FW: Cry my beloved.........Malaysia!
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show details 12:11 AM (19 hours ago)
Subject: FW: Cry my beloved.........Malaysia!
Date: Sat, 29 Jan 2011 06:52:34 +0000
A gem of a Malay mind.9
There are right thinking Malays like the writer below. I believe he is from the Royal Military College. And Zaid Ibrahim, the Lawyer who left UNMO and joined PKR. God bless them. They are like the Nelson Mendela's, speaking out of the injustice they see in their homeland, also our homeland.
They see the problems of the Malay Mindset vs the non-Malays, and most importantly, vs the rest of the world as Malaysia in NOT Insular from neighbor competitiveness.
This writer likens the current Malay UNMO mindset and practice of NEP in Malaysia to apartheid. Think through what he has written below and you will find that he has a really good comparison here and some good insight on what THOSE in Power are doing to their countless countrymen; brainwashing them to ensure that they stay in power. Hence you can now understand when you see the bias of the uniformed services against the alternative Political Party, the PKR in Perak and other states.
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Abu Bakar Sulaiman a true RMC product, a good friend, and this is his honest and sincere best!
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Cry my beloved Malay soul
AB Sulaiman |
When Alan Paton wrote 'Cry The Beloved Country' he was lamenting over the inhumanity of man over man, of how the whites can devise, construct and implement race- and colour-based social and economic injustices over the blacks in apartheid-era South Africa.
The whole world had condemned this practice; we were among the loudest screaming against it.
South Africa has moved on since then, and today it is one shining example of an emancipated, open and progressive country, enjoying a respectable place in the community of nations. It has thrown apartheid into the bins of its history.
Here in Malaysia, yes we condemn apartheid, and quite rightly so. But in the same breath we were and are still its major proponent our version of apartheid.
We do not call it apartheid; of course not. We call it instead 'Ketuanan Melayu' under the guise of 'championing Malay rights,' and implementing it under the New Economic Policy. It's smart, right? In none of them does the word 'apartheid' appear!
Yes, we are smart. We do not blatantly call it apartheid, we merely perfected the process of social separation. First of all we ensure the great majority of civil servants, the police, and the military are manned by Malays (the target benefactors). We give them good salaries, good perks and assured employment. We then devise rules and regulations, and even laws, to ensure the NEP's easy implementation.
We then brainwash our Malay brethren with the notion 'untuk agama bangsa dan negara' that there is a higher ideal beyond performing a duty with professionalism and dedication, and that is doing things in the name of religion and race.
We devise rules and regulations, and even laws, to ensure the NEP's easy implementation.
Then we design and implement social and economic policies like channeling lucrative government contracts, separate education streams, housing rebates, banking and financial support, in favour of, you guessed it, the Malays.
It does not stop there. We devise measures to prevent the people from raising too much objections to all these by introducing or continuing legislation and religiously implementing them.
The Sedition Act for example stops people from talking too much about language and religion. The Official Secrets Act prevents people from gaining access to government files.
Students and lecturers are not allowed to discuss and make public any subject that would appear to be critical to government (yes, government, not political) policies and philosophies.
All publications must, first of all, get operating licences. Newspapers must not only get a licence before publishing but it must be renewed every year.
Sacrifices conveniently forgotten
The king of all of the suppressive and oppressive laws is the Internal Security Act, when a citizen can be put under detention without the benefit of any charge!
All said and done, we sacrifice the rule of law in favour of rule by private individuals. To show that we are really smart, we pooh pooh the loyalty and patriotism of the non-Malay segment of the population.
We call them pendatang or immigrants bearing the stigma that they are social discard from their original country, similar to rogues, rascals, refugees, mercenaries and scoundrels. We just ignore their proven talent and ability in wealth creation and economic productivity, as well as to their demonstrated loyalty and patriotism.
Many of such pendatangs have made the ultimate sacrifices as military personnel defending its security, during the Emergency, the Confrontation period with Indonesia and as policemen while policing the social environment.
They have contributed and are continuing to, in sport and the arts. Their record as loyal and patriotic Malaysians is quite impeccable. But we do not really care.
The perplexing thing is that despite these attributes and positive records of the non-Malays, we are still going about championing and implement apartheid principles. In this new year, perhaps we can do with a little reflection: why are we doing all this?
We do this apparently to recover our lost soul. We perceive that we have been victims of colonization when the Portuguese, Dutch and British colonizers all but butchered the Malay entity, psychology and culture. In the process we perceive that we have lost our Malay identity.
With independence, we thought we could recapture the lost glory of Malay suzerainty by becoming masters of all facets of a nation, especially its commerce, and economy. We found out that the Chinese community had beaten us to it.
We felt the Chinese had capitalised on our weakness and captured the economic initiatives (and wealth) as well as the social characteristics of the country. We lost 'face'.
Now we want to regain the mertabat or dignity and pride of the Malay race!
Yes, we feel that we have to recover our soul and it is here that we are reminded of Paton's book title, but in this case suitably paraphrased to – cry my beloved Malay soul.
Our Malay soul needs to cry for doing the right thing for the wrong reason or the wrong thing for the right reason; even for the wrong thing for the wrong reason, but not for the right thing for the right reason.
To start with colonization is really not an excuse for our psychological malaise and ineptitude.
Colonization has been a feature of human history and felt all over the world. There are very few countries that have not been colonized in the world.
It is thus a neutral concept in human social and economic development. It is certainly not an impediment to social or economic progress as we are wont to portray it. We should dump this notion that we hold dear into the bin of history.
Rethinking our way of thinking
Just look at the records. The Koreans were once colonised by the Japanese, but today Korea is an industrial power house. Singapore was once colonized by the British and was indeed a part of us, and today we see this tiny country being a solid financial, trading and industrial entity.
Most pointedly of all, the US was once a British colony and today it is the mightiest nation in the world. Our second grouse - that the Chinese have cornered the economic sector of the country also needs re-looking into, on two counts.
First, the Chinese did not become successful based on any conscious and concerted economic programme to economically marginalise us.
We did this self-inflicted wound ourselves. As proof, we have to note that most of the Chinese came to our shores with only their feet, hands, guts and brains and perhaps a bundle of clothes, nothing more.
They become successful for their hard work, both physically and mentally and for the sacrifices they were prepared to make and had undertaken. They were successful for having the mental fortitude to seek opportunities, grab those that come along and worked extra hard to realize the potentials of these opportunities.
Secondly, we have been given a chance to be equal with them, both under numerous 'special privileges' enshrined in the Constitution, as well as under its NEP implementation programe.
The special privileges have always been in the constitution while the latter began in 1970. In short, we have been given the chance - the opportunity - many times over, to better our Malay polity.
Whereas the Chinese had to struggle just to find and identify the opportunities, in our case they were handed to us on a silver platter!
Thus far we have failed to capitalize adequately on them. It is rather shameful we missing out on these chances specially created for us in the first place.
Either way the root cause of our weaknesses and the strength of the Chinese lies in two words - positive thinking. Our thinking is mired with so many dos and don'ts, so many musts and musn'ts, so many cans and cannots, may and may nots, plenty enough to create and internalize doubts and fears in our minds.
So much so that we have doubt over what we can and what we can't do, what is allowed and what is not. We spend a lifetime looking for these highly complex cans and cannots, musts and must nots, that we have hardly any mental energy left to develop and self-confidence to get on and face the realities of life.
Let's refer to this case as the 'can't, don't and won't syndrome'. The Chinese by the way are not encumbered by such syndromes.
What appears to have happened is that this syndrome has affected our mental ability to conceptualise. We see things on the straight and narrow. We accept wisdoms handed down to us by our elders as the gospel truth.
Blinded by sentiment
We do not see that things can be seen and interpreted in many alternative ways. We feel we have the monopoly on truth; we therefore think that we are right all the time and other people are wrong all the time. Witness the way we see religion for example.
We think that we as Muslims are right and other people who profess other religions are wrong, all the time.
We need to cry for thinking that we can and have doctored the way the people think and do things. We have been intimidating the people with what they can read or write or think and do.
We seem to be saying "you can think anything, do anything, write anything so long as it does not criticise or condemn the government".
Soul-searching and resuscitating is not or should not be about pointing accusing fingers at some bogeys. That would be a most negative thing to do. It would be better for us to be open-minded and be able to identify our own strengths and weaknesses.
We improve upon our strengths and dump our weaknesses. Mainly we must be able to develop the awareness that we have both the strengths and weaknesses in the first place.
To illustrate, the NEP has proved many time over as a failed strategy for our socio-economic advancement. Let us be aware of this in the first place and move on seeking other ways with better chance of success.
How about secularizing the Malay mind? It might make for a good start for we can see many of the don'ts, can'ts, musn'ts dissipating into the wind.
In the meantime, here we are in the early days of a new year. We should begin by realising that whatever 'smart' moves we had undertaken all this while have not really been that smart after all.
The joke is on us. Everybody says so – the liberated Malays, the non-Malays, our neighbors and the rest of the international community. Only those of us basking in our closed mind and benefiting from the profits of the status quo say it's alright.
Happy New Year all the same and here's hoping this year we can get a good perspective as to what propagating a good mertabat really means. It's long overdue.
In the meantime, cry my beloved Malay soul.
Jean-Luc Godard - "To be or not to be. That's not really a question."
--
邱武福 9728
Boo Hock
Sunday, January 30, 2011
Monday, January 10, 2011
TRANSCRIPT OF THE TAXATION PROCEEDINGS BEFORE MR. ANTHONY PRIME AND MR. MAURICE LAW BY REGISTRAR POWELL - IN THE ABSENCE OF NICHOLAS N CHIN WHO HAS GIVEN PRIOR NOTICE TO REGISTRAR POWELL THAT HE IS UNAVAILABLE
Copyright in this document is reserved to the State of Western Australia. Reproduction or dissemination of this document (or part thereof, in any format) except with the consent of the attorney-general is prohibited. Please note that under section 43 of the Copyright Act 1968 copyright is not infringed by anything reproduced for the purposes of a judicial proceeding or of a report of a judicial proceeding.
THE SUPREME COURT OF
WESTERN AUSTRALIA
CIV:1775 of 2008
AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL
and
NICHOLAS NI KOK CHIN
and
SPUNTER PTY LTD
and
THE REGISTRAR OF TITLES
REGISTRAR POWELL
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON FRIDAY, 17 DECEMBER 2010, AT 10.03 AM
Continued from 3/11/10
MR A. PRIME appeared for the plaintiff.
The first defendant appeared in person via telephone.
17/12/10 35
(s&c)
THE REGISTRAR: Commence the reviews in the first instance in CIV 1775 of 2008, Hall v Chin and Spunter Pty Ltd and the Registrar of Titles. Yes, Mr Prime?
PRIME, MR: May it please, registrar, in that matter I appear for the plaintiff.
THE REGISTRAR: Thank you. Now, I note you are here, Mr Law. In what capacity are you here?
LAW, MR: I can say a witness. Mr Chin can't be here and although he mentioned there might be a phone hook-up, I just thought I would come in to see what was going on. These two matters don't directly refer to me.
THE REGISTRAR: They refer to the company.
LAW, MR: Yes.
THE REGISTRAR: But you seem to have flitted in and out without an appearance ever being filed on behalf of the company and notwithstanding that you're not a certified legal practitioner you have had things to say on behalf of Spunter of which you are now the sole director, I understand.
LAW, MR: Yes, sir. I have written a letter to the Supreme Court to ‑ ‑ ‑
THE REGISTRAR: No, I'm not interested in letters.
LAW, MR: Okay.
THE REGISTRAR: It's a review of taxation. Now, in CIV 1775 of 2008 the bill was taxed pursuant to an order of Master Sanderson dated 29 January and the cost provisions state the first and second defendants pay the plaintiff's costs of the action, including any reserved costs and the costs of the application to be taxed. The bill was taxed. Mr Chin filed objections. The order I made at the taxation was the allocatur would be signed on 10 November unless before that date. A request for review and objections were filed. So objections had to be filed before that date.
Now, there was a document received on 4 November. The second defendant's notice of objection to the plaintiff's bill of costs was prepared by Nicholas Chin but it's referred to as the second defendant's notice of objection. Now, I don't want to get embroiled in this hearing on the right or otherwise of Mr Chin to file objections on behalf of the - sorry, Mr Chin is the second defendant.
On 10 November which is late you, Mr Law, sent a letter to the court initially dated 29 October, then altered to 9 November and finally faxed on 10 November so
17/12/10 LAW, MR 36
it is out of time and it you say, "I'm seeking your permission to file my tax notice of objection dated 9 November." It was too late, but what you filed under your name - who prepared that document?
LAW, MR: Myself.
THE REGISTRAR: Mr Chin?
LAW, MR: Myself. I did receive some assistance from another gentleman.
THE REGISTRAR: Who was that gentleman?
LAW, MR: He lives in another suburb.
THE REGISTRAR: Could you name who it is?
LAW, MR: James Deane.
THE REGISTRAR: What is James Deane, a lawyer?
LAW, MR: No, a friend of mine.
THE REGISTRAR: That document seems to follow the wording of the second defendant's notice of objection.
LAW, MR: I probably took some points from it.
THE REGISTRAR: Is it identical?
LAW, MR: No.
THE REGISTRAR: Which parts aren't identical?
LAW, MR: I don't have the document in front of me. I don't have two documents.
