtor (the Debt of Client Creditor).
10) The costs of extra legal work in the aftermath of the Debtor Reneging on the Compromise in the Invoice for $789.69 dated 10.12.2007 together with the Debt of the Client Creditor totaling $1,489.69 wre never paid to the Respondent (Debt still owing to Respondent by M & J Metals). 
11) Client Creditor had expressed its desire not to continue with the litigation as its costs are disproportionate to his returns and therefore it is not a viable venture.  The Respondent received a net income of $1,010.31 [171(f)] for all his honest legal works performed by him for the Client Creditor.  There was no complaint by the Client Creditor and this again shows the Prosecutorial Misconduct of the Applicant.  (the M & J Prosecutorial Misconduct).  
6:
Result:
No willful profes-sional miscon-duct or Unsatisfactory Conduct.  Respon-dent received two pay-ments for work done as directed by his Client Creditor in accor-dance with the s.137(2) direc-tions. There is no contin-gency payment for the debt collection of the eight installments at a commission payable to the debt collector.
No dishonesty and no fraud. Respon-dent only received net income of about $1k instead of the $5k as alleged by the Appli-cant.
No Penalty.
Unsatisfactory Conduct:
1).seeking to receive remunera-tion from M & J Metals which varies according to amount of debts to be recovered.
2).In addition to costs obtained from the opposing party. 
12

177 thru

193.
4. CULPABLE:
1). The Respondent [177] was then an independent lawyer and is not working under supervision. Therefore, he has full responsibility for what he did as he cannot hide behind the façade of vicarious liability and his degree of blameworthiness is entirely his if he were found to be guilty of any willful misconduct or engaged in any form of dishonesty or had derived any pecuniary advantage or there has been an unlawful misappropriation of funds (Full Culpability).
2). At 178, “drawing a lot” means that the Respondent of his own volition chose which client he wanted to represent and in this case the lot fell upon Tylor instead of Fleay as the most pathetic person that he chose to represent in court (Tylor is the Respondent’s Client).
3) The Respondent accepts all the statements of facts [177, 193] but would like to elucidate on the point of error in this judgment, with regard to the concept of  conflicting interests existing between Tylor and Fleay (clients’ conflict of interests) as distinct from the conflicting interests then existing between the Respondent and Tylor or between Respondent and Fleay (lawyer-client conflict of interests), in terms of the following:
3.1. After having been apprised of the three different stories as narrated by Tylor, Fleay and Powell, who were the victims of police arrest on 14.3.2005, the Respondent made a decision on who he needs to represent in court is the one who has committed a grievous crime (Who needs legal Representation).
3.2. He does not need to represent Fleay because he is not the owner of the Cannabis caught in his car with intent to sell and supply.  He did not commit a grevious crime vis a vis Tylor who needs Legal Representation (the Owner of the Commercial Cannabis).
3.3. The real owner of the Commercial Cannabis is Tylor and he confessed to the truth before the Respondent (The Real Supplier of the Commercial Cannabis).
3.4. Powell is out of the picture because he is not the Real Supplier of the Commercial Cannabis nor is he involve in transporting it ( Powell’s non-involvement).
3.5. True to his duties to the court first and then to the client later, he advised Tylor to plead guilty as soon as possible as the Real Supplier of the Commercial Cannabis (the Real Criminal is advised to plead guilty).
3.6. True to his paramount duties to the court, he decided to act for Tylor if he were to appoint him as his lawyer (the lot fell upon Tylor).
3.7. As soon as he is appointed the lawyer for Tylor, his interests as Tylor’s lawyer coincides with his own interests to defend Tylor by advising him to plead guilty to the charge as the Real Supplier of the Commercial Cannabis ( the Coincidence of the Interests of the Respondent and the Interests of Tylor).
3.8. Since Fleay admits to both Tylor and to the Respondent as Tylor’s counsel that he is not the owner of the Commercial Cannabis, Fleay’s interests does not conflict with Tylor’s interests nor does it conflict with the Respondent’s interests (Respondent’s and Fleay’s Interests are non-conflicting).
3.9. Because Respondent’s and Fleay’s Interests are Non-conflicting, it was alright for Respondent to write the preliminary submissions for Fleay while advising him to get find a new lawyer to represent his own interests to plead not guilty to the charge that he is a Supplier of the Commercial Cannabis at the Magistrates Court in Perth (No conflict of interests for the Preliminary Work).
3.10. Fleay took Respondent’s advice to defend himself in the Collie Magistrates Court using a different counsel independently of the trial of the Tylor at Perth Magistrates.  Tylor pleaded guilty to those charges and was fined (Respondent’s Defended Tylor alone).  
3.11. Respondent Defendant Tylor alone is representative of the principle of law that he must have absolute loyalty to Tylor only; this loyalty prevents the Respondent from representing the interests of Fleay which must satisfy the condition that they are adverse to those of Tylor only and this is not the case because the two parties interests do coincide and they do not conflict (No Professional Misconduct).  
7(1)
Result:
No willful profess-sional miscon-duct because a lawyer cannot know that Fleay and Tylor interests are conflict-ting until he is aware of the truth. Once the truth dawns upon him, he had by then exer-cised his cons-cience and respon-sibility not to act in conflict of interests.
Once the lawyer decide to represent one party, his interests coincide or merged with the repre-sented party.  The lawyer’s interests then must not conflict with a third party who has adverse interests to his client or to the merged interests of the lawyer.  
In this case, the lawyer’s interests does not conflict with those of Fleay.
No disho-nesty and no fraud.
Professional Misconduct:
1).for giving legal advice to and representing two parties between 14.3.2005 and 31.8.2005 in criminal charges.
2.In circum-stances where the two accused’s interests were or were potentially in conflict.
13
191 th-rough
197.   
5. CULPABLE:
1). At 191(4) the “apparent” conflict of interests between Fleay and Taylor means the alleged conflicting interests are not real but are a false assumptions of the Applicant or a figment of its imagination (the False Assumption).
2) The False Assumption is apparent from the following facts:
2.1. Fleay and Tylor were united in a common purpose to see their common lawyer the Respondent to solve their common problem with the police (the Unity of Fleay and Tylor with a common problem).
2.2. The common problem is that the police got it wrong:
2.2.1. Fleay was not the owner of the Commercial Cannabis but was wrongly charged.
2.2.2. Tylor being the rightful owner of Commercial Cannabis was not charged and he would not want to trouble his friend Fleay or inconvenienced him.
3) The conflicting interests can only be real if (Conditions for the Real Conflicting Interests):
3.1. the will of a weaker party had been suborned by the will of the stronger party.
3.2. the suborned party is at a disadvantage.
3.3. the disadvantage of the suborned party is caused by the unethical conduct of the Respondent. 
3) The Unity of Purpose of Fleay and Taylor to solve their common problem indicates that their respective interests are not conflicting with each other or are apparent only and not real (No conflicting interests between Fleay and Tylor).
4) The No Conflicting Interests Between Fleay and Taylor entitles both of them to employ the Respondent to solve their common problem [191(7),191(8)].  (Entitlement to a Common Lawyer).
5) The purpose of the Respondent [191(5)] is to avoid the public confusion and the public perception that the Respondent is biased against Tylor in favour of Fleay or vice-versa and therefore, he decided to act for Tylor and therefore he disqualified himself from acting for Fleay; that is the reason for the lot falling on Tylor (the disqualification).
6)  The Respondent [192, 192, 193, 194, 195,196] did not provide an inaccurate or misleading response [191(4), 191(5), 191(7), 191(8)] to the Applicant as explained in paragraphs 1 to 5 above.      
7(ii)
Result: No Unsatis-factory Conduct because the Respon-dent had not misled the Appli-cant on the respect-tive posi-tions of Fleay and Taylor having mutual non-conflict-ting interests against each other.
No dis-honesty and no fraud. No penalty. .
Unsatisfactory Conduct:
by providing to the LPCC on 12.6.20006 an inaccurate and misleading response.
14
198 to 218
6. CULPABLE:
1) The Respondent [22, 203, 205, 208, 209] is given abundant evidence by Rochelle and her father concerning the need to protect the child Jack from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence pursuant to Family Law Act 1975 (Cth), s 60CC(2) (Sufficient Evidence).  
