TRANSCRIPT OF PROCEEDINGS IN LPD NO 2 OF 2012

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THE SUPREME COURT OF

WESTERN AUSTRALIA

FULL COURT

LPD 2 of 2012

LEGAL PROFESSION COMPLAINTS COMMITTEE

and

NI KOK CHIN

McKECHNIE J

BEECH J

HALL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 23 NOVEMBER 2012, AT 10.34 AM

MS P.E. LE MIERE appeared for applicant.

The respondent appeared in person.

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(s&c)

McKECHNIE J:   Call the matter. 

THE ASSOCIATE:   LPD matter 2 of 2012, Legal Profession Complaints Committee and Ni Kok Chin. 

McKECHNIE J:   Ms Le Miere. 

LE MIERE, MS:   If it please, sir, I appear on behalf of the committee this morning. 

McKECHNIE J:   Mr Chin. 

CHIN, MR:   Yes, sir.  I appear.  I'm representing myself and I believe that order 58 of the Rules of the Supreme Court makes this court the trustee and I'm the beneficiary of the trust and I represent the sovereign people of Australia in flesh and blood. 

McKECHNIE J:   I think you represent yourself in this application, as I understand it. 

CHIN, MR:   Yes, your Honour.  I have my friend, Mr Rogerio Christavao.  He is my McKenzie friend and he knows about my case and just in case he needs to stand up for me and tell the court what he believes to be true and I ask for this honourable court's permission to grant him that right to be my McKenzie friend. 

McKECHNIE J:   Mr Chin, we're not disposed to grant your application for a McKenzie friend.  You have indicated that you are appearing for yourself, but there is no objection to Mr Christavao remaining where he is and making notes to assist you. 

CHIN, MR:   Thank you. 

McKECHNIE J:   We will not, however, hear from him. 

CHIN, MR:   Thank you very much, sir.  Can I give some preliminaries before the applicant begins?

McKECHNIE J:   What do you wish to advance?

CHIN, MR:   I wish to advance, sir, the fact that his Honour McKechnie J had already decided two cases of my ex parte application against me and the gist of it has been recorded in my email that was sent last night and ‑ ‑ ‑

McKECHNIE J:   We have that. 

CHIN, MR:   And the point that I'm making is I am afraid, just very afraid, that his Honour McKechnie J might not bring an impartial mind to these proceedings, and it is on that ground of the perceived and the actual bias and

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prejudice which his Honour has for me that I'm asking his Honour to graciously recuse himself and I humbly advance this prayer. 

McKECHNIE J:   Thank you, Mr Chin.  I've had an opportunity of looking at your submissions before coming to court, of refreshing my memory of the two cases, and I consider there is no basis on the authorities for recusing myself so I decline to do so. 

CHIN, MR:   Sir, I accept your Honour's standing and I accept your Honour's reputation of brilliancy in the law and if your Honour does not wish to recuse himself, I only pray that your Honour will bring an impartial mind to these proceedings.  If your Honour gives me that undertaking, I am ready to have your Honour to hear this case

McKECHNIE J:   Very well.  I will approach this case the way that judge's approach every case that comes before them, Mr Chin.  If that is the only preliminary matter, I'll call on Ms Le Miere. 

CHIN, MR:   I think your Honour has had a misconception regard to the two cases which your Honour had dismissed without further examination and without proper consideration of the grounds. 

McKECHNIE J:   No, Mr Chin, I have ruled on your application for recusal.  I will give reasons why I have reached that conclusion that I continue in due course. 

CHIN, MR:   Yes, your Honour.  As a preliminary to your ruling on this point I want to point out very clearly so that your Honour really understands my situation.  Can I begin now?

McKECHNIE J:   No.  I have ruled on it.  You can make further submissions appropriately in due course but you submitted your argument on the recusal.  I read that and took it into account.  I'll ask you now if you will resume your seat and we will hear from Ms Le Miere on the application. 

