INDEX IN TABLE OF CONTENTS PAGE NUMBERS
1. The Principal Registrar of
the Supreme Court v Chin [2012]
WASC7, Case No. CIV 1689 of 2011: heard 29th August, 2011 and delivered 10/01/2012.
2. The link:
The Purported Decision:
3. Murray J has
continuing obligations under the law to discharge his duties as a judge because
his Jurisdictional Errors (JEs) had caused His Honour’s duties as a judge not having
been fully discharged. His Honour is
thus not ex functus officio..
4. By virtue of the JEs,
Murray’s J
judgment is therefore regarded as a Pur
ported
Decision
[1] only, one which is ca
pable of being judicially reviewed. It is therefore
the subject of the Res
pondent/A
pplicant in this a
pplication for Judicial Review and Declarative Judgments,
pursuant to s. 25(6), 33, 43 and 59
of the
Supreme
Court Act, 1935 (WA) (the Judicial Review).
5. The common law
judicial review by the Su
preme Court
of Western Australia by way of Prerogative Writs is not available from a judge
of the General Division or a Court of A
ppeal Judge of the Su
preme
Court of WA against his brother or sister judge of the same rank as
himself/herself (the Unavailability of Prerogative Writ Powers
[2] of the A
pplicant).
6. The Unavailability of
Prerogative Writ Powers like Mandamus, Certiorari to the Applicant was
discovered by the Applicant through his experimentation
with the SEVEN cases below, by way of trial and error. This is because the reasons for the judgments
of each of the SEVEN Prerogative Writ Cases at 126 had expressly
EVADED the issues that were before the various courts thereby rendering those
decisions NON-RES JUDICATA. BUT for the Heenan’s J decision, in the aftermath
of His Honour’s ABOUT-TURN decision on 21.4.2010 and Commissioner Sleight’s and
Justice Allanson’s Decisions which indeed explain
the rationale for the Non-Availability of the Prerogative Writs to the Applicants,
the rest of the SEVEN CASES do not constitute abuse of process
of court by the Applicant and therefore they are not appropriate for Murray J to use them as reasons for
declaring the Applicant a Vexatious Litigant. These SEVEN CASES are as
follows:
6.1. CIV 3086 of 2009 at
20 to 21 by Martin CJ where His Honour uses the e
pithets
“
derogatory hypberpole” and “
unintelligible”
and “
incoherent” to dismiss the A
pplicant’s
case: s
peaks for itself and show
some elements of deference
.
6.2. CIV 3068 of 2009 at
48 to 50 by Martin CJ – as above.
6.3. CIV1019 of 2010 at
51 to 59 by E M Heenan J who issued Orders to LPCC to show cause. BUT a fortnight later, His Honour made an
ABOUT-TURN and dismissed the case before him.
His Honour was right in refusing the Unavailable Prerogative Remedy by
using his discretionary powers to
order the LPCC instead of the Regulator to SHOW CAUSE. For reasons unknown, His Honour changed his
mind within a fortnight after issuing the Show Cause Order. His Honour did not
need to dismiss the case on procedural
grounds (like what Their Honours Newnes
and Pullin JJA had misconceivedly done and had thereby inadvertently abused the
process of court as they have acted contrary
to the law as observed by Kirby J as illustrated in paragraph 5.12 at page
16 of this document in the Table below) but provided
for some other remedy. Consequently, the
RIGHT COURSE of justice was interrupted
by an act of deference of their Honours. Tenets of justice: impartiality, independence
and integrity are therefore reasonably observed to be missing. However, His
Honour Justice EM Heenan did honestly and with integrity revealed the
unilateral communications he had had with an officer of the Regulator that was
reasonably observed to have been pursued
for the purpose
of interrupting the SHOW CAUSE
ORDER.
6.4. CIV 1877 of 2010 and
CIV1981 of 2010 at 126 were later part-heard
by E M Heenan J in the aftermath of the ABOUT TURN DECISION (as a result of the
Applicant’s
complaint to the State Attorney General
of WA) in the absence of the Applicant, who had then objected to His Honour’s
hearing the case, from afar. The Cases were adjourned sini die and for the first time, the issue of the Unavailability of
Prerogative Writ Orders was revealed to the Applicant. CIV
1877 OF 2010 was finally heard by Commissioner Sleight (the David Taylor’s
Case) who took a similar stand to Allanson J (the Tim Thies Case) and both
their Honours are very honest as they explained
their respective rationale for their
decisions. There seems no Jurisdictional
Errors in these two decisions.
6.5. CIV 1604 of 2010 at
43 to 44 by Le Miere J who observed all the tenets of justice but rightly
dismissed it on the ground that the matter was not before His Honour.
6.6. CIV1981 of 2010 at
107 to 110 and 149 to 152 (never been listed before a Judge for hearing at all
and it (the application)
is the reason for the Principal
Registrar to institute legal proceedings
in CIV1689 of 2011 against the Applicant to declare him a Vexatious Litigant under
s.4 (1)(c) of the Vexatious Proceedings Restrictions Act, 2002 (WA) (the Act) and
to bar it from being listed ever again. Together came with it, is Murray J’s improper costs
order, which is contrary to the policy
of public interests litigations. (The subject litigation ruled as vexatious by
Murray J concerns the public
interests that lawyers do not pillage
and plunder their clients and they
do not merit Murray
J punitive costs orders) The Applicant
concedes to CIV1981 of 2010 being barred by Murray J on the sole ground of its
non-availability for Prerogative Writ Orders.
This Application
is the Second Application for Judicial Review under s.6 of the Act.
This First Application
for Judicial Review concerns David Taylor, Registrar Powell, Master Sanderson
and Owen JA in CACV107 of 2008 and is awaiting approval by the Principal
Registrar for filing at the time of writing.
6.7. CIV 1491 of 2011 by
Allanson J at 120 who observed all the tenets of justice and who dismissed it
on the ground of the Unavailability of Prerogative Writs.
7. Apart from the SEVEN cases, there are two appeal
cases to the Court of Appeal:
7.1. CACV41 of 2010 at
60 to 63 heard by Newnes and Pullin JJA who refused to grant Leave to Appeal
against E M Heenan J’s decision in CIV1019 of 2010. As the issue affects the livelihood of the Applicant,
the Leave to Appeal bar imposed
by the relevant statute is inappropriate
as other jurisdictions in Australia
do not impose such a bar. The bar is reliant on the prospects
of success of the case as a condition for the grant of the Leave to Appeal; it
is therefore susceptible of abuse
because the issue of prospect of success is based on judicial deference or
“gracious concession” to certain affected parties
of the dispute and it therefore affects
the institutional integrity of the Supreme
Court of Western Australia. The pillars of justice: independence,
impartiality and integrity are
therefore being sacrificed for judicial deference.
7.2. CACV75 of 2010 at
111 to 116 is also heard by Newnes and Pullin JJA about the Leave to Appeal
against Ken Martin J in Michelides No.2 or CIV 1903 of 2008 No.2 in relation to
the Security Costs Order granted by Ken Martin J in favour of Timothy Robin
Thies. Clearly the rule of law is being
flouted for judicial deference.
8. There is no question
of lack of “prospect of success” in terms of the evidence provided below concerning the JEs of Murray J, if
both Newnes and Pullin JJA had observed the tenets of justice in terms of impartiality, independence
and integrity. The Table below shows the
categories of JEs which impinges on
the tenets of justice.
9. It’s the judicial deference
in so far as it affects the integrity functions of the institution of the Su
preme Court of Western Australia
that bears relation to the three
princi
pal
actors and their wrong doings against the A
pplicant.
These wrongdoings have not been acce
pted
by the Justices: namely, Mr. Timothy Robin Thies, Mr. Pino
Monaco and Mr. David Taylor. It is this judicial deference as advocated by
Chief Justice S
pigelman that is
preventing the determination of a just solution to
all the A
pplicant’s
cases in the judicial system in Western Australian.
10. With regard to
David Taylor, the wrongdoings of David Taylor is being revealed through President
Chaney presiding in the Case of
VR158 of 2011 where Maurice Law had subpoenaed
David Taylor to provide the bank
statement which shows that David Taylor had paid
the court fees for CIV1131 of 2006 between the dates of 10.2.2006 and
16.2.2006. The Subpoenaed Evidence provided by David Taylor on 29.11.2011 shown to
Maurice Law by SAT on 30.11.2011 and provided
copies to Maurice Law on 15.2.2012
shows that Master Sanderson decision in CIV1775 of 2008 and Owen JA decision in
CACV107 of 2008 is misconceived.
11. Order that respondent (Nicholas Ni Kok Chin) is prohibited from instituting any proceedings in any Western Australian court or
tribunal without the leave of that court or tribunal.
12. Order that
whole of Supreme Court proceedings CIV 1981 of 2010 of the Respondent are stayed.
13. Order that the
Respondent pay
appellant’s
costs of the application to be taxed.
14. The List consists
of TEN broad Categories (the Murray J’s Jurisdictional Errors)
(the JEs):
15. The JEs relate
to the Res
pondent’s written request
to the Associate of Murray J co
pied
to the A
pplicant
of this judgment, who is the Princi
pal
Registrar of the Su
preme Court of WA
and his solicitors, the State Solicitor for the review
[6]
of the
pur
ported
decision before the orders of Murray J’s Judgment are
perfected
(Request for Review of the Pur
ported
Decision).
16. The Principal Registrar’s responded
to the Respondent’s Request for Review
of the Purported Decision in his
letter dated 31.1.2012 which requires the Respondent
either to overturn it or to stay its orders (the Principal
Registrar’s Response).
17. The Res
pondent’s res
ponse
to the Princi
pal Registrar’s Res
ponse is this A
pplication by way of Originating Motion to a single
Judge of the Su
preme Court of the
Court of A
ppeal
for the Judicial Review for Declarative Judgments
[7].