2) The Applicant is seen to be interfering [204]  with the ‘paramountcy principle’ or the overriding consideration for the Family Court and prevails over every other consideration for the Family Court of the ‘best interests of children’ principle that prevails over every other presumption to be applied or obligation imposed by s 60CA of the Family Law Act 1975 (Cth) and its continued effect as the overriding obligation imposed on family courts confirmed in the Full Court decision of Goode & Goode (2006) FLC 93-2867 (2006) 93-286 (the best interests of Jack). 
3) The exigency of the circumstances and the instructions of both Rochelle [206, 210 through 214] and her father required the Respondent to contact Mr. Merrick urgently through his commanding officer as the only way possible because other means of contact had failed (the only means of contact).  
2) The facts of sufficient evidence, Best Interests of Jack, the Only Means of Contact could be confirmed by Ms. Rochelle Clohessy herself.  Rochelle had the right to take away all the records thereby limiting the Respondent’s capacity to provide the necessary evidence [217, 218] (Confirmation by Ms. Clohessy).
3) No willful misconduct on the part of the Respondent, no dishonesty, no deception, no unlawful misappropriation of funds, no reputation was ruined and no malice.  That Notice is the basis for the proper outcome from the Family Court and the safeguard of the family home of Rochelle for which her family had contributed to (the Safeguard of the Family Home).   
8
Result:
No profes-sional miscon-duct as there is no willful misconduct and no misappro-priation of property or funds or any decep-tion or disho-nesty on the part of the Respon-dents.  The allega-tions are based on the merits of the case and there-fore non- inflam-matory in nature and is the basis for the claim of Rochelle’smatri-monial home.
Professional Misconduct:
1) on or about 19.4.2006 made allegations of improper conduct against the de-facto husband Ross Merrick whilst the Respondent was acting as solicitor for one Rochelle Clohessy without reasonable basis for doing so.
15
219 thru 275
(Also refer to the nine para-graphs at item No.12 above rela-ting to the 30% of the Debts taken as a guide for the pay-ment of the Res-pon-dent’s Legal Costs and para-graphs 166 thru 176).
7. CULPABLE:
1). The Respondent [219 (1)] did maintain a General Office Account [221] instead of a trust account after his inquiry from the  Board which satisfied him that there was no necessity for a trust account as long as he does not hold trust monies (the General Office Account).  
2) The Respondent acknowledges [220] that monies received by him from Mr.White as director of Finebeam Pty Ltd (the Debtor) for and on behalf of M&J Metals Pty Ltd (the Client Creditor) may not be placed into a trust account but into the General Office Account as this issue was already dealt with by the Client Creditor i.e. by its director Mr. Chang Ming Tang (Mr.Chang), pursuant to s.137(2) of the LPA2003.
2) The Respondent [228, 229] put in writing the terms of the agreement reached between Creditor and Debtor on 11.8.2005 signed by the debtor for the Client Creditor to sign and return in due course (the Agreement).
3) Together with the Agreement is the facsimile letter by the Respondent dated the same day to the Registrar of the Perth Magistrates Court copied to the Client Creditor, withdrawing Plaint No. 4018 of 2005 as a result of the Agreement (the Withdrawal).
4) Also accompanying the Agreement is the   facsimile letter dated the same day stating the terms of the Compromise and the mode of collection of the eight installments with commission for collection service at 30 % for each installment as and when they fall due and NOTICE that the Respondent was going to be away for some three months   (the Directions of Mr. Chang).
3) The Agreement confirms the Directions of Mr. Chang and which also states that the $2,000.00 received by the Respondent from the Debtor on 11.8.2005 as part of the Compromise and in reduction of the debt is for the payment of legal fees due to the Respondent that had already incurred by the Client Creditor as of that date. This is also the Lien Agreement pursuant to ss. 137(2) and 137(4) of the Act at 221(the Lien).  
4) The Lien and the Costs of Collection of the Eight Installments are part of the Directions of Mr. Chang and they do not represent a costs agreement for a contingent sum of reward for the legal services [222] (Commissions for Debt Collection and Legal Work are Separate and Discrete Items of the Legal Costs).
5) The events that transpired in relation to the Commissions for Debt Collections are as follows:
5.1. Debtor promised to pay the First Installment due on 1.9.2005 on the next day. i.e. 12.8.2005 (the Promised First Installment).
5.2. Relying on the Promised First Installment, the Respondent issued a cheque to the Client Creditor representing 70% of the First Installment which was cashed by it through the General Office Account.
5.3. After his return from a three month holiday in early December, 2005, the Respondent found that the First Installment was never paid into the General Office Account by the Debtor (the First Installment Default).
5.4. After chasing the Debtor, the First Installment Default was made good on 11.1.2006 but through an oversight the Respondent made the second payment of $700.00 through the General Office Account to the Client Creditor in acknowledgement of the First Installment made Good (the First Installment Made Good).
5.5. There followed the payment of the Second Installment by the Debtor of
5.4. 11.1.2006 and another $500.00 on 23.2.2006 and $100.00 on 3.5.2006 (the Partial payment of the Second Installment).
5.5. The Respondent paid the Client Creditor the sum of $350.00 and $70.00 as soon as he received the Partial Payment of the Second Installment on their respective dates (Second Partial Installment Made Good).
6. No Trust Monies [223, 224, 225, 226, 227, 228, 229] but only $1,600.00 that was dealt with by the Directions of Mr. Chang and was not required to be placed into a trust account (No Trust Monies).
7. At all material times, the client creditor company was not required to pay the court fees and other out of pocket disbursements upfront.  The Respondent paid for them on the Client Creditor’s behalf and later claim for a refund of those disbursements separately from the Client Creditor which was duly honoured (No Trust Monies for Disbursements).
8. The Respondent agrees that he is not thoroughly efficient with the timing of the issuance of the Invoices and as a result some were issued backdated. He expressed his remorse and promise to the Board and regulator that these inadvertent and honest mistakes [230, 231, 232] without any dishonest intentions or accompanying misappropriations of funds shall not be repeated.  This is an example of some honest mistakes committed by the Respondent (the Honest Mistakes).
9(i)
Result:
No profess-sional miscon-duct as there are no elements of disho-nesty involved, no fraudu-lent inten-tions nor any mis-appropriations of funds belonging to clients or third parties. Honest mistakes in not issuing Invoices at the right time.
Professional Misconduct:
did not maintain a trust account within the meaning of s.137 of the LPA2003 between February, 2005 and February, 2006.
16
233 through 275
8. CULPABLE:
1). The Respondent knows the mechanics of providing these invoices but was unaware of the timing to issue them as indicated in item 16 paragraph 8 above and [234, 235, 236, 238, 243, 246, 249, 251, 252, 254, 256, 266, 268, 269, 270, 271, 273, 275] in respect of Mr. Hildebrant and Ms. Chong Vui Lin and other clients, because he was mistakenly aware of the concept that monies received for work to be done was not trust monies derived from the law of the British Commonwealth Countries [239].  
2) Moreover, he has never been briefed in his Articles Training Program and in his restricted year of practice about the niceties of trust monies and he was confused by the advice that he received that as long as he does not hold trust monies [245], then there would be no point in having trust accounts which would involved expenses in auditing [240].  This was his first year of independent legal practice and he had teething problems and will eventually get acclimatized to it [241, 243].   
3) The tribunal corrected his wrong concept about trust monies and he is ever ready to adjust and make amends for it in the future [241]. 
4) The Regulator should not be entrapping him for this innocent and honest mistake at 240.
5) The Respondent is remorseful of his lack of attention to the details of the timing of the Invoices (remorse) [238, 244, 275].
9(ii)
Cannot be Willful profes-sional Miscon-duct because the elements of disho-nesty, fraud and mis-appro-priation of funds are missing.
Accepts repri-mand and apolo-gizes and is now aware of his mis-taken concept of trust monies.

