VR 107 OF 2008
IN THE MATTER OF an application under the Legal Practice Act, 2003, section 44(b)
MR NI KOK (NICHOLAS) CHIN Applicant
And
WESTERN AUSTRALIA LEGAL PRACTICE BOARD Respondent
APPLICANT’S OUTLINE OF WRITTEN SUBMISSIONS FOR TRIAL BEFORE HIS HONOUR JUSTICE CHANEY ON 25.9.2008 AT 10.00 AM IN ROOM 8.06.
Date of filing: 22nd September, 2008
Date of document: 22nd September, 2008
Filed on behalf of: Applicant
Prepared by:
Nicholas N Chin- Barrister & Solicitor
387, Alexander Drive Phone & Fax: 08 92757440
DIANELLA WA 6059 Reference: NNC-SAT VR 107/2008
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Your Honour:
The Applicant humbly submits in the following terms:
¬¬¬_____________TABLE OF CONTENTS Page Numbers
i. Value Judgment: The imposition of the impugn condition is based on a value judgment: 2
ii. Objectivism in the interpretation of the alleged facts that warrants the imposition of the impugned conditions 2
iii. Alleged Facts is unreal and false with regard to Applicant’s obligations and duties in the keeping of Trust Accounts: 4
iv. Standards of expression – poor understanding of communication with the courts etc., is unreal: 5
v. Respondent Blowing Hot and Cold 5
vi. The three pillars of the rule of law 6
vii. Information peculiarly with the knowledge of the Respondent: 6
viii. Responsibility of the Respondent as the regulator of the legal profession: 7
ix. Applicant should be punished only be punished within the law and for infraction of the law: 7
x. Mutual Rights and Obligations 7
xi. Correct Interpretation: s.39 and s.40 of the Legal Practice Act, 2003 be read together 8
xii. Mala fides or bad faith of the Respondent in the interpretation of the Statute: 8
xiii. Conclusion 9
Value Judgment: The imposition of the impugn condition is based on a value judgment:
1. “Value judgment” is defined as a judgment of the rightness or wrongedness of something, or of the usefulness of something, based on a personal view. It refers to a judgment based upon a particular set of values or on a particular value system. It is an expedient evaluation based upon limited information at hand, undertaken because a decision must be made . It can be used both in a positive sense, signifying that a judgment must be made taking a value system into account, or in a disparaging sense, signifying a judgment made by personal whim rather than rational, objective thought .”
2. “Some argue that true objectivity is impossible, that even the most rigorous rational analysis is founded on the set of values accepted in the course of analysis.……… Consequently, all conclusions are necessarily value judgments and therefore maybe suspect .”
3. It is “a judgment that assigns a value, as to an object or action or a subjective evaluation, a personal opinion about something based on an individual’s beliefs and not on facts which can be checked or proved. It is an assessment that reveals more about the values of the person making the assessment than about the reality of what is assessed.”
Objectivism in the interpretation of the alleged facts that warrants the imposition of the impugned conditions:
4. The Ayn Rand Institute which is the Centre of Advancement of Objectivism in California in the United States, in its website states that:
“Value is based on and derives from the facts of reality…. Reality, we hold—along with the decision to remain in it, i.e., to stay alive—dictates and demands an entire code of values. Unlike the lower species, man does not pursue the proper values automatically; he must discover and choose them; but this does not imply subjectivism. Every proper value-judgment is the identification of a fact: a given object or action advances man’s life (it is good): or it threatens man’s life (it is bad or an evil). The good, therefore, is a species of the true; it is a form of recognizing reality. The evil is a species of the false; it is a form of contradicting reality. Or: values are a type of facts; they are facts considered in relation to the choice to live.”
5. Therefore, the decision of the Inquiry Team of the Respondent to re-impose the impugned conditions on the practice certificate of the Applicant on the grounds of its alleged facts must be either true or false as they cannot be true and false at the same time. If they are true, they must be good, real and objective and therefore justify the public good and the public interest of the Respondent and thus enable the Applicant to live, but if they are false they must be subjective or evil and not be for the public good and is aimed at preventing the Applicant from continuing to live. The regulator of the legal profession in WA must be visibly upholding the public interest by advancing the truth and not be promoting falsehoods.
Frivolous and Vexatious:
6. The impugned conditions by the Respondent on the Applicant’s practice certificate should be removed on the ground that they are based on some frivolous and vexatious value judgment claims to the effect that the Applicant lacks appreciation and insight, inter alia, with regard to his keeping of trust account etc and they are therefore not sustainable in law.
7. “Frivolous” means “characterized by or causing vexation; annoying, troublesome, etc or an action instituted by the Respondent without real grounds, chiefly to cause annoyance to the defendant” An action is frivolous and vexatious if it is “so clearly untenable that it cannot possibly succeed or “foredoomed to fail” .