THE REGISTRAR: In any event, firstly, that's out of time; secondly, it's not a notice of objection. At the hearing I stated you should identify those items to which you are objecting and the reasons for the objection. This seems to be a general description of the objections that Mr Chin took at the taxation. I will come back to that in a moment, but in my view this document was prepared by Mr Chin.
LAW, MR: The facts would be the same, wouldn't they?
THE REGISTRAR: You have got your copy now, have you?
LAW, MR: Yes, sir.
THE REGISTRAR: I will have a look at Mr Chin's copy of his objections. It starts off "Take notice", et cetera, "that I the second defendant am objecting to the taxation,"
17/12/10 LAW, MR 37
and it goes on (1) and then it has got, "53 - party dissatisfied with taxation may object," and then (1)(a) "A party who contends that the taxing officer has made an error." It's identical with the wording in the other one. Every time I see you you just add to the confusion, Mr Law. Nicholas Chin is the first defendant and Spunter is the second defendant.
LAW, MR: Yes.
THE REGISTRAR: Nicholas Chin has filed a notice of objection on behalf of the second defendant.
LAW, MR: We all make mistakes.
THE REGISTRAR: Okay. Don't worry about that.
LAW, MR: No.
THE REGISTRAR: So have you copied this document which was received by the court on 4 November and added your name and then referred to it as your objections?
LAW, MR: Well, the objections would be similar.
THE REGISTRAR: No; no, please answer the questions ‑ ‑ ‑
LAW, MR: No.
THE REGISTRAR: - - - otherwise we are going to have one of these things that go forever.
LAW, MR: Okay, sure.
THE REGISTRAR: You didn't copy it.
LAW, MR: No.
THE REGISTRAR: No, okay. Did you prepare this document or did someone prepare it for you?
LAW, MR: I prepared it.
THE REGISTRAR: When you say "prepared it", typed it up?
LAW, MR: Yes, it's on my computer.
THE REGISTRAR: Was it sent to your computer by Mr Chin?
LAW, MR: No.
THE REGISTRAR: As I say, one, it's out time, (b) it's not an objection to the taxation and (c) you make the same errors that Mr Chin made at the taxation. I'm trying to find the reference to the decision of Judge Sullivan which was towards the end of that document. After
17/12/10 LAW, MR 38
paragraph (j) or in paragraph (j) it commences:
Registrar Hewitt as the taxing master of another case which affects Mr Alesandro Bertini did on 22 June 2009 decide to overrule his Honour of the District Court Judge O'Sullivan improper costs order affecting the solicitor-litigant in claiming profit costs against Mr Bertini.
Now, we are at the taxing here. Mr Chin was referring to that judge as Judge Sullivan which I have never heard of before, but there is or there was a Judge O'Sullivan at the District Court, but that case has nothing to do with this one. That is to do with the costs of a solicitor as a litigant in person and it was put forward by Mr Chin on the basis that I had the power under this case quoted in here to overrule the decision of a judge. That is sheer nonsense.
LAW, MR: Yes.
THE REGISTRAR: The case that Mr Chin was referring to is in fact Dobree v Hoffman (1996)18 WAR 36. It's a dispute between partners in a legal firm and it has got nothing to do with this case here, but in any event I'm going to rule that that isn't an objection to taxation by you. Insofar as you're concerned (a) you're out of time and I see no reason to extend the time for you to file those objections so your objections have no weight here and you may leave if you so wish.
Now, so far as the objection of Mr Chin is concerned I explained to Mr Chin at taxation the procedures and it might be instructive to go to the transcript. From what I can see Mr Chin's objection is to the fact that I even commenced to tax the bill because the decision of the court was wrong in that it misinterpreted or I misled the court by a letter dated 11 June in CIV 1131 of 2006 concerning the date of when a writ was filed.
Now, Mr Chin says the Court of Appeal were misled in that they relied on my letter in the decision they made in Chin v Hall (2009) WASCA 216 and he referred me to paragraphs 54 and 55 of the judgment of Owen JA where Owen JA said:
I have reviewed the evidence which Mr Chin seeks to adduce and it does not prove his contention. The high point of Chin's evidence is a letter written to him by a registrar of this court dated 11 June.
That's the letter I have just referred to and the judge sets that out in full and the judge at paragraph 55 says:
17/12/10 LAW, MR 39
The letter does not establish that the action was not commenced on 10 February. It indicates the writ was filed on 10 February and, through an oversight, the filing fee paid was 20 cents of the proper amount. The underpayment was brought to Spunter's solicitor's attention and the correct amount was paid. This does not mean that the writ was not filed until the correct fee was paid.
Now, all his objections at that taxation were based on that and his error in principle is a decision of the court and the fact that I am taxing the bill. First of all I should say that the title to this action 1775 of 2008 is Hall as the plaintiff, Chin as the first defendant, Spunter as the second defendant and the Registrar of Titles is the third defendant and the confusion from time to time is the wrong description of the first and second defendants.
LAW, MR: Yes, I came across this a number of times. They even put me down as Hall.
THE REGISTRAR: When you say "they", who?
LAW, MR: Different solicitors.
THE REGISTRAR: So this objection by Nicholas Chin was said to be the second defendant's notice of objection but it's not the second defendant's notice of objection - sorry, it is the second defendant's notice of objection. It's Nicholas Chin. Now, I have previously referred to the objections by Maurice Law for Spunter and what he has done on those objections is make - sorry, this is the problem with this. Chin's objections are said to be on behalf of the second defendant. The second defendant is Spunter. However, in his objections he has reversed Spunter and Chin so that Spunter is shown as the first defendant and Chin is the second defendant, but let's not worry too much about that. The wording of that, of course, is the same as in the document produced by Mr Law, but once again it's not an objection to taxation. Now, I would like to read out ‑ ‑ ‑
THE ASSOCIATE: Registrar, sorry to cut across you, but I think he has either hung up or he has gone.
THE REGISTRAR: Has Mr Chin hung up?
THE ASSOCIATE: It sounds like it.
THE REGISTRAR: Not on that phone; try on another phone. That's still recording is it?
THE ASSOCIATE: It's off now.
THE REGISTRAR: No, I want it recording because I'm going to continue but I want you to ring on another phone whether he has hung up.
17/12/10 LAW, MR 40
THE ASSOCIATE: Yes.
LAW, MR: I don't know whether ‑ ‑ ‑
THE REGISTRAR: No, please, every time you speak you add to the confusion. Now, at page 2 of the transcript after introducing the case I raised the first question where Mr Chin objected to me taxing the bill and halfway down page 2 of the transcript he says:
I believe there is a technical slip of the Court of Appeal in its decision in CACV 107 of 2008. That technical slip happens at paragraphs 54 and 55 of that judgment. That judgment was by the Court of Appeal, three members.
Now, I have previously adverted to those paragraphs and I then went on to say, "Look, there has been a decision by the court and I'm taxing pursuant to that order," and Mr Chin persisted at the top of page 3. He says:
I have written a few letters of inquiry regarding the exact position as to why CIV 1131 of 2006 was not filed on 10 February but was filed on 16 February 2006.
I have read out the reasons of Owen JA which were quite clear. Then Chin says:
I have gone to the High Court and the High Court have decided that I had go to go back to the low court to make a legal determination whether it is my work, that is, the solicitor's work in CIV 1142.
Mr Prime interposed saying that the High Court decision was on a special leave application and I said:
This is an order dated 27 May and the High Court stated the application for special leave to appeal in this court for judgment be dismissed.
Chin said he understood that "but the reasons for the judgment says"- and I cut him off. I said, "That's the end of the matter as far as the High Court is concerned." Chin said, "It doesn't end there because there are issues that have not been decided by the High Court," and Chin went on, "It's not over because it's not res judicata." So then we go to page 6 and I said, "Unless you can show cause which says I must not tax the bill, I want to go ahead and tax it," and Mr Chin objected and I asked why. He said:
Because you wouldn't be involved in a dispute which have you been personally implicated because the Court of Appeal in coming to the decision made a technical slip at paragraphs 54 and 55 -
17/12/10 41
so he's coming back to those comments by Owen JA -
and that technical slip relied upon your letter of 11 June.
Then we went on and on about that and I asked was he suggesting that I was lying or was he suggesting that I was trying to mislead someone and then Chin went on at page 8, "Also would you like me to go on whether you have got the jurisdiction to tax this matter?" I said, "Yes." "All right. Your jurisdiction as a taxing officer is either to allow or disallow those items in the bill," and I said, "Yes." "Your jurisdiction in this is that you must not allow it because those services were never provided by Mr Anthony Prime to Mrs Hall," and I said, "The costs are allowed pursuant to the costs order. The bill is taxed pursuant to the costs order," and then Chin said, "But according to the rules" - and I asked, "Which rule?" and he said, "Rule 53(1)." Rule 53(1) has a reference to order 66. Rule 53(1):
A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, deliver to the other party -
and it goes on with the method of seeking the review and filing objections, but that's after the taxation, not before it. Here we hadn't commenced taxation. It's highlighted by the fact that the Court of Appeal decision which then allowed the taxing in 1775 of 2008 to proceed was wrong in that it was based on a letter written by me which Mr Chin contends was either wrong, a lie, misleading and he's also referred to me trying to protect Mr Taylor.
I got to the first item at page 14 of the transcript at the bottom and at the beginning of page 15 I said, "You can reserve an appeal as to whether this taxation should proceed but as far as the taxing of the bill is concerned item 1 refers to a writ," and we commenced to tax, "Do you have any objection?" Chin: "Sir, rule 53 does not allow you to have jurisdiction to proceed with the taxation." In my view that's clearly wrong. It can only be right if his contention that the Court of Appeal were wrong in their decision and I'm not the body who can decide that question. I assumed that was the purpose of the application to the High Court which was dismissed. I make the point towards the bottom of page 15 in referring to this rule:
It's only where you're dissatisfied with my taxation but we haven't taxed it yet, so how can you be dissatisfied with my taxation? What you're dissatisfied about is my right to commence the taxation.
17/12/10 42
THE ASSOCIATE: He has gone again, registrar.
THE REGISTRAR: Yes. I will just adjourn it for a moment. Now, I will continue but I'm assuming that either Mr Chin has hung up or his phone has ceased to receive this call. Looking at the transcript from then onwards, you can see how the taxation proceeded at page 18 at the top of the page referring to the statement of claim. Mr Chin: "I object because it's not allowed." Registrar: "Why isn't it allowed?" Chin: "It isn't allowed because it's not recoverable because it's not the services that have been provided to Mrs Hall." I said:
The order provides that the first and second defendants pay the plaintiff's costs of the action, including any reserved costs and that's what I was taxing.
I said, "Do you want to object to the quantum?" Mr Chin: "I do not wish to participate in this, sir." I said, "I'm going to allow the item," and then we proceeded with the summary judgment application. At the top of page 20 I said, "Do you have any objection to the quantum being claimed?" Mr Chin: "Sir, the order of the court - the court's order against me is a void judgment and I've approached it" - and I interjected, "Decided by whom?" Chin: "By way of certiorari." "Who decided that?"
Chin: "I've approached it by certiorari and it will be decided." Registrar: "It's not decided by anyone at the moment. All of these are allegations by you." "It's not an allegation. It's a fact." Chin: "I don't want to waste my time taxing something which I'm not liable to pay," so the whole objection is that he's not liable to pay because of the faulty judgment of the court which was based either on a lie or being led astray by my letter.
THE ASSOCIATE: He's dropped out.
THE REGISTRAR: Is he dropping out or is he ‑ ‑ ‑
THE ASSOCIATE: Yes, I don't fully understand why it is.
CHIN, MR: Hello.
THE ASSOCIATE: This is Perth again, Mr Chin.
CHIN, MR: Hello.
THE REGISTRAR: Yes, we can hear you, Mr Chin. Then at page 21 there's a discussion on item 3 of the bill - sorry, item 4 of the bill which were costs fixed by a case manager. Mr Chin: "Is it a standard association or an indemnity assessment?" I replied:
17/12/10 43
It's costs fixed by the case manager. There was no taxation about it. The case manager fixed those costs and that can be seen by the order dated 18 August 2008. The costs of the day be in the cause fixed at $320.
Chin: "So is it a standard assessment, not an indemnity costs?" "That's the order. Forget what it is. It's fixed." "Sir, I wanted to know whether it's party and party costs that I'm to pay that is made?" "There is not suggestion this is anything other than party and party but it's been fixed by the judicial officer who made the order," and then we went on and taxation proceeded on that basis.
If I could digress a moment, at page 28 with respect to Mr Law I asked, "Has anyone granted you, Mr Law, leave to appear on behalf of Spunter in this or any other matters?" Mr Law: "Well, I have a solicitor - no, I was, I think - yes, I did. I applied, yes. I wrote to the court." "And what was the order?" Law: "I don't think I received a reply again." "Did you make an application?" "Not especially as a document from the court." The end effect is that no‑one is representing the company but I gave Mr Law leave to speak at the taxation with respect to the bill for that company.
LAW, MR: Sir, do I have to ask the court each time I come in on a matter whether I'm able to represent the company?
THE REGISTRAR: I'm not worried about that. What I'm worried about is this taxation. So any other matter you can take up with the judicial officer, but to my way of thinking this taxation will end this action so if you commence something further, you will have to ask. At page 3 we got on to a review of taxation. At the bottom of that page I said:
The easiest way is if you object to individual items in the bill. Now, if you have got some objection in some other form which has got nothing to do with taxing of the bill, that is a decision under which I'm taxing.