Professional Misconduct in failing to render an account in respect of legal services and failing to provide notices in accordance with ss. 231 and 232 of the LPA2003.

The Honourable Members of the Panel:
I humbly submit the following:

1. The above Table summarizes the jurisdictional error[4]s of the tribunal’s allegations of offences committed by the Respondent based on his culpability and non-culpability dependent on his status either as a trainee lawyer or an independent lawyer that is being contended for in the 9 page-facsimile and email letter dated 14.5.2012 found at http://wwwnicholasnchin.blogspot.com.au/2012/05/email-and-facsimile-to-both-lpcc-and.html to tribunal and copied to the Applicant[5].  The Respondent therefore seeks orders:

NO REPORT IS NECESSARY:

1.. or required to be transmitted to the Supreme Court (Full Bench) for the purpose of striking the Respondent off the roll[6] on the ground of culpability or blameworthiness, in the following terms:  
1.1. The Findings as in the Table of Summary above, are divided into two categories:
1.1.1. The Respondent is not culpable or at a lower end of culpability whilst a trainee lawyer under supervision of his mentor during the period from 6.2.2004 to 14.2.2005 (sic: 6.2.2005) [15].
1.1.2. The Respondent is normally culpable as an independent legal practitioner and cannot harbour under the cover of vicarious liability of his former employer during the period from 15.2.2005 (sic: 6.2.2005) [15] until the 12.9.2006 as he was an independent lawyer.
1.1.3. The matters involving the retracted complaint of Mrs. Mathias [103 to 146] is not a subversion of the Applicant’s authority as it involves the agency of a trainee lawyer attracting vicarious liability of the mentor who was in turn was the appointed solicitor for the Vendors of the Centenary Lunch Bar [19 to 48]. The Respondent was in the duality of roles as agent trainee-lawyer and as pro-bono free agent for his son Paul Chin as Purchaser, who not being a lawyer owes no public duty as an officer of the court. He is therefore twice over not culpable in his dual roles. As a pro-bono free agent he is not under supervision and therefore, the Purchaser is liable as a litigant in person as he is without a lawyer.  As a lawyer trainee, the Respondent was under the supervision of his mentor and the mentor is liable as the principal and as solicitor for the Vendors (Non-Culpability of a Trainee Lawyer in Dual Roles)
1.1.4. The prosecutorial misconduct of the Applicant (MY UTMOST RESPECT TO THEM) in that it did not take issue with the wrongdoings of Ms. Whitehead as the trainee lawyer with her principal Mr. Pino Monaco in relation to the case of Dr. K S Chan [54, 54, 55, 60] shows that it had given tacit approval to the concept of Non-Culpability of Trainee Lawyers (Ms. Whitehead).
1.1.4. The prosecutorial misconduct of the Applicant in that it did not similarly pursue the wrongdoings of Mr. Simon Patrick O’Brien as the trainee lawyer with his principal Mr. David Taylor with reference to his falsifications of court records in CIV1131 of 2006 [71, 76, 79]. (Mr. Maurice Law in VR158 of 2011 is currently issuing a Subpoena in CIV1275 of 2012 to have this issue resolved). This again is a similar tacit approval of the Applicant to the concept of Non-Culpability of Trainee Lawyers (Mr. O’Brien).
1.1.5. The prosecutorial misconduct of the Applicant with regard to its condoning conduct of Ms. Whitehead, Mr. Obrien, Barrister Peter Quinlan in relation to misleading Her Honour Judge Eckert in VR137 of 2006, Barrister Scott Ellis in relation to misleading His Honour Justice Ken Martin in CIV 1903 of 2008 No.2 and Solicitor Dean Elek-Roser in his unilateral communication to His Honour Justice Hasluck in CIV1903 of 2008 No.1 exemplifies the bad faith or the lack of bona-fides of the Applicant in these proceedings (the Bad Faith of the Applicant).
1.1.6. The Bad faith of the Applicant is further exemplified by the prosecutorial misconduct of the Applicant in its relentless pursuit of the Respondent (with regard to some non-existent professional misconduct or unsatisfactory conduct which it already acknowledged at the initial stages of these proceedings as trivialities[7]) and with so much vigor and at so much public expense, to the extent that it is very hard for the reasonable person to resist the perception that the Applicant is reasonably seen to be abusing using its powers and is motivated by malice or is working at the behest of someone very powerful persons who is set to influence the outcome of the due process of justice for their friends whose interests are going to be affected as the result of the detriment suffered by the Respondent is becoming cognizant to by the courts (the improper motives).
1.1.7. The reasonably perceptible concept of improper motives of the Applicant  cannot be reasonably resisted or brushed aside, if one were to look at the submission of the Applicant and to have regard to the fact that there is no reference in this judgment to the use of the epithet “fit and proper person” to practice law being ascribed to the Respondent’s professional misconduct and unsatisfactory conduct [8] vis-à-vis the specific nine references of the tribunal to “fit and proper person” in the judgment of another lawyer in another case in [2011]WASAT 118 (S); albeit in the latter case, there was an unsuccessful attempt by the Applicant to refer the matter to the Supreme Court (full bench) for the reasonable initiation of the striking off the roll process (the Unfitness Issue).
1.1.8. The Unfitness Issue, the Prosecutorial Misconduct and the Bad Faith and the Improper Motives of the Applicant ties in with the non-findings by the tribunal of any element of some or any dishonest conduct of the Respondent, which is capable of denoting either willful misconduct or misappropriation of funds of clients property or the derivation of any pecuniary advantage by the Respondent resulting from the deprivation of his clients or some third party funds or assets without their consent or any form of his gross negligence being so exemplified. If so, the Respondent submits, they would reasonably entitle the Applicant to properly make a claim to this Honourable Tribunal for the Respondent to be struck off the roll.  Where none exists, the weapon used with malice (MY UTMOST RESPECT) is recoiling upon its user the Applicant, and is reflective of its lack of bona-fides (the Aggravated Bad Faith).    

b).  That the Respondent do apply for a practice certificate because there is no longer anything to be determined by the Supreme Court (full bench) pursuant to the Respondent reason as to why NO REPORT should be so transmitted;

COSTS ARGUMENT:

c). For costs pursuant to:  

c.1.      S.87(3) of the State Administrative Tribunal Act, 2004 (the SAT Act) –requires the Applicant and the Board to compensate the Respondent for closing down his legal practice and unreasonably causing him to incur expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought including his loss of earnings without making findings of professional misconduct or unsatisfactory conduct first (the irresponsible conduct).  The  irresponsible conduct is unlawful and it did cause detriment to the Respondent as it is contrary to the provisions of s. 156, 177, 180 and 182 of the Legal Practice Act, 2003 (WA) (the LP 2003 Act); such loss resulting to the Respondent is to be calculated as from the 12.9.2006 until the 24.4.2012 and continuing… (Costs and Damages);  

c.2.      s.87(4) of the Act, and having regard to the Costs and Damages and the fact that:

c.2.1.   the Applicant by virtue of its Aggravated Bad Faith [MY UTMOST RESPECT) did not genuinely attempt nor assist the Board to make a decision on its merits;
c.2.2.   the Board through its improper delegated authority [12] did not genuinely attempt to make a decision on its merits. 

c.3.      S.87(5) of the Act, and having regard to the Costs and Damages and the fact  that there was already a settlement entered into by the Board on 25.9.2007, which both the Applicant and the Board subsequently repudiated [9,11, 13] that had unreasonably caused detriment to the Respondent and unreasonably disadvantaged him. Regard must be had to the fact that the Respondent had been vexed SEVEN TIMES on res judicata matters[9]

c.4.      S.87(6) of the Act and the fact that both the Respondent and the Board through its fault in not having the proper delegation of authority to the Professional Affairs Committee [12] had caused detriment to the Respondent in terms of the Costs and Damages.
  

PENALTY:

Applicable legislation with respect to the imposition of Penalty:

  1. Respondent agrees to the operative effects of the LPA2003 since 1.3.2009 subject to the Costs and Damages caused by the Applicant’s Prosecutorial Conduct.   
  2. The tribunal findings of the alleged offences that occurred in the period between July 2004 and April, 2006 are marked by the demarcation date of 15.2.2005 (the Demarcation Date).
  3. The EIGHT alleged PRE-CULPABLE Offences occurred before the Demarcation Date.  The remaining EIGHT alleged CULPABLE OFFENCES occurred after the Demarcation Date (the Period).  
  4. Respondent agrees to the operative effects of the LPA subject to Culpability Issue arising from his employment as a trainee-lawyer during the period of the alleged PRE-CULPABLE Offences are to be subsumed under the vicarious liability of his principal and mentor (Trainee exemption of Liability).
  5. Respondent also agrees to the operative effects of the LPA subject to the Culpability Issue during the period arising from his status as an independent lawyer that is subject to the common law rules that any findings of professional misconduct must be premised on willful wrongdoings involving dishonesty or fraud or misappropriation of funds or assets without the consent of the persons deprived and gross negligence (Independent Lawyer Culpability).
7.   The Respondent is to be exempted from any Penalty imposable by the LP Act for the Tribunal findings of the eight PRE-CULPABLE alleged offences that was purportedly committed by him during the Pre-Culpable Period grouped under the heading of the Trainee-Lawyer Exemption Culpability as per the Order of the Tribunal dated 24.4.2012, which are as follows:
7.1.Order No.1 (i) and (ii) [19 through 52] (First and Second PRE-CULPABLE Professional Misconduct).
7.2.Order No.2 [53 through 69] (Third PRE-CULPABLE Professional Misconduct).
7.3.Order No.4 (i), (ii), (iii), (iv) and (v) [103 through 146] (Fifth through Eight PRE-CULPABLE Professional Misconducts).

8.       The Respondent is to be considered as culpable in the commission of the remaining EIGHT alleged CULPABLE offences (including 2 CULPABLE Unsatisfactory Conducts) purportedly committed by him willfully i.e. purposely, knowingly, recklessly and negligently[10], during the Culpable Period in terms of the said Order of the Tribunal, are as follows:
8.1.Order No.3 (First CULPABLE Professional Misconduct).
8.2. Order No.5 (Second CULPABLE Professional Misconduct).
8.3.Order No.6 (First Unsatisfactory CULPABLE cum Third CULPABLE Unsatisfactory Conduct).
8.4. Order No.7 (i) and (ii) at 177 through 197 (Fourth CULPABLE Professional Misconduct and Second CULPABLE Unsatisfactory cum Fifth CULPABLE Professional Misconduct). 
8.5. Order No.8 (Sixth CULPABLE Professional Misconduct).
8.6. Order No. 9 (Seventh and Eighth CULPABLE Professional Misconducts).  

9.       The administration of the Penalty by the tribunal is to be made in accordance with the LP Act on the alleged EIGHT CULPABLE offences and they shall depend on the Degree of Culpability or the Blameworthiness of the Respondent (the Blameworthiness). 

10.   The determination of the Blameworthiness in accord with the common law principles of willful misconduct that must contains the elements of dishonesty, resulting in deception or fraud where property has been misappropriated occasioned by gross negligence where fiduciary duties had been breached and detriment had been caused to his client or third party, which are to be determined in accordance with the following procedures:  
10.1.1.                          The Respondent acted purposely with respect to a material element of an offence when:
10.1.1.1.                                if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
10.1.1.2.                                if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
10.1.2.                          The Respondent acts knowingly with respect to a material element of an offence when:
10.1.2.1.                                if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
10.1.2.2.                                if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
10.1.3.                          The Respondent acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
10.1.4.                          The Respondent acts negligently with respect to a material element of an offence when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

EIGHT PRE-CULPABLE OFFENCES:

11.  In accordance with the Latin Maxim: qui facit per alium, facit per se, i.e. the one who acts through another, acts in his or her own interests. In this case, the principal is always liable for the act of his agent, the Respondent, except where the agent is found to have breached the fiduciary principle of deviating from working for the principal’s interests but for his own self-interest instead.
11.1.                    Therefore, the Provisions of the LP Act in subsections 662(1) and 662(2) in so far as it affects Part 13 of the LP Act with regard to the degree of blameworthiness of the Respondent is NOT APPLICABLE to the Respondent’s Pre-Culpable Period offences but only APPLICABLE to the Respondent’s Culpable Period offences. The degree of the Severity of the Penalty prescribed by it depends on the degree of BLAMEWORTHINESS of the Respondent as measured by the common law principles.


