In the Supreme Court CIV No.1491 of 2011
of Western Australia.
In the matter of the High Court Special Leave to Appeal in P50 of 2010 which had avoided a decision on the issue of whether Security Costs Order of Ken Martin J in Michelides No.2 was either properly or improperly imposed upon the Applicant – thus denying the Applicant natural justice.
And
In the matter of the Court of Appeal of the Supreme Court of Western Australia comprising of Newnes and Pullin JJA having similarly denied the Applicant his natural justice in CACV 75 of 2010, which is the subject of the P50 of 2010 Application to the High Court.
And
In the matter of an application to a Single Judge in Chambers of the Supreme Court of Western Australia pursuant to Order 67 r.5 of the Rules of Supreme Court. 1971, WA on the ground that this Application is not an abuse of process of court nor is it a frivolous or vexatious proceedings and should have been refused for filing by the Chief Registrar.
NICHOLAS NI KOK CHIN – EXPARTE APPLICANT
Date of Document: 2nd May, 2011.
Filed on behalf of: The Ex parte Applicant
Date of Filing: 2nd May, 2011.
Prepared by:
NICHOLAS NI KOK CHIN
387, ALEXANDER DRIVE
DIANELLA WA 6059
Phone: 08 92757440
Mobile: 0421642734
Email: nnchin1@gmail.com; nnchin@msn.com
Written Submissions by Applicant before Justice ………….. at 10.30 am on 11th day of May, 2011.
INDEX
CHRONOLOGY 2
PROPOSED CERTIORARI ORDERS NISI: 4
Number 1: 5
DISCRETIONARY FACTORS TO BE EXERCISED BY KEN MARTIN J: 5
FAILURE OF KEN MARTIN J TO ACCORD SUFFICIENY OF WEIGHT: 7
Number 2: 8
Number 3: 8
Number 4: 8
Number 5: 9
ORDERS SOUGHT: 9
REASON FOR THE GRANT OF THE PROPOSED CERTIORARI ORDERS NISI: 9
LIST OF AUTHORITIES 11
STATUTES: 11
CHRONOLOGY
Nos. Date Events
1 06.06.2007 Letter from Applicant to Registrar Wilde in FR417 of 2007 copied to Associate of Templeman J of the Supreme Court in Mandate Exclusion Case (CIV 1112 of 2007) informing her that the Applicant and Paul Chin were under duress when they entered into the duress-vitiated Consent Order with Timothy Robin Thies (my due respect to my learned friend) (Refer to page 44 of the Affidavit of Applicant sworn filed and dated 28.6.2010 in CIV 1981 of 2010 – Barrister Scott Ellis (my due respect to my learned friend) misled the court before Ken Martin J – subject of Applicant’s complaint to LPCC dated 14.11.2010 and Crime Corruption Commission of WA dated 27.11.2010).
2 07.06.2007 Registrar Susan Wilde’s Duress-Vitiated Consent Order between Applicant and Thies precipitated at time when learned Registrar Wilde realized that the former was “importunating” the compromise under conditions of necessity, in order to enable Paul and his father to avoid the pressing circumstances then happening to Applicant’s son Paul, which is what a father would normally do for his son. This event that was sought to be avoided by the father was witnessed by independent witnesses from the Health Department.
3 24.07.2008 Applicant filed in Michelides No. 1 (CIV 1903 of 2008) for the s.36 Review.
4 07.11.2008 Hasluck J granted the s.36 Review Orders.
5 17.6.2009 Hasluck J in Michelides No.1 ordered Thies to file his Show Cause Affidavit in Michelides No. 2 (CIV 1903 OF 2008) within 21 days.
6 08.07.2009 Thies defaulted the order of Hasluck J in Michelides No.1 in that he failed to file the Show Cause Affidavit within the required time frame (which Order was made time being the essence for its compliance by Hasluck J).
7 06.10.2009 Thies finally did file his non-compliant Show Cause Affidavit out of time by nearly three months without an explanation for the delay. The non-compliance factor also has to do with the quality of the Show Cause Affidavit as required by Hasluck J. This disqualifies Thies from the due process of the Show Cause Order of Hasluck J. Ken Martin J’s duty was not to grant the s.36 Review Order anew but his was to decide whether there are justifying circumstances for that learned Judge to withhold that Review Order that was already granted by the Hasluck J in the first instance.