TABLE OF JURISDICTIONAL ERRORS OF MURRAY J
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|
Numerical label of
JEs
|
Description of the Ten Categories of JEs of Justice
Murray
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1
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THE DENIAL OF PROCEDURAL FAIRNESS to Respondent by not taking into account, inter alia the
SUMMARY of the RESPONDENT’S ARGUMENTS as contained in the 16 volumes of complex documents as presented
by the Affidavit of Ms. Kah Loh Yee as solicitor for the State Solicitor of
WA.
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2
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the IDENTIFICATION of the WRONG ISSUES
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3
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the ASKING of WRONG QUESTIONS;
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4
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IGNORING RELEVANT MATERIALS;
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5
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RELYING on IRRELEVANT
MATERIALS,
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6
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making ERRONEOUS FINDINGS of FACTS OR LAW;
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7
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REACHING OF MISTAKEN CONCLUSIONS of FACTS OR LAW;
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8
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DETERMINATION of CRITICAL FACTS where NO EVIDENCE;
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9
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making IRRATIONAL and ILLOGICAL
REASONING in the FACT FINDING PROCESS;
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10.
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MISAPPREHENSION of LAW.
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Item
Nos.
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Applica-ble
JEs identified by its nos as indicated in table above
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Contents of each paragraph of the Purported
Decision where JEs have been identified.
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Description of the JEs: Applicant’s description
of what Murray
J has done wrong in his purported decision?
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1
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1,2,3,4,5,6,7,8,9 & 10
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7: “The court
records show that on 10
February 2006 (21 days after Jenkins J’s order),
Spunter
commenced proceedings (CIV 1131 of
2006) against Nancy Hall,
claiming, by way of relief, a
declaration of an equitable interest in the two
properties.”
8. “On 11 May 2006 the respondent filed a notice of having ceased to act
for Nancy Hall and, on 30 June 2008”
11. “The grounds of appeal
are confusing and contain references to
unrelated matters, such as a
complaint against the respondent before the
Legal Practice Board. Specifically, the respondent
states that the Board is
‘tainted by its persecuting malice on the appellant (respondent
in these
proceedings)’.”
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Murray J (with due respect)
shows deference[8] to DAVID TAYLOR:
1.1 At 7 and 8: David Taylor, who wronged the Respondent and his client Nancy Hall by the former
making perjurious statements in
his Affidavit, sworn 29.3.2007 in CIV1131 of 2006. This caused the Applicant to avoid having any confrontation with
Registrar Powell and to withdraw as solicitor for Nancy Hall because the
court through Registrar Powell was reasonably perceived
by the Applicant
then to be taking sides with David Taylor. As discretion is the better part of his valour, the Applicant decided to avoid confrontation with
Registrar Powell (the wrongs of David Taylor);
1.2. At 8: the LPCC as an independent
public body abandoned its public duties by ignoring the wrongs of David
Taylor and instead prosecuted the
Applicant
for no wrongs but on the false pretext
that the Applicant
is making false allegations against David Taylor. The Applicant’s lawyer independence
was suppressed
to the prejudice of the rights of
his client Nancy Hall who died of grief and frustration because she was not
able to seek justice from the justice system of WA (the Dereliction of Duties
of the LPCC).
1.3. At 8 and 11: the Pseudo Board of the Regulator, first activated
by the former President of the WA Bar Society, Mr. Pino Monaco at 129 was
reasonably seen to be plundering
and pillaging the Applicant’s
client one Dr. Kheng Su Chan. The
Pseudo Board restrained the lawyer independence
of the Applicant
as a result through the activity of a lawyer Ms. Walter who played two roles in the decision making process and therefore that decision is tainted with
bias and illegality: one as a prosecutor
at the LPCC and the other as a Committee Member in the Pseudo Board of the
Regulator (the Source of the Pseudo Board).
1.4. At 8 & 11: The wrongs of David Taylor, the Dereliction of
Duties of the LPCC and the Source of the Pseudo Board became the subject
matters of the Applicant’s Appeal in CACV 43 of 2007 before the then President
of the Court of Appeal, Steytler P who entered the Consent Judgment
to Set Aside Judge Eckert Decision in VR137 of 2006 between the parties, through the pleas
of the Applicant’s
counsel, Barrister Tim Stephenson
on 26.9.2007
(The Upliftment of the
Restraint on the Applicant’s Lawyer Independence
Status).
1.5. At 11, the Upliftment
of the Restraint on the Applicant’s Lawyer Independence
Status met with the disapproval of the Pseudo Board. It re-imposed the Restraint. This became the subject matter of the Applicant’s
Application
before the President of SAT Chaney J in VR107 of 2008 or Chin v West
Australian Legal Practice Board [2008] WASAT 252. His Honour Justice Chaney
took the sides of the Pseudo Board of the Regulator which had improper
motives by contradicting the Consent Judgment of the Court of Appeal
(Justice Chaney Decision in VR107 of 2008).
See For example,
solicitors taking far more in fees than the miners received in compensation
1.7. Other jurisdictions in Australia do not have such
statutory bar because it effectively bars a person from accessing his livelihood for life. It
is a prison sentence for no
wrongs.
1.8. The High Court of Australia refused the Applicant’s
Special Leave to Appeal
the CACV105 of 2008 decision in P36 of 2009 at 40, BUT it gave the Applicant
the pointer that the Applicant
must work on the issue of the CREDIBILITY of Justice Chaney (the Chaney
Credibility).
1.9. It must be remembered the
Lawyer and those Honourable Judges who took the Applicant’s Lawyers Independence
have been former President of the WA Bar Society, namely: Pino Mr. Monaco, Her Honour Judge Eckert in VR137 of 2006,
His Honour Justice Chaney in VR107 of 2008, His Honour Ken Martin J in
Michelides No.2 (the WA Bar Society Hidden Policy).
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2
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1,2,3,4,5,6,7,8,9 &
10
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9. “On 29 October
2008, Master
Sanderson granted Ms Hall’s summary judgment application in Audrey
Frances Hall as executrix of the estate of Kenneth Duncan Hall v Chin
[2008] WASC 255.”
17. “The taxing officer then signed a certificate and, pursuant to O 66
r 57, the costs so certified are deemed to be a judgment of the court
and
recoverable accordingly.”
12. “The grounds further contained reference to matter CIV 1131 of
2006,
heard by Jenkins J, and the judgment of Simmonds J in Spunter Pty Ltd v
Hall [No 2] [2007] WASC 239.”
13. “Amended Grounds of Appeal were filed by the respondent
on 15 January 2009.
They appear
not to have been substantively changed. A
further minute of amended grounds of appeal was filed on 23 January
2009, pursuant to the
order of Pullin JA. These grounds of appeal were
significantly shorter.”
23. “On 26 May 2010 the High
Court refused the respondent’s application
for special leave and reasons were published in Nicholas Ni Kok Chin v
Audrey Frances Hall
as executrix of the estate of Kenneth Duncan Hall
& Ors [2010]
HCASL 104”
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2.1. At 9, the learned
Registrar Powell as a public
officer and a Supreme Court
Registrar in charge of court records in CIV1131 of 2006 and CIV1142 of 2005,
is more than likely to have falsified those court records by planting evidence into the former file: that the
Writ of Summons in CIV1131 of 2006 was deposited
into the court Registry at the same time when the fictitious court fees of
$654.00 (being short of 20 cents) was paid
by David Taylor by cheque on 10.2.2006 (the Falsehood).
2.2. The Falsehood is
accomplished by a legal fiction
concocted by Registrar Powell of a shortfall of 20 cents in the impugned court fees (the Shortfall).
2.3. The Shortfall is
remedied by an imputed credit card
payment not on 10.2.2006 or the
date of the commencement of the action in compliance
with Jenkin’s J Order dated 19.1.2006 in CIV1142 of 2005 but on 16.2.2006
(the Feigned Compliance).
2.4. The latest
evidence of the Feigned Compliance
compelled by the subpoena of Maurice Law to David Taylor pursuant to the Order of Chaney J in VR158 of 2011
on 29.11.2011 confirms that Registrar Powell planted
the evidence to protect his friend
David Taylor (the Planted Evidence).
2.5. At 9 &
12: the Planted Evidence is not being
tallied by the perjurious
Affidavit of David Taylor filed 29.3.2007 in CIV 1131 of 2006 because the
latter refers to the existence of the purported SC false receipt
for the payment of the impugned court fees of $654.20 on 10.2.2006 instead
of the partial payment of $654.00 made on 10.2.2006 first and
then the later payment of the Shortfall
made subsequently by David Taylor on 16.2.2006 in accordance with the Planted
Evidence (No Tally).
2.6. Despite the evidence of the Falsehood, the Shortfall,
the Feigned Compliance and the No
Tally which accompanies the Complaint of the Applicant to the LPCC with David Taylor having been
notified resulting in the abdication of the Applicant from participating further in CIV1142 of 2005 No.1, David
Taylor did persist with his deceptive and misleading conduct before Simmonds J in
the ongoing proceedings in CIV
1142 of 2005 No.2 with Nancy Hall as the litigant in person.
(Nancy Hall is a vulnerable person
who has a history of psychiatric
morbidity. She finally lost her estate
in a false claim by Mrs. Audrey Frances Hall in CIV 2073 of 2003 in the sum
of $2.3m.) (the Fraud of David Taylor).
2.7. The Planted Evidence is the letter written
by Registrar Powell dated 11.6.2009
found at page 136 of the Yellow Appeal
Book in CACV 107 of 2008 which is the Fresh Evidence that was misconceived
and rejected by Owen JA on 9.12.2009 in CACV107 of 2008 (the Fresh Evidence
before Owen JA).
2.8. At 11, 12, 13 and
17: Registrar Powell is the architect for the wrongful costs orders of Master
Sanderson against both the Applicant and Maurice Law and the wrongful cost
order of Owen JA in CACV107 of 2008 against the Applicant only, by virtue of
his (Registrar Pwell’s) involvement with David Taylor in CIV1142 of 2005
No.1, leading up to the Planted
Evidence on 11.6.2009 (Registrar Powell as the Architect of the Wrongful
Costs Orders).