12.  It is agreed that provisions of both LP03 Act and LP Act applies to the eight Culpable Period Offences subject to the following conditions:
a.                                            The Applicant must be bona-fide in its public role as the disciplinarian for members of the legal profession and must not discriminate through its clear disparity in the enforcement of rules towards the Respondent (Applicant’s bona fides).
b.                                          The Respondent’s culpability is the dividing line between the moral evil of his supposed professional misconduct as a lawyer and the neutral trivial matters which the reasonable Applicant would not and should not take cognizance, many examples of which are (neutral trivial matters):
b.1.      The Respondent’s complaint No.164/09 dated 6.5.2010 against the solicitor of Mr. Timothy Robin Thies, one Mr. Dean Elek Roser for his unilateral communication with Justice Hasluck in CIV1903 of 2006 No.1 for the purpose of altering the outcome of the judgment for his client Mr. Timothy Thies. This unilateral communication was revealed to the Respondent and recorded in the transcript by the Judge himself but it did not receive any attention or disciplinary reaction from the Applicant. (Dean Elek-Roser).
b.2.      Contrast Dean Elek-Roser with my temporary unilateral communication with Justice Jenkins through Her Honour’s Associate to achieve an administrative purpose by setting the court records straight in anticipation of its being manipulated as the risks of such manipulation was great in respect of Mr. David Taylor and Registrar Powell was great [151, 152, 156, 158, 161]. There was thus no improper conduct on the part of the Respondent to influence the outcome of the case[11] One is treated kindly but the other is treated badly: a clear disparity in the enforcement of rules (clear disparity in enforcement of rules).   
b.3.      The Respondent’s complaint against Barrister Scott Ellis dated 15.11.2010 to the Applicant regarding how His Honour Justice Ken Martin was misled by the former with the untruths on 17.6.2010 in CIV 1903 of 2008 No.2 to the effect that there was no evidence before His Honour that Registrar Wilde in FR417 of 2007 was under duress when he delivered the consent judgment dated 7.6.2007.  The evidence in the form of a letter dated 6.6.2007 was before the court and the fact that the court was misled is in the transcript provided to Applicant. This shows that some are immune to complaint like Mr. Taylor whereas the Respondent is being mistreated for trivialities. Again another example of disparity in the enforcement of rules (another example of disparity of enforcement of rules).  

STRIKING OFF THE ROLL:

7.      There is no justification for the removal of the Respondent as he is a fit and proper person to practice law and is not a public danger nor does he does he destroy or tarnish the image of the legal profession.  He has achieved many successes in his probono works for many people who had been enslaved and have had been dishonestly made to pay improper costs orders that are not in accordance with the law and the conscience of a fair society (Respondent performed public good).
8.      The material before the court depicts that he is a fit a proper person to remain a legal practitioner (the materials are proof).
9.      This tribunal may use all the materials that are prepared by the Respondent to determine his fitness at the time of the hearing of these proceedings and not at the time of the relevant conduct for the alleged offences that he was engaged in (the proof is at the hearing).
10.  There is not one iota of evidence that the Respondent is a dishonest person or unfair in his conduct or that his thoughts and ideas are impinging upon his integrity as a lawyer (no evidence of dishonesty).
11.  There is not one instance where the Respondent had failed to command the personal confidence of his clients, honest fellow practitioners (with due respect)  and honest judges (My utmost respect) except where the other party has been dishonest or unfair to him.  All past instances have been fully explained and the Respondent is prepared to explain any other instances which may be of relevance whenever he is called upon to do so by this tribunal and his veracity is not being subjected to any doubt (Honesty is a two-way traffic).  
12.  There is not one instance where the Respondent’s conduct has compromised the maintenance or the protection of the reputation of the profession (protector of the reputation).
13.  There are no instances of the conduct of the Respondent that have compromised on the understanding of the legal profession and of the public with regard to the standard of behaviour required of solicitors (good standard of behaviour).
14.  There are no instances of the Respondent’s failure to understand the impropriety of his conduct that may be a factor of great importance in determining whether he should be permitted to stay on the roll (no failure to understand improper conduct).
15.  There are no serious cases of instances except for innocent mistakes or lapses, in which the character of the Respondent and his conduct as a practitioner which is inconsistent with the privileges of further practice (lapses is normal and natural)  

ASSESSMENT OF RESPONDENT PROFESSIONAL MISCONDUCT AND UNSATISFACTORY CONDUCT:

COMPLAINT A – CENTENARY LUNCH BAR:

16.  Mr. Wally Ozich acted as solicitors for the Vendors [32] as there was a “Chinese Wall[12]” in place.  Nevertheless, the Respondent acted as agent or trainee lawyer under the mentor’s supervision and claims immunity from prosecution under the principle of vicarious liability.  He therefore has no conflicting interests with the interests of the Vendors.  On the other hand, he acted as a pro-bono free agent independent of his mentor supervision, for his son the Purchaser and not as a solicitor although he is a solicitor father and unlike a paid lawyer, he owes no public duty as officers of the court to members of the public (China Wall).
17.  The Respondent as a trainee lawyer [33] is immune from prosecution and as a probono free agent for his son, his interests merged with those of his son.  There is no problem with his son as Purchaser suing the Vendor, whose separate interests for the wrongs of their misrepresentations to the Vendors were represented by another lawyer, the mentor, Mr. Ozich (vicarious liability).
18.  As a probono free agent for his son Paul the Purchaser, though the Respondent being a qualified lawyer and holding a practice certificate then, he could be a reliable witness then for the Purchaser in his capacity as free agent, because he is unpaid and owes no public duties to third parties. Even if he is recognized as a solicitor for the Purchaser, he can always abdicate the role of a witness because the Purchaser is his own witness as he is also a litigant in person dealing in his own affairs with his father standing in as his alter-ego (free agent is not a court officer).
19.  As a corollary to paragraphs 17 and 18 above, the position of the Respondent when he acted for his son against the Vendors would not be “both untenable and improper” [35].  Notwithstanding, he had taken steps to ameliorate the false perception by engaging solicitors like Mr. Thies (efforts to avoid wrong perception for the ordinary person).
20.  Regard ought to be had to the following:
a) The conflict of interests is not obvious under the following circumstances:
a.1.      Wally Ozich was the solicitor for the Vendors and the legal fees of $400.00 was paid to him and he produced a receipt for it at the time of the transaction and not subsequently as an afterthought.  The Vendors were therefore protected by own their solicitor in Mr. Ozich (Vendors represented by another solicitor).
a.2.      Respondent was representing his son Paul the Purchaser, in his dual capacity: (1) acting as agent and trainee lawyer for his principal and mentor in which he claims vicarious liability whilst he was learning his trade, (2) acting as free agent albeit pro-bono for the Purchaser, where he owes no public duty as a non-officer of the court (Duality of Roles). 
a.3.      On the ground that the Vendors are already represented by the mentor lawyer coupled with the fact that the Vendor’s mentor lawyer his trainee lawyer the Respondent as his agent in dealing and learning the process of the Vendor’s solicitor, the mentor lawyer owes a public duty as a court officer (the Public Duty of the Mentor).
a.4.      The Respondent as free agent with Duality of Roles when acting pro-bono under the LP Act is not allowed to represent the Purchaser in court.  However, as a free agent, he is allowed to act as the scribe for the Purchaser and his alter-ego.  The fact that he is a qualified lawyer under training does not mean that he owes public duties as a pro-bono free agent. The fact that he is the alter-ego means he can be a witness to the deal because he is not the lawyer for the Purchaser and also not a lawyer for the Vendors (Probono Free Agent has no public duties as a court officer).
a.4.      The informed consent obtained by the Respondent from the Vendors is another of telling them that the Respondent as a Probono Free Agent has no public duties as a court officer (the Informed Consent).  

b)         The Respondent’s persistence [43] in his denial of the existence of conflict is based on Vendors represented by another solicitor, Respondent as free agent for Purchaser and Respondent owes no public duties (Respondent’s Conduct).

c)         Respondent’s Conduct is deliberate DOES NOT SHOW that he is lacking in appreciation of his duties as solicitor with regard to the conflict of interests situation (No lack of appreciation).

d)         There is thus No Lack of appreciation and therefore no blatant breach of one of the most fundamental duties of a solicitor as a fiduciary to act exclusively for the Vendors (No breach of Fiduciary Duties).

e)         The Respondent’s Conduct entailing his No Lack of Appreciation and his No Breach of Fiduciary Duties together with his NOT LACKING OF SUBSEQUENT INSIGHT therefore does not warrant a consideration of fitness to practice and therefore the public is not endangered by his being a lawyer (No Unfitness to Practise). 

COMPLAINT A-(2) Offer of Party and Party Costs to Mr. Thies:

21.  Yes, Mr. Thies agreed to the pre-contractual terms and then reneged on it and therefore the contract for legal services with him was terminated (Thies breach of contract).
22.  The Respondent’s Fee Proposal to Mr. Thies was NOT IMPROPER on the following grounds:
22.1.                    No party to party costs in relation to work carried out by the Respondent himself was offered to Mr. Thies (the offer).
22.2.                    The offer refers to a measure or a convenient device to measure the emoluments for Mr. Thies’s proposed work to supervise the Respondent (Mr.Thies’ supervisory work) in his work performed by him pro bono for his son the Purchaser in the litigation with the Vendors in DC 2065 of 2004 for the purpose of avoiding any future disputes with Mr. Thies (the measure).
22.3.                    The measure is not at the expense of the defendants in DC2065 of 2004 and does not cause them any detriment because the Respondent never intended to use those claimed Party and Party Costs to pay Mr. Thies but to pay for the proposed Mr. Thies’ supervisory work out of his own pocket (Party and Party Costs not intended as the payout).
22.4.                      Mr. Thies’ supervisory work is necessary under the circumstances to replace the supervisory work of Mr. Ozich who is incapacitated by his becoming the solicitors for the Vendors because of the ensuing conflict of interests (the Incapacitation of Mr. Ozich).