In other words, getting back to the order of the Full Court, "I'm taking no notice of that because I can't affect that. I'm taxing pursuant to the order," and that's because, if I could go back one, at page 31 at the end of the taxation I said, "I'm explaining to you that if I start it now, that's the equivalent of a judgment. If you have got objections as to principle or any other matter, I will delay signing the allocatur for seven days," and Chin asked me to do that and so did Mr Law.
Mr Chin: "The reason for my objection is it should not have been allowed because there is no recoverability."
17/12/10 44
"We touched on recoverability. The recoverability is not there." In other words, he's finding fault with the judgment of the court and I suggested that he should either seek legal advice or make use of his own knowledge, being formerly a lawyer, and that, "My review would be based on the taxation and I will restrict it to those matters in contention," and I said at the foot of page 32:
It will not include whether the judgment pursuant to which this bill is taxed is valid or not or whether it should be reversed on some sort of appeal. My review will be on the amounts allowed under the items of the bill.
I invited him to "do whatever you want in whatever sphere" but to do it before that date "but if it doesn't relate to the review of the taxation, being an error in principle on which the bill was taxed and the amounts allowed, I will be signing the allocatur". In my view that's what this document headed "Objections" is. It doesn't specify the items. It doesn't specify the amounts, but it reverts back to the commencement of the writ in 1131 of 2006.
CHIN, MR: Hello, is that (indistinct)
THE REGISTRAR: It says, "The two bills of costs are for judgments and are not enforceable in a court of law. These proceedings are void and have to be repaired by way of certiorari in CIV 1877 of 2010," and there's a reference to various cases.
CHIN, MR: Can I (indistinct)
THE REGISTRAR: So far as I'm concerned these objections are not objections as to the taxation. Now, whether you, Mr Chin, have a right to take this matter on the question of the judgment pursuant to which I'm taxing the bill to another jurisdiction is not for me to decide, but I don't believe these objections in any way cause me to change the amounts I taxed at taxation. Now, you want to say something, Mr Chin?
CHIN, MR: Yes.
THE REGISTRAR: Do you want to say anything?
CHIN, MR: I actually can't hear. What's your decision again, please?
THE REGISTRAR: Yes, what I'm saying is that this isn't objections to taxation. It's objections ‑ ‑ ‑
CHIN, MR: (indistinct)
17/12/10 CHIN, MR 45
THE REGISTRAR: I'm going to allow the taxation - the amount allowed at taxation.
CHIN, MR: (indistinct) can you send me that email again because ‑ ‑ ‑
.........., MR: He's talking to someone else.
THE REGISTRAR: Which email?
.........., MR: He's talking to someone else at the same time, someone called Jackson.
CHIN, MR: Your Honour?
THE REGISTRAR: Are you talking to me, Mr Chin?
CHIN, MR: Your Honour - your Honour, can you hear me?
THE REGISTRAR: Yes.
CHIN, MR: I'm speaking to Jackson of the Supreme Court at this moment just a little - I have got a document I ask him to send to me and I will (indistinct). Is that okay?
THE REGISTRAR: No, I'm making my decision now because what you have filed are not objections to the taxation. I will just see what Mr Prime has to say.
CHIN, MR: (indistinct) I didn't hear the decision properly.
THE REGISTRAR: Okay. I just want to hear what Mr Prime has got to say. Do you have anything to say?
PRIME, MR: All I say, registrar, is that on the defendants' own document where they quote order 53 rule (1)(a) it says that an objection in writing must be ‑ ‑ ‑
CHIN, MR: (indistinct)
THE REGISTRAR: Can you keep your voice up for his purposes?
PRIME, MR: The objection must be a list in a short and concise form of the item ‑ ‑ ‑
THE REGISTRAR: Hold on, Mr Chin, please. Mr Prime is speaking now.
PRIME, MR: The objection needs to be a list in a short and concise form of the items or parts of items objected to and the grounds and reasons for the objections. This document doesn't do that. This document seeks to continue
17/12/10 46
to argue the matter that has been put to rest by the Court of Appeal and by the High Court.
THE REGISTRAR: That is what I pointed out to Mr Chin ‑ ‑ ‑
PRIME, MR: Yes, at the original taxation.
THE REGISTRAR: - - - and to Mr Law at the original taxation.
PRIME, MR: That's right, and indeed to the extent that he refers to seeking prerogative relief the decision of Heenan J in that regard, although adjourned sine die, says, in effect, "Subject to any submissions from Mr Chin those applications are doomed to failure but I won't dismiss them at this stage." So all of those are issues that he could seek to take elsewhere. He has sought to do so and unsuccessfully. They do not impact upon your taxation and they're not bases upon which to seek a review of individual items.
THE REGISTRAR: So as a result of that I'm not going to sign the allocatur in the bills and that completes the hearing. Thank you.
AT 10.50 AM THE MATTER WAS ADJOURNED ACCORDINGLY
12/10 PRIME, MR 47
THE SUPREME COURT OF
WESTERN AUSTRALIA
CIV:1775 of 2008
AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL
and
NICHOLAS NI KOK CHIN
and
SPUNTER PTY LTD
and
THE REGISTRAR OF TITLES
REGISTRAR POWELL
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON FRIDAY, 17 DECEMBER 2010, AT 10.03 AM
Continued from 3/11/10
MR A. PRIME appeared for the plaintiff.
The first defendant appeared in person via telephone.
17/12/10 35
(s&c)
THE REGISTRAR: Commence the reviews in the first instance in CIV 1775 of 2008, Hall v Chin and Spunter Pty Ltd and the Registrar of Titles. Yes, Mr Prime?
PRIME, MR: May it please, registrar, in that matter I appear for the plaintiff.
THE REGISTRAR: Thank you. Now, I note you are here, Mr Law. In what capacity are you here?
LAW, MR: I can say a witness. Mr Chin can't be here and although he mentioned there might be a phone hook-up, I just thought I would come in to see what was going on. These two matters don't directly refer to me.
THE REGISTRAR: They refer to the company.
LAW, MR: Yes.
THE REGISTRAR: But you seem to have flitted in and out without an appearance ever being filed on behalf of the company and notwithstanding that you're not a certified legal practitioner you have had things to say on behalf of Spunter of which you are now the sole director, I understand.
LAW, MR: Yes, sir. I have written a letter to the Supreme Court to ‑ ‑ ‑
THE REGISTRAR: No, I'm not interested in letters.
LAW, MR: Okay.
THE REGISTRAR: It's a review of taxation. Now, in CIV 1775 of 2008 the bill was taxed pursuant to an order of Master Sanderson dated 29 January and the cost provisions state the first and second defendants pay the plaintiff's costs of the action, including any reserved costs and the costs of the application to be taxed. The bill was taxed. Mr Chin filed objections. The order I made at the taxation was the allocatur would be signed on 10 November unless before that date. A request for review and objections were filed. So objections had to be filed before that date.
Now, there was a document received on 4 November. The second defendant's notice of objection to the plaintiff's bill of costs was prepared by Nicholas Chin but it's referred to as the second defendant's notice of objection. Now, I don't want to get embroiled in this hearing on the right or otherwise of Mr Chin to file objections on behalf of the - sorry, Mr Chin is the second defendant.
On 10 November which is late you, Mr Law, sent a letter to the court initially dated 29 October, then altered to 9 November and finally faxed on 10 November so
17/12/10 LAW, MR 36
it is out of time and it you say, "I'm seeking your permission to file my tax notice of objection dated 9 November." It was too late, but what you filed under your name - who prepared that document?
LAW, MR: Myself.
THE REGISTRAR: Mr Chin?
LAW, MR: Myself. I did receive some assistance from another gentleman.
THE REGISTRAR: Who was that gentleman?
LAW, MR: He lives in another suburb.
THE REGISTRAR: Could you name who it is?
LAW, MR: James Deane.
THE REGISTRAR: What is James Deane, a lawyer?
LAW, MR: No, a friend of mine.
THE REGISTRAR: That document seems to follow the wording of the second defendant's notice of objection.
LAW, MR: I probably took some points from it.
THE REGISTRAR: Is it identical?
LAW, MR: No.
THE REGISTRAR: Which parts aren't identical?
LAW, MR: I don't have the document in front of me. I don't have two documents.
THE REGISTRAR: In any event, firstly, that's out of time; secondly, it's not a notice of objection. At the hearing I stated you should identify those items to which you are objecting and the reasons for the objection. This seems to be a general description of the objections that Mr Chin took at the taxation. I will come back to that in a moment, but in my view this document was prepared by Mr Chin.
LAW, MR: The facts would be the same, wouldn't they?
THE REGISTRAR: You have got your copy now, have you?
LAW, MR: Yes, sir.
THE REGISTRAR: I will have a look at Mr Chin's copy of his objections. It starts off "Take notice", et cetera, "that I the second defendant am objecting to the taxation,"
17/12/10 LAW, MR 37
and it goes on (1) and then it has got, "53 - party dissatisfied with taxation may object," and then (1)(a) "A party who contends that the taxing officer has made an error." It's identical with the wording in the other one. Every time I see you you just add to the confusion, Mr Law. Nicholas Chin is the first defendant and Spunter is the second defendant.
LAW, MR: Yes.
THE REGISTRAR: Nicholas Chin has filed a notice of objection on behalf of the second defendant.
LAW, MR: We all make mistakes.
THE REGISTRAR: Okay. Don't worry about that.
LAW, MR: No.
THE REGISTRAR: So have you copied this document which was received by the court on 4 November and added your name and then referred to it as your objections?
LAW, MR: Well, the objections would be similar.
THE REGISTRAR: No; no, please answer the questions ‑ ‑ ‑
LAW, MR: No.
THE REGISTRAR: - - - otherwise we are going to have one of these things that go forever.
LAW, MR: Okay, sure.
THE REGISTRAR: You didn't copy it.
LAW, MR: No.
THE REGISTRAR: No, okay. Did you prepare this document or did someone prepare it for you?
LAW, MR: I prepared it.
THE REGISTRAR: When you say "prepared it", typed it up?
LAW, MR: Yes, it's on my computer.
THE REGISTRAR: Was it sent to your computer by Mr Chin?
LAW, MR: No.
THE REGISTRAR: As I say, one, it's out time, (b) it's not an objection to the taxation and (c) you make the same errors that Mr Chin made at the taxation. I'm trying to find the reference to the decision of Judge Sullivan which was towards the end of that document. After
17/12/10 LAW, MR 38
paragraph (j) or in paragraph (j) it commences:
Registrar Hewitt as the taxing master of another case which affects Mr Alesandro Bertini did on 22 June 2009 decide to overrule his Honour of the District Court Judge O'Sullivan improper costs order affecting the solicitor-litigant in claiming profit costs against Mr Bertini.
Now, we are at the taxing here. Mr Chin was referring to that judge as Judge Sullivan which I have never heard of before, but there is or there was a Judge O'Sullivan at the District Court, but that case has nothing to do with this one. That is to do with the costs of a solicitor as a litigant in person and it was put forward by Mr Chin on the basis that I had the power under this case quoted in here to overrule the decision of a judge. That is sheer nonsense.
LAW, MR: Yes.
THE REGISTRAR: The case that Mr Chin was referring to is in fact Dobree v Hoffman (1996)18 WAR 36. It's a dispute between partners in a legal firm and it has got nothing to do with this case here, but in any event I'm going to rule that that isn't an objection to taxation by you. Insofar as you're concerned (a) you're out of time and I see no reason to extend the time for you to file those objections so your objections have no weight here and you may leave if you so wish.
Now, so far as the objection of Mr Chin is concerned I explained to Mr Chin at taxation the procedures and it might be instructive to go to the transcript. From what I can see Mr Chin's objection is to the fact that I even commenced to tax the bill because the decision of the court was wrong in that it misinterpreted or I misled the court by a letter dated 11 June in CIV 1131 of 2006 concerning the date of when a writ was filed.
Now, Mr Chin says the Court of Appeal were misled in that they relied on my letter in the decision they made in Chin v Hall (2009) WASCA 216 and he referred me to paragraphs 54 and 55 of the judgment of Owen JA where Owen JA said:
I have reviewed the evidence which Mr Chin seeks to adduce and it does not prove his contention. The high point of Chin's evidence is a letter written to him by a registrar of this court dated 11 June.
That's the letter I have just referred to and the judge sets that out in full and the judge at paragraph 55 says:
17/12/10 LAW, MR 39
The letter does not establish that the action was not commenced on 10 February. It indicates the writ was filed on 10 February and, through an oversight, the filing fee paid was 20 cents of the proper amount. The underpayment was brought to Spunter's solicitor's attention and the correct amount was paid. This does not mean that the writ was not filed until the correct fee was paid.
Now, all his objections at that taxation were based on that and his error in principle is a decision of the court and the fact that I am taxing the bill. First of all I should say that the title to this action 1775 of 2008 is Hall as the plaintiff, Chin as the first defendant, Spunter as the second defendant and the Registrar of Titles is the third defendant and the confusion from time to time is the wrong description of the first and second defendants.
LAW, MR: Yes, I came across this a number of times. They even put me down as Hall.
THE REGISTRAR: When you say "they", who?