8 13.05.2010 Ken Martin J (with due respect to His Honour) unlawfully excluded the Applicant as a litigant in person in the case of Mandate Exclusion Case (Thies v Chin [2010] WASC 111) from protecting his second son Paul Chung Kiong Chin from being further exploited by Timothy Robin Thies in accordance with the mandate given to the Applicant by Hasluck J. (Just as Thies was made the First Defendant and Paul made the Second Defendant in the Michelides No.1 by Hasluck J, so the Applicant being the Plaintiff to the suit in Michelides No.2 should also, tit for tat, be allowed his reasonable request to be made the Second Defendant to the Mandate Exclusion Case where Paul is already the First Defendant by Ken Martin J and both cases be consolidated under Order 83 of the RSC. The common ground is that both cases arise from one event or transaction that emanated from the ZERO SUM CLAIM of Thies. The consolidation is for the purpose of quieting all claims arising from that same event or transaction, having regard to the fact that Thies used the Mandate Exclusion Case as his gun of duress in order to achieve the extortion of the sum of $11,500.00 from both the Applicant and his son Paul.)
9 20.5.2010 The judgment of Mandate Exclusion Case (Thies v Chin [2010] WASC 111) was published.
10 13.05.2010 Thies filed his Application for Security of Costs after and not before the s.36 Review Order has been granted by Hasluck J, contrary to the decision of the High Court in P50 of 2011 (the wisdom of the High Court in wording its judgment euphemistically).
11 17.6.2010 Ken Martin J was misled by Barrister Scott Ellis as counsel for Timothy Robin Thies at page 33 of the transcript of the proceedings, that there was no evidence before the Court that
Registrar Wilde was involuntary (caused by the duress of Timothy Robin Thies as she had received the letter dated 6.6.2007) prior to the day when the Involuntary Consent Judgment in FR417 of 2007 was entered into between the parties. (See Footnote 18 at page 51 and 52 of Applicant’s Affidavit of Notice of Originating Motion in CIV 1491 of 2011 sworn 18.3.2011 in Support of Notice of Originating Motion dated 24.3.2011. See Also page 44 of the transcript at page 44 of the Affidavit of Applicant sworn, filed and dated 28.6.2010 in support of his Application in CIV 1981 of 2010 for the Recusal of Ken Martin J).
12 08.07.2010 Ken Martin J delivered his judgment in Michelides No.2 which is an Order to stultify the Show Cause Proceedings of the s.36 Review after it was already granted by Hasluck J on two untenable grounds:
a) Order 25 r.2(g) of the RSC for the Applicant’s alleged default of payment of the void Commissioner Herron costs Orders as it based upon Registrar Wilde Void Consent Order in FR417 of 2007.
b) The Appellant’s allegedly inherently weak case contrary to Hasluck J’s findings.
13 23.11.2010 Applicant’s Application for Leave to Appeal to the Court of Appeal in CACV 75 of 2010 that was dismissed by Newnes and Pullin JJA.
14 07.12.2010 The judgment of CACV 75 of 2010 was published.
15 17.12.2010 The Applicant filed his Special Leave to Appeal the CACV75 of 2010 to the High Court of Australia in P50 of 2010.
16 11.03.2011 The High Court of Australia rarely allow Special Leave Applications but always shed light on how the matters that are the subject of its dismissal, as in the case P50 of 2010 is to be dealt with in the lower courts. Therefore, the refusal or dismissal of P50 of 2010 has no adverse ramifications upon the issues that have hitherto been shied away by the courts below, and consequently not barred by the principle of res judicata, ought to have been dealt with again by the courts below in future proceedings.
17 11.03.2011 The Applicant unsuccessfully requested Newnes JA to recuse himself from hearing the Applicant’s Appeal in CACV 41 of 2010 on the ground of conflicts of interests: the learned justice had failed to give proper reasons or had given deficient reasons when he dealt with CACV 75 of 2010, which case is a component of CACV 41 of 2010.
PROPOSED CERTIORARI ORDERS NISI:
Number 1:
1. Michelides No.2 be expunged from court records caused by – misconception and apprehended bias of trial judge - Ken Martin J (my due respect to him) based on following grounds:
1.1. Fundamental principle of law - I as Applicant has the right of a litigant to pursue and enforce my rights in the courts :
“The basic rule that a natural person who sues will not be ordered to give security for costs, however poor, is ancient and well established”: Pearson v Naydler [1977] 1 WLR 899 at 902.