2.9. The facts of
Registrar Powell as the Architect had been notified to him by both Maurice
Law and the Applicant BUT the learned Registrar continued his
role as the Taxation Master for those unlawful costs orders. If, there were
integrity in his role as a court officer, he would be able to see the NEXUS
between the Applicant’s solicitor’s work for Nancy Hall and the
Removal of the Spunter Pty Ltd’s
Caveats (Registrar Powell’s Personal Interests).
2.10.. See the transcri pt of the proceedings
before Registrar Powell as the Taxation Master for the unlawful costs orders
against Maurice Law and the A pplicant together with the A pplicant’s three comments dated 11.1.2011at the
link: http://wwwnicholasnchin.blogspot.com.au/2011/01/transcript-of-taxation-proceedings.html
See also the Applicant’s Notice of Objections to Registrar Powell dated
9.11.2010 when Registrar Powell is a JUDGE OF HIS OWN CAUSE at the link:
(Notification to
Registrar Powell).
2.11. The Nexus would
have stopped
Nancy’s
Estate from being robbed by through a fictitious claim of $2.3m by Mrs.
Audrey Hall. The fictitious claim was exchanged for $702k by Michele-Maree
Gannaway as evidenced in CIV 2157 of 2011 before Simmonds J. Mrs. Gannaway
through her solicitor Mr. C.P. Stokes provided
a letter to Maurice Law dated 14.7.2008 stating that no money changed hands
for that fictitious mortgage which was relied upon
by Mrs. Audrey Hall to obtain that fictitious $2.3m Claim approved
by Her Honour Jenkins J. The Nexus is the pointer
of the High Court in P1 of 2010 or Hall & Ors [2010] HCASL 104 at 22 and
23, given to the Applicant as
a result of his Application for Special
Leave to Appeal
the CACV107 of 2008 (The Nexus).
2.12. J. Nancy Hall’s creditors in the persons of the Applicant as the former s.244 LPA salvour of her
estate in CIV1142 of 2005 and CIV1131 of 2006 and Maurice Law of Spunter Pty Ltd in CIV2509 of 2002 have been
short-changed as a result. (Master Sanderson Unlawful Costs Orders).
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3
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1,2,3,4,5,6,7,8,9 &
10
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15. “On 19 June
2009, the respondent
sought to adduce new and fresh
evidence in affidavit form and, on 9 December 2009, the appeal was
dismissed: Chin v Hall [2009] WASCA 216 (McLure P, Owen JA &
Buss JA). The respondent
was further ordered to pay costs
to be taxed.”
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3.1. At 15 and 17: Owen
JA in CACV107 of 2008 showed deference to Registrar Powell and David Taylor
by evading the issues of the fresh evidence of the Falsified Court Records of
David Taylor and Registrar Powell (the Rejection of the Fresh Evidence).
3.2. The rejection of
the Fresh Evidence has no legal basis on the facts and the law of the case as
the learned Justice contradicted himself (the Self-contradiction of Owen JA
).
3.3. The
Self-Contradiction of Owen JA is explained
by the Application
in his fourteen comments at the following link dated 20.6.2011:
(the Facts of the
Planted Evidence by Registrar Powell).
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4
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1,2,3,4,5,6,7,8,9 &
10
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19 The respondent filed an
affidavit in support which Pullin JA found was simply an attempt
to re-argue matters argued in the Court of Appeal. The application was dismissed and his Honour stated
(Newnes JA agreeing) that:
“The Civil Judgments Enforcement Act 2004 (WA) states
that special circumstances have to
be shown before a suspension order
may be granted: s 15(3). The principles in Eastland Technology Australia Pty
Ltd v Whisson[2003] WASCA 307; (2003) 28 WAR 308 apply
where a person is appealing
against a judgment. In this case, there is no appeal against the decision; those appeal
rights having been exhausted. There is no reason to suspend
the judgment of the court, no special
circumstances have been shown, and the application should be dismissed [8].
26. “The motion was re-listed and heard by Commissioner Sleight on 4
April 2011 and, on 15 June 2011,
it was dismissed: Re Hall; Ex Parte Chin [No 2].”
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4.1. At: 26: This case
must not be confused with Commissioner Sleight’s Decision in RE HALL; EX
PARTE CHIN [No 2] [2011] WASC 155 heard 4.4.2011
DELIVERED 15.6.2011. His Honour
Commissioner Sleight is honest and gets to the truth of the matter. He does
not avoid the issues but he wants the Applicant to start suing David Taylor. Maurice Law’s decision to issue a Subpoena to David Taylor in VR158 of 2011 before the
President of SAT, Justice Chaney is another effective way of getting at the
evidence of the Falsification of the Court Records (Commissioner Sleight’s
Honest Decision).
4.2. At 19, their
Honours Pullin and Newnes JJA are in jurisdictional errors when they stated
that the Applicant
is trying to re-argue matters on the following grounds (the Ten Grounds):
(Compare with Commissioner Sleight
Honest Decision at 26.)
·
The fraud of David Taylor.
·
Master Sanderson Wrongful Costs Orders.
·
The Fresh Evidence before Owen JA.
·
The Rejection of the Fresh Evidence by Owen
JA.
·
.The Nexus.
·
Registrar Powell’s Personal Interests.
·
Registrar Powell as the Architect of the
Wrongful Costs Orders.
·
The Notification to Registrar Powell.
·
The Self-Contradiction of Owen JA.
·
The Facts of the Planted Evidence by Registrar
Powell.
4.3. The Ten grounds
above are never the issues that were decided by Owen JA and they therefore
are not barred by the principle of res judicata to be heard again in this Application
(No Res Judicata). .
4.4. The Ten Grounds
formed the Special Circumstances
for the Suspension of the Unlawful
Cost Orders of Master Sanderson and Owen JA pursuant
to s.15 of the Civil Judgments Enforcement Acts, 2004 WA (Grounds for the Suspension Orders).
4.5. As a result of the
complaint of the Applicant
to the State Attorney General of WA, those unlawful Costs Orders are never
being executed till today. This shows that even the opposing parties
who are the beneficiaries of those Unlawful Costs Orders are recognizing the
legal arguments of the Applicant which have been presented
before their Honours Pullin and Newnes JJA and who have not accepted them.
But those arguments are being accepted
by those opposing
parties who are learned in the
law. This is a strange truth (TRUTHS ENDURE ALL KINDS OF ADVERSITY).
4.6. Although the appeal rights of the Applicant and Maurice Law have been exhausted, the
Errors Apparent
on the Court Records will not go away and they MUST NOT remain for posterity to see that the Judicial System of
Western Australia is not functioning at all (COURTS MUST UNRAVEL FRAUD AND
STRIKE OFF ERRORS ON THE COURT RECORDS)..
4.7. Posterity DOES REQUIRE that the
Jurisdictional Errors of Their Honours be corrected.
4.8. The authority for
the Jurisdictional Errors in Australia
is to be found in the two treatises written by the learned Chief Justice of
New South Wales, His Honour James Spigelman
AC at the links provided at 1,3, 4
and 5 and they are entitled:
4.8.1. THE CENTRALITY OF
JURISDICTIONAL ERROR KEYNOTE ADDRESS BY THE HONOURABLE J J SPIGELMAN AC CHIEF JUSTICE OF NEW SOUTH
WALES AGS ADMINISTRATIVE LAW SYMPOSIUM:
COMMONWEALTH AND NEW SOUTH WALES
SYDNEY, 25 MARCH 2010
4.8.2. THE INTEGRITY BRANCH OF GOVERNMENT - THE
FIRST LECTURE IN THE 2004 NATIONAL LECTURE SERIES FOR THE AUSTRALIAN
INSTITUTE OF ADMINISTRATIVE LAW.
4.9. On 8.2.2012, Maurice Law and the Applicant
made their First Joint Application in CIV 2157 of 2011 pursuant to s.6 of the Vexatious Proceedings
Restrictions Act, 2002 with respect
to a 10 page Notice of Originating
Motion dated 7.2.2012.
4.10. The Application is for the Judicial Review and
Declarative Judgments pursuant to
ss.25(6), 33, 43 and 59 of the Supreme
Court Act, 1935 of the Jurisdictional Errors of Master Sanderson in CIV 1775
of 2008, Owen JA in CACV 107 of 2008, Simmonds J in CIV 2157 of 2011 and DCJ
Sweeney in DC CIV 2509 of 2002.
4.11. The Application is supported by a Joint Affidavit sworn by Maurice Law
and the Applicant
sworn 23.1.2012 of 95 pages. The
matter is awaiting approval by the Principal
Registrar
(the First Application of the Applicant filed pursuant
to s.6 of the Vexatious Proceedings Restrictions Act, 2002 WA)
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APPLICANT’S SUSPENSION
ORDER AGAINST OWEN JA UNLAWFUL COSTS ORDER IN CACV107 OF 2008 WAS DISMISSED
BY PULLIN AND NEWNES JJA ON 1.4.2011
IN CHIN -v- HALL
[No 2] [2011] WASCA 96 (the Suspension
Cost Orders).
1. At 19: Despite the Fraud of David Taylor, Registrar Powell’s
Personal Interests, the Notifications to Registrar Powell, the Nexus, Master
Sanderson’s Unlawful Costs Orders, the Rejection of the Fresh Evidence and
the Self-Contradiction of Owen JA, their Honours in Pullin and Newnes JJA
rejected the Applicant’s Application for the Suspension
Costs Orders. But as a result of the
complaint by the Applicant
to the State Attorney General of WA, there was never any enforcement of those
unlawful costs orders of both Master Sanderson and Owen JA.
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21. “On 22 December 2009, the
matter was heard before Martin CJ, who
rejected the application
and gave an ex tempore decision.