LAW, MR: Different solicitors.
THE REGISTRAR: So this objection by Nicholas Chin was said to be the second defendant's notice of objection but it's not the second defendant's notice of objection - sorry, it is the second defendant's notice of objection. It's Nicholas Chin. Now, I have previously referred to the objections by Maurice Law for Spunter and what he has done on those objections is make - sorry, this is the problem with this. Chin's objections are said to be on behalf of the second defendant. The second defendant is Spunter. However, in his objections he has reversed Spunter and Chin so that Spunter is shown as the first defendant and Chin is the second defendant, but let's not worry too much about that. The wording of that, of course, is the same as in the document produced by Mr Law, but once again it's not an objection to taxation. Now, I would like to read out ‑ ‑ ‑
THE ASSOCIATE: Registrar, sorry to cut across you, but I think he has either hung up or he has gone.
THE REGISTRAR: Has Mr Chin hung up?
THE ASSOCIATE: It sounds like it.
THE REGISTRAR: Not on that phone; try on another phone. That's still recording is it?
THE ASSOCIATE: It's off now.
THE REGISTRAR: No, I want it recording because I'm going to continue but I want you to ring on another phone whether he has hung up.
17/12/10 LAW, MR 40
THE ASSOCIATE: Yes.
LAW, MR: I don't know whether ‑ ‑ ‑
THE REGISTRAR: No, please, every time you speak you add to the confusion. Now, at page 2 of the transcript after introducing the case I raised the first question where Mr Chin objected to me taxing the bill and halfway down page 2 of the transcript he says:
I believe there is a technical slip of the Court of Appeal in its decision in CACV 107 of 2008. That technical slip happens at paragraphs 54 and 55 of that judgment. That judgment was by the Court of Appeal, three members.
Now, I have previously adverted to those paragraphs and I then went on to say, "Look, there has been a decision by the court and I'm taxing pursuant to that order," and Mr Chin persisted at the top of page 3. He says:
I have written a few letters of inquiry regarding the exact position as to why CIV 1131 of 2006 was not filed on 10 February but was filed on 16 February 2006.
I have read out the reasons of Owen JA which were quite clear. Then Chin says:
I have gone to the High Court and the High Court have decided that I had go to go back to the low court to make a legal determination whether it is my work, that is, the solicitor's work in CIV 1142.
Mr Prime interposed saying that the High Court decision was on a special leave application and I said:
This is an order dated 27 May and the High Court stated the application for special leave to appeal in this court for judgment be dismissed.
Chin said he understood that "but the reasons for the judgment says"- and I cut him off. I said, "That's the end of the matter as far as the High Court is concerned." Chin said, "It doesn't end there because there are issues that have not been decided by the High Court," and Chin went on, "It's not over because it's not res judicata." So then we go to page 6 and I said, "Unless you can show cause which says I must not tax the bill, I want to go ahead and tax it," and Mr Chin objected and I asked why. He said:
Because you wouldn't be involved in a dispute which have you been personally implicated because the Court of Appeal in coming to the decision made a technical slip at paragraphs 54 and 55 -
17/12/10 41
so he's coming back to those comments by Owen JA -
and that technical slip relied upon your letter of 11 June.
Then we went on and on about that and I asked was he suggesting that I was lying or was he suggesting that I was trying to mislead someone and then Chin went on at page 8, "Also would you like me to go on whether you have got the jurisdiction to tax this matter?" I said, "Yes." "All right. Your jurisdiction as a taxing officer is either to allow or disallow those items in the bill," and I said, "Yes." "Your jurisdiction in this is that you must not allow it because those services were never provided by Mr Anthony Prime to Mrs Hall," and I said, "The costs are allowed pursuant to the costs order. The bill is taxed pursuant to the costs order," and then Chin said, "But according to the rules" - and I asked, "Which rule?" and he said, "Rule 53(1)." Rule 53(1) has a reference to order 66. Rule 53(1):
A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, deliver to the other party -
and it goes on with the method of seeking the review and filing objections, but that's after the taxation, not before it. Here we hadn't commenced taxation. It's highlighted by the fact that the Court of Appeal decision which then allowed the taxing in 1775 of 2008 to proceed was wrong in that it was based on a letter written by me which Mr Chin contends was either wrong, a lie, misleading and he's also referred to me trying to protect Mr Taylor.
I got to the first item at page 14 of the transcript at the bottom and at the beginning of page 15 I said, "You can reserve an appeal as to whether this taxation should proceed but as far as the taxing of the bill is concerned item 1 refers to a writ," and we commenced to tax, "Do you have any objection?" Chin: "Sir, rule 53 does not allow you to have jurisdiction to proceed with the taxation." In my view that's clearly wrong. It can only be right if his contention that the Court of Appeal were wrong in their decision and I'm not the body who can decide that question. I assumed that was the purpose of the application to the High Court which was dismissed. I make the point towards the bottom of page 15 in referring to this rule:
It's only where you're dissatisfied with my taxation but we haven't taxed it yet, so how can you be dissatisfied with my taxation? What you're dissatisfied about is my right to commence the taxation.
17/12/10 42
THE ASSOCIATE: He has gone again, registrar.
THE REGISTRAR: Yes. I will just adjourn it for a moment. Now, I will continue but I'm assuming that either Mr Chin has hung up or his phone has ceased to receive this call. Looking at the transcript from then onwards, you can see how the taxation proceeded at page 18 at the top of the page referring to the statement of claim. Mr Chin: "I object because it's not allowed." Registrar: "Why isn't it allowed?" Chin: "It isn't allowed because it's not recoverable because it's not the services that have been provided to Mrs Hall." I said:
The order provides that the first and second defendants pay the plaintiff's costs of the action, including any reserved costs and that's what I was taxing.
I said, "Do you want to object to the quantum?" Mr Chin: "I do not wish to participate in this, sir." I said, "I'm going to allow the item," and then we proceeded with the summary judgment application. At the top of page 20 I said, "Do you have any objection to the quantum being claimed?" Mr Chin: "Sir, the order of the court - the court's order against me is a void judgment and I've approached it" - and I interjected, "Decided by whom?" Chin: "By way of certiorari." "Who decided that?"
Chin: "I've approached it by certiorari and it will be decided." Registrar: "It's not decided by anyone at the moment. All of these are allegations by you." "It's not an allegation. It's a fact." Chin: "I don't want to waste my time taxing something which I'm not liable to pay," so the whole objection is that he's not liable to pay because of the faulty judgment of the court which was based either on a lie or being led astray by my letter.
THE ASSOCIATE: He's dropped out.
THE REGISTRAR: Is he dropping out or is he ‑ ‑ ‑
THE ASSOCIATE: Yes, I don't fully understand why it is.
CHIN, MR: Hello.
THE ASSOCIATE: This is Perth again, Mr Chin.
CHIN, MR: Hello.
THE REGISTRAR: Yes, we can hear you, Mr Chin. Then at page 21 there's a discussion on item 3 of the bill - sorry, item 4 of the bill which were costs fixed by a case manager. Mr Chin: "Is it a standard association or an indemnity assessment?" I replied:
17/12/10 43
It's costs fixed by the case manager. There was no taxation about it. The case manager fixed those costs and that can be seen by the order dated 18 August 2008. The costs of the day be in the cause fixed at $320.
Chin: "So is it a standard assessment, not an indemnity costs?" "That's the order. Forget what it is. It's fixed." "Sir, I wanted to know whether it's party and party costs that I'm to pay that is made?" "There is not suggestion this is anything other than party and party but it's been fixed by the judicial officer who made the order," and then we went on and taxation proceeded on that basis.
If I could digress a moment, at page 28 with respect to Mr Law I asked, "Has anyone granted you, Mr Law, leave to appear on behalf of Spunter in this or any other matters?" Mr Law: "Well, I have a solicitor - no, I was, I think - yes, I did. I applied, yes. I wrote to the court." "And what was the order?" Law: "I don't think I received a reply again." "Did you make an application?" "Not especially as a document from the court." The end effect is that no‑one is representing the company but I gave Mr Law leave to speak at the taxation with respect to the bill for that company.
LAW, MR: Sir, do I have to ask the court each time I come in on a matter whether I'm able to represent the company?
THE REGISTRAR: I'm not worried about that. What I'm worried about is this taxation. So any other matter you can take up with the judicial officer, but to my way of thinking this taxation will end this action so if you commence something further, you will have to ask. At page 3 we got on to a review of taxation. At the bottom of that page I said:
The easiest way is if you object to individual items in the bill. Now, if you have got some objection in some other form which has got nothing to do with taxing of the bill, that is a decision under which I'm taxing.
In other words, getting back to the order of the Full Court, "I'm taking no notice of that because I can't affect that. I'm taxing pursuant to the order," and that's because, if I could go back one, at page 31 at the end of the taxation I said, "I'm explaining to you that if I start it now, that's the equivalent of a judgment. If you have got objections as to principle or any other matter, I will delay signing the allocatur for seven days," and Chin asked me to do that and so did Mr Law.
Mr Chin: "The reason for my objection is it should not have been allowed because there is no recoverability."
17/12/10 44
"We touched on recoverability. The recoverability is not there." In other words, he's finding fault with the judgment of the court and I suggested that he should either seek legal advice or make use of his own knowledge, being formerly a lawyer, and that, "My review would be based on the taxation and I will restrict it to those matters in contention," and I said at the foot of page 32:
It will not include whether the judgment pursuant to which this bill is taxed is valid or not or whether it should be reversed on some sort of appeal. My review will be on the amounts allowed under the items of the bill.
I invited him to "do whatever you want in whatever sphere" but to do it before that date "but if it doesn't relate to the review of the taxation, being an error in principle on which the bill was taxed and the amounts allowed, I will be signing the allocatur". In my view that's what this document headed "Objections" is. It doesn't specify the items. It doesn't specify the amounts, but it reverts back to the commencement of the writ in 1131 of 2006.
CHIN, MR: Hello, is that (indistinct)
THE REGISTRAR: It says, "The two bills of costs are for judgments and are not enforceable in a court of law. These proceedings are void and have to be repaired by way of certiorari in CIV 1877 of 2010," and there's a reference to various cases.
CHIN, MR: Can I (indistinct)
THE REGISTRAR: So far as I'm concerned these objections are not objections as to the taxation. Now, whether you, Mr Chin, have a right to take this matter on the question of the judgment pursuant to which I'm taxing the bill to another jurisdiction is not for me to decide, but I don't believe these objections in any way cause me to change the amounts I taxed at taxation. Now, you want to say something, Mr Chin?
CHIN, MR: Yes.
THE REGISTRAR: Do you want to say anything?
CHIN, MR: I actually can't hear. What's your decision again, please?
THE REGISTRAR: Yes, what I'm saying is that this isn't objections to taxation. It's objections ‑ ‑ ‑
CHIN, MR: (indistinct)
17/12/10 CHIN, MR 45
THE REGISTRAR: I'm going to allow the taxation - the amount allowed at taxation.
CHIN, MR: (indistinct) can you send me that email again because ‑ ‑ ‑
.........., MR: He's talking to someone else.
THE REGISTRAR: Which email?
.........., MR: He's talking to someone else at the same time, someone called Jackson.
CHIN, MR: Your Honour?
THE REGISTRAR: Are you talking to me, Mr Chin?
CHIN, MR: Your Honour - your Honour, can you hear me?
THE REGISTRAR: Yes.
CHIN, MR: I'm speaking to Jackson of the Supreme Court at this moment just a little - I have got a document I ask him to send to me and I will (indistinct). Is that okay?
THE REGISTRAR: No, I'm making my decision now because what you have filed are not objections to the taxation. I will just see what Mr Prime has to say.
CHIN, MR: (indistinct) I didn't hear the decision properly.
THE REGISTRAR: Okay. I just want to hear what Mr Prime has got to say. Do you have anything to say?
PRIME, MR: All I say, registrar, is that on the defendants' own document where they quote order 53 rule (1)(a) it says that an objection in writing must be ‑ ‑ ‑
CHIN, MR: (indistinct)
THE REGISTRAR: Can you keep your voice up for his purposes?
PRIME, MR: The objection must be a list in a short and concise form of the item ‑ ‑ ‑
THE REGISTRAR: Hold on, Mr Chin, please. Mr Prime is speaking now.
PRIME, MR: The objection needs to be a list in a short and concise form of the items or parts of items objected to and the grounds and reasons for the objections. This document doesn't do that. This document seeks to continue
17/12/10 46
to argue the matter that has been put to rest by the Court of Appeal and by the High Court.
THE REGISTRAR: That is what I pointed out to Mr Chin ‑ ‑ ‑
PRIME, MR: Yes, at the original taxation.
THE REGISTRAR: - - - and to Mr Law at the original taxation.
PRIME, MR: That's right, and indeed to the extent that he refers to seeking prerogative relief the decision of Heenan J in that regard, although adjourned sine die, says, in effect, "Subject to any submissions from Mr Chin those applications are doomed to failure but I won't dismiss them at this stage." So all of those are issues that he could seek to take elsewhere. He has sought to do so and unsuccessfully. They do not impact upon your taxation and they're not bases upon which to seek a review of individual items.
THE REGISTRAR: So as a result of that I'm not going to sign the allocatur in the bills and that completes the hearing. Thank you.