23.  The Respondent submits that the issue of his fitness in paragraph 22 above as a practitioner does not arise because of its LACK OF IMPROPRIETY and therefore it does not accordingly detract from the personal confidence the Practitioner enjoys from honest fellow practitioners.  In addition, the Respondent submits that there is no issue that he had engaged in fiction in relation to his costs in the said proposal to Mr. Thies and therefore it (the proposal) would not be regarded as disgraceful or dishonest conduct by honest practitioners of good repute (No dishonest conduct).

COMPLAINT B: Godfrey Virtue & Co:

24.  The allegations [60] is founded on facts supported by a named investigator together with an accountant’s report and was embellished by the statements of Dr. K S Chan herself.  She could be called as a witness to testify to those facts.  Consequently the truth of those statements warrants the fraudulent conduct to be exposed failing which the Respondent himself could be found to be guilty of professional misconduct for covering up the fraud of his dishonest fellow practitioners (The Paramount Duty of the Respondent).
25.  The Paramount Duty of the Respondent is not extraordinary [65] because that first  communication constitutes prior notifications to the defaulting solicitor which must precede subsequent legal action to be taken by Dr. K.S. Chan to protect her rights that has been assailed by her dishonest opponents (Prior Notifications before Action).
26.  “The Private Investigator not Accepted [68]” is not made on valid grounds because he is not nameless (Accepted Private Investigator). 
27.  The Respondent did not rely on the say-so of Dr.K S Chan [68-69] but on his own private investigations in time that was subsequently proven to be true as per the facts contained in pages 209 to 211 in Book 1 in a 16 item statement in her Description of Claim.  There is a further statement of material facts found at pages 212 to 219 of Book 1 which describes the manner she had been mistreated by Mr. Pino Monaco (with due respect) in relation to her other properties.  Besides the Private Investigator Mr. Roy Gascoigne, a former Police Officer, Report and the Accountant’s Report found at pages 222 to 225 of Book 1, there is also a personal letter of Complaint by Dr. K. S. Chan which provides the details of her grouses to the Applicant dated 16.10.2006 that forms the basis of the Respondent’s Investigations that forms the basis of his allegations as contained in pages 225A to 225D of Book 1 (the basis of the Respondent’s Investigations).
28.  The issue of whether Respondent’s fitness to practise does command the personal confidence of honest fellow practitioners is subject to the caveat that the fellow practitioners concerned are themselves above board and that they have performed their duties to Dr. K S Chan as their opponent.  The allegations are founded on the Basis of the Respondent’s Investigations and the administration of justice is served; the real issues are not being obfuscated and there is no real potential to derail the dispute between the Mr. Pino Monaco (with due respect) and Dr. K.S. Chan (the Incontrovertible Issue of the Respondent’s Fitness to practise law).

COMPLAINT C- Taylor

29.  The Tribunal’s ought to make two findings of the Respondent’s Conduct, which are:
a)                  There is reasonable or proper basis for the “underhand tactics” in falsifying the court records in CIV 1131 of 2006 by Mr. Taylor through the agency of his trainee lawyer Simon Patrick O’Brien by the latter altering the filing date of the Supreme Court Writ [102] in terms of the following facts:

a.1.      it is underhand tactics because when confronted subsequently by the Respondent, Mr. Taylor evaded the issue and was rude to the Respondent but  the Applicant in its disparity in its enforcement of rules is wilfully blind to these facts as explained in the Respondent communications to it in Book 1 and the following: (the denial of David Taylor without giving reasons for it):

a.1.1.   it is reported by Ms. Nancy Hall herself who was at the scene to verify that the Writ was not filed by the close of office on the 10.2.2006. The credibility of this eye-witness statement is the spontaneous reporting of this incident to an interested party Mr. Monkman and to Landgate (an eye-witness in Nancy Hall).
 a.1.2. Mr. Taylor caused an improper costs order to be made by Registrar      Powell against the Respondent in Midland Magistrates Court CA 2475 of 2007 for $300.00 which was later foregone and forgiven by Mr. Maurice Law on the ground that it is unreasonable and is based on untruths. Maurice Law has attested to this fact (the reprisal by David Taylor).
a.1.3.   the subsequent conduct of the Respondent in refusing to represent Nancy Hall in CIV1131 of 2006 after he had finished his duties in CIV 1142 of 2005 No.1 shows that he is discontented with the manner the Applicant had dealt with this issue unfairly. This is the reason why CIV1131 of 2006 has never been decided till today (the Passive Retaliatory conduct of the Respondent).
a.1.4.   the temporary unilateral communication of a two day-delay, from the Respondent to the Associate of Jenkins J to set the record straight and not to influence the outcome of the decision is in accordance with the law (the temporary unilateral communication to the Judge).

a.2.      the improper altering of the date of filing of the Writ of Summons in CIV1131 of 2006 [101] and the ‘no basis whatsoever allegations [90] and “no credible evidence” [89]  is attested by the following facts:

a.2.1.   His Honour Justice Simmonds himself gave Ms. Nancy Halll during the proceedings of CIV 1142 of 2005 No.2 a copy of the Writ of Summons with the 10.2.2006 date stamp on it altered in black ink to 16.2.2006 (Justice Simmonds’s findings of the altered date to 16.2.2006).

a.2.2.    The Justice Simmond’s findings of the altered date to 16.2.2006 was handed over to the Respondent by Nancy Hall herself during the progress of that case (Nancy Hall delivery).

a.2.3.   Registrar Powell refusal communications (with due respect) to provide a copy of the bank statement when he was inquired upon by both Maurice Law and the Respondent and they are contained in the Yellow Appeal Book of CACV107 of 2008 (Registrar Powell’s Conduct).

a.2.4.    Registrar Powell Consciousness of Guilt when His Honour tried to act as a judge in his own cause in the taxation proceedings of Master Sanderson Costs Orders in CIV 1775 of 2008 against both the Respondent and the Maurice Law and the taxation proceedings of Owen JA costs orders against the Respondent alone in CACV 107 of 2008 which is followed up by his subsequent resignation from office or retirement (Registrar Powell’s Retirement).

a.2.5.   The inability of Mr. Taylor to give a direct answer to the Subpoena issued to him in VR158 of 2011 before Justice Chaney on 29.11.2011 as to the bank statement that can evidence that the impugned court fees of $654.20 was paid on 10.2.2006 or 16.2006 into the court registry for the validation of the Writ of Summons in CIV 1131 of 2006 (Mr. Taylor’s failure to answer the Subpoena).

a.2.6.   The sighting of the Bank Statement given by Mr. Taylor on 29.11.2011 to the effect that the impugned court fees was finally paid and then retracted on the same day by Mr. Taylor into the Court Registry some three years later on 19.5.2009, filed at SAT but was missing subsequently, for which His Honour Justice Chaney in VR 158 of 2011 was at a loss to account for it, is now the subject matter of Maurice Law’s Application for Review in CIV 1397 of 2012 (the unavailable bank statement).  This unavailable bank statement gives rise to the theory that CIV1131 of 2006 was never issued on 10.2.2006 nor on 16.2.2006, nor on 19.5.2009 and there is therefore never a due compliance with Jenkins J Order in CIV 1142 of 2005 No.1.  Therefore, all the related judgments are made in error and the miscarriages of justice must be rectified and Mr. Taylor must make amends for his having misled the courts and caused detriments to both Maurice Law and the Respondent. The review of all these miscarriages of justice is pending in CIV1275 of 2012) (the Miscarriages of Justice must be Rectified).   

b.                  The “no basis whatsoever” [101] that Mr. Taylor deliberately misled Registrar Powell[13] by failing to inform the said Registrar that the Respondent did not represent Nancy Hall is an assumption based on false premises in terms of the following:

b.1.      Mr. Taylor knows that his trainee lawyer Mr. Simon Patrick O’Brien (with due respect) then under his supervision had been dishonest by altering the filing date of CIV1131 of 2006 when he was so informed by the Respondent via his facsimile letter dated 15.2.2006 copied to Landgate for which he had responded to the writer of that letter (the knowledge of the falsifications) in the following terms:

b.1.1.   Mr. Taylor having been equipped with the knowledge of the falsifications deliberately refused to come to a compromise with the Respondent in order to avert any further trouble arising out of that falsifications (Mr. Taylor’s deliberate avoidance to compromise).

b.1.2.   The dishonesty of Mr. Taylor stemming from his knowledge of the falsifications and Mr. Taylor’s deliberate avoidance to compromise led to his further dishonesty of his lodging a complaint with the Applicant resulting in the Applicant refusing to accept the truth of the matter as explicated by the Respondents further communications with the Applicant (the blind eye of the Applicant).

b.2.       There is circumstantial evidence to the effect that Registrar Powell had been misled by Mr. Taylor to the effect of Mr. Taylor’s knowledge of the falsifications and Mr. Taylor’s deliberate avoidance to compromise [100] and the Blind Eye of the Applicant to the ensuing dishonesty of Mr. Taylor in the following terms (the Dishonesty of Mr. Taylor):

b.2.1.  The court records did not show otherwise [100] as Registrar Powell knows that CIV1131 of 2006 was never filed with the Court Registry because the relevant courts fees was never paid on 10.2.2006, nor on 16.2.2006 or on 19.5.2009 some three years later when the learned Registrar was required to provide the necessary bank statement to prove his case as contained in his letter dated 11.6.2009 made in response to the Respondent’s query (Registrar Powell’s inability to prove his own assertions).

b.2.2.   Registrar Powell needs to cover up the Dishonesty of David Taylor and the Blind Eye of the Applicant and that may be the probable cause of Registrar Powell’s Retirement).

b.2.3.   By virtue of the Dishonesty of Mr. Taylor, he had misled Registrar Powell [100].