“that poverty is no bar to a litigant”: Cowell v Taylor (1885) 31 Ch D 34 at 38. See generally Oshlack v Richmond River Council [1998] HCA 11.
1.2. Exercise of power by court by Ken Martin J - to order security for costs - a balancing process - doing of justice between the parties - to achieve balance between ensuring adequate and fair protection to Thies as defendant, and avoiding injustice to impecunious Plaintiff (Applicant) by not unnecessarily shutting it out or prejudicing it in the conduct of the proceedings: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [47].
1.3. Power to order security for costs by His Honour is discretionary - not automatic: Idoport at [20], [56]–[57] and [60]–[62].
1.4. Discretion to be exercised by him must be done judicially - not “arbitrarily, capriciously or to frustrate the legislative intent”: Oshlack, in Idoport at [22].
1.5. His exercise of the power requires his consideration of particular facts of the case, which he did not do: Merribee Pastoral Industries v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502.
1.6. The factors – to be taken account of by him must be unrestricted as long as they are relevant: Morris v Hanley, above; Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1985) 1 NSWLR 114.
DISCRETIONARY FACTORS TO BE EXERCISED BY KEN MARTIN J:
2 He did not take into account the following factors:
2.1. That Thies did not comply with Hasluck J order to file his time of the essence Show Cause Affidavit on time.
2.2. That Thies did not comply with the quality of the Show Cause Affidavit as required by the Hasluck J Order in terms of its conciseness and preciseness – be limited as to why the ZERO SUM DEBT CLAIM of Thies can be escalating indefinitely, having regard to the fact that his retainer was terminated on 21.2.2005 by Paul and the Applicant.
2.3. His Duty as the judge of the s.36 Review Order was not to withdraw it but was to consider whether there are extenuating circumstances for him to withhold it from taking effect.
2.4. Whether the Applicant is bona fides, his motivations, or whether he is vexatious for making a claim against Thies vis a vis the bona-fides of the ZERO SUM DEBT CLAIM of Thies made vexatiously against the Applicant and his son Paul, resulting in the duress-vitiated compromise of Registrar Wilde in FR417 of 2007: See: Bhagat v Murphy[2000] NSWSC 892 at [20]–[21] or a vexatious claim (Bhagat at [26]).
2.5. Applicant’s prospects of success - important element of balancing justice between parties to be determined objectively. Care needs to be exercised - assessing proportionate strength of the cases of the parties at early stages of proceedings: Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564 at [39].
2.6. The issue of the public interest that the conduct of lawyer Thies should not be condoned for making false demands for the ZERO SUM DEBT CLAIM and escalating it for no conceivable reasons. This involves an area of law that requires clarification for the benefit of a wider group than the Applicant and his son Paul: Merribee Pastoral Industries, above, at 13; Soh v Commonwealth of Australia (2006) 231 ALR 425 at [26].
2.7. He should take into account particular factors peculiar to the circumstances of the proceedings: Equity Access Ltd v Westpac Banking Corp [1989] ATPR ¶40-972 i.e. looking into the reasons why the compromise was made under conditions of necessity and duress.
2.8. He failed to take into account that the likely order as to costs, even if successful for the Applicant, may not be in favour of the winning defendant due to the intervention of the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 which does not cause Thies to become entitled to any costs order for legal costs, except the minimum sum of out of pocket expenses necessarily incurred which the Applicant guarantees to the Court. See: Singer v Berghouse (1993) 114 ALR 521 at 522;
2.9. The proportionality of the costs (which is to vindicate the Plaintiff’s human right to be able to practice as an independent lawyer again, which right was taken away by the Legal Practice Board on account of a false premise that the Applicant was guilty of making false allegations against Thies which is the illegal findings of the Legal Practitioners Complaints Committee and is currently the subject of the Applicant’s Appeal in CACV 41 of 2010) to the activity or undertaking the subject of the claim against Thies which Ken Martin J thought is so minuscule as to impose an undue hardship on Thies . See Shackles & Daru Fish Supplies Pty Ltd v Broken Hill Proprietary Co Ltd, above, at 432;
2.10. The Applicant is not a vexatious litigant: Re Attorney General (Commonwealth); ex parte Skyring (1996) 70 ALJR 321 at 323
FAILURE OF KEN MARTIN J TO ACCORD SUFFICIENY OF WEIGHT:
3. Sufficiency of weight should be given to any circumstances, which will have to depend upon its own intrinsic persuasiveness and its own impact on other circumstances: See: Acohs Pty Ltd v Ucorp Pty Ltd (2006) 236 ALR 143 at [12].