AT 10.50 AM THE MATTER WAS ADJOURNED ACCORDINGLY
12/10 PRIME, MR 47
Thursday, January 6, 2011
DRAFT NOICE OF APPEAL IN P50 OF 2010 FILED AT THE HIGH COURT OF AUSTRALIA ON 7.1.2011
IN THE HIGH COURT OF AUSTRALIA
PERTH REGISTRY No. P50 of 2010
ON APPEAL FROM THE COURT OF APPEAL OF THE SUPREMECOURT OF WESTERN AUSTRALIA IN CACV 75 OF 2010 IN CHIN V THIES [2010] WASCA 230 HEARD 23.11.2010 AND DELIVERED 7.12.2010.
BETWEEN:
NI KOK (NICHOLAS) CHIN Appellant
and
TIMOTHY ROBIN THIES First Respondent
and
PAUL CHUNG KIONG CHIN Second Respondent
DRAFT NOTICE OF APPEAL
1. The appellant appeals, pursuant to Special Leave to Appeal granted on .................[date] from the Joint Judgment of Pullin and Newnes JJA (THE COURT BELOW1), which dismisses the appeal of the Appellant in CACV 75 of 2010 and which also confirms the interim judgment of the Second Judge His Honour Justice Kenneth Martin in RE MICHELIDES; EX PARTE CHIN [NO.2][2010] WASC 169 heard 17.6.2010 and delivered 8.7.2010 (THE RE: MICHELIDES NO.2).
Grounds
2. The Grounds of Appeal are as follows:
2.1. The Appellant was denied his natural justice by the COURT BELOW when it refused to decide the following issues, that was presented before it:
2.the consolidation of the two cases: Civ 1112 of 2007 and Civ 1903 of 2008 pursuant to Order 83 of the Rules of Supreme Court, 1971 (WA); advanced by the Appellant for the purpose of quieting all claims arising from the single issue of the fraudulent ZERO SUM FALSE DEBT CLAIM of the First Respondent against the Second Respondent and his father the Appellant in the Magistrates Court FR 417 of 2007 and FR944 of 2008 and the District Court Appeal No.6 of 2008 below (THE COURTS BELOW2).
2.1.2.the unreasonable, unjustified and unlawful stifling of the second stage of the subs.36(4) Review Proceedings in the interim judgment of MICHELIDES NO.2 by the Second Judge (which contradicts its counter-part subs. 36(1) Order of the First Judge of those proceedings) under unwarrantable circumstances, by an unwarranted Security Costs Order.
2.2.by siding with the "wronging" party thereby condoning the unconscionable conduct of the First Respondent committed against the “wronged” party namely the Appellant and his son the Second Respondent - without its exercising its proper regard for the basic principle of justice in that the law only can only exist for the purpose of securing justice and fairplay to litigants who come before it seeking that it does play its adjudicative role faithfully and in the public interest, and that it must not fail the public in the execution of its public duty such that justice is palpably seen to be done in a court of law, having regard to the fact that the First Judge had already made known the fact that he was already a subject of the improper and undue influence exerted on him, by the First Respondent through his former solicitor.
2.1.4.the about turn decision of the Second Judge contradicting the stance already taken by the righteous First Judge without the former advancing any reasonable reasons therefor for his departure from the normal approach as dictated by the common law and the conscience of the court.
2.1.5.the proper reprimand by Second Judge in RE: MICHELIDES NO.2 of its officer, Barrister Scott Ellis, as counsel for the First Respondent for the latter's improper conduct in misleading the former to the effect that there was no evidence to show that Registrar Susan Wilde in FR417 of 2007 of the THE COURTS BELOW was the subject of the improper and undue influence of the First Respondent in entering into the compromised Consent Judgment. This is the bone of contention in the s.36 Review Proceedings, thus rendering RE: MICHILIDES NO.2 a void judgment with null effects. Therefore, there exists in THE COURTS BELOW some non-judgment debts, which cannot be used by the Second Judge as an excuse for enforcing the Security Costs Order of RE: MICHELIDES NO.2 (the Null Effects).
2.1.6.the Null Effects of the Second Judge in RE: MICHELIDES NO.2 (my due respect to His Honour) is based on those non-existing debt; see: [2], [3],[4],[7], [36] and particularly at [38] wherein O25 r(2)(g) does not and should not have enlivened the Second Judge's jurisdiction to make that impugned Security Costs Order, which is now the subject matter of this Appeal.
2.1.6.the single GOLDEN THREAD OF CONSISTENCY - GROUND OF APPEAL interwoven into the fabric of the many Sub-grounds of Appeal does not render nugatory the Appeal of the Appellant against the decision of the Second Judge for an alleged failure of the Appellant to comply substantially with r. 43(2)(g)(i) (in that it does have a reasonable prospect of success) or r.43(2)(g)(ii) (in that “Forms” was erroneously interpreted by THE COURT BELOW to have precedence over the substance of the law) for the Appellant to obtain justice; both rules emanating from the Supreme Court (Court of Appeal) Rules 2005, which normally does not require strict compliance given the circumstances prevailing.
2.1.7.The prejudgment that the Second Judge had not been biased nor prejudiced against the Appellant, occasioned by its failure to await the outcome of Civ 1981 of 2010, which is a Mandamus application by the Appellant re-scheduled for hearing before a Court of Appeal Judge at the direction of the Court of Appeal Registrar. This is because His Honour Justice Heenan did admit in his judgment in RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212 heard 4.8.2010 and delivered 8.4.2010 at [9] that he did not have the necessary jurisdiction to deliver prerogative orders against Justice Kenneth Martin as the latter is of the same ranking as himself and he had therefore adjourned the matter sini die.
2.1.7.The non-existent costs order against the Appellant under the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 in the proceedings of THE COURTS BELOW, which prevents the First Respondent from claiming any profit or legal costs against the Appellant as the original First Respondent Claim in FR417 of 2007 is based on a ZERO SUM FALSE DEBT. This is coupled with the Appellant's own claim against the First Respondent in FR944 of 2008 which also falls under those Minor Claims Provisions, the latter being the source of those s.36 Review Proceedings. These Minor Cases Provisions prevents the “wronging” party from claiming legal costs against the “wronged” party, even if these proceedings were eventually decided by the highest court of the land, except for out of pocket expenses, which is to be compensated for by the losing party to the winning party.
2.1.8.The facts of the FALSE DEBT CLAIM being based on the original non-consensual solicitors cost agreement entered into by the First Respondent and jointly by the Second Respondent and the Appellant which becomes the subject of FR417 of 2007 is made subject to the pre-contractual terms that have already been defined by both parties and admitted to by the First Respondent as true and correct.
2.1.9.The First Respondent had unjustifiably and unconscionably clogged up the equity of the Second Respondent without any legal or equitable interests to found for himself a caveatable interests of the home property of the Second Respondet in CIV1112 of 2007 and by dint of his persistent and unreasonable refusal to unleash his unlawful caveat which he had used unconscionably as his weapon of threat for the purpose of extorting the sum of $11,500.00 successfully from both the Appellant and the Second Respondent. For these wrongdoings, the First Respondent is now liable to the Second Respondent for compensation in the form of statutory damages as provided for under s. 140 of the Transfer of land Act, 1893 (WA).
Orders sought
3.1.The COURT BELOW do allow the appeal of the Appellant:
3.1.1. against the interim Security Costs Orders of the Second Judge in the subs. 36(4) Review proceedings in CIV 1903 of 2008 or the RE: MICHELIDES NO.2 by reversing its first order.
3.1.2. the First Respondent do pay the Appellant's costs of the appeal in the COURT BELOW to be taxed, in accordance with the Minor Claim Provisions of the Magistrates Court (Civil Proceedings) Act, 2004, by reversing its second order.
3.2.The subs. 36(4) or the second stage of the Review Proceedings in CIV 1903 of 2008 insofar as it is heard by the Second Judge in RE:MICHELIDES NO.2 be reviewed and its orders be set aside and that it be heard again by another judge in conformity with the normal approach of the common law with regard to the interpretation of the s.36 Review Proceedings; such that the injustices arising from the Orders of Magistrates Michelides in FR417 of 2007 and Magistrate Musk in FR944 of 2008 and from Commissioner Herron in the District Court Appeal No.6 of 2008 be put aright with those incongruent orders be set aside.
3.3.The CIV1112 of 2007 and the CIV 1903 of 2008 proceedings be consolidated into one single proceedings under Order 83 of the RSC WA so as to quiet all claims that arise under one proceedings such that justice may be seen to be done on the ground that it is impossible for the Second Respondent to begin fresh proceedings against the First Respondent for his unconscionable conduct against the former by virtue of the fact that the latter had already exploited the former's vulnerabilities and that he should now no longer be allowed by this Honourable Court to further exploit the former again.
3.4.The First Respondent be liable to the Second Respondent for statutory damages under s.140 of theTransfer of Land Act, 1893 (WA) for clogging up the latter's equity and for having used it as a weapon of threat of extortion against both the Appellant and his son the Second Respondent, such damages to be calculated at the rate of 8.00% p.a., based on the marketable value of the clogged property from the date of the inception of that unlawful Caveat arising from his his associated unconscionable conduct until it was removed by the Second Judge.
3.5.The First Respondent do pay to the Appellant and the Second Respondent the extorted sum of $11,500.00 together with interests and do compensate them for all costs and damages arising from all the actions taken by the Appellant in THE COURTS BELOW, for proceedings taken before the First and the Second Judge in the s.36 Review Proceedings and for proceedings in this court for and on behalf of his son the Second Respondent and his own behalf as if they were proceedings taken by the Appellant himself on his own behalf as a litigant in person having regard to the circumstances as to why the Second Respondent has been ordered by the First Judge to remain inactive in all these proceedings.
3.6.Any other relief which this Honourable Court deems necessary for the purpose of enabling both the Appellant and the Second Respondent to obtain justice.
3.7.Costs.
Dated 12th day of January, 2011
................(signed)....................
NI KOK (NICHOLAS) CHIN AS APPELLANT IN PERSON
TO:
The Court of Appeal Registrar
COURT OF APPEAL
SUPREME COURT OF WESTERN AUSTRALIA
Spring Gardens
Barrack Street
PERTH WA 6000,
The First Respondent
No. 7, Yalgoo Avenue,
WHITE GUM VALLEY WA 6152
AND TO:
The Second Respondent
387, Alexander Drive, DIANELLA WA 6059
(The Second Respondent is to remain inactive pursuant to the Orders of Court in
RE:MICHLIDES NO. 1 of the First Judge.
The Appellant’s is a litigant in person3
Ni Kok (Nicholas) Chin
387, AlexanderDrive, Dianella WA 6059 4
Phone and Fax: +61892757440
Mobile: 0421642735 or 0431398973
PERTH REGISTRY No. P50 of 2010
ON APPEAL FROM THE COURT OF APPEAL OF THE SUPREMECOURT OF WESTERN AUSTRALIA IN CACV 75 OF 2010 IN CHIN V THIES [2010] WASCA 230 HEARD 23.11.2010 AND DELIVERED 7.12.2010.
BETWEEN:
NI KOK (NICHOLAS) CHIN Appellant
and
TIMOTHY ROBIN THIES First Respondent
and
PAUL CHUNG KIONG CHIN Second Respondent
DRAFT NOTICE OF APPEAL
1. The appellant appeals, pursuant to Special Leave to Appeal granted on .................[date] from the Joint Judgment of Pullin and Newnes JJA (THE COURT BELOW1), which dismisses the appeal of the Appellant in CACV 75 of 2010 and which also confirms the interim judgment of the Second Judge His Honour Justice Kenneth Martin in RE MICHELIDES; EX PARTE CHIN [NO.2][2010] WASC 169 heard 17.6.2010 and delivered 8.7.2010 (THE RE: MICHELIDES NO.2).
Grounds
2. The Grounds of Appeal are as follows:
2.1. The Appellant was denied his natural justice by the COURT BELOW when it refused to decide the following issues, that was presented before it:
2.the consolidation of the two cases: Civ 1112 of 2007 and Civ 1903 of 2008 pursuant to Order 83 of the Rules of Supreme Court, 1971 (WA); advanced by the Appellant for the purpose of quieting all claims arising from the single issue of the fraudulent ZERO SUM FALSE DEBT CLAIM of the First Respondent against the Second Respondent and his father the Appellant in the Magistrates Court FR 417 of 2007 and FR944 of 2008 and the District Court Appeal No.6 of 2008 below (THE COURTS BELOW2).
2.1.2.the unreasonable, unjustified and unlawful stifling of the second stage of the subs.36(4) Review Proceedings in the interim judgment of MICHELIDES NO.2 by the Second Judge (which contradicts its counter-part subs. 36(1) Order of the First Judge of those proceedings) under unwarrantable circumstances, by an unwarranted Security Costs Order.
2.2.by siding with the "wronging" party thereby condoning the unconscionable conduct of the First Respondent committed against the “wronged” party namely the Appellant and his son the Second Respondent - without its exercising its proper regard for the basic principle of justice in that the law only can only exist for the purpose of securing justice and fairplay to litigants who come before it seeking that it does play its adjudicative role faithfully and in the public interest, and that it must not fail the public in the execution of its public duty such that justice is palpably seen to be done in a court of law, having regard to the fact that the First Judge had already made known the fact that he was already a subject of the improper and undue influence exerted on him, by the First Respondent through his former solicitor.