30.  The Tribunal is in jurisdictional error when it failed to take into account relevant facts and did take into account irrelevant facts to come to the wrong conclusion. The relevant facts to be taken into account are in the following terms:

a.                   The underhand tactics employed by Mr.Taylor to achieve his desired outcome to the extent that the equity of Nancy Hall Properties had been unlawfully clogged up and which in turn led to her premature death as a result of the miscarriage of justice (the underhand tactics). 
b.                  The Dishonesty of Mr. Taylor in deliberately misleading Registrar Powell and the Applicant with regard to the alteration of the filing date of CIV1131 of 2006 by his trainee lawyer, resulting in his obtaining the unlawful extension of those Caveats of Spunter Pty Ltd by deceptive means (the Unlawful Extension of Spunter’s Caveats).

c.                   The Unlawful Extensions of Spunter’s Caveats had led to the deprivation of the Respondent’s just emoluments as the s.244 LPA 2003 Salvour promised by Pullins JA in CACV 107 of 2008 (the Salvour rewards).


d.                  The Dishonesty of Mr. Taylor in prodding Mr. Maurice Law to make a false claim against the Respondent for $300.00 in Midland Magistrates Court CA No. 2475 of 2007 (the distraction to Maurice Law).

e.                   the Dishonesty of Mr. Taylor in causing the Respondent to lose his independent status as a lawyer. There were only three causes for this loss: Mr. Monaco, Mr. Taylor and Mr. Thies (the Loss of Independent Lawyer Status). 

31.  The Applicant does command the personal confidence of honest fellow practitioners but for the dishonest conduct of Mr. Thies and Mr. Taylor and Mr. Monaco the truth is being borne out (the Reason for Loss of Independent Lawyer Status).

COMPLAINT D- Mathias

32. Failure to reach a reasonable standard of competence in drafting the will and the trust deed

32. The Respondent was a trainee lawyer involved in the preparation of a convoluted document which is not a “will” but a complicated Trust Document [112] and is “guilty of over servicing” [113] and the “furnishing of an invalid codicil” is not denied.  Those documents are inchoate documents that were first discussed with the client Mrs. Mathias and then needs to be approved by Mr. Ozich, the mentor and the supervisor of the Respondent (the due process). Before the due process is completed, the client found a cheaper to get things done and she decided that she no longer needs the complicated way of divesting her Properties in the event of her death which entails time costing for which she had been made aware of at the beginning of the client-solicitor relationship (the Client’s Avoidance). 

32.1.                    The first step in the experimentation of will preparation as a trainee lawyer by the Respondent involved the Client’s Avoidance and it therefore should not impinge upon the Professional conduct of the Applicant in the following terms:

32.1.1.       A trainee-lawyer is not liable for any professional misconduct because his level of culpability is not the same as that of an independent lawyer.
32.1.2.       A trainee lawyer is at a learning stage and is he working under supervision because he is not experienced and therefore needs the guidance of his mentor.
32.1.3.       The Guidance of his mentor needs to be inculcated into the due process as the trainee lawyer needs to be exposed to the real situation of interacting with his clients as though he is a fully qualified lawyer.
32.1.4.       A trainee lawyer can seek for cover under the principle of vicarious liability because he is working under the tutelage of his master and does not receive any payments from the clients for his work.
32.1.5.       A trainee lawyer cannot be liable for any professional misconduct that is not wilful in nature and is without the necessary elements of dishonesty, fraud or deceit, the deprivation or misappropriations of funds belonging to the client or third parties and gross negligence.
32.1.6.       The Respondent has been reprimand and is remorseful and gives his assurance that such an aberrant behaviour shall not be repeated.  


33. Altering the written costs agreement after it was signed by client:

33.  The Respondent submits that the Respondent should be given the benefit of the doubt in that Mrs. Mathias was not able to produce the copy of the costs agreement which would show that the alleged Insertion was made “before signature”.  Besides, there is no wilful misconduct or dishonesty that resulted in misappropriation of property.  Mrs. Mathias had also retracted her complaint on 19.10.2004 after lodging her complaint on 1.9.2004. This shows that she regretted her complaint that was made by mistakes. The Respondent is a trainee lawyer under supervision.  

34. Charging clients fees in excess of the agreed amount:

There is no proof that the Insertion was made before signature and there is work done for Mrs. Mathias that justifies those charges.  Even if those charges were excessive, they were never actually charged because only $300.00 was paid for those works and the complaint was retracted.   There is therefore no dishonesty and requirement for protection of the public. The Applicant is a trainee lawyer under supervision.  

35. Intemperate and offensive language in letter to client:

Mrs. Mathias complaint had been retracted. The Respondent is a trainee lawyer under supervision. He is remorseful and apologize for it.   

36. Attempt to subvert the jurisdiction of the Committee:

Mrs. Mathias had retracted her complaint and the matter was settled after the complaint. Respondent submits that he was mistaken as to the fact that he was unaware of the complaint and its human to forget.  There is no subversion of the disciplinary function as the Complainant has a right to retract her complaint as she has become satisfied after the events which had occurred after her complaint.  

COMPLAINT E: Hall

37.  The temporary unilateral communication [161] was another way of stating to Jenkins J through her Associate that the court should not be misled by the intention of Mr. Taylor to falsify the court records in his efforts to set the court records straight, and his intention was to engage the court to engage in judicial activism to help a defenceless and disabled victim as the Respondent was doing pro-bono work for her and was motivated by a desire to help her cause as a result of the incessant troubles the Respondent received from Ms. Nancy Hall.  It was difficult and harsh for the Respondent to be rude and abrupt to her or to fail to care for her as she was always at his doorstep.  The copy of the temporary unilateral communication [160] was delayed only for two days in order to wait for the records to be set straight. The approach [163] was not improper and irregular under the circumstances.  The failure to, “understand the ethics and workings of the Australian legal system” is caused by Mr. Taylor himself who refused to remedy the situation and was rude and non-chalant to the Respondent by the Mr. Taylor stating to him “You do what you like”.  The Respondent submits that fitness to practise requires amongst other things that the Respondent must command the personal confidence of honest fellow practitioners and honest judges (with due respect) who must also be ethical and honest in their dealings with the Respondent and must not exercise disparity in the enforcement of rules against him. It is not a one- way traffic. 

COMPLAINT F – M & J Metals:

38.       The factual circumstances show that the legal fees of $500.00 and $2,000.00 were paid for separate items of legal work done for the Creditor Client Company and it does not depend on the outcome of the case.  There is a separate arrangement for commissions to be paid to the Respondent for each of the collection of the 8 eight instalments in accordance with a separate agreement at the rate of 30% of the value of each instalment that was arranged after the compromise on the 11.8.2005.   The 30% commission was not payment for any legal work but for the work of the collection of the instalments and their delivery to the Client [175].

COMPLAINT G – Tylor, Powell and Fleay

39.  The Tribunal’s Jurisdictional Errors are:

a.                   Tylor and Fleay do not have conflicting interests against each other as they were each wrongly charged because the drugs was found in the car belonging to Fleay at the time when they first saw the Respondent and this situations continued until the trial.

b.                  Respondent’s interests merged with Tylor when he accepted the brief of Tylor to defend him. Respondent’s interests as the defence counsel for Tylor therefore did not conflict with the interests of Fleay.

COMPLAINT H – Clohessy

40.  The allegations were the truth and the Ms. Rochelle Clohessy could be called as a witness [213, 218]:

a.       Due process [214] requires prior notifications to be given before legal action.

b.      The only means of communications under the exigency of circumstances  was justified [215].

COMPLAINT I – Trust Account:

41.  With reference to the maintenance of trust accounts, the Respondent:

a.        Submits that the monies received were for work already performed:

a.1.   With M & J Metals: $5,000.00 of “trust monies” does not exist. $500.00 was paid after work was performed. Again $2,000.00 was paid after work was performed.  He dealt with the directions of his client to collect the eight instalments with a commission of 30 per cent payable to him as and when they are paid.

   a.2.   With Jack Hildebrant, he had performed his work before payment was received and therefore it is not trust monies. There might be mistakes I the timing of the invoices and the receipts issued.  The understanding of the Respondent with respect to receipt of monies for work done or work to be done is not trust monies. Receipt of monies to be held in trust for a certain purpose or to pay out to a certain person is trust monies.  

a.3.   With Antonio Politi there were no trust monies as work as performed before payment on account of wrongly dated receipts and wrongly dated invoices.
 
b.         Respondent admits that he failed to render proper notice and render an account in respect of legal services because this was never specifically taught to him whilst he was undergoing training as a lawyer. There is no dishonesty and no monies were ever misappropriated.