3.1. The important consideration of whether the security order would stifle or end the Applicant as the Plaintiff’s claim particularly in light of the poverty rule: Fiduciary Ltd, above, at [72]; Staff Development & Training Centre Pty Ltd v Commonwealth of Australia [2005] FCA 1643 at [39].
3.2. The appropriate weight whether the Applicant as the impecunious Plaintiff is in reality the defendant and not the attacker in those proceedings: See: Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324 at 67–8.
3.3. The weight of looking behind the actual litigant Thies to see the means of Barrister Scott Ellis and others who stand to benefit from the litigation: Acohs, above, at [49]; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 1672 at [38.8].
3.4. The weight that the Applicant has a prima facie claim against Thies that is regular on its face as it discloses a cause of action. Absence of evidence to the contrary, he should have considered the Applicant is bona fide and has reasonable prospects of success: K P Cable Investments, above, at 197; Staff Development & Training Centre, above, at [12]–[13].
Number 2:
5. It enlivens Michelides No.1 and enables this court to begin anew as if Michelides No.2 never happens.
Number 3:
6. My proposed Certiorari Orders Nisi No.3 means that the Pullin and Newnes JJA decision in CACV 75 of 2008 never happened as the issue of Magistrate Musk Order was already decided in Michelides No.1 and this issue was never the subject of an appeal nor was it ever decided in Michelides No.2. Neither the Court of Appeal nor the High Court ever decide the issue of the legality of the Security Costs Order of Ken Martin J. So this issue is not barred by the principle of res judicata in these proceedings in CIV 1491 of 2011.
Number 4:
7. If my proposed Certiorari Order Nisi No.4 means that there is now longer any need for CIV 1981 of 2010 to be listed nor be heard as the learned Ken Martin J did not respond to my allegations that he was biased against me . The non-response is not even included in the reason of Judgment of the Mandate Exclusion Case of CIV 1112 of 2007 and Michelides No.2 of Ken Martin J. Therefore, the Latin maxim: Qui Non Negat, fatetur: he who does not deny, admits them, applies. This renders the voidable judgment in Michelides No.2 void ab initio. Therefore the Mandate Exclusion Case also needs to be set aside in the interest of justice.
Number 5:
8. My Proposed Certiorari Order Nisi No. 5 means that I am able to invoke the inherent jurisdiction of this Honourable Court to grant me the Certiorari Orders Nos. 1 to 5 for Review to be made absolute and returnable before a Court of Appeal judge on the ground that the High Court in its wisdom in its statement of reason stated euphemistically that the Application for Security Costs Order of my learned friend Thies (my due respect to him) did not exist in fact nor in law; if it ever exists at all, it was never made before the Review Order was granted by Hasluck J before the 7.11.2008 but it came into existence only on the 13th day of May, 2011 before the hearing of Ken Martin J in Michelides No.2 on 17.6.2010 at a time when the Review Order was already granted. At this time, Ken Martin J was there to decide whether he could withdraw the s.36 Review Order of Hasluck J. Therefore, Michelides No.2 is never a Review Order but merely a process of withholding the Review Order already granted by Hasluck J in Michelides No.1; that can only happen if there were justifiable circumstances for his doing so. The fact that the ancilliary orders of Hasluck J pertaining to the Review Order were never complied with by Thies, means there was never any such justifying circumstances .
ORDERS SOUGHT:
9. The Applicant therefore seeks the Orders of this Court in terms of the Orders he had already sought from the High Court of Australia in P50 of 2010 as in paragraphs 3.1 to 3.7 in pages 60 and 61 of his Affidavit sworn, filed and dated 24.3.2011.
REASON FOR THE GRANT OF THE PROPOSED CERTIORARI ORDERS NISI:
10. Michelides No.2 should have proceeded on a proper course for the Applicant to gain justice and Ken Martin J should not have erred by going on a frolic of his own.