2.1.4.the about turn decision of the Second Judge contradicting the stance already taken by the righteous First Judge without the former advancing any reasonable reasons therefor for his departure from the normal approach as dictated by the common law and the conscience of the court.
2.1.5.the proper reprimand by Second Judge in RE: MICHELIDES NO.2 of its officer, Barrister Scott Ellis, as counsel for the First Respondent for the latter's improper conduct in misleading the former to the effect that there was no evidence to show that Registrar Susan Wilde in FR417 of 2007 of the THE COURTS BELOW was the subject of the improper and undue influence of the First Respondent in entering into the compromised Consent Judgment. This is the bone of contention in the s.36 Review Proceedings, thus rendering RE: MICHILIDES NO.2 a void judgment with null effects. Therefore, there exists in THE COURTS BELOW some non-judgment debts, which cannot be used by the Second Judge as an excuse for enforcing the Security Costs Order of RE: MICHELIDES NO.2 (the Null Effects).
2.1.6.the Null Effects of the Second Judge in RE: MICHELIDES NO.2 (my due respect to His Honour) is based on those non-existing debt; see: [2], [3],[4],[7], [36] and particularly at [38] wherein O25 r(2)(g) does not and should not have enlivened the Second Judge's jurisdiction to make that impugned Security Costs Order, which is now the subject matter of this Appeal.
2.1.6.the single GOLDEN THREAD OF CONSISTENCY - GROUND OF APPEAL interwoven into the fabric of the many Sub-grounds of Appeal does not render nugatory the Appeal of the Appellant against the decision of the Second Judge for an alleged failure of the Appellant to comply substantially with r. 43(2)(g)(i) (in that it does have a reasonable prospect of success) or r.43(2)(g)(ii) (in that “Forms” was erroneously interpreted by THE COURT BELOW to have precedence over the substance of the law) for the Appellant to obtain justice; both rules emanating from the Supreme Court (Court of Appeal) Rules 2005, which normally does not require strict compliance given the circumstances prevailing.
2.1.7.The prejudgment that the Second Judge had not been biased nor prejudiced against the Appellant, occasioned by its failure to await the outcome of Civ 1981 of 2010, which is a Mandamus application by the Appellant re-scheduled for hearing before a Court of Appeal Judge at the direction of the Court of Appeal Registrar. This is because His Honour Justice Heenan did admit in his judgment in RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212 heard 4.8.2010 and delivered 8.4.2010 at [9] that he did not have the necessary jurisdiction to deliver prerogative orders against Justice Kenneth Martin as the latter is of the same ranking as himself and he had therefore adjourned the matter sini die.
2.1.7.The non-existent costs order against the Appellant under the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 in the proceedings of THE COURTS BELOW, which prevents the First Respondent from claiming any profit or legal costs against the Appellant as the original First Respondent Claim in FR417 of 2007 is based on a ZERO SUM FALSE DEBT. This is coupled with the Appellant's own claim against the First Respondent in FR944 of 2008 which also falls under those Minor Claims Provisions, the latter being the source of those s.36 Review Proceedings. These Minor Cases Provisions prevents the “wronging” party from claiming legal costs against the “wronged” party, even if these proceedings were eventually decided by the highest court of the land, except for out of pocket expenses, which is to be compensated for by the losing party to the winning party.
2.1.8.The facts of the FALSE DEBT CLAIM being based on the original non-consensual solicitors cost agreement entered into by the First Respondent and jointly by the Second Respondent and the Appellant which becomes the subject of FR417 of 2007 is made subject to the pre-contractual terms that have already been defined by both parties and admitted to by the First Respondent as true and correct.
2.1.9.The First Respondent had unjustifiably and unconscionably clogged up the equity of the Second Respondent without any legal or equitable interests to found for himself a caveatable interests of the home property of the Second Respondet in CIV1112 of 2007 and by dint of his persistent and unreasonable refusal to unleash his unlawful caveat which he had used unconscionably as his weapon of threat for the purpose of extorting the sum of $11,500.00 successfully from both the Appellant and the Second Respondent. For these wrongdoings, the First Respondent is now liable to the Second Respondent for compensation in the form of statutory damages as provided for under s. 140 of the Transfer of land Act, 1893 (WA).
Orders sought
3.1.The COURT BELOW do allow the appeal of the Appellant:
3.1.1. against the interim Security Costs Orders of the Second Judge in the subs. 36(4) Review proceedings in CIV 1903 of 2008 or the RE: MICHELIDES NO.2 by reversing its first order.
3.1.2. the First Respondent do pay the Appellant's costs of the appeal in the COURT BELOW to be taxed, in accordance with the Minor Claim Provisions of the Magistrates Court (Civil Proceedings) Act, 2004, by reversing its second order.
3.2.The subs. 36(4) or the second stage of the Review Proceedings in CIV 1903 of 2008 insofar as it is heard by the Second Judge in RE:MICHELIDES NO.2 be reviewed and its orders be set aside and that it be heard again by another judge in conformity with the normal approach of the common law with regard to the interpretation of the s.36 Review Proceedings; such that the injustices arising from the Orders of Magistrates Michelides in FR417 of 2007 and Magistrate Musk in FR944 of 2008 and from Commissioner Herron in the District Court Appeal No.6 of 2008 be put aright with those incongruent orders be set aside.
3.3.The CIV1112 of 2007 and the CIV 1903 of 2008 proceedings be consolidated into one single proceedings under Order 83 of the RSC WA so as to quiet all claims that arise under one proceedings such that justice may be seen to be done on the ground that it is impossible for the Second Respondent to begin fresh proceedings against the First Respondent for his unconscionable conduct against the former by virtue of the fact that the latter had already exploited the former's vulnerabilities and that he should now no longer be allowed by this Honourable Court to further exploit the former again.
3.4.The First Respondent be liable to the Second Respondent for statutory damages under s.140 of theTransfer of Land Act, 1893 (WA) for clogging up the latter's equity and for having used it as a weapon of threat of extortion against both the Appellant and his son the Second Respondent, such damages to be calculated at the rate of 8.00% p.a., based on the marketable value of the clogged property from the date of the inception of that unlawful Caveat arising from his his associated unconscionable conduct until it was removed by the Second Judge.
3.5.The First Respondent do pay to the Appellant and the Second Respondent the extorted sum of $11,500.00 together with interests and do compensate them for all costs and damages arising from all the actions taken by the Appellant in THE COURTS BELOW, for proceedings taken before the First and the Second Judge in the s.36 Review Proceedings and for proceedings in this court for and on behalf of his son the Second Respondent and his own behalf as if they were proceedings taken by the Appellant himself on his own behalf as a litigant in person having regard to the circumstances as to why the Second Respondent has been ordered by the First Judge to remain inactive in all these proceedings.
3.6.Any other relief which this Honourable Court deems necessary for the purpose of enabling both the Appellant and the Second Respondent to obtain justice.
3.7.Costs.
Dated 12th day of January, 2011
................(signed)....................
NI KOK (NICHOLAS) CHIN AS APPELLANT IN PERSON
TO:
The Court of Appeal Registrar
COURT OF APPEAL
SUPREME COURT OF WESTERN AUSTRALIA
Spring Gardens
Barrack Street
PERTH WA 6000,
The First Respondent
No. 7, Yalgoo Avenue,
WHITE GUM VALLEY WA 6152
AND TO:
The Second Respondent
387, Alexander Drive, DIANELLA WA 6059
(The Second Respondent is to remain inactive pursuant to the Orders of Court in
RE:MICHLIDES NO. 1 of the First Judge.
The Appellant’s is a litigant in person3
Ni Kok (Nicholas) Chin
387, AlexanderDrive, Dianella WA 6059 4
Phone and Fax: +61892757440
Mobile: 0421642735 or 0431398973
WRITTEN ARGUMENT FOR P50 OF 2010 FILED BY ME AT THE HIGH COURT OF AUSTRALIA ON 7.1.2011
IN THE HIGH COURT OF AUSTRALIA
PERTH REGISTRY No. P50 of 2010
ON APPEAL FROM THE COURT OF APPEAL OF THE SUPREMECOURT OF WESTERN AUSTRALIA IN CACV 75 OF 2010 IN CHIN V THIES [2010] WASCA 230 HEARD 23.11.2010 AND DELIVERED 7.12.2010.
BETWEEN:
NI KOK (NICHOLAS) CHIN APPLICANT
and
TIMOTHY ROBIN THIES First Respondent
and
PAUL CHUNG KIONG CHIN Second Respondent
APPLICANT'S SUMMARY OF ARGUMENT
PART I:CASE FOR AN APPLICATION FOR SPECIAL LEAVE AND HOW THE SPECIAL LEAVE QUESTION ARISES:
CASE FOR SPECIAL LEAVE:
1.1. The Applicant's case for his application for special leave to appeal the Order of the Court Below are as follows:
- It ignores the righteous and reasonable rulings and decision of the First Judge, Hasluck J of the s.36(1) Magistrates Court, 2004 (WA) Review Proceedings in CIV 1903 of 20083(the first stage) but it gave preference and accepted unreasoningly the plainly wrong interlocutory decision4 of the trial judge Kenneth Martin J at the second stage or subs.36(4) Review proceedings by ignoring the acceptable and relevant common law principle of normal approach5 that needs to be adopted by any judge in the interpretation of subs.36(4) or the second stage of the s.36 Review Proceedings (the second stage).
- It refused to reject the stultification of the second stage by the trial judge by unreasonably accepting Commissioner Herron's Costs Orders as valid as it could not see through the false notion of that trial judge to the effect that the Applicant has an inherently weak case as his justifications for the said stultification.
- It refused to accept the fact that Commissioner Herron's Costs Order is based on the void and duress-vitiated Consent Judgement of Registrar Wilde in FR417 of 2007.
- It refused to accept the fact that the decisions of the courts below are all respectively void judgements as they are based on the void Registrar Wilde Consent Judgement.
- It refused to accept the fact that Commissioner Herron had contradicted himself when he admitted that he had no jurisdiction over the Musk FR944 of 2007 case yet His Honour was in jurisdictional error when he volunteered a flawed analysis of the duress issue that was not before him and he thereby made a null costs order against the Applicant. On the contrary, that learned Commissioner Herron should have simply surrendered this task over to the Supreme Court pursuant to the dictates of ss.77 and 78 of the District Court Act, 1969 (WA).
- It refused to accept the fact that the trial judge had no basis for the stultification as the Security Costs Order against the Applicant, which is made on the wrong (two-pronged) basis:
- 1.1.7.1. in that there are antecedent debts arising from Commissioner Herron void Costs order which allegedly fulfilled the condition of the RSC6 for the existence of the Security Costs Order7.1.1.7.2. The Applicant's case is allegedly ascribed as being inherently weak when the trial judge knows that it is not the case8 on the ground that he refused to take into account the fact that the voluminous irrelevant Defence Affidavit of the First Respondent was filed out of time and that it was not filed in conformance with Hasluck J Order in that it be concise, precise and be related to the issues at hand i.e. it must relate to the pre-contractual correspondence between the Applicant and the First Respondent before his retainer agreement was entered into by the parties and it must also provide an explanation as to why the legal costs claim was of an ever-escalating nature having regard to the fact that his retainer had been terminated by the Second Respondent since the 21.2.2005.
HOW THE SPECIAL LEAVE QUESTIONS ARISE:
- The Special Leave Questions arise out of the following circumstances:1.2.1. His Honour Newnes JA secretly departed from the statutory provisions affecting leave to appeal, without inviting from the First Respondent to make a formal application and in the process His Honour denied the Applicant procedural fairness9. This change of status of that Application was arranged between the First Respondent and Newnes JA without the knowledge of the Applicant, which fact was being asserted by the First Respondent in his email correspondence with the Applicant before that event happened.1.2.2. The First Respondent had anticipated and had pre-determined the contemplated change of status of the ex-parte Application which will also have costs implications for the Applicant if his Application were to be dismissed by the Court Below. Still the Minor Cases Provisions which applies to the Application source case of FR944 of 200710 for the second stage cannot be amenable to any costs orders except for those limited to out of pocket expenses only unless the Applicant is reasonably found by it to have abused the process of court having regard to the legislative intent of Parliament when enacting them.1.2.3. The First Respondent was confident that he could make himself a party to the ex-parte application which indicates that he has a way to influence the judiciary11 as he had done so in the past at the first stage but he was stopped by Hasluck J and this is contained in the transcript of those proceedings.1.2.4. The Applicant was denied his natural justice by the refusal of the Court Below12 in its capacity as an appeal court to carry out its adjudicative duties to make proper legal determinations and not to provide deficient reasons for its decisions to the Appellant, on the following issues, affecting the trial judge:
- The proper inculcation of the constituent elements of morality17 into the just administration of the law, which it is bound to do and It does not do so.
- the just discipline of its courts officer18 such that the ends of justice is not being defeated, which it does not want to do.
- its refusal to accord due recognition of the conditions of distress and duress of Registrar Wilde and the circumstances under which her hand had been forced to enter into the compromised sham consent judgement which is the crux and the sole bone of the contention of the second stage.
- the due recognition of the void judgments of Registrar Wilde Sham Consent cum Duress-vitiated Judgment Order with its consequent ramifications upon the similarly-circumstanced other void judgments of courts below which based themselves upon it.
- its failure to interpret the Rules fairly and correctly by prejudging that the Applicant had not complied with the Rules in r. 43(2)(g)(i) and r.43(2)(g)(ii) .