In doing so he
described the
grounds upon which relief was
sought as being ‘incoherent
and
unintelligible’.
27. “The fact that
Mr Chin’s application
does not comply with the Rules
of the Supreme Court 1971 (WA) (RSC) and the Supreme Court Common
Forms is indicative
of the fact that Mr Chin’s application is misconceived, as pointed out by EM Heenan J on 4 August 2010, when
Mr Chin’s
application
first came before the court.”
28 The background
to the imposition of conditions on
the respondent’s practice certificate begins with the respondent’s admission as a legal practitioner in Western Australia on 19 December 2003. In mid 2006, he
became the subject of an investigation by the Legal Practitioners Complaints Committee and, on 19 July 2006, the Board, by its professional affairs committee, resolved to impose conditions upon
the applicant’s
practice certificate pursuant to s 40(3) of the LP Act.
31 On 25 September 2008, the application was heard by the SAT. At this hearing
the respondent raised a number of
issues in oral submissions, including the suggestion that ‘the Board’s
conduct was motivated by racial prejudice’.
But the SAT ruled that there was ‘no apparent foundation for that serious allegation’.
32 On 28 October
2008, the respondent’s application
was dismissed, with the SAT confirming the Board’s decision: Chin v West Australian Legal Practice Board [2008] WASAT 252. The decision of the SAT upheld a number of conclusions reached by the
Board; and stated that [at 84]:
Where the public interest and the maintenance of appropriate professional
standards require a particular
course of action, that requirement must outweigh the personal
interests of the practitioner
concerned. That is the case here.
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5.1. At 21. Also at 48 to 50: The Applicant objected to the fact that His Honour the
Chief Justice of WA Wayne Martin QC was quoted to have said that the relief
sought by the Respondent was being
“unintelligible and incoherent”.
5.2. The records of the proceedings
do indicate that His Honour misconceived the relief being sought by the Applicant. Therefore the reason for the dismissal is one
of the JEs except for the fact of
unavailability of Prerogative Writ Orders.
5.3. The real
reason for the dismissal of that application is the Unavailability of Prerogative
Writ Orders as enunciated by Heenan J, Commissioner Sleight and Allanson J
and the possible deference to the parties concerned by the Chief Justice of WA.
UNAVAILABILITY OF PREROGATIVE WRIT ORDERS
5.4. The Applicant is unaware of the Unavailability of
Prerogative Writ Orders until it was first explained
by Heenan J. At 26 and 27: Murray J
refers to the judgment of the Unavailability of Prerogative Writ Orders Case
of RE JUSTICE KENNETH MARTIN; EX PARTE CHIN [2010] WASC 212, heard
and delivered 4.8.2010 by E M Heenan J (the Inchoate Decision)
5.5. This concept
of the Unavailability of Prerogative Writ Orders was definitively explained by Commissioner Sleight on 15.6.2011 in
CIV1877 of 2010 when the learned Commissioner completed
one of the Inchoate Cases left behind by Heenan J. This other task is never complete till today but by extension, Allanson J in
CIV 1491 of 2011 (heard the Thies’ Case
on after the High Court refusal of Special
Leave and giving the cue to the Applicant that the Security Costs Order of Ken
Martin J being made after the Grant of the S.36 Review by Hasluck J is improper
followed by Register Wallace’s Order to Put Back the Horse after Cart by paying the Security Costs Payment in DC Appeal
No.6 of 2008) of 11.5.2011 (The Date of Demarcation). .
5.6. Before and after
the Date of Demarcation, the Applicant did not commit any acts whether
intentionally or unintentionally that can be legally construed as being
involved in Vexatious Proceedings as a Vexatious Litigant that meet its
definition as contained in s.3 of the Act (the Non-Vexatious Conduct of the Applicant).
5.7. At 26 and 27: The Inchoate Decision involves His
Honour’s fellow Judge Ken Martin J, which His Honour is reasonably seen to be
giving deference to. It is inchoate
because it was heard in the absence of the Applicant and it was adjourned sini die. Commissioner
Sleight was to later complete the
judgment in CIV1877 of 2010 on 15.6.2011 whereas CIV1981 of 2010 concerns the
biased decision of the learned Justice Ken Martin who obstructed justice
against the Applicant in respect
of the wrongdoings of Timothy Robin Thies.
The latter was pillaging
and plundering the Applicant
and his son Paul. The LPCC took sides as with David Taylor. The latter case
is the subject of Murray J Order in CIV1689 of 2011 banishing it from ever
being heard again (the Obstruction of Justice to the Applicant).
5.8. At 28 and 31: There are only FOUR ISSUES that caused
the Restraint of Lawyer Independence
of the Applicant
by the Regulator:
5.8.1.. The David Taylor or CACV107 of 2008 or Master
Sanderson and Registrar Powell Issue.
5.8.2.. The Timothy Robin Thies pillaging
and plundering the Applicant
and his son Paul.
5.8.3. The Pino Monaco plundering
and pillaging Dr. Kheng Su Chan
that gave rise to the Pseudo Board.
5.8.4. The President Steytler Consent Judgment in CACV43
of 2007 that was ignored by the Pseudo Board.
5.9. At 26, 27, 28
and 31. See also CACV105 of 2008 at 3, 33, 41.
5.10. His Honour Justice EM Heenan had first heard the
case of CIV1019 of 2010 or RE PRESIDENT OF THE STATE ADMINISTRATIVE TRIBUNAL
OF WESTERN AUSTRALIA (SAT), JUSTICE CHANEY; EX PARTE CHIN [2010] WASC 89 on
21.4.2010. Two weeks before that date,
His Honour had issued Orders to the LPCC and the Regulator requesting them to
SHOW CAUSE why they have persecuted
the Applicant
and took away his LAWYER INDEPENDENCE. As a result of secret communications
transpiring between His Honour and
the Regulator, His Honour made an ABOUT-TURN decision on 21.4.2010 by
dismissing the Applicant’s Case for Certiorari against his fellow
judge, His Honour the President of SAT, Justice Chaney (the ABOUT-TURN
decision).
5.11. At 26, 27, 28 & 31: As a consequence of the
About Turn Decision, the Applicant protested
against His Honour E M Heenan’s Inchoate Decision. Again, the element of DEFERENCE is again
clear to the public eye (the
Deference of EM Heenan J).
5.12. At 27, 28 and 31.
See also CIV 1604 OF 2010 at 43 to 47 and 132 to 143: Kirby J in Re Attorney General (Commonwealth); ex parte Skyring (1996) 70 ALJR 321 at 323 expressed
CAUTION in relation to declaring a person
a VEXATIOUS LITIGANT and to DISMISS the Applicant’s case on the basis of PROCEDURAL ERROR at
131, in the following words:
“First, it is always important for every Judge to keep an open mind in
case a person who has been
rejected by courts in the past may
have, hidden amongst the verbiage of his or her arguments, a point which has not been previously
seen and which may have merit. Vigilance, and not impatience,
are specifically required where
that person is not legally represented; secondly, it is regarded as a serious
thing in this country to keep a person
out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order
to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare
in this Court to use the power,
whether under the inherent power
or ..... to require leave before a person
may commence proceedings invoking
the court’s jurisdiction; thirdly, the court must never shy away from the
determination of a point sought to be argued simply because it may have major ramifications. .....
I should not be reluctant to provide
relief on the legal grounds ... simply
because to provide relief would be
to attack both the banking and taxation and other economic systems of this
country. The history of this Court since its establishment in 1903, including
recently, has shown that the court does not refrain from offering relief
where the law requires it simply
because its decisions may have large consequences for the nation or particular interests in it; fourthly, ... seeking
relief by way of the writs of certiorari and mandamus. It is not necessary for me, in the decision
which I have arrived at, to determine whether they are in each case, or in
any of the cases, the appropriate
process of the court to invoke its
jurisdiction. .... today unrepresented.
If he had commenced proceedings by
an irregular process which had any
separate or different merit from
the matters which have already been determined by the court, I would endeavour
to assist him to get such proceedings into proper form or
require him to commence again in proper form. I would not dispose
of his application
upon such a formal basis; ... “
5.13. At 32: His Honour
the President of SAT, Chaney J is biased in the following terms:
5.13.1. The public interests that SAT must protect are:
5.13.2. the lawyer independence
of the Applicant
in particular and the lawyer independence of all lawyers in Western Australia in
accordance with the findings of fact by Gordon Turriff Q.C., the President of
the British Columbia BAR.
5.13.3. the independence of lawyers must be preserved
in WA in particular for the Applicant
so that his client should be able to seek justice in accordance with the law.
5.13.4. Just as the
independence of the judiciary is
being preserved, it must not be so
preserved to the prejudice of lawyer independence.
5.13.5. Lawyers in WA
like David Taylor and Timothy Robin Thies must be ethical in practice and disciplinary
action must not discriminate one lawyers against another just because they
are cronies – Cronyism must not be practiced
in the discipline of the members
of the legal profession.
5.13.6. Cronyism is
seen to be practiced by the
Regulator because some members of the Regulator did not conform to rules or
were reasonably seen to be flouting the rules and to make biased decisions
which are tainted with illegality to the detriment of the Applicant.
MURRAY UNJUST COSTS ORDER AGAINST APPLICANT IN
CIV1689 OF 2012 MUST BE REMOVED AND SUSPENDED
5.14. Public interests
litigation carried out by the Applicant for the sake of seeking justice for his
clients should not be punished
with intimidatory costs orders that have no reasonable basis of being
enforced at law.
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33 Reference was
also made to comments made by the respondent
to the Board, specifically in
relation to a judgment by Jenkins J in an appeal against a criminal conviction where the respondent to this matter had represented the applicant. The respondent
said:
It is my personal belief that (the client) would have won his
appeal
on the following grounds:
(a) If the appeal
judge hearing his case had been a man instead of a woman, Mr Powell would
have gained (sic) more sympathy
from a man who would understand a man’s problem
instead of a woman who is simply
not equipped
to understand a man’s problem
[71].