8. The frivolity and vexatiousness of the impugned conditions is caused by the systemic discrimination already absorbed into the institutions and structure of society in Western Australia and is of the nature of a complex of directly and/or indirectly discriminatory (or subordinating) practices which operates to produce general disadvantage for a particular group of individuals into which the Respondent is a member. It involves long-standing social and cultural mores carrying within them value assumptions that contribute to discrimination in ways that are substantially or entirely hidden and unconscious. It is based on assumptions and stereotypes about the appropriate role of the Applicant as a lawyer in the Western Australian society and it is aimed at the maintenance of an ideology of subordination of the Applicant. It is pervasive in nature and it is harmful because it reflects attitudes and prejudices towards him as a member of a particular group who are being discriminated against and this problem cannot be addressed solely through individual anti discrimination remedies.
Appreciation and Insight:
9. The Applicant cannot and should not be stigmatized with the value judgment label: “Lack of appreciation and insight” as it is not a label of universal application.
10. “Appreciation” is defined as “an awareness and understanding of a problem or difficulty; or a delicate perception” whereas “insight” is defined as “a penetrating understanding, as of a complex situation or problem or the ability to perceive clearly or deeply the inner nature of things”.
11. These epithets are value judgments and have no justifications in fact and if they do, every member of the legal profession who are currently certificated should be subject to these same “tests” and they are not.
12. The Applicant has been subjected to the policy of “Indirect Discrimination” by the facially neutral conditions of the impugned conditions that can be met by particular groups of lawyers only and it is irrelevant whether the effect or impact of that policy or action is intentional or unintentional. The impugned conditions do not merely manifest itself in obvious or direct ways but rather is disguised in policies and practices which appear to apply to all persons equally.
Indirect and Systemic Discrimination
13. The Applicant has proven indirect discrimination and systemic discrimination as is apparent from the facts of the case, in the following terms :
a) The Applicant was repeatedly required by the Respondent to comply with the requirements of the impugned conditions even after consent judgment was obtained in CACV 43 of 2007.
b) a substantially higher proportion of younger persons and/or persons of lesser-experienced in other professions and who are born as Australians are able to comply with the impugned conditions which the Applicant is not able to comply;
c) The personal circumstances of the Applicant renders it unreasonable for the Applicant to comply;
d) It is impossible for the Applicant to comply having regard to the antecedents of the Applicant with regard to his employment history as a teacher in WA.
Alleged Facts is unreal and false with regard to Applicant’s obligations and duties in the keeping of Trust Accounts:
14. The Applicant does not at all material times contravene Rule 54 of the Legal Practice Board Rules, 2004 as he complied with his client’s instructions to deal with the trust monies in accordance with the trust monies.
15. The Applicant also does not at all material times contravene s. 137. of the Legal Practice Act, 2003 when he dealt with the trust monies in accordance with the directions of his client Mr. Chang Ming Tang, by his due compliance with s.137(2) which states:
“Subsection (1) does not apply when a legal practitioner deals with the trust moneys as directed by the person from whom, or for whose use or benefit, the trust moneys are received.”
Standards of expression – poor understanding of communication with the courts etc., is unreal:
16. The “standards” referred to by the Respondent is a false allegation of facts, unreal and subjective and is not of universal applicability in nature as it not congruent with the standard meaning of that word:
“Standards” is defined as “something established by authority, custom, or general
consent as a model or example” .
17. The alleged facts that the Applicant is capable of rude and inflammatory and unfounded remarks are based on the false premise that those remarks are false or unreal or evil in nature. This is again a value judgment. The evidence before this tribunal is that those remarks are never intended to defame nor to make false allegations or to bear false witness against the Applicant’s neighbours.
18. It is a form of subconscious calumny for the Honourable Members of the Inquiry Team to name the Applicant as a person capable of making allegations of misconduct of other legal practitioners without proper foundations of facts or that he failed to appreciate positions of conflict of interests whenever he is faced with them. It is also an untruth for the Respondent to state that the Applicant needs supervision in all aspects of his practice when this statement is not one of universal applicability. It is as if the Respondent is quite capable of blowing hot and cold or “To change one’s mind constantly about the value of something” or “To change one’s opinion often on a matter; vacillate” at the same time when the Applicant has already been granted permission to practice on his own account. The facts of the case are before this tribunal.