11. The perversion of justice has caused detriment to both the Applicant and his son, Paul Chung Kiong Chin . His Honour had admitted to this perversion of justice by his conduct as he did order for the removal of the unlawful stranglehold caveat which Timothy Robin had illegally used to clog up the equity of the home property of Paul Chin since the end of 2006, knowing that the latter is a vulnerable person and an unwilling party to that solicitor client relationship which was exploited by Timothy Robin Thies.
12. The perversion of justice in Michelides 2 is caused by counsel Barrister Scott Ellis and Solicitor Timothy Robin Thies, both as officers of the court, misleading Ken Martin J to the effect that Registrar Wilde in FR417 of 2007 when she entered the duress-vitiated Consent Judgment which “legalized” the extortion of Timothy Robin Thies against both the Applicant and his son in the sum of $11,500.00 was never under duress herself nor was she aware of the duress exerted by Thies upon the Applicant and his son Paul.
13. Michelides No.2 was incorrectly premised on the allegedly “weak” case of the Appellant and the non-debt masquerading as a “debt” arising from Commission Herron Costs Order that was based on the duress-vitiated Wilde Consent Order, by Ken Martin J.
14. The non-compliance of Timothy Robin Thies with the Order of Michelides No.1 precipitated the Proposed Certiorari Orders No.1 to No.5.
15. Michelides No.2 is about Ken Martin J withholding the Review Order already granted by Hasluck J in Michelides No.1 only where there exist justifying circumstances for his doing so and it is not about how it should have been stultified by an improper security costs order based on incorrect grounds.
16. The Pullin and Newnes JJA decision introduced a red herring that complicates the case for the High Court but the High Court in its wisdom was able to euphemistically put the case back on an even keel by making the deliberate mistake to signify that Thies made an application for Security of Costs Order before the Review Order was granted by Hasluck J. As this is a non-existent situation, the High Court is indirectly telling Ken Martin J that Michelides No.2 should be expunged from the Court records.
17. The High Court by closing its doors to all avenues of appeal by the Applicant is facilitating the Applicant to invoke the inherent jurisdiction of the Supreme Court of Western Australia for Prerogative Orders of Review and Mandamus and Prohibition against Thies.
18. The Applicant is also seeking the Proposed Certiorari Orders Nos. 1 to 5 for the purpose of vindicating his claim to the Legal Practice Board that he has not made any false allegations against a fellow solicitor Timothy Robin Thies and therefore, the Applicant should be allowed into independent legal practice again as well as to regain his justice against Thies that was long overdue to him.
(Signed)
Applicant :NICHOLAS NI KOK CHIN in person
LIST OF AUTHORITIES
1. Acohs Pty Ltd v Ucorp Pty Ltd (2006) 236 ALR 143 at [12];[49];
2. Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324 at 67–8.
3. Bhagat v Murphy[2000] NSWSC 892 at [20]–[21];[26].
4. Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 1672 at [38.8].
5. Cowell v Taylor (1885) 31 Ch D 34 at 38.
6. Equity Access Ltd v Westpac Banking Corp [1989] ATPR ¶40-972
7. Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564 at [39];[72];
8. Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [47].
9. Idoport at [20], [56]–[57] and [60]–[62].
10. K P Cable Investments, above, at 197;
11. Merribee Pastoral Industries v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502; 13;
12. Oshlack v Richmond River Council [1998] HCA 11.
13. Pearson v Naydler [1977] 1 WLR 899 at 902
14. Re Attorney General (Commonwealth); ex parte Skyring (1996) 70 ALJR 321 at 323
15. RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE BRECKER [2007] WASC 151.
16. Shackles & Daru Fish Supplies Pty Ltd v Broken Hill Proprietary Co Ltd, above, at 432;
17. Singer v Berghouse (1993) 114 ALR 521 at 522;
18. Soh v Commonwealth of Australia (2006) 231 ALR 425 at [26].
19. Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1985) 1 NSWLR 114
20. Staff Development & Training Centre Pty Ltd v Commonwealth of Australia [2005] FCA 1643 at [39]; [12]–[13].
STATUTES:
Magistrates Court (Civil Proceedings) Act, 2004: Minor Cases Provisions.
Magistrates Court Act, 2004 s. 36.