The judgment of the
SAT described this as demonstrating an ‘extraordinary and illogical prejudice’ [74].
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6.1.At 33: The Applicant does not understand why there is a persistent reference to Her Honour Jenkin’s J that
mars the character of the Applicant: the inadvertent remarks referred to as an
“extraordinary logic” is a triviality that should not have been harped upon
if one were to have regard to how it came about (the Jenkin’s Remarks).
6.2. At 33: The Jenkin’s remarks stems from persistent questioning of the Applicant
by officials of the LPCC that was out to fish in troubled waters and were
looking for misconduct or unsatisfactory conduct of the Applicant
within the haystack of the files they seized from the office of the Applicant
without receiving any complaints
from members of the public except for the complaint
of Pino Monaco who wanted to cover his own fault through Ms. Walter (the
Fishing Expedition of the LPCC).
6.3. At 33: The Applicant admits that it is a mistake to make such a
remark but he was confused when his client one Mr. Powell’s appeal
against drug conviction was unsuccessful (not Registrar David Powell). It was a remark expressed
honestly but without derision of the decision making process
which concerns an innocent client who had been harassed by the police (Honest Mistake of the Applicant).
6.4. At 33: the hidden motives of the LPCC involving the
creation of the Jenkin’s Remarks, the Fishing Expedition
of the LPCC and the Honest Mistake of the Applicant is to stop
the legal representation of the Applicant’s
vulnerable client one Ms. Nancy Hall who is a vulnerable person afflicted with psychiatric
morbidity who was always troubling the Applicant as an honest lawyer because she could not
find one more honest than the Applicant. Events has so transpired,
which the Applicant
was unaware during the lifetime of Nancy Hall that she is possessed of considerable wealth that was worthy
to be defrauded of, until after her death on 13.1.2008. Sure enough, she was defrauded of $2.3m in
front of the eyes of the lawyer she had trusted and the people
responsible for it, are getting
away with it (the Victimization of Nancy Hall).
SUPRESSION OF LAWYER INDEPENDENCE AND VICTIMIZATION OF CLIENTS IS
OBSTRUCTION TO JUSTICE
6.5. The Victimization of Nancy Hall resulted in a fictitious claim
lodged by Mrs. Audrey Hall, the widow of Nancy Hall’s brother one Kenneth
Duncan Hall who has never in his lifetime admitted to any debts owing by
Nancy Hall to her brother.
6.6. Her Honour Jenkins J gave judgment to Audrey Hall in
the sum of $2.3m based on a fictitious mortgage claim in AUDREY FRANCES HALL
As Executrix of the Will of KENNETH DUNCAN HALL (DEC) -v- HALL
[2007] WASC 34 ON 18.2.2007.
This happened during the time when the Applicant
was prevented by David Taylor’s
FALSIFICATION OF COURT DOCUMENTS IN CIV 1131 OF 2006 through the LPCC from protecting his client Nancy Hall. The unjustified taking away of the lawyer
independence of the Applicant
caused Nancy Hall estate to be defrauded by Mrs. Audrey Hall (the Fraud of
Audrey Hall).
6.7. All those events relating to Pino Monaco, the Pseudo
Board, the Wrongs of David Taylor, the Falsification of Court Records by
Registrar Powell, the Rejection of the Fresh Evidence by Owen JA, the
Wrongful Costs Orders of Master Sanderson, the misleading conduct of David
Taylor before His Honour Simmonds J in CIV1142 of 2005 No.2 and the Removal
of the New Caveats of Maurice Law and the Applicant from part
of Nancy Hall estate by her daughter Mrs. Michele-Maree GANNAWAY in CIV2157
of 2011 resulted in the legitimate creditors of the Estate of Nancy Hall,
namely Mr. Maurice Law and the Applicant being defrauded. All those events works synergistically at
the connivance of the LPCC and the Regulator which caused the injustice to
the Applicant
and to Maurice Law, whose interests were conflicting at the start but they do
not conflict anymore after the 10.2.2006 when David Taylor defrauded the
court and caused the equity of Nancy Hall Properties
to become fraudulently clogged up
thus preventing her carrying out
her scheduled business ventures. She
died a frustrated person but she
kept reminding the Applicant
to work for her after her death (the Synergetic Effects of David Taylor’s
Wrongdoings).
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45. The Legal
Profession Complaints Committee
(LPCC) brought disciplinary proceedings against the respondent
on 30 June 2009.
The proceedings involved an
allegation that the respondent’s
conduct amounted to professional
misconduct, and orders were sought under s 438, s 439 or s 441 of
the Legal Profession Act 2008 (WA).
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7.1. At. 45, 46 and 47: LPCC through the Regulator
restrained the Applicant’s Lawyer independence
in July 2006. The Applicant
made an application
in VR137 of 2006 to Judge Eckert of SAT who confirmed the Restraint but
decided that there was NO professional
misconduct or unsatisfactory but ONLY deficiency of professional
knowledge, as justification for the Restraint on 12.9.2006.
7.2. The Restraint was set aside by Steytler P in CACV 43
of 2007 on 26.9.2007. So there is no longer any Restraint. The Pseudo Board
refused to return the Applicant to his original position.
Then the Applicant
applied
to SAT President Chaney in VR107 of 2008 who confirmed Judge Eckert’s Decision.
7.3. The matter then went to the Court of Appeal
for Leave to Appeal which was refused and then happened
the SEVEN Prerogative Writs litigation and finally the three matters
concerning the THREE MAIN ACTORS went to the High Court for Special Leave.
But the High Court does not usually grant leave BUT it gave eupheministic hints on how the Applicant
could work solutions to this case. Those
pointers of the High Court in
relation to David Taylor is the NEXUS, in relation to THIES is the CART
before the HORSE, and in relation to the Monaco or Pseudo Board is
CREDIBILITY of Justice Chaney.
7.4. LPCC then commenced VR87 of 2009 on 30.6.2009 on the
same RES JUDICIATA issues already decided by Judge Eckert in VR137 of 2006
and the CONSENT JUDGMENT of Justice Steytler in CACV 43 of 2007. At 45 and
46, His Honour Justice Chaney decided that there is NO RES JUDICATA in Legal Profession Complaints
Committee v Chin [2009] WASAT 219.
This is against the Henderson v Henderson princi ple that
you cannot re-litigate issues that have already been litigated just because
you forgot to mention Misconduct or Unsatisfactory Conduct at the first proceedings before Judge Eckert in VR137 of
2006. In fact Her Honour Judge Eckert
stated clearly that the A pplicant is NOT GUILTY OF PROFESSIONAL MISCONDUCT
and UNSATISFACTORY conduct. There is no way this case cannot be barred by the
princi ple
of Res Judicata. .
7.5. The President of SAT who already decided on the issue
in VR 107 of 2008 and therefore is in conflict of interests, nevertheless came
back to say that VR87 of 2009 is not res judicata, despite
the VEHEMENCE OF PROTESTATIONS BY THE APPLICANT AS EVIDENCED BY THE
CORRESPONDENCE. This resulted in His
Honour abdicating from hearing the case of VR 87 of 2009 to its conclusion. So the matter came before the Deputy President Judge Sharp
who heard it on 11.10.2011 and His Honour has since applied for an extension of a total of 150 days to
deliver the reserved judgment. His
Honour is making efforts of trying to be far but the odds are overwhelming as
is being reasonably perceived by
the Applicant.
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118 The respondent referred to the judgment of the Court of Appeal
as a ‘travesty of justice’. The language contained in the application
was often emotive, obscure and irrelevant, including phrases
like, ‘I humbly say that the courts below know that although the sense of
moral values may differ between different societies, morality here means
justice and fair play and being
able to distinguish between what is right and what is wrong.’ The application
continued in this vein for 13 pages.
68 On 11 December
1986, Mr Thies lodged a caveat against the son’s property on the basis of cl 18 of the written
retainer by which the son agreed to charge his property with payment
of the fees. The respondent’s son
caused a notice under s 138B of the Transfer of Land
Act 1893 (WA) to be issued. Mr Thies then commenced proceedings in the Supreme
Court of Western Australia.
The caveat was extended by Templeman
J in CIV 1112 of 2007, subject to Mr Thies commencing an action in the Magistrates Court
to recover the alleged debt.
81 At the
conclusion of the hearing, Magistrate Musk gave ex tempore
reasons. In her reasons she described the respondent’s
claim as ‘misguided’ and ‘improper’ rather then ‘vexatious or frivolous’. Her
Honour ordered that the respondent’s
application
for default judgment be dismissed; the whole of the respondent’s
case be struck out pursuant to
s.7(1)(e) Criminal Procedure Act 2004 (WA) (CPA) on the basis that
it was improper;
and the respondent’s claim be
summarily dismissed under s 18 CPA. The respondent
was further ordered to pay Mr
Thies’ costs of the application and the action to be taxed if not
agreed, and an order was made pursuant
to s 31(3)(b) CPA in relation to all or any professional
costs incurred by Mr Thies in this matter, on the basis that the unsuccessful
party’s claim was wholly without
merit.
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8.1.At 118: This is a 60-page
Ex-parte Application for Judicial Review and for Declarative
Judgments etc., pursuant to
s.25(6), 33, 43 and 59 of the Supreme
Court Act, 1935 WA. It is in regard the
Removal of the Errors of Law Apparent on the Court Records and the Jurisdictional
Errors of His Honour Ken Martin J in CIV1903 of 2008 No.2 and CIV1112 of 2007
and CIV1981 of 2010 (which had never been listed for hearing and is the
matter debarred by Murray Jin CIV1689 of 2011). It is a 7 page
Notice of Motion filed in CIV3427 of 2011 dated 19.12.2011 with an Affidavit
in Support
of 76 pages. Because it was filed before Murray’s J decision in
CIV 1689 of 2011 on 11.1.2012, there is no requirement for it to be filed pursuant to s.6 of the Act (The First Judicial
Review).