Respondent Blowing Hot and Cold
19. In the case of Felix v. De Sousa, 1995 CanLII 347 (BC S.C.) Judge JUDGE OWEN-FLOOD at paragraph 36 cited the extract from the Canadian Encyclopedic Digest (Western), 3rd Ed. Title 57, Vol. 11B with regard to the topic of “Approbation and Reprobation”, said:
“A person is not allowed to blow hot and cold - to affirm at one time and deny at another - by making a claim on those whom he has deluded to their disadvantage and founding that claim on the very matters of the delusion. This principle has its basis in common sense and common justice: and whether it is called “estoppel” or by any other name, it is one which courts of law have in modern times most usefully adopted.”
20. The learned Judge at paragraph 37 of that case further state:
“The issue is whether the plaintiffs at bar have “blown hot and cold” within the meaning of the law enunciated by Hutcheon J., as he then was, in Enquist v. Hass et al (1979), 15 B.C.L.R. 139 (S.C.). I am satisfied that, indeed, Marie De Sousa did initially “blow hot and cold” but she is not one of the plaintiffs at bar.”
The three pillars of the rule of law
21. It is a value judgment for the Respondent to state that that the Applicant did not maintain the standards of communications with the courts to be observed by a reasonable legal practitioner because there are no circumstances which is available before this tribunal that the Applicant contravenes the three pillars of his duty to preserve the basic tenets of an independent judiciary i.e. the integrity, impartiality and independence founded on the principle of the rule of law .
Information peculiarly with the knowledge of the Respondent:
22.The Respondent through Ms. F. B. Walter has tainted itself with the role of prosecutor and judge and thereby rendering its original decision to impose the impugned conditions on the Applicant’s practice certificate tainted with gross bias. It should not therefore be seen to be repeating its mistake (that was admitted by it through the consent judgment given on 25.6.2007 before His Honour Justice Steytler) by acting again without the legal authority of properly authorized minutes of the Respondent Board as prescribed for by ss. 10 & 11 of the Legal Practice Act, 2003 (the Act).
23.The four member Inquiry Team of the Respondent who sat to make the current decision to re-impose the impugned conditions should not appoint themselves as the four members constituting the Respondent Board without the authorized minute of the Board for that purpose. In order to eliminate any doubt that the Inquiry Team might have been constituted by Members of the Board who might have some clandestine motives or who might have an act to grind so to say, they should have another four independent members to vet their appointment beforehand. The knowledge of the circumstances for the appointment of the Inquiry Team as well as those surrounding Ms. F.B. Walter lies peculiarly within the knowledge of the Respondent and it therefore for the Respondent to prove otherwise to this tribunal. Para..16 of Halsbury Laws of England, 4th Edition states as follows:
“Where the truth of a party’s allegation lies peculiarly within the knowledge of his opponent, the burden of disproving it often lies upon the latter , but there is no general rule of law to this effect. There is authority contrary to this exception, butit certainly exists and has frequently been applied by the courts .”
24. The rule of law is a principle of universal application and the Respondent should be bound by it as a decision maker. Persons unknown or peculiarly within the knowledge of the Respondent, however powerful or wealthy they may be who are in a position to influence opinion in the Respondent should be governed by the ordinary law and should be personally liable for anything done contrary to the law. The authority and power of the Respondent to impose the impugned conditions on the Applicant must find an ultimate source in the law. The applicability of the rule of law upon the Respondent safeguards the Applicant from the arbitrary exercise of power as the Respondent is subject to and should be constrained by the law.
Responsibility of the Respondent as the regulator of the legal profession:
25. The operations of the Respondent as the regulator of the legal profession in WA must see to its efficient and expeditious performance of its legal functions by means of the direct enforcement of rules and by the deterrent effects of the threatened or possible enforcement of those rules. The Respondent has the duty and obligations to ensure and safeguard the personal security of the Applicant and provide for the existence of a social order which enables people in WA to arrange their personal affairs and their relationships with associates, friends, family and neighbours on the assumption that basic standards of propriety are met and reasonable expectations are satisfied. The Respondent must ensure a high level of predictability in its decision making process so as to establish the requisite social order and restore the public confidence in its official role that enables the Applicant to act in accordance with reasonable beliefs as to his rights and obligations and that there be reasonable expectations that these will be met.
Applicant should be punished only be punished within the law and for infraction of the law:
26. The concept of “boundedness” associated with the rule of law means that the law is not all encompassing or that there is a substantial sphere of freedom of action for the Applicant. Citizens like the Applicant can only be constrained or punished for violation of the law and in accordance with the law. Where the law ends, so constraint ends. This tribunal and the persons appearing before it today are the boundary riders maintaining the integrity of the fences that divide legal constraint from the sphere of freedom of action. This tribunal must also observe the minimum content of the rule of law in that the rights and duties of persons in our society are being preserved, and the consequences of breach of any such rights and duties, must be capable of objective determination. It is only if this is the case that persons and groups in our society in Western Australia can interact with each other with confidence, in an environment of social order. The judicial independence of this tribunal then ensures that any such determination it is making is, in fact, objective.