CHIN, MR:   Yes, your Honour.  If you will just allow me to  ‑ ‑ ‑

McKECHNIE J:   No, no.  When I said I ask, I was merely being polite.  Will you please resume your seat and in due course we will hear from you. 

CHIN, MR:   Thank you. 

McKECHNIE J:   Ms Le Miere. 

LE MIERE, MS:   If it please the court. 

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McKECHNIE J:   We have your written submissions. 

LE MIERE, MS:   Yes.  The committee relies on its written submissions, unless there's any matters that the court seeks any clarification on, I don't wish to address it further. 

McKECHNIE J:   Very well.  Thank you, Ms Le Miere.  Mr Chin, this is your opportunity to respond.  We also have your written submissions, which are very detailed.  What would you like to tell us in amplification of them?

CHIN, MR:   I would like to make it very clear to the minds of the full bench that the matters - the dust has settled and we can now see very clearly the field, the open field where my trials and tribulations has taken place before the various courts in the past and where I have been declared a vexatious litigant by his Honour Murray J, and I maintain that I am not ‑ ‑ ‑

McKECHNIE J:   Mr Chin, I think you may be under a misapprehension.  The fact that you may have been declared a vexatious litigant is not relevant to us in these proceedings.  We are proceeding only on the judgment of the State Administrative Tribunal, which has been transmitted to us. 

CHIN, MR:   I accept ‑ ‑ ‑

McKECHNIE J:   And those are the matters about which we will take into consideration. 

CHIN, MR:   I accept that point, your Honour.  What I'm trying to say is that I can see two trees in the open field.  The two trees in the open field is the Timothy Robin Thies caveatable interest and the other tree is (indistinct) interest that is related to my allegations against Mr David Taylor.  These two trees stand out as something very irregular in this open field.  These two trees relate specifically to an error of law.  We have been trying to believe that in order to have a caveatable interest it must found on a proprietary interest but during the course of my study as a lawyer at Murdoch University I was interrupted by written treaties of his Honour Sandra Boyle and his Honour Sandra Boyle in Caveatable Interests - Common Lore Distinguished, l-o-r-e, and in that article his Honour Sandra Lore (sic) was referring to caveatable interest being - was referring to a ‑ ‑ ‑

McKECHNIE J:   Mr Chin, where do we find in the judgment of SAT that SAT deals with this specific point?

CHIN, MR:   The judgment is against me that I have made frivolous allegations against Mr Timothy Robin Thies and that I have frivolous allegations against Mr David Taylor.  It all boils down to these two trees, to these two

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metaphorical trees, and these metaphorical trees is an error of law and it's an error of law that has never been decided in the past and because it was never decided in the past and I was always trying to bring it to the forefront, and it has never been written into the grounds of decision of any of the judges in the past and that it remains a non res judicata issue.

McKECHNIE J:   Mr Chin, the Legal Profession Act makes conclusive the facts and findings of the State Administrative Tribunal in these proceedings.  We cannot go behind them, as it seems to me you are inviting us to do.

CHIN, MR:   Your Honour, the two trees is the misconception which your Honour uses, used to dismiss my two applications. 

McKECHNIE J:   No.  Mr Chin, would you listen to me.  The facts and findings of the State Administrative Tribunal are conclusive.  That is what the acts say.  So there is simply no point in challenging those facts and findings.  I'm also trying to find the finding to which you are specifically relating.  Can you give me some assistance by way of the paragraph in the SAT judgment which you are presently addressing? 

CHIN, MR:   Sir, the finding of SAT is conclusive is conclusive but - and that is the judgment dated 24 April 2012.  That judgment has been the subject of my submission on penalty and in order to contravene the penalty order I have to contravene the findings of fact. 

McKECHNIE J:   That's not open to you.