8.2. The First Judicial Review is in the post-Unavailability of Prerogative Writs Era. It is filed at the suggestion of the Principal Registrar that the Thies Matter will go stale
if nothing is done about it within a limited time-frame. It is now listed for
a Special Appointment on 26th June, 2012 at 10.30
am. It is involved with the issue of
Institutional Integrity of the Supreme
Court of WA and it also concerns Registrar Wallace voluntary Security Costs
Order to use the $100.00 the Applicant paid
as security for Appeal No.6 of 2008 in January, 2008 that was heard and
dismissed by Commissioner Herron for which there is an extant improper
costs order. The Applicant
objected to this attempt at the
regularization of the irregular as a result of the pointer
of the High Court Refusal of Special
Leave to Appeal
in P50 of 2010 as is evidenced by the letters of the Applicant to the Chief Judge of the District Court
of WA His Honour Judge Martino. It’s the principle behind this unwarranted payment
that is reasonably perceived by
the Applicant,
activated by Unseen Hands to regularize the discordance decision of Ken
Martin J in Michelides No.2 and Commissioner Herron in DCAppeal
No.6 of 2008 (The First Judicial Review exempted
from Leave under s.6 of the Act).
DEFERENCE GIVEN TO PULLIN AND NEWNES JJA
IN CACV 75 OF 2010
8.2 At: 111 to 116: Indeed, there is the misconceived interference
with the due process of justice
through the deference given to Pullin and Newnes JJA and Ken Martin J in
dealing with CACV 75 of 2010. This is the Leave to Appeal to Newnes and Pullin JJA of the Court of Appeal
from Michelides No.2. Again, it unlawfully
denies the Applicant his natural justice by the unconscionable
statutory bar that inhibits the livelihood of the Applicant (Second Leave to Appeal Denied).
8.2. At 117 to 119: In the aftermath of the Second Leave
to Appeal
Denied, the High Court Special
Leave Denial in P50 of 2010 that followed it is then followed up by another Unavailable Prerogative Writ Application
by the Applicant
before His Honour Justice Allanson in CIV 1491 of 2011 on 11.5.2010. This Application
concerns the obstruction of justice by Ken Martin J in the Security Costs
Order of Michelides No.2 dated 8.7.2010 that followed the CIV1903 of 2008
No.1 or Re Michelides; Ex parte
Chin [2008] WASC 256 of Justice Hasluck dated 7.11.2008. Ken Martin J
knows that that he could not reverse the s.36 Review Order of Hasluck J
because there were no justifying circumstances for his doing so. Therefore, the only way out for Mr. Thies
is to grant him the obstruction of justice Security Costs Order that does not
comply with facts of the case and
the applicable
laws. Allanson J is honest in the dismissal of Unavailable Prerogative Writ Application
(the Allanson’s J Dismissal).
8.2.1. Hasluck J s.36 Review Order stayed the JEs of
Magistrate Musk in FR944 of 2007 who denied the Applicant’s his natural justice by refusing his
Summary Judgment Application with Her Honour unwarranted
Justifications that it is improper pursuant
to s. 17(e) of the Magistrates Court (Civil Proceedings) Act, 2004 WA which
only allows such a dismissal provided
it is frivolous and vexatious. Her
Honour took the trouble to explain
to the Applicant
that his Application
for Summary Judgment is improper or misguided without being frivolous and
vexatious at the same time. This is an
example of extraordinary logic which
Her Honour could not justify (the Wrongful Dismissal of Magistrate Musk SM).
8.2.2. Hasluck J s.36 Review Order also stayed the JEs of
Magistrate Michelides who decided on the appeal of the Applicant from the DURESS-VITIATED CONSENT JUDGMENT
entered into between the APPLICANT and MR. THIES on the belated date of
7.6.2007 after THE WRITTEN CONSENT PAPERS WERE FILED ON 15.4.2007. The delay
by the learned Registrar Wilde in entering that Consent Judment only on
7.6.2007 is caused by the doubts created in the learned Registrar’s mind as
to whether there is consensus ad idem to that Consent Judgment (The Doubt in
Registrar Wilde’s Mind).
8.2.3. The Doubt in Registrar’s Wilde’s Mind in FR417 of
2007 is the result of her receipt of constant correspondence
that passed between the parties about the Involuntariness of the Applicant
and his son Paul as the party who
was being threatened with ever-escalating costs of $2,000.00 per week after the legal services of Timothy Robin
Thies had been terminated by the Applicant and his son since the 21.2.2005 as
indicated in the correspondence found
at pages 24 and 25 of the Applicant’s
Appeal
Book filed in DCA6 of 2008 dated 17.4.2008 (the Duress-Vitiated Consent
Judgment).
8.2.4. The Wrongful Dismissal of Musk SM was appealed
to District Court Appeal No.6 of 2008 and was heard by Commissioner
Herron. His Honour admits that he had
no jurisdiction to hear the appeal of FR944 of 2007 that concerns the Duress
Vitiated Consent Judgment of Registrar Wilde in FR417 of 2007 which should
have been appealed
to Magistrate Michelides beforehand before the FR944 of 2008 is appealed
to the District Court. This is because
a Registrar’s Decision must follow the pecking
order of appeal
to a Magistrate first before it can be appealed to the District Court. Yet, Commissioner
Herron decided against the issue of the Duress-Vitiated Consent Order (the
Non-Jurisdictional Decision of Commissioner Herron).
8.3. The Duress-Vitiated Consent Judgment is exacerbated
by the fact that Timothy Robin Thies was seen to be reneging on the terms of
his solicitors costs Agreement entered into between himself and Paul and the
Applicant
dated 3.11.2004 found at pages 11
to 14 of the Appeal Book that is set by the pre-contractual terms dated 25.10.2004 found at pages 1 to 3 of the Appeal Book (the Solicitor Costs Agreement).
8.4 Magistrates
Michelides dismissal of the Applicant’s Appeal of the Duress-Vitiated Registrar Wilde’s
Consent Judgment is the result of His Honour refusing to take into account
the Wrongful Dismissal of Musk SM, the Doubt in Registrar’s Wilde Mind, the
Duress-Vitiated Consent Judgment, The Solicitor Costs Agreement, and the
Non-Jurisdictional Decision of Commissioner Herron (the Wrongful Decision of
Michelides SM).
8.9. Hasluck J decision is not based on Commissioner
Herron’s Appeal
Decision of DC No. 6 of 2008 but on the s.36 Review of the Magistrates Court
Act, 2004 which replaced the
Prerogative Writ of Certiorari. The
s.36 Review Order of Hasluck J therefore has NO jurisdiction over
Commissioner Herron’s Non-Jurisdictional Decision in DC Appeal
No.6 of 2008 Decision and therefore cannot set it aside but the former Decision
stayed the Musk and Michelides Decision. By virtue of the non-jurisdictional
nature of Commissioner Herron’s decision, it is therefore a void decision
that has no legal effect and cannot be enforced in any court of law (the Void
Decision of Commissioner Herron).
8.10. His Honour Martin J forbodes an intention in
Michelides No.2 in the aftermath of Michelides No.1 of Hasluck J to reverse the
latter case and to obstruct the justice for the Applicant, for which there are no justifiying
circumstances as required by the common law in place. His Honour is aware of this impossibility by His Honour’s conduct as displayed in the transcripts
of the proceedings and his Honour’s
decision in the Unlawful Caveats Case which Timothy Robin Thies held as a weapon of ransom for imposing
the threats of the Duress-Vitiated Consent Judgment upon
the Applicant
and his son Paul. The CIV1981 of 2011
contains all the evidentiary material which shows conclusively the biased
conduct of Ken Martin J. Michlides No.2 was appealed to the Court of Appeal and to the High Court for Special Leave (the Biased Conduct of Ken Martin J).
8.3. The Pointers of the High Court is that the CART of
Security Costs Order of His Honour Ken Martin J must not be placed before the HORSE of the Grant of the s.36
Review at its second stage before Ken Martin J after it has crossed its
hurdle at its first stage before Hasluck J where there are no justifying
circumstances to so cause that Obstruction of Justice (the CART BEFORE THE
HORSE).
8.4. At 67 & 68: Murray J is in JE when he does not
discern the fact that there is no caveatable interest for Timothy Robin Thies
to lodge the caveat in 1986(sic) which should have been 2007. Further Ken
Martin J evaded the issue that there is no consensus ad idem between the
contracting parties for the
solicitor costs agreement to justify the caveat which was removed by Ken
Martin J anyway. On the one hand, Ken
Martin J refused to recognize the non-caveatable interests and the ensuing
damages for the Paul as a result of the equity of his home property
being fraudulently clogged up by
Timothy Thies but at the same time His Honour recognized the need to remove
that unlawful Caveat expeditiously
in favour of Tim Thies. This is a
contradiction of the NON-DECISION of
His Honour Ken Martin J in CIV1112 of 2007 and Michelides No.2 ( the
NON-DECISION of Martin J).
8.5. At 68: Mr. Thies cannot have caveatable interests
in the unlawfully caveated property of Paul Chin on the grounds(NON-CAVEATABLE
INTERESTS OF TIM THIES):
8.5.1. he does not have an equitable interests in that property
because he did not contribute to its increase in value or that his legal
services to Paul never contributed to its increase in value;
8.5.2. Despite
the solicitor-costs agreement and the Consequent Duress-Vitiated Consent
Judgment being voided by the lack of consensus ad-idem between the
contracting parties, that
agreement if valid must specify
the name of the property to be charged to him before Thies can
acquire an equitable interests over it (NO CONTRACT and NO EQUITABLE MORTGAGE).
8.5.3. Mr. Thies did not comply
with the Orders of Hasluck J in the first stage of CIV1903 of 2008 No.1.or
Michelides No.1 within the required time frame and within the specificities of that Show Cause Order (NO
CONTRIBUTION TO VALUE).