- Its prejudgement that the trial judge had not been biased nor prejudiced against the Applicant by not awaiting the outcome of CIV 1981 of 2010.
- its void judgement costs orders against the Applicant in favour of the First Respondent without taking into account the Minor Cases Provisions and by taking into account the irrelevant and incorrect consideration that Magistrate Michiledes ordered for the FR944 of 2007 case to become a General Division case having regard to the fact that His Honour Magistrate Michelides was never a judge of that case and had nothing to do with it at all material times;
- It ignored the the non-consensuality of the solicitor costs agreement entered into between First Respondent of the one part and the Applicant and his son the Second Respondent on the other part on the ground that they have been qualified with the pre-contractual terms and the First Respondent's own written undertaking to the Appellant, particulars of which are already agreed and admitted to by himself;
- It ignored the fact of the indisputable basis of the ZERO SUM FALSE DEBT CLAIM of the First Respondent in FR417 of 2007;
- It ignored the need for the statutory compensation for the First Respondent's wrongs against the Second Respondent for his unlawful clogging up of the latter's equity in his home property without a reasonable basis founded upon an equitable and therefore caveatable interests and his persistent recalcitrant attitude not to release it at all material times.
- It ignored the fact that Barrister Scott Ellis was acting in conflict of interest circumstanced by his having wrongly advised the First Respondent in his defence of FR944 of 2007 and was so paid the sum of $6,000.00. He wanted to redeem his position as he was not insured as a solicitor as he could be personally liable to the First Respondent for his wrong advice as per the judgement of Hasluck J. As such he perpetuated his wrongs by misleading the trial judge that there was no evidence to the effect that Registrar Wilde was involuntary despite having the letter to Registrar Wilde dated 6.6.2007 before him, which letter he knew had caused her involuntariness to enter into the impugned consent judgement.
PART II: FACTUAL BACKGROUND TO THE APPLICATION
- The Court Below discriminates the Applicant and favoured the First Respondent. The Applicant had on a previous occasion lamented the fact that the justice system in Western Australia has now deteriorated and this fact has been made known to all the Parliamentarians19 of Western Australia.
- The legal system in Western Australia is therefore being abused by the Court Below. My due respect to their Honours20 who confirmed the decision of Michelides No.2 by the trial judge at the time when His Honour was the subject for my application for Mandamus Orders for his refusal to recuse himself in CIV 1981 of 2010. This case has now been adjourned by Heenan J sini die21 and it is now pending hearing before a Court of Appeal Judge at the direction of the Court of Appeal Registrar. Incidentally, both their Honours of the Court below also dismissed my Application for leave to appeal in another related case against the regulator of the legal profession in WA in CACV 105 of 2008 which had seen its days in the High Court in P36 of 2009 and it had came back before Heenan J in CIV 1019 of 2010 for Mandamus Orders because Their Honours did not determine the issue of the Pseudo Board usurping the functions of the regulator of the legal profession in WA that was left out by the trial judge Justice Chaney. Heenan J was in the right directions but took an about-turn decision by dismissing it when he was contacted by the legal officer of the regulator one Ms. Braesich. The regulator has now decided that it would not be participating in my appeal now pending before the Court of Appeal in CACV 41 of 2010 which shall be heard on 11.3.2011. This case concerns the credibility of the trial judge, now the President of SAT who had refused to make a determination of the Pseudo Board that caused the dismissal of CACV 105 of 2008 and he was also involved in persecuting me maliciously in VR87 of 2009. However, the President has now agreed to recuse himself from further hearing VR87 of 2009 which should not be further litigated on the ground of res judicata. I have also gone to the High Court in P1 of 2010 in respect of the falsification of the court records by David Taylor solicitor. I have since came back and my case is receiving attention in CIV 1877 of 2010 as the Attorney General of WA who had suggested to me that I report the criminal activity about the falsifications of court records to the Police. I have three related issues: Timothy Robin Thies extorting monies from me and my son, Lawyer David Taylor falsifying court records to stop me from obtaining my legal fees and the conspiracy of the regulator to protect their cronies22 to stop me from independent practice. I would not want to cause anybody any pain, but God help me, because I am a victim.
PART III: APPLICANT'S ARGUMENT
The two arguments by the trial judge in favour of the stultification of the second stage is perhaps, being circumvented by Court Below whilst looking for a Rule non-compliance excuse, perhaps, as a method for dismissing the Applicant application for leave to appeal. It turns out that that excuse of a debt and a weak case does not hold water. It must be borne in mind that the First Respondent had caused untold damage to the Applicant and his son the Second Appellant whilst they were in the process of being extorted and the records of these events are replete in the relevant cases. The effects of the shock and trauma occasioned by the extortion of Mr. Thies on both the Second Respondent and his father the Applicant have had tremendous repercussions on both their psyches that will last their lifetimes. Needless to say for the Second Respondent, he already paid for his price as his psychiatrist will tell. Particularly, for the Appellant, the effects of that extortion and criminal intimidation by the First Respondent is having a lasting effect on him. Up until today, and at the time of writing this Summary, the Applicant suffers from incontinence and has to frequent the urinals and the toilets ever so often that this malady he is suffering is going to last a lifetime. He has to keep popping pills to make himself happy and to keep himself calm especially so when he has to keep fighting his case.... as his doctor will tell. Let it beware that legal professionals must not take away from poor working Australians what is not due to him or her and what is not his/her to take... away, and this is akin to stealing....and robbing from him or her. The victim will protect his property with his life.
PART IV:REASONS WHY AN ORDER FOR SPECIAL LEAVE SHOULD BE
GRANTED.
Australian law in a democratic Australia is there to protect the common people and is not there to protect their friends. Whoever does the wrong thing by the law must be dealt with in accordance with the the law, otherwise the ordinary Australians will not be satisfied that the law is theirs to protect them and that the Australian nations belongs to all and that this nation is a democracy. If there is no, law there can only be chaos. My due respect to this court.
PART V: ANY REASONS WHY AN ORDER FOR COSTS SHOULD NOT BE MADE IN
FAVOUR OF THE FIRST RESPONDENT IN THE EVENT THAT
THE APPLICATION IS REFUSED.
The First Respondent wronged the Applicant and the Second Respondent in the following terms:
- He has no real intention to provide legal services to the Applicant and his son the Second Respondent and he spent a lot of time investigating the case at the beginning to lay out his plan for this secret purpose.
- His real intention was only to exploit the vulnerabilities of the Second Respondent as his client and he was not able to do it because the father was there to protect his son the Second Respondent.
- There was no basis for his claim for legal costs let alone legal services or at most a Minor Claim which the Second Respondent tried to settle at all material times by avoiding problems with the First Respondent but the latter was thinking of extorting some $25k for a NO DEBT CLAIM by way of exploiting the vulnerabilities of his client and eventually to take away his home for nothing. That is the reason for his unflinching desire not to release the caveat stranglehold he had tightly gripped on his victim the Second Respondent for which he has had no caveatable interests.
- He knew that he had not achieved consensuality in his solicitor-client agreement with both the Applicant and the Second Respondent at all material times but he persisted in the hope that he could break the Applicant and have his way.
PART VI: A TABLE OF THE AUTHORITIES, LEGISLATION OR OTHER MATERIAL ON WHICH THE APPLICANT RELIES, IDENTIFYING THE PAGES AT WHICH THE RELEVANT PASSAGES APPEAR.
LIST OF AUTHORITIES
- Wikipedia Website for the definition of McKenzie friend at: http://en.wikipedia.org/wiki/McKenzie_friend.
- Blogspot of Nicholas N Chin for information of legal documents filed with the Supreme Court of WA regarding current proceeeings at: http://nicholasnchin.blogspot.com/ ; http://www.nicholasnchin.com/
- The government of Australia of each State and Territory and the Commonwealth Government of Australia have obligations to protect the human rights of its citizens by preventing them from being tortured by lawyer and members of the judiciary who indiscriminately protect their cronies such as to perpetuate the wrongs against the citizens of Australia. See the United Nations General Assembly at: http://en.wikipedia.org/wiki/United Nations General Assembly; http://en.wikipedia.org/wiki/Geneva Conventions; and http://en.wikipedia.org/wiki?Universal Declarations of Human Rights.
- See the meaning of Caveatable interests in the article by S. Boyle: Caveatable Interests, Common Lore Distinguished at http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html.
- See the Supreme Court of WA Website at http://www.supremecourt.wa.gov.au/content/procedure/practicedirections.aspxfor the PDF document entitled: Consolidated Practice Directions of the Supremne Court of Western Australia, and find r. .22 which provides:22. For civil and criminal interlocutory hearings, trials and appeals in the General Division an Outline in electronic format is to be delivered;(a) by email to an address [supremecoourt.submissions@justice.wa.gov.au] as an attachment to an email message setting out in its title line the action number and short title of the proceedings.;(b) not later than two clear working days before the hearing.
- Morison, WL - “FULLER, The Morality of Law” [1965] Syd Law Rw 14; (1965) 5 (1) Sydney Law Review 181 – Without morality, our Australian Laws cannot exist.
STATUTES & REGULATIONS:
- The Supreme Court Act, 1935 WA: Subs. 60(1)(f)(3); 58(1)(a); 59(1), (3), (4) and (6).
- The Magistrates Court Act, 2004: Subs. 36(1); Subs. 36(4).
- The Magistrates Court (Civil Proceedings) Act, 2004: subs. 25(9) and (31)(1).
- The Transfer of Land Act, 1893 WA ss. 137, 140.
- The Criminal Code Act, 1913 WA Subs. 391(3); s. 397.
- The Magistrates Court (Civil Proceedings) Bill, 20034: Explanatory Memorandum Clause 25(5).Subclause (5): ensures that where a matter that is within the Minor cases Jurisdiction is commenced in the general jurisdiction the costs that can be awarded are the very limited costs that would be allowed had the action been commenced in the minor cases jurisdiction. The intention is to ensure that a defendant in a case that could have been commenced in the small cases jurisdiction is not thereby disadvantaged.Subclause (8): is derived from Litigants in Person (Costs and Expenses) Act, 1975 (UK) and allows a person who represent themselves to recover any expenses or losses incurred if they were successful in recovering costs.Subclause (9): is effectively a penalty clause and relieves a person from some or all of costs if the lawyer involved has improperly incurred them or wasted them due to misconduct or default. The lawyer can also be required to make payments to the party if that party is liable to another party due to the actions or omissions of the lawyer.Under Subclause (10) a Court cannot make an order under subclause (9) unless it has informed the lawyer and allowed the lawyer to call evidence and make submissions in relation to the proposed order.Subclause (11): provides that if an order is made under proposed subsection (9)(c) disentitling a lawyer to costs, the lawyer must not charge and cannot recover the costs concerned.Clause 31- Costs
- It is the intention of the Bill to keep costs payable in relation to minor cases to a minimum.
- Subclause (1) defines “allowable costs” for the purposes of this proposed section to mean court fees and service fees and the costs of enforcing a judgement.
- Subclause (2) provides that the successful party in a minor case is entitled to an order in relation to their allowable costs but not in relation to the other party's costs though under subclause (34): the Court can make an order in relation to the other party's costs if satisfied that it is reasonable to make such an order.
- Supreme Court (Court of Appeal ) Rules 2005 rr. 33(3)(a) and 33(4)(a); r. 43(2)(g) (I) & (ii).
- Rules of Supreme Court. 1971 (WA) Order 83; Order 25 r.2(g).
CASE LAW
- For the deprivation of natural justice of the Applicant, se Ex parte Fealey (1897) 18 NSWLR(L) 282 AT 288-289;
- Johnson v Johnson 92000) 201 CLR 488 AT [11], affirmed in Ebner v Official Trustee in Bankruptcy 92000) 205 CLR 327;
- Stavin v Owners Corporation Strata Plan 16857 [2006] NSWA 71;
- Re: JRL; Ex parte CJL [1986] HCA 39; [1986] 161 CLR 342 (30 July, 1986);
- Kanda v Government of Malaya (1962) AC 322 at 337;
- Livesy v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294;
- DIAGNOSTIC MEDLAB LTD V AUCKLAND DISTRICT HEALTH BOARD, WAITEMATA DISTRICT HEALTH BOARD, COUNTIES-MANUKAU DISTRICT HEALTH BOARD AND ORS HC AK CIV 2006-404-4724 [2007] NZHC 177 (20 March2007) at paragraphs: 122 and 123 per Asher J.
- Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475;
- DEAKIN V WEBB (1904) HCA 57; 1 CLR 585 (3 November, 1904) per Griffith, CJ quoting Hodges J;
- PUBLIC SERVICE BOARD OF NSW V OSMOND (1988) 159 CLR 657 per Gibbs CJ at para. 8.
1. RE: MICHELIDES; EX PARTE CHIN [NO.2][2010] 169.
2. RE:MICHELIDES, EX PARTE CHIN [2008] WASC 256;
3. THIES V CHIN [2010] WASC 111.
4. CHIN V THIES [2010] WASCA 230.
5. RE: AN APPLICATION UNDER THE MAGISTRATES COURT ACT, 2004; EX PARTE BRECKER [2007] WASC 151 at para.58 per Beech J in Re Carey; ex parte Exclude Holding Pty Ltd [2006] WASCA 219 AT [129]; [2006] 32 WAR 501at 527, Martin CJ observed (citing Gudgeon v Black; ex parte Gudgeon (1994) 14 WAR 158 at 178-179).