CHIN, MR:   Your Honour, that findings of fact is contained in the table, the table that I provided in my written submission dated 30 May 2012.  That table is comprehensive of the fallaciousness of the falsity of the findings of facts that led to the recommendation by SAT.

McKECHNIE J:   Mr Chin, you have just accepted by your submission that we are bound by the findings of fact.

CHIN, MR:   Your Honour ‑ ‑ ‑

McKECHNIE J:   So why do you keep challenging them? 

CHIN, MR:   The fact is if a justice or a judge or a panel of SAT judges refuse to accept the fact, refuse to accept the truth and wishes to make findings on fallacious fact and the SAT panel is not able to answer my submission dated 30 May specifically relating to the falsity of each fact, then the SAT panel has made a void decision. 

BEECH J:   Mr Chin, do you accept that this proceedings is not an appeal against the tribunal, it is an exercise by

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the full bench of the power under section 444 to make an appropriate order arising from the report of the tribunal?

CHIN, MR:   I accept.  I know.  I know that SAT is making that decision, is making that decision for an improper motives. 

BEECH J:   This is not an appeal against the tribunal's decision and, therefore, there is no purpose to be served in repeated challenges to the findings of the tribunal. 

CHIN, MR:   Sir, there is no need for me to appeal the SAT decision because SAT specifically states that it is not making a decision to strike me off.  It is leaving the full bench to make this decision to strike me off the roll.  This is the power of SAT and it did not exercise this power because the hands of Deputy President Timothy Sharp, his Honour, is tied.  He cannot do anything because there are two other personnel, two other panel members who impose his (sic) will on him and I am saying this because of my (indistinct) with Timothy Sharp, that I appeared before him; that he knew of the facts, he knew of the falsity of the claims of the LPCC, the applicant, and he has no power to decide because there are many things at stake and he's not prepared to make that sacrifice to show that SAT has integrity, has independence and has impartiality. 

      SAT did not have the three requirements to do fair and equal justice to me and the index, the index, the conduct of Timothy Sharp, his Honour Timothy Sharp, is an index of his mind and any common person is astute enough to realise this, that he's been forced to do what he does not want to do and he's doing it because these (indistinct) you know, your Honour, that society ‑ ‑ ‑

McKECHNIE J:   Mr Chin, you have accepted that you have not appealed against SAT's decision.  As you correctly point out, SAT does not make the decision as to what penalty, if any, you should suffer.  That is a matter for this court.  It is not advancing your case to seek to undermine the SAT decision in the way that you are doing.  It would be helpful, for me at least, if you address the specific question:  in light of the findings of SAT, which are incontrovertible, why should this court not remove you from the roll?  That is the question, it seems to me.  What is your answer? 

CHIN, MR:   First of all, your Honour, SAT decision dated 24 April 2012 and 20 August 2012 is null and void because the deputy president has no such power under the applicable statute section 205A and section 185A of the LP Act.  Only the president has this power and the president will not make this decision because the president has already made a res judicata decision and the president has acknowledged by his conduct, by everything himself from further hearing

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this case, that he would be in conflict of interest if he were to further here this case and, your Honour ‑ ‑ ‑

McKECHNIE J:   What about section 622 of the Legal Profession Act? 

CHIN, MR:   Section 622?  What does it say, your Honour? 

McKECHNIE J:   You're making the submission to us that the SAT decision was null and void.  I would expect you to know it. 

CHIN, MR:   Section 437 I know. 

McKECHNIE J:   No, no, 622. 

CHIN, MR:   I've not got it in front of me. 

LE MIERE, MS:   I can let Mr Chin have a look at my act. 

McKECHNIE J:   Thank you. 

CHIN, MR:   Yes.  Section 622 is applicable to me because those things, those allege professional misconduct and unprofessional conduct 13 and two, 15 of them, 15 counts of them, were committed during the time when the Legal Profession Act of 2008 was never in force; therefore, section 437 of the 2008 act does not allow it to be applicable, does not allow it ‑ ‑ ‑

McKECHNIE J:   Right.  That's your submission on section 622.  The tribunal dealt with it at paragraph 18 and you haven't appealed against that decision so you should proceed on the basis that the tribunal had jurisdiction. 