8.5.4. There are no justifying grounds for the second
judge Ken Martin J at the second stage of the s.36 Review Order proceedings to deviate from the Review Order which
had already been granted by the First Judge (NO REVERSAL OF MICHELIDES NO.1).
8.5.5. The Security Costs Order is imposed unfairly by Ken Martin J who denied the Applicant
his natural justice and is tainted with illegality due to his biasness, the specificities of which are contained with the Application
for Prerogative Orders in CIV1981 of 2010 which is misconceived only to the
extent of the Unavailability of Prerogative Costs Orders against another
Justice of the Supreme Court of
the same rank (ILLEGAL SECURITY COSTS ORDER).
8.6. At 81, there is a reference to CPA or Criminal
Procedure Code 2004 (sic) which is actually a reference to Magistrates Court
(Civil Proceedings) Act, 2004 (MCCPA).
The JEs of Magistrate Musk is already explained
in CIV3427 of 2011. There is no basis
for Magistrate Musk costs under s.31(3)(b) of the MCCPA as the facts of the
case do not indicate that the Applicant’s application for default judgment is wholly without
merit (Minor Cases and Allowable Costs).
8.7. At 81: there is no basis for Magistrate Musk to
strike out the Default Judgment of the Applicant under s. 17(1)(e) of the MCCPA which provides for “ it is
frivolous, vexatious, scandalous” or
improper”. Her Honour changed the wordings of that provision to “improper” but did not give the basis for it be so
changed (the Improper Reason for Judgment).
8.8. At 77: the Minor Case before Her Honour SM Musk
cannot be transferred to the General Division of the Magistrates Court without the consent
of the Applicant
pursuant to s. 28(4)(a)(b) of the
MCCPA (NO Consent of Claimant to Transfer Minor Case to General
Division).
8.9. At 85: the statement of Commissioner Herron regarding
the words of the Applicant relating to the unlawful demands for
monies which Mr. Thies is not entitled to from the Applicant and his son Paul are justified by the
factual matrices of circumstances for which His Honour Murray’s J neutral
stand is unwarranted (the Unjustified Comment of Commissioner Herron neutrally
assented to by Murray J).
8.10. At 85, Commissioner Herron recognized that he did
not have jurisdiction to decide on the Duress-Vitiated Consent Judgment of
Registrar Wilde in FR417 of 2007 because it need to be appealed
first to Magistrate Michelides before it can be decided by a Judge of the
District Court in Appeal No.6 of 2008.
His was to hear the appeal of the decision of Magistrate Musk in FR944
of 2008 with respect to the reason
why Magistrate Musk dismissed the Default Judgment Application of the Applicant.
Instead His Honour express
his wish not to hear those issues but decide on the non-jurisdictional issue
of Duress-Vitiated Consent Judgment by stating that it is not so
duress-vitiated without considering the grounds advanced by the Applicant
for doing so (Non-Jurisdiction of Commissioner Herron).
8.11. By his own admission, Commission Herron did say
that he was without jurisdiction and yet he went on to make that
non-jurisdictional decision. Yet he
decided on the issue that contradicts the Minor Cases Provisions of the MCCPA
and ordered costs against the Applicant when he ought to have known that only
Allowable costs are allowed under s. 31 of the MCCPA in the Case of a Minor
Claim in FR944 of 2007 (The legislative Intent of Parliament with regard to
Minor Cases Provisions).
8.12. At 88: The Thies Show Cause Affidavit dated
6.10.2009 was out of the time frame
stipulated by Hasluck J and the
objection of the Applicant to Martin J on this point
should have been sustained if His Honour was fair-minded, in terms of the
following:
8.13. Thies did not comply
with the specificities of the Show
Cause Affidavit as prescribed by
Hasluck J to be concise and not to divert from the main issue of whether
there was a consensus ad idem between the contracting parties
for the legal costs he was claiming from the Applicant and his son.
8.14. He made misleading statements as to the
genuineness and integrity of his false claims for legal costs which he is not
entitled to under the solicitor-costs agreement as pre-defined
by the pre-contractual terms dated
25.10.2004 as agreed to between the Applicant and Mr. Thies in terms of their email
communications.
8.15. He did not define how his contract for legal services
was terminated as soon as he was seen to be reneging on those pre-contractual terms. He did not define how his
legal costs can be escalating by $2,000.00 per
week from the time his contract for services had been terminated by his
clients since the 21.2.2005.
(the Misleading Statement of Mr. Thies).
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92….Kenneth
Martin J: Third point, even
if you weren’t labouring under the lack of a practice
certificate, and even if you weren’t labouring under the fact that you can’t practice other than in a supervised
practice, my perusal of the materials in the caveat action,
1112 of 2007, indicates that you have an appalling conflict of interest on the basis that the
materials that your son deposes to
in his affidavit indicate that you are a protagonist
in that dispute. So even if you
didn’t suffer from difficulties, you would be conflicted from acting in any
event. So that is a problem.
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9.1.At 92: There is no “appalling conflict of interests” in the situation
where the Applicant
acted as a litigant in his own case or even in his son’s case where his own personal interests is involved, or he should have
been allowed to act as an amicus curiae to help
the court resolve this issue.
9.2. The factual circumstances indicate that it was the
client-solicitor relationship
between the Applicant and Mr. Thies rather than Mr. Thies with
the Applicant’s
son Paul.
9.3. Where the Applicant did not play
the public role of a lawyer in his
capacity as a litigant in person in his dispute
with Mr. Thies, there is no conflicting public
interests and his personal
interests in either his own, or his son Paul’s interests with Thies. In this
aspect His Honour Ken Martin J has
misconceived his judgment in CIV1112 of 2007.
9.4. At 94, 95, 96 & 97: Ken Martin J did not agree
that Timothy Robin Thies robbed the Applicant and his son but he did not define the
circumstances as to why it was not.
Why would Hasluck J order the stay of the Magistrates Musk’s and
Michelides Decision and their Respective
Costs Orders if this did not happen?
The respective
queries of the Applicant are:
9.4.1. Where is the entitlement of Mr. Thies to make
demands for monies from the Applicant and his son Paul after his services for
legal services was terminated by both his clients on 21.2.2005?
9.4.2. Where is the basis for Mr. Thies to keep increasing his legal costs and therefore his
demands for monies by $2,000.00 per
week after his services for legal services had been terminated since
21.2.2005?
9.4.3. Where is the consensus ad idem between the
contracting parties to base the
Thies entitlement to make those demands?
9.4.4. What are the factual circumstances which show that
the Registrar Wilde Involuntary Consent Judgment is not duress-vitiated when
there is prima facie evidence that
the reverse is true?
9.4.5. Why is a father not allowed to protect his own son who is being relieved of his
monies by the unconscionable acts of his lawyer reneging on his contract for
services to his son and himself?
9.4.6. Where is the public
interest that needs to be protected
by a court of justice where a lawyer is seen to be advancing his own
interests over the interests of his own client?
9.4.7. Why are the security costs being granted after the
s.36 Review decision has already been granted by Hasluck J and not before?
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99 In his
reasons, Martin J described submissions filed by the respondent in relation to his s 36 application
as being: in many places utterly
incomprehensible. Aside from being
prolix and repetitive, they are couched in emotive language inappropriate to be used by any person,
let alone a legal practitioner
[23].
100 His Honour
granted the application for security in the amount of $20,000
and outlined his reasoning at [39]:
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10.1. At 99: The reference to submissions for the s.36 application
is misconceived by Murray J. The s.36
Magistrates Court Act, 2004 Review Order was already granted to the Applicant
by the First Judge Hasluck J in Michelides No.1.
10.2. Ken Martin J role in Michelides No.2 is to agree to
the s.36 Review Order and not to change it unless there are justifying
circumstances for him to do so. If
there are such circumstances, he has an obligation to define them to the Applicant
and he did not.
10.3. His Honour has an obligation to define what he meant
by the epithets: “prolix”, “repetitive”
and “utterly incomprehensible’ and
“inappropriate language” in the context of those
submissions and not just to gloss over it and making a general statement
without substantiation.
10.4. If His Honour had been in the shoes of the Applicant
and members of his family and had personally
experienced every minute of those
harrowing circumstances when the family was being harassed, annoyed,
intimidated and robbed of monies that Mr. Thies was not entitled to under any
circumstances, to the extent that Paul was under so much stress that he had
literally lost his minds on more than one occasions and had even been
incarcerated for losing his mind. The
amount of trauma personally experienced by the family members of the Applicant
would reasonably cause any family member to succumb to those threats and
intimidation in the form of the duress-vitiated Registrar Wilde Consent
Judgment in FR417 of 2007. It must be
remembered that the threats were so real that there is a real likelihood that
Paul would lose his own home to Mr. Thies if he did not comply with those threats. These circumstances are
being recorded in the many correspondences
that passed between various
affected parties and cannot be
just imaginations. It would be
unconscionable for Ken Martin not to feel the same way as the Applicant
and his family members had felt.
10.5. At 100: There was no grounds in both law and facts
for the security costs order to be made and this is elaborated in CIV3427 of
2011.
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145 Le Miere J …s 4(1)(d) of the Act, as follows:
[T]he nature and frequency of the litigation…without
reasonable ground, the distress and aggravation that such litigation must
have caused to the persons against
whom it has been brought and the amount of time that it has occupied the various courts, together with the
likelihood that such conduct will continue [146].
147. The right of an
individual to commence proceedings
to enforce or defend their rights is a fundamental right in a free society
and while to declare a person a vexatious litigant does, of
necessity, put a limit on this
right, it remains protected
under s 6(1) of the Act, ….. Under s 6(7), leave is not to be granted unless
the court or tribunal is satisfied that:
(a) the proceedings
are not vexatious proceedings; and
(b) there is a prima
facie ground for the proceedings.