GENERAL  

43.  Of the 16 findings, 8 were pre-culpable period alleged professional Misconduct.  The remaining 8 were the same including two counts of Unsatisfactory Conduct that were allegedly committed during the culpable period.

44.  The multiplicity of findings of the 16 alleged offences should not take into account those 8 counts that were committed during the time when the Respondent was a trainee lawyer. Further, the Misconduct of Mr. Taylor and Mr. Thies are the causative factors which the Applicant did not take into account.

45.  A careful analysis of the reasons for the Jurisdictional Errors of the Tribunal will indicate that the fourteen findings of professional misconduct do not implicate a substantial or consistent failure of the Respondent to reach or maintain a reasonable standard of competence and diligence. It has to take into account the non-culpability of the Respondent during his traineeship period when he was under supervision as well as the causative factors.

46.  There are never any elements of dishonesty which impinges on the character of the Respondent. The alleged Insertion is never proven as it is done before signature with the consent of Mrs. Mathias.  Her retraction of the Complaint and her non-attendance at the trial is evidence of the innocence of the Respondent. The preparation of backdated invoices does not constitute acts of dishonesty but are actual examples of the honest mistakes of the Respondent that does not imply wilful misconduct.  It is not dishonest to receive payments for work done or work to be done. It’s just that Western Australian regulator does not want to follow the common law.  These are teething problems which he had to deal with.

47.  The Respondent admits that he is at the lower end of culpability during his time as trainee lawyer and they were not committed with dishonest intentions. The will must be dishonest.

48.  The accusations against Godfrey Virtue, Mr. Taylor, Ms. Mathias and Mr. Merrick are not unfounded on the facts of the case.

49.  The Respondent cannot be expected to be a perfect person as there are many others who are also imperfect and whose conduct are considered as trivialities and condone.

50.  NO REPORT is necessary for the full bench as a striking off the roll is not warranted under the circumstances as per the law.

51.  The Respondent does not accept the Applicant’s submission and is desirous of making an application for a practice certificate.
52.  53, 54, 55. There shall be no costs orders against the Respondent for the reasons provided above. The Respondent is in no position to pay for those costs as he has been deprived on his earnings since the 12.9.2006 till today. 

CONCLUSION:

It’s passive resistance that I as the Respondent aspire to and I do wish well for everyone that I had inadvertently hurt and I apologize…. but I would like to remind the world that we must co-exist peacefully and at the same time do treasure our inalienable right to say what we wish to say in the name of justice through the proverbial Ghandhian wisdom in these words:

"The seven deadly sins are wealth without work, pleasure without conscience, knowledge without character, business without morality, science without humanity, worship without sacrifice and politics without principle."

The Respondent concludes with a quote from the case of: Selling v. Radford, 243 U.S. 46 (1917)” found at http://supreme.justia.com/cases/federal/us/243/46/:

“The character and scope of the investigation to be made on a prayer for disbarment, before sanction is given to it, must depend upon the character of the acts of misconduct charged, the place of their commission, and the nature of the proof relied upon to establish them…….unless, upon intrinsic consideration of the state record, this Court shall (1) find that the state procedure was wanting in due process, (2) come to a clear conviction that the proof of facts relied on by the state court to establish want of fair character was so infirm that acceptance of the state court's conclusion thereon as a finality would be inconsistent with this Court's duty, or (3) discover some other grave and sufficient reason why this Court could not disbar consistently with its duty not to take that action unless constrained under the principles of right and justice to do so.”




Signature of: NICHOLAS NI KOK CHIN






[1]  In House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 (Dixon, Evatt and McTiernan JJ). His Honour cited the oft-quoted passage from this joint judgment -
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
See also: The article by the Chief Justice of NSW, His Honour James Spigelman AC, in his article entitled: The Centrality of Jurisdictional Errors at: http://www.hrnicholls.com.au/articles/Other/spigelman250310[1].pdf
See Also: His Honour article entitled: JURISDICTION AND INTEGRITY at http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman050804

[2] 23 Further the High Court in Kennedy v the Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563, Rich J said:
"...a charge of misconduct as relating to a Solicitor need not fall within any general definition of wrongdoing. It need not amount to an offence under the law. It is enough that it amounted to grave impropriety effecting his professional character and was indicative of a failure to either understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it is tokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, on the other hand, although a lapse of propriety was not inconsistent with general professional fitness and habitual adherence to moral standards was to be reached by a general survey of the whole transaction."

[3] Bramwell LJ put it in Lewis v Great Western Railway (1877) 3 QBD 195, at p 206:
“Wilful misconduct’ means misconduct to which the will is a party, something opposed to accident or negligence; the misconduct, not the conduct, must be wilful.”
Millett LJ summarised his view .....which excluded liability for anything other than fraud: 24 “exempts the trustee from liability for loss or damage to the trust property no matter how indolent, imprudent, lacking in diligence, negligent or wilful he may have been, so long as he has not acted dishonestly
[4] Id: at foot No.1.
[5] See Footnote No.2 for the principle of American law which equates with our common law in terms of: willful misconduct, dishonesty and fraud, misappropriations of funds belonging to clients etc and gross negligence.  The abiding principle is that you cannot be culpable or be morally blameworthy if you have not derived a pecuniary advantage from your client by his/her being deprived of it without his/her consent and knowledge.

[6]http://www.piets.com.au/wcms/index.php?page=professional-misconduct:
Council of the New South Wales Bar Association v John Peter Hart [2011] NSWCA 64. McColl JA. 21.03.11

[12] In exercising the inherent jurisdiction, the Court must satisfy itself that it is appropriate to make orders removing the respondent's name from the Local Roll, even if he concedes that the orders should be made: Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 (at [9]); Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 (at [12]).
[13] Where an order for removal from the Roll is contemplated, the ultimate issue is whether, at the time of the hearing, the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose Roll the practitioner's name presently appears: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (at [14] - [15], [21]).
[14] In exercising its inherent jurisdiction to discipline legal practitioners the Court is not bound by any statutory definition of "professional misconduct". Rather "it has the capacity to determine, and act on the basis of, unfitness, where appropriate, without any need to stretch the concept of professional misconduct beyond conduct having some real and substantial connection with professional practice": Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 per Hoeben J (Beazley and McColl JJA agreeing), referring to A Solicitor v The Council of the Law Society of NSW (at [21]).
[15] As I said in Prothonotary of the Supreme Court of New South Wales v McCaffery (at [46]) (with Sheller and Beazley JJA's agreement):
"Professional misconduct at common law is said to connote conduct which would reasonably be regarded as disgraceful or dishonourable by one's peers: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and other authorities collected by Spigelman CJ (with whom Mason P and Handley JA agreed) in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [36] ff. Allinson was adopted in relation to the legal profession in In re a Solicitor; Ex parte Law Society [1912] 1 KB 302 at 311-312: see A Solicitor v Council of the Law Society of New South Wales, above, at [13]."
[16] The applicant submits that the nature of the wrongdoing in this case is so antithetical to the practice of law that the Court would readily conclude that the orders sought are appropriate. It draws attention to Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 (at 681)where Isaacs J said:
"The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great.
"But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, those tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure.
"There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential."
[17] The applicant submits that having regard to the respondent's dishonest conduct, it is impossible to conceive that any Court, legal practitioner or client could ever trust him. The instances of dishonesty in the context of court proceedings in which the respondent appeared are undoubtedly of sufficient seriousness to warrant removal of his name from the Local Roll.
[18] In my view the Court should make the orders the applicant seeks.
Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 (at [9]); Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 (at [12]).

[7] See the chronology of the elaborate steps of the Applicant took in pursuing these trivialities, as indicated below:
1) 07.02.2006 The Applicant resolved that the Respondent is not guilty of any professional misconduct but of deficiency in his professional knowledge.
2) 04.07.2006 The Applicant resolved to impose conditions on the Respondent’s Practice Certificate pursuant to s. 40 of the LP2003 and to refer him to the tribunal under s. 1890 of the Act but that decision of Ms. Coombs was derailed.
3) 19.07.2006 Ms. F B Walter was tainted with illegality when she acted as prosecutor in Applicant’s meeting on 7.2.2006 and 4.7.2006 and then as a judge in the  Professional Affairs Committee of the Board on 19.7.2006 when she took away the independent lawyer status of the Respondent.
4) 12.09.2006 Judge Eckert confirmed the decision of the Board to take away the lawyer independence of the Respondent in VR137 of 2006 with Barrister Quinlan stating that it is okay to get away with falsehoods as recorded in the transcripts.
5) 07.02.2007 The Respondent was informed by Ms. Catherine Coombs, a legal officer of the Applicant that it had  had resolved on 6.2.2007 not to carry out its original intention dated 4.7.2006 to prosecute the Respondent further under s.180 of the LPA2003.
6) 26.9.2007 The Respondent and the Board entered into a Consent Judgment before the then President of the Court of Appeal, Justice Steytler on the ground that the Board did not have the valid authority to take away the lawyer independence of the Respondent by virtue of s.11 of the LPA 2003 (the Act) as evidenced by the Minutes.
7) The Special Inquiry Committee of the Board sat on 3.4.2008 followed by a Special Meeting on 2.5.2008 to again take away the lawyer independence of the Respondent but it was again found by Barrister Stephenson on behalf of the Respondent that it did not have the valid authority to do so pursuant to s. 11 of the Act.
8) 28.10.2008: Justice Chaney in VR 107 of 2008 again took away the lawyer independence of the Respondent by His Honour ambushed judgment in Legal Profession Complaints Committee and Chin [2009] WASAT 219 referred to in this judgment by the Tribunal [5]. .
9) Justice Heenan in at first made the decision requiring the Applicant to answer for the wrongs it had done to the Respondent in CIV 1019 of 2010 but when His Honour was unilaterally contacted by Ms. Braesich of the Board, His Honour had to make a turn about decision in Re President of the StateAdministrative Tribunal of Western Australia (SAT), Justice Chaney;Ex Parte Chin [2010] WASC 89 at [8 - 9], [18] made a turn around decision again referred to by the Tribunal at [6].