PART VII: INDICATE WHETHER THE APPLICANT SEEKS TO SUPPLEMENT THIS
SUMMARY WITH ORAL ARGUMENT.
Yes.
Dated 12th day of January, 2011
...................(signed)................. ( Applicant or Applicant's counsel )
1a) The Applicant applied for leave to appeal to the Court Below under subs. 60(1)(f(3) of the Supreme Court Act, 1935 WA . Such leave may be made ex parte, unless the judge or the master or the Court of Appeal otherwise directs. However, that leave application was made inter-partes for the First Respondent without any formality or consent of the Applicant by His Honour Newnes JA to the detriment of the Applicant because he was ordered to pay for the costs of that application to the First Respondent, implicitly as a punishment contrary to Minor Case Provisions of the Magistrates Court (Civil Proceedings) Act, 2004. If it were ex-parte no such costs order could be ordered against the Applicant.
b) The Applicant's application was dismissed on the ground that he did not comply faithfully with r. 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) in that the Grounds do not have a reasonable prospect of success and under r. 43(2)(g)(ii) of the Rules on the wrong reasoning that contradict the legal principle that the Substance of the Law do take precedence over Forms instead of vice versa.
2a) The Court Below did not require the First Respondent to conform to r.33(3)(a) and (4)(a) of the Rules to file his Answer to the Applicant's case within seven days together with his submissions, Notice of Contention and Legal Authorities.
b) The Court Below also did not require the First Respondent to comply with r. 22 of the Consolidated Practice Directions of the Supreme Court of Western Australia obtainable at the Supreme Court WA website when the latter delivered his written submissions to the Court of Appeal Registrar and the Applicant simultaneously on 22.11.20010 at 4.48 pm by way of email which did not conform with the requirement of advance notice of that document with two clear days.
3This case is reported on the Website of the Supreme Court of Western Australia as RE MICHELIDES, EX PARTE CHIN [2008] WASC 256 also referred to as RE MICHELIDES NO.1.
4This case is similarly reported as RE MICHELIDES; EX PARTE CHIN [NO.2][2010] WASC 169 also referred to as RE MICHELIDES NO.2.
5. RE: AN APPLICATION UNDER THE MAGISTRATES COURT ACT, 2004; EX PARTE BRECKER [2007] WASC 151 at para.58 per Beech J who said the following: “58 However, I do not accept the respondent’s submission that an applicant for prerogative relief who has demonstrated a jurisdictional error must then satisfy the court that the circumstances call for a favourable exercise of discretion. In my opinion, the position is to the contrary. In the setting of an application for prerogative relief, the discretion may be said to be a discretion to withhold relief, rather than a discretion to grant it. So, for example, in Re Carey; ex parte Exclude Holding Pty Ltd [2006] WASCA 219 at [129]; (2006) 32 WAR 501 at 527, Martin CJ observed (citing Gudgeon v Black ; ex parte Gudgeon (1994) 14 WAR 158 at 178 – 179) that an appropriate starting point in the consideration of the exercise of the discretion to grant prerogative relief is that once it is found that the Tribunal exceeded its jurisdiction the court will normally exercise its discretion in the applicant’s favour. Thus, it will normally be for those opposing the grant of relief to point to factors which justify a departure from that approach.”
See also the submissions of the Applicant before the Court Below at his website at: http://nicholasnchin.blogspot.com/2010/07/submissions-for-grounds-of-appeal-in_15.html.
6. Order 25(2)(g) of the Rules of Supreme Court of Western Australia , 1971
7The void judgements of the courts below with their respective consequential unenforceable orders consists of the following:
a) The Involuntary and Sham Consent Judgment entered into between the Appellant and the First Respondent in FR417 of 2007 dated 7.6.2007 for the compromised sum of $11,500.00 nominally legalised to be extorted from the Appellant under conditions of duress acknowledged by Dr. Giles who is the psychiatrist of the Second Respondent and Registrar Susan Wilde of the Fremantle Magistrates Court, in Perth, Western Australia.
b) The extorted sum of $11,500.00 was paid into the bank account of the First Respondent on the 12.4.2007 but was not acknowledged receipt of by the First Respondent as he had deliberately given a wrong bank account number for the Applicant to place the extorted monies into. This gave the First Respondent an opportunity to renege on his written settlement agreement to further escalate the compromised sum of $11,500.00 to $13,500.00 and the failure to pay this further sum caused the First Respondent to refuse to release his caveat stranglehold over the Second Respondent home property at No. 29, O'Dell Street, Thornlie WA 6107 until it was removed by the trial judge in 2010.
c) Registrar Wilde was unwilling to enter into the sham consent judgement because she and all concerned parties were aware of the conditions of duress being exerted by the First Respondent upon the Second Respondent and his father the Applicant until conditions become unendurable when the Second Respondent lost his mind for the second time. This unbearable condition was informed by the Applicant to Registrar Wilde in his letter to her and to all parties concerned dated 6.6.2007 which precipitated that sham Consent Judgement.
d) The Applicant started a Minor Claim case in FR944 of 2007 claiming his $6,000.00 that was extorted by the First Respondent from himself as part of the $11,500.00 that was extorted from both the father and son. This resulted in Magistrates Musk dismissing his claim, resulting in the Applicant appealing that decision to the District Court in Appeal No.6 of 2008 which was dismissed by Commissioner Herron.
e) Commissioner Herron dismissal of Appeal No.6 of 2008 caused the Applicant to appeal the sham Registrar Wilde's Consent Judgment to Magistrates Michelides in FR417 of 2010. He dismissed it resulting in the Applicant making the first stage of the s.36(1) Magistrates Court Act, 2004 Review Proceedings before Hasluck J who granted the Review Orders on an ex-parte basis.
f) The costs orders of the Magistrates Musk and Magistrate Michelides was stayed by Hasluck J but the s.36 Review Proceedings had no jurisdiciton over the District Court Commissioner Herron costs orders.
8The records of the proceedings before the trial judge Kenneth Martin J in the second stage of the Review Proceedings was reasonably apprehended to be biased against the Applicant which caused the latter to call for His Honour's recusal which he had refused to accede. This situation precipitated an Application for Mandamus Orders in CIV 1981 of 2010 that was not heard by Heenan J as he had no jurisdiction for prerogative orders against another judge of the same rank as himself. Therefore the matter is pending hearing before a Court of Appeal Judge as directed by the Court of Appeal Registrar.
9See the transcript of the proceedings before Newnes and Pullin JJA to be read together with the Amended Ground of Appeal of the Applicant in CACV 75 of 2010 for leave to appeal against the decision of the trial judge Kenneth Martin J in the website of the Applicant at: http://nicholasnchin.blogspot.com/search?q=amended+grounds+of+appeal+
10See the Amended Submissions of the Applicant that was presented before Newnes and Pullin JJA which details the case of the Applicant at his website at: http://wwwnicholasnchin.blogspot.com/2010/11/cacv75-of-2010-amended-submissions-with.html. See footnote No.6 for an analysis of the legislative intention of Parliament with regard to the Minor Cases Provisions of the Magistrates Court (Civil Proceedings), Act, 2004.
11See the email correspondence between the First Respondent and the Applicant posted at the blogspot of the Applicant at: http://nicholasnchin.blogspot.com/2010/08/lawyer-timothy-robin-thies-threatens-to.html..
13The First Respondent abused his position as the solicitor for the Second Respondent and the Applicant by starting the CIV1112 of 2007 case in the Supreme Court for refusing to remove his unlawful caveat against the home property of the Second Respondent for which he does not have caveatable interests. He used this as his gun of duress to extort the sum of the Sham Compromised Debt of $11,500.00 from the Applicant himself in the Fremantle Magistrates Court CA FR417 of 2007 for an ever-escalating sum of a ZERO SUM FALSE DEBT of some $25k. The Appellant's son's vulnerabilities caused the Applicant to settle the extorted monies in the sum of $11,500.00 but Registrar Wilde who entered into that Consent Judgment was unwilling to allow this extortion to happen. The extorted monies was paid to the First Respondent on 12.4.2007 with the duress-vitiated settlement deed entered into by the non -consensual parties arranged by the First Respondent through the Second Respondent's psychiatrist Dr. Giles. In the meantime, Registrar Wilde was constantly being updated with the duress situation until her hand was forced to enter into that duress-vitiated Compromised Consent Judgment by the letter of the Applicant addressed to her and to all parties concerned dated 6.6.2007, under untenable conditions, on 7.6.2007. This is the involuntary consent judgment of Registrar Wilde that forms the basis of the costs orders of Magistrates Musk in FR944 of 2007 which was appealed to the District Court before Commissioner Herron in DC Appeal No,.6 of 2008. The Sham Consent Judgment of Registrar Wilde in FR417 of 2007 was finally appealed to Magistrate Michelides at the cue given to the Applicant by Commissioner Herron. FR944 of 2007 is a separate Minor Case Provision Action taken by the Applicant separately against the First Respondent claiming for the $6,000.00 extorted by the First Respondent from the Applellant himself. This case is the source of the s.36 Magistrates Court Act,2004 Review Proceedings before the First Judge of the Supreme Court of Western Australia in CIV 1903 of 2008 and also referred to as Michelides No.1. Michelides No.2 is the second stage of the s.36 Review Proceedings before Justice Ken Martin who stultified those Review Proceedings by a Security Costs Order against the Appellant. This interim decision was appealed to the Court Below and its decision is now the subject of P50 of 2010 for Special Leave Application to the High Court of Australia.
14The s.36 Review Proceedings, sourced from the FR944 of 2007 was started by the Applicant against the First Respondent. It was caused by the First Respondent wielding his extortion Gun case in FR417 of 2007 seeking a Frivolous and Vexatious ZERO SUM FALSE DEBT claim of some $25k that was compromised under conditions of duress for $11,500.00. The Applicant sought for the return of his $6,00.00 extorted from himself in a separate action in FR944 of 2007 and it is for the courts below to reinstate the Second Respondent to his former position once the court found that the First Respondent had been guilty of exploiting the vulnerabilities of his own client, the Second Respondent. In actual fact, the Applicant had to pay the extorted sum of $11,500.00 from his own pocket as his son the Second Respondent had been an involuntary client of the First Respondent, such a client solicitor relationship having been induced by the undue influence exerted by the father upon his son, the Second Respondent.
15. Order. 83 of the Rules of Supreme Court of Western Australia, 1971concerns the Consolidation of pending causes and matters provides the following:
1. Causes may be consolidated
Whenever any issues between the same parties can be conveniently tried together, or whenever it appears desirable notwithstanding that the parties are not identical and that the evidence necessary to prove the issues is not identical, the Court may consolidate any number of causes or matters in order to quiet all claims relating to one subject matter, transaction or event, or to substantially similar subject matters, transactions or events.
2. Consolidation with action removed from another court
In the exercise of jurisdiction under this Order the Court may order the consolidation with any action pending in the Supreme Court of any action remitted or removed to the Supreme Court from any other court.
3. Directions
The Court shall make all necessary directions for the pre trial procedure, and for the trial or determination of such consolidated causes or matters.
16The trial judge can only imposed the Security Costs Order against the Applicant on two grounds:
a) the inherently weak case of the Applicant which does not hold water.
b) the Order 25 r. 2(g) argument which provides as follows:
“(g)is in default in respect of any costs ordered to be paid by him in any proceedings previously brought by him against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter;”
17Morison, W L --- "Fuller, The Morality of Law" [1965] Syd Law Rw 14; (1965) 5(1) Sydney Law Review 181
18The learned Barrister Scott Ellis as counsel for the First Respondent misled the trial judge to the effect that there was no evidence before the court that Registrar Wilde was involuntary in entering the sham Consent Judgment in FR417 of 2007 which become the bone of contention in the s.36 Review Proceedings.
20. http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSupC/1835/34.html?stem=0&synonyms=0&query=abuse
Sydney Herald on Abuses of Law: Source: Sydney Herald, 20 April 1835 at [1] in the following words:
“The abuses of English Law have, ... engaged the attention of nearly all the editorial Pens in London. A dead set has been made against the "Black Sheep of the Law," men whose roguery in all its branches has been detected and exposed with great ability …....partaking not of the principle of Justice, but of the spirit of mischievous litigation, have … occasioned deep disgust in every reflecting mind ... the facilities enjoyed by the disreputable part of the profession, to frustrate just and legal suits by chancery, and the enormous expences [sic] incurred by prosecuting them, have been the scandal of the profession, and the bane of society. a preponderance has been given to wealth, which if not directly, has all the means indirectly of impeding the course of Justice, or of preventing its application to less powerful members of the social compact. Like a bird in the toils of the fowler, the suitor when once entangled in the meshes of the legal net, forfeits his liberty and his property. The beacon that it led him upon the Rocks disappears, through the carelessness or the incapacity of the dispensers of Justice; the legal pilot frequently becomes helpless through ignorance or something worse, and the suitor is generally left an impoverished member of society.”
21 . RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010]WASC212. Comment: Judging from the reaction of Heenan J, I believe he has now resiled from his former position when he dismissed CIV 1019 of 2010.
22 http://wwwnicholasnchin.blogspot.com/2010/12/conspiracy-of-pseudo-board-taking-away.html
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