152 Finally, the applicant should have the costs of the application,
to be taxed.
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NO JUSTIFICATIONS FOR MURRAY
J ORDER DECLARING THE APPLICANT A VEXATIOUS LITIGANT:
11.1. At 145 and 148:
The very nature and frequency of the
Litigation of the SEVEN CASES as explained
by Murray J at 126 in the words of the Principal
Registrar as Applicant’s agent, is caused by the Applicant
being unaware of the concept of the
Unavailability of Prerogative Writ Orders first introduced by EM Heenan J on
4.8.2010 as explained in the
Inchoate Cases and the Date of Demarcation at sub-paragraph 5.6 above (the Hitherto Inexplicable Concept
of Unavailability of Prerogative Writ Orders).
11.2. Since the Date of Demarcation on 15.6.2011 at sub
paragraph 5.6. above, the Applicant no longer embarks on the same procedure to seek justice but is now relying on
seeking Judicial Review through Declarative Judgments in CIV 3824 of 2011 referred
to in sub-paragraph 10.5 above, through s. 25(6), 33, 43 and 59 of
the Supreme Court Act, 1935 WA of
84 pages (the First Judicial
Review).
11.3. Since the First Judicial Review was filed on
19.12.2011
prior to Murray
J decision in CIV 1689 of 2011 on 11.1.2012, it has now been scheduled by the
Principal Registrar to be heard on
26.6.2012 at a Special Appointment
at 10.30 am. It is not an application
for Leave pursuant to s.6(7) of
the Act, which would have involved the participation of both the Attorney General and the Principal Registrar of the Supreme
Court of Western Australia, if it were so (The First Judicial Review is not a
Vexatious Applicant
Application).
11.4. The Applicant has since the 8.2.2012 lodged the Second
Application for Judicial Review containing 105 pages with respect
to the JEs of Master Sanderson’s Decision in CIV 1775 of 2008, Owen JA
Decision in CACV 107 of 2008, Simmonds J Decision in CIV2157 of 2011 and DCJ
Sweeney Decision in CIV 2509 of 2002.
This is the First Application by both Maurice Law and the Application
for Leave pursuant to sub.6(7) of
the Act. It is pending approval
by the Principal Registrar (The
First Vexatious Litigant Application).
11.5. The Two Judicial Review Applications as explained
above
is with reasonable grounds and is not brought about with
aggravation to those persons
against whom they are brought because the FOUR issues that was before the
court in all those SEVEN CASES have never been solved or decided by the
Various Courts as explained in
sub-paragraph
5.8 above (the FOUR issues have been avoided).
11.6. As long as the FOUR ISSUES have not been decided by
the various courts, LEAVE pursuant
to s.6(7) of the Act ought to be granted by this Honourable Court to the Applicant
because the First and Second Judicial Review Applications are not VEXATIOUS PROCEEDINGS and there
are prima facie grounds for those proceedings.
Therefore, it is reasonably clear that His Honour Justice Murray has
misconceived the grounds for issuing the Order under s. 4(1)( c) of the Act
to declare the Applicant a Vexatious Litigant (The Misconceived
Order under s.4(1)© of the Act) .
11.7. At 149, 150,
151: The Applicant
has now incorporated the Evidentiary
Materials of CIV1981 of 2010 into the First Vexatious Litigant Application
or the Second Application for Judicial Review. He concedes that it CIV 1981 of 2010 should
be stayed on the ground that it had been misconceived by the Applicant
on the ground of the concept of
Unavailability of Prerogative Writ Relief that was made known to him by EM
Heenan J in the Inchoate Case as stated above as at the Date of Demarcation (the
Second Judicial Review).
11.8. The Second Judicial Review, however, is based on
legal merits for which the relief sought is for declarative judgments and it
is based on the Ken Martin J decision regarding Timothy Robin Thies that had
obstructed justice to the Applicant (The Reasonable Grounds of the Second
Judicial Review).
PROTECTION FROM ARBITRARY COSTS ORDERS ON GROUND OF
PUBLIC INTEREST LITIGATION
11.9.
At 15: The Applicant has been involved in public interest
litigations in relation to the FOUR ISSUES that was
litigated in the SEVEN CASES as explained
above.
11.10.The SEVEN CASES is dismissed
on procedural errors in
respect of the
NON-AVAILABILITY OF PREROGATIVE WRIT ORDERS.
11.11.As explained
by Kirby J at sub-paragraph 5.12 above, the
dismissal of a litigant in person’s
case on the procedural grounds is
an inappropriate ruling in law, as it is not on the basis of
the substantive law that the SEVEN CASES concerns the efficient and
fair administration of justice. The ground that that they have low prospects
of success is also not grounded on the facts of the case.
11.12.See the Australian Law Reform
Commission website
11.12.1. Para: 13.1: Public interest litigation is
an important mechanism for clarifying legal issues to
the benefit of the general community. The Commission concludes that public
interest litigation is of significant benefit to the community and
that it should not be impeded by
costs allocation rules.
11.12.2. Justice Toohey quoted Oshlack v Richmond River
Shire Council (1994) 82
LGERA 236 when he said at a symposium:
“There is
little point in opening the doors to the courts if litigants cannot
afford to come in. The general rule in litigation that ‘costs follow the
event’ is in point. The fear, if
unsuccessful, of having to pay the
costs of the other side (often a government instrumentality or wealthy private corporation),
with devastating consequences to the individual or environmental group bringing the action, must inhibit the taking of
case to court. In any event, it will be a factor that looms large in any
consideration to initiate litigation.”
11.12.3. Para. 13.11 states: The Commission considers
that the significant benefits of public interest litigation mean
it should not be impeded by the
costs allocation rules.
11.12.4. Para 3.19:
A court or tribunal should be able to make a public
interest costs order notwithstanding that one or more of the parties to the proceedings
has a personal interest in the matter.
The extent of the private or
commercial interest of each party
to public
interest litigation should be considered by the court when deciding
the terms of any costs order.
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“In 1995, the ouster provision
was re-enacted in a new form which extended the terminology from a “decision”
to a “purported
decision”. The introduction of the word “purported” was of potential
significance, as suggested in a joint judgment of Gaudron and Gummow JJ in the Darling Casino case where their
Honours drew a clear distinction between a decision “under” the Act and a
decision “under or purporting to be under” the Act.
See also: Darling
Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635.
[2]
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR
163, 174 – 175 (Brennan, Deane, Toohey, Gaudron & McHugh JJ), and a
recent decision of the Su
preme Court
of New South Wales in A
pplication of Cannar Re Eubanks [2003] NSWSC 802
(Bell J). The rule is set out in a
passage from
the reasons of Deane J in Re Gray; Ex
parte
Marsh[1985] HCA 67; (1985) 157 CLR 351, 385 quoted at [22] of her Honour's
judgment in A
pplication of Cannar Re Eubanks. Other decisions to
the same effect are Re Western Australian Industrial A
ppeal
Court; Ex
parte Carter(1992) 7
WAR 348, 354; (1992) 44 IR 171; Barton v
Walker [1979] 2 NSWLR 740, 755; and
Mayor of London v Cox (1867) LR 2 HL 239. The same
princi
ple
a
pplies
to a
pplications
for mandamus and
prohibition: Re
Jarman; Ex
parte Cook (No
1) [1997] HCA 13; (1997) 188 CLR 595.'
1. submission to or compliance
with the will, wishes, etc., of another
2. courteous regard; respect
The rule was
further explained by the court of appeal in Barrow v Bankside Agency Ltd [1996] 1 WLR 257
"The rule in Henderson v Henderson 3 Hare 100 is very well
known. It requires the parties, when
a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case
before the court so that all aspects
of it may be finally decided (subject, of course, to any appeal)
once and for all. In the absence of special
circumstances, the parties cannot
return to the court to advance arguments, claims or defences which they could
have put forward for decision on the
first occasion but failed to raise. The rule is not based on the doctrine of
res judicata in a narrow sense, nor even on any strict doctrine of issue or
cause of action estoppel. It is a rule of public
policy based on the desirability, in
the general interest as well as that of the parties
themselves, that litigation should not drag on for ever and that a defendant
should not be oppressed by successive suits when one would do. That
is the abuse at which the rule is directed."
[i] Gordon said in his article entitled: THE INDEPENDENCE
OF THE BAR
The Importance of independence
Lest you think that I am
suffering from regulatory capture,
let me first list why it is so widely believed that the governance of the Bar
should be taken out of the cloisters of the Inns and the Bar Council and led
blinking into the daylight of Westminster and Whitehall. First of all, legal advice is too expensive. It
has moved out of the
reach of the middle classes. The advice
of a top barrister is affordable by
government, by corporate bodies and
by wealthy individuals, especially
on divorce. This has been and is even
today ameliorated by legal aid, insurance, pro
bono, conditional fees and better use of technology, but there is still a
void. Legal aid has been cut and will be
cut even more in the management of the UK budget deficit, and I will
return to this issue as it bears on the independence
of the legal profession. So there
are many, perhaps
the majority of the population, who could never contemplate accessing the individual advice of a barrister
or a city solicitor. It is reported, often with pride
(certainly by the journals of the solicitors’ profession)
that partners in city firms make £1m
a year, and that some barristers make similar sums from criminal legal aid 1. We know that there are barristers, many of
them women and BME, who undertake publicly
funded work in criminal and family issues and make only the most modest of
livings,
but their pleas are undermined by the excesses at the other
end.
[ii] The calls for change: Turning to the critical aspects, there is no doubt that over the last few decades
the Law Society has been not only tardy in handling complaints
but unresponsive. Solicitors have also been tainted by the
outcome of the monopolising of work
by a few firms representing
unionised claimants, for
example, miners suffering from lung diseases caused by
their work in the mines. Those firms
succumbed to temptation by taking
more for themselves than for their clients and even in a few cases taking what
was not theirs at all. The reports of those failings made an indelible impression
3
.