CHIN, MR:   I don't get that argument, sir.

BEECH J:   It's in your interest, Mr Chin, to address the merits of the question that this court must decide and that is, as his Honour McKechnie J has said, given the findings of the tribunal, what should this court do?  In particular, should it remove you from the roll as the committee submits?  That's the question that this court must decide and it's in your interest to address submissions to that question. 

CHIN, MR:   Your Honour, my submission's in relation to the void orders of SAT because it has got no jurisdiction under the 2003 act to make that findings.  That should be accepted first.  Because the law ‑ ‑ ‑

McKECHNIE J:   We have your submission on that.  Move onto another point that you think we should take into account in deciding.

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CHIN, MR:   All right.  The other point, your Honour, is that in the history of the world there is never any lawyer in this world who has been struck off the roll who has been deprived of his professional status because of no wilful misconduct.  There was never any wilful misconduct on my part. 

McKECHNIE J:   That as a statement of law is not supported by the very many authorities on the subject, including those that have been cited by SAT and by the committee in its submissions to us.  It's simply not the law. 

BEECH J:   Further, Mr Chin, the findings of the tribunal are not consistent with what you assert.  The findings of the tribunal include findings of dishonest conduct. 

CHIN, MR:   Your Honour, the definition of "dishonesty" must be clearly defined by this court.  The definition of "dishonesty" means that I have been guilty of conspiracy to defraud or misappropriation of property or moneys belonging to my client by deceptive means.  There was never any instances where I have deprived of my client any moneys or where I've misappropriated any funds belonging to my client.  In fact, I went to the extent of paying for my clients and never got my money back.  Where is the dishonesty here, your Honour? 

      We will be the laughing stock of the world if the full bench were to decide that I could be struck off the roll because of a sham dishonesty or disguised dishonesty based on improper motives to get rid of me.  Your Honour, the regulator and the LPCC is capable of discrediting me; discrediting me, treating me differently from another lawyer where a same set of facts and circumstances happen and nothing happens to them.  Example:  Mr Timothy Robin Thies, Mr David Taylor, Mr Scott Alice, Mr (indistinct) why is this happening?  Unless there is an improper motive?  Your Honour, I know those things that you're trying to convict me of, they consist of ‑ ‑ ‑

McKECHNIE J:   Just one moment.  We are not trying to convict you of anything.  We are considering what, if any, order should be made following on the findings that we all agree are incontrovertible.  That's what we're doing.  It would be in your interest, both Beech J and I have said, if you actually address relevant arguments to the question why should we not accede to the application by the Legal Practice Committee. 

CHIN, MR:   Your Honour, this full bench should not accede to the recommendation of SAT because (1) it is a void recommendation, not based on the law.  He has no authority and no jurisdiction to make that recommendation.  (2) it is based on falsity.  It based on falsehood.  It based on improper motives.  It's based on a conspiracy and,

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your Honour, I have been vexed seven times on the same factual circumstances and six are - seven times of those circumstances, seven times of those convictions merely make the assertion that I have not been guilty of any wrongdoing but only been guilty of an alleged deficiency in my professional knowledge. 

      How can one say that a person is deficient in his professional knowledge unless there is improper motive?  How can one say that a person is deficient in his professional knowledge although he has passed all his exams, same exams that he under went with his colleagues and the other people have never been considered as guilty of deficiency in professional knowledge, if there is such a wrongdoing as guilty of deficiency in his professional knowledge? 

      How can a decent honourable court decide on the same issues again and again, again and again for seven times?  To say that I am deficient in my professional knowledge.  And when I say you're not allowed to do that; you're not allowed to stop me from practising; you're not allowed, you're not allowed unless you comply with all the procedures that is in the rules and the regulations and the laws and then out of desperation they found me guilty by an ambush conviction by Chaney J. 

      They found me guilty of that with an ambush conviction and that is why I vehemently oppose that decision and that is why his Honour Chaney J abdicated himself from hearing the case, but the persisting allegation of my wrongdoing doesn't want to go away with regard to David Taylor's matter.  I am saying never, I would have won the case for Nancy Hall to remove the caveat of Spunter but Jenkins J asked on 21 January 2006 for David Taylor to file his writ in CIV 1131 of 2006 by 10 February 2006. 

McKECHNIE J:   Mr Chin, unless you address the actual question, I do not see the point in your continuing. 

CHIN, MR:   Yes, your Honour.  Sorry for digressing. 

McKECHNIE J:   You have repeated matters which are in your written submissions and you've repeated your oral submissions here. 

CHIN, MR:   Yes. 

McKECHNIE J:   I am prepared to give you a further but last chance to actually address the question, which is:  in the light of the controvertible findings, why should we not accede to the application by the committee? 

CHIN, MR:   Your Honour ‑ ‑ ‑

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McKECHNIE J:   I understand the points you have made, including the point you make that you have not been guilty, you say, of any dishonesty.  I understand that.  What other points do you wish to make?

CHIN, MR:   Your Honour, for each of those points, for each of those findings of fact by what you say is the uncontroversial (sic) finding of SAT dated 24 April 2012 ‑ ‑ ‑

McKECHNIE J:   Incontrovertible; that is, you cannot challenge it in these proceedings.  Beech J made that clear to you, you agree with it.  Yet you keep challenging them.  The question is:  having regard to those facts, should we do other than remove you from the roll of practitioners? 

CHIN, MR:   Your Honour is saying that I must never challenge the findings of facts by SAT? 

McKECHNIE J:   The law says that. 

CHIN, MR:   Is that correct, your Honour? 

McKECHNIE J:   The law says that.  You agreed with me in the first five minutes.  That is what the act says. 

CHIN, MR:   But does your Honour agree with me that I am required to make a submission on penalty and in making my submission on penalty on 30 May 2012 ‑ ‑ ‑

McKECHNIE J:   I agree with you that you're required to make a submission on penalty.  That is what we have been asking you to do. 

CHIN, MR:   And the submission on penalty in order to refute - for me to make that submission on penalty I have got no choice but to refute the findings of the incontrovertible facts of SAT.

McKECHNIE J:   No, that's not what you're going to do. 

CHIN, MR:   That is the only way.

McKECHNIE J:   If that is the only way, can we take it you have no further submissions to make?  Because what you are proposing is contrary to the law and what you have already agreed with us is the law that binds us.  So do you have any other submissions? 

CHIN, MR:   Do you mean to say, your Honour, I should appeal against the SAT findings of facts instead of coming here today? 

BEECH J:   Mr Chin, this is not a process of you asking the court questions.  You have an opportunity to make submissions on the question which members of the bench have

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repeatedly framed for you and if you wish to take that opportunity now is the time to do so. 

CHIN, MR:   To appeal against the decision of SAT?

BEECH J:   This is not an appeal against the tribunal's decision.  This is an exercise of power by the court under section 444 of the Legal Profession Act. 

CHIN, MR:   To exercise that power this honourable court will have to look at (indistinct) of that facts finding decision of SAT. 

HALL J:   That's exactly what we can't do.  It says that the report is to be taken as conclusive.  It's not open to us to question it. 

CHIN, MR:   If that is the case, I will have to appeal the SAT decision and I want to appeal, and I want this current proceeding to be adjourned. 

BEECH J:   Mr Chin, is there any reason why you have not taken any step to appeal the tribunal's decision until 40 minutes into this hearing?  Given that the tribunal's decision was made more than three months ago. 

CHIN, MR:   Because I believe that if SAT in the second judgment dated 20 August 2012 is not able to refute every point that I have made against the decision, then its decision is null and void.  It has not done that and, therefore, its decision is null and void and, therefore ‑ ‑ ‑

McKECHNIE J:   Mr Chin, that is not an answer to Beech J's question. 

CHIN, MR:   Your Honour, this matter is of most importance to me.  Although I'm in the sunset years of my life, I am - contributed to the common good of Australians, that I help them in their matters in court, that I help them even pro bono.

McKECHNIE J:   Mr Chin, that is still not answering Beech J's question. 

CHIN, MR:   The reason for the delay, your Honour, in not appealing that decision is that I have not fully comprehended the import of the law with regard to persuasion of this - with regard to the rights and duties of and obligations of this full bench.  I thought that the full bench has got a duty to overturn the decision of SAT. 

McKECHNIE J:   Mr Chin, we are not prepared to adjourn these proceedings so please proceed.  Do you wish to proceed further? 

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CHIN, MR:   No, I've just asked for the case to be adjourned. 

McKECHNIE J:   Yes, but we have considered that and have decided we will not adjourn.  Do you have any further submissions?  As we already have your written submissions, do you have any further submissions?

CHIN, MR:   Your Honour, if you proceed with this matter, it will have deep repercussion on my life.  Your Honour, in matters of substantive law I am culpable if I do not know but in matters of procedure this court should help me.  Your Honour, I am sure this full bench has the humanitarian aspect to consider me as a victim of the situation.  And, your Honour, if I have advanced enough proof that there is improper motive on the part of the regulator and the LPCC then this court must set that decision aside. 

BEECH J:   Mr Chin, in fairness to you I put this proposition to you for your comment:  what do you say to the proposition that this is a hearing under section 444 of the Legal Practice Act and that any basically competent lawyer would read the section under which the hearing is to occur and would see that it says that the findings of the tribunal are conclusive? 

CHIN, MR:   I am a self‑representing litigant and my perception will always be a bit biased and, therefore, I tend to overlook certain things which I consider is minor or unimportant to me and I have not considered it.  I know ignorance of the law I'm culpable but it's just that I seek for leniency for this court to give me a chance. 

BEECH J:   I invite you to respond to my question not only as it relates to the adjournment application but as it relates to your fitness to continue to practice the law. 

CHIN, MR:   Your Honour, every person in this world make mistakes.  Every judges in this world make mistakes.  The law is so complicated that we cannot have it in our minds all the time.  That is a failing, that is a human failing which everyone of us is subject to.  To apply it to me and not to apply it to others is draconian and harsh.  This court must take into consideration the vagaries of human nature.  I can point out all the many wrongs which a lawyer of some 40 years of experience make, the failings that they make in their professional life.  These are ordinary human failings.  You cannot expect me to be a robot.  You cannot expect me to be not a human being, your Honour. 

McKECHNIE J:   Very well.  Do you have any other submissions? 

CHIN, MR:   My submission is that I have to court so many, many times and I have put every facts and have argued every facts but if the court refuse to accept those facts for no

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reason and the court refuse to give its reason for decision basing on those argument and on those facts which the court has received, it means that either the judge or the court is refusing to do justice to me or is discriminating me. 

McKECHNIE J:   I think you've made that submission about discrimination.  We have that submission.  Do you have anything you have not advanced? 

CHIN, MR:   Everything that I put in my submission dated 30 May, those things truly and fairly reflects my case if there has been a proper finding.  If there has been a proper finding.  If there has been an unbiased mind. 

McKECHNIE J:   You're repeating and I said I'm not prepared to listen to your repetition. 

CHIN, MR:   Yes, your Honour. 

McKECHNIE J:   Is there anything further?

CHIN, MR:   The point is if I came before the court, if I come - because section 58 of the Supreme Court Act allows for any issues and new - for trial of new issues and