Mutual Rights and Obligations
27. The Respondent must allow the laws affecting my rights to practice as a legal practitioner to be administered fairly, fairly, rationally, predictably, consistently and impartially.
Fairness requires a reasonable process of the consideration of the mutual rights and duties asserted by me as the Applicant for a practice certificate and those of the regulator of the legal profession. Rationality requires a reasoned relationship between those mutual rights and duties and the outcome of the decision of the Respondent and also of this tribunal affecting our mutual rights and obligations. Predictability of this tribunal and the Respondent as the decision maker requires a process by which the outcome is related to the original mutual rights and duties. Consistency requires the Respondent and this tribunal to treat similar cases similarly so that this fair treatment can lead to similar results. Impartiality requires the decision-maker and this tribunal to be indifferent to the outcome of this case. Any form of improper influence, incompetence, inefficiency or bias on the part of the Respondent or this tribunal as the decision maker is inconsistent with each of these objectives as indicated above. Without institutionalized judicial independence of these two decision makers, distortions are inevitable. Without a high level of competence, integrity and capacity for impartiality on the part of the decision makers, distortions are inevitable. There are therefore a wide range of judicial virtues which should be adopted by the decision makers: legal learning, trial experience, wisdom, compassion, clarity of thought and expression, robust independence, capacity for detachment, impartiality, attentiveness, diligence, common sense, strength of character and administrative skills. This is a diverse skill set of essentially incommensurable matters. There is no means of reducing them to a single metric.
Correct Interpretation: s.39 and s.40 of the Legal Practice Act, 2003 be read together
28. The Respondent need to find the Applicant guilty of unsatisfactory conduct before it is empowered by the relevant statute to close down his independent practice. Ss. 39 and 40 of the Legal Practice Act, 2003 should be read together to obtain the legislative intent of Parliament, otherwise the Respondent could be abusing its powers to invoke s. 40 so as to take away the common and civil right of the Applicant. See: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pars. 113-116; cf. Mitcham v. O’Toole ((1977) [1977] HCA 41; 137 CLR 150) which states thus:
“it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication.”
Mala fides or bad faith of the Respondent in the interpretation of the Statute:
29. The Respondent imposed the impugned condition on the Application for an ulterior purpose and had thereby acted in bad faith. In this context, the case of Jones v. Metropolitan Meat Industry Board [1925] HCA 54; (1925) 37 CLR 252, at pp 263-264 where His Honour, Isaacs J said:
“The good faith, which is the antithesis of fraud in this connection, is that which is required in the common law sense in relation to the legal exercise of statutory powers, and is not dependent on any doctrine of equity. It is wholly distinct from the notion of mistakenly pursuing a by-purpose. Such a pursuit may in this connection be honest or dishonest. The body pursuing it may genuinely avow it, thinking it permissible. There the action adopted may be ultra vires, but not mala fide. On the other hand there may be a pretended pursuit of a legitimate purpose that is mala fide.”
30. STEPHEN J. in the case of THE QUEEN v. TOOHEY; Ex parte NORTHERN LAND COUNCIL [1981] HCA 74; (1981) 151 CLR 170 at paragraph 31said the following:
“Again in Werribee Council v. Kerr [1928] HCA 41; (1928) 42 CLR 1, at pp 8- 9 his Honour emphasized the distinction between “honest error and dishonest design”, only the latter involving want of bona fides. At least to Isaacs J. “ mala fides” seems in Duncan v. Theodore to have signified actual dishonesty and not the mistaken pursuit of a by-purpose. (at p205).”
31. It is for this tribunal to make a finding that the Respondent has performed an improper purpose in closing down the practice of the Applicant and resort to impose the impugned condition on his practice certificate. In this regard, the Applicant would like to quote what His Honour AICKIN J. said in the above case of THE QUEEN v. TOOHEY; Ex parte NORTHERN LAND COUNCIL at paragraph 6 in terms of the following:
“I use the term “improper purpose” to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power. In the case of legislative powers it is not always possible to discern a purpose, as distinct from subject matter or content. A belief that the act done is being done for an authorized purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law. (at p233).”
Conclusion
32. The decision of this tribunal must be guided by the proposition that the above judicial virtues are required so that laws are administered fairly, rationally, predictably, consistently and impartially. These are requirements of the rule of law.
33.I therefore humbly pray for the Applicant to be compensated for his loss of income and his loss of reputation as a practitioner and that there be a complete restitution to his former position as if the wrong had not been perpetrated upon him.
Signature of Applicant: ………………………………………….
(Nicholas Ni Kok Chin)