[8] LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and BACHMANN [2009] WASAT 120
[2009] WASAT 120 (S) at 24 where the tribunal in Western Australia said:
Fitness to practice is to be decided as at the time of the hearing and not at the time of the alleged misconduct (see A solicitor v the Council of the Law Society of NSW (2004) 216 CLR at 253 [15]). Subject to issues of fair notice, the Tribunal is therefore entitled to take into account the manner in which the practitioner conducted her defence and the veracity with which she gave evidence; see Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 at [109] and [110].”
The Tribunal further evaluate the criteria of fitness at:
“35. The unsatisfactory conduct found against the practitioner is of the utmost seriousness. That conduct is comprised of repeated and sustained dishonesty by the practitioner during the period of August 2005 to May 2006 in the course of legal practice and, specifically, in her dealings with her clients, her employer and other legal practitioners. We find that her conduct, as proven before the Tribunal in the lengthy substantive proceedings, clearly displays that the practitioner is not a fit and proper person to remain a legal practitioner.
36 That conclusion is reinforced by the practitioner's conduct in the course of the hearing of these complaints against her.”


[9] The Respondent had been vexed seven times in terms of the following:
1)       The decision of the Professional Affairs Committee of the Board on 4.7.2006 that the Respondent is not guilty of professional misconduct or unsatisfactory conduct but of DEFICIENTY IN HIS PROFESSIONAL KNOWLEDGE.
2)       The same decision was reached again by the tribunal like Legal Practititiones Complaints Committee on 19.7.2006;
3)       The State Administrative Tribunal again made the same decision by Judge Eckert in VR137 of 2006 on 12.9.2006;
4)       The twice improperly delegated Special Inquiry Committee of the Board again made the same decision on 2.5.2008
5)       His Honour Justice Chaney himself again made the same decision in VR107 of 2008 or [2008]WASAT252) on 28.10.2008;
6)       His Honour Justice Chaney acting in conflict of interest (MY UTMOST RESPECT) delivered the prejudgment res judicata decision in the “ambushed” decision that the Respondent is guilty of Professional  in [2009]WASAT 219 and
7)       The Honourable Members of the SAT Panel the present proceedings made the preliminary findings in these proceedings that are being refuted.

[10] The principle above is derived from the American Law Institute's Model Penal Code, which is the basis for large portions of the criminal codes in most states found at:  http://en.wikipedia.org/wiki/Culpability
[11] NORTH, KENNY AND DODDS-STREETON JJ in John Holland Rail Pty Ltd v Comcare [2011] FCAFC at para. 3.1. said:
The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case.  See, for example, Re JRL; Ex parte CJL (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] AC 322 at 337 and Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127.  In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 (“British American v Laurie”) at 464-5, [139]-[140]; Re JRL at 351.  This is the apprehension of bias principle.

[12] See:  Tomasic, Roman --- " Chinese Walls , Legal Principle and Commercial Reality in Multi-Service Professional Firms" [1991] UNSWLawJl 4; (1991) 14(1) University of New South Wales Law Journal 46 at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLawJl/1991/4.html?stem=0&synonyms=0&query=chinese%20wall
“30 26.6.2006 The Appellant moved his home and his home office from his former residence at No.2, Seagull Close, BALLAJURA WA 6066 to his new residence at No.387, Alexander Drive, DIANELLA, WA 6059 and informed Mr. David Taylor of David Taylor & Associates of his new address. Mr. David Taylor having been made aware of this fact should not have continued to serve the Appellant with papers regarding the CIV 1131 of 2006 resulting in the wrongful costs order of the learned Registrar Powell being made against him in absentia on the 12.6.2006. If the Appellant was being aware of the papers of the impending improper costs order of Registrar Powell, he would have warded it off because the Memorandum of Appearance filed on his behalf by Barrister Alan Camp was meant to have been withdrawn or was not filed. Even if it was filed, the late Ms. Nancy Hall was desirous of having it withdrawn by filing the Appellant’s Notice of Ceasing to Act at a time before the costs order came into effect. That Cost Order was to take effect on 3.7.2006 and Mr. David Taylor knew about this and yet omitted to inform Registrar Powell or the Appellant resulting in the wrongful cost order coming into effect without the Appellant’s knowledge. There was no need to make an application to the court to have the Appellant’s name taken off at all”. 

6 comments:

  1. Mary at LPCC and Jacqui at LPCC and SAT respectively confirm at 10.21 am today that they both have been served with this document of 35 pages together with its cover letter. Nicholas N Chin

    ReplyDelete
  2. Must a creditor obey debtor’s direction as to which of several debts a payment is to be put towards?
    Posted: 30 May 2012 06:48 AM PDT
    I have never known until recently what the law was in relation to a creditor’s obligations and entitlements where a debtor makes a payment which could be applied to one of several debts. I never went to look it up, but had I needed to, I’m not sure I would have known where to look. Then I stumbled across it while reading a judgment. Experience teaches that allocations of payments against debts can have many ramifications, the most obvious of which is in relation to interest. This statement was recently re-stated as good law in Victoria:
    When a debtor is making a payment to his creditor he may appropriate the money as he pleases, and the creditor must apply it accordingly. If the debtor does not make any appropriation at the time when he makes the payment the right of application devolves on the creditor.
    It is a statement of Lord McNaughten in Cory Brothers & Company v Owners of Turkish Steamship ‘Mecca’ [1897] AC 286 at 293 and Deeley v Lloyds Bank Limited [1912] AC 756, 783 is apparently to like effect.

    ReplyDelete
  3. JUSTICE M L BARKER (PRESIDENT, MR D R PARRY (SENIOR MEMBER)
    MS J STANTON (SENIOR SESSIONAL MEMBER) IN THE CASE OF LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and SKEA [2005] WASAT 196
    SAID AT PARAGRAPH: 20 By s 185(3), "[i]f the [Tribunal] transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a) the Tribunal may, pending the determination of the Supreme Court (full bench) -
    suspend the legal practitioner from practice; or restrict the entitlement of the legal practitioner to practice".
    OTHERWISE, IT WOULD BE WRONG FOR THE TRIBUNAL TO SUSPEND THE PRACTITIONER FROM LEGAL PRACTICE.

    ReplyDelete
  4. THE TRIBUNAL IN THE ABOVE CASE AT PARA.22(WITH REFERENCE TO THE LPA 2003 ALSO SAID:
    "By s 194(1), "[i]f the [Tribunal] under s 185(2)(a) or s 190(4)(b)makes and transmits a report in respect of a legal practitioner to the Supreme Court (full bench), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report".
    THEREFORE, THE TRIBUNAL MUST NOT TRANSMIT A REPORT TO THE FULL BENCH IN THE LIGHT OF ITS JURISDICTIONAL ERRORS AS CITED ABOVE. THE TRIBUNAL HAS A DUTY TO REFUTE THOSE ALLEGATIONS OF JURISDICTIONAL ERRORS AS INDICATED ABOVE IN A STATEMENT OF REASON. COUNSEL FOR THE LPCC MUST NOT MISLEAD THE TRIBUNAL AND BASED ITS ARGUMENT ON FICTION RATHER THAN FACTS.

    ReplyDelete
  5. THE PRESIDENT OF SAT CANNOT MAKE THE DECISION TO STRIKE ME OFF THE ROLL ON TH FOLLOWING GROUNDS:
    1) AS HIS HONOUR HAD REFUSED TO PRODUCE THE MISSING BANK STATEMENT SUBMITTED BY DAVID TAYLOR ON 29.11.2011 AND VIEWED BY MAURICE LAW ON 30.11.2011 IN VR158 OF 2011 OR [2012] WASAT 36 (A CONSTITUENT ELEMENT OF THE FINDINGS AT ITEM 11 OF THE TABLE OF JURISDICTIONAL ERRORS AS CITED ABOVE).
    2) HIS HONOUR HAD RECUSED HIMSELF FROM THE HEARING OF VR87 OF 2009 AFTER THE APPLICANT HAD VEHEMENTLY OPPOSED THE DECISION IN [2009] WASAT 219.
    3) HIS HONOUR ALSO DECIDED ON THE RES JUDICATA DECISION IN [2008] WASAT 252.
    THE TRIBUNAL IN THE SKEA [2005]WASAT 196 CASE AT PARAGRAPH 25 SAID:
    "By s 250A(1) and (2), the Tribunal cannot exercise it powers under s 185(2)(a) and make and transmit a report to the Supreme Court (full
    bench) or order the suspension of a legal practitioner from practice, unless the Tribunal is constituted so as to include the President.
    THE CURRENT PRESIDENT OF SAT IS HIS HONOUR JUSTICE CHANEY WHO WOULD BE IN CONFLICT OF INTERESTS IF HE WERE TO MAKE THIS DECISION.

    ReplyDelete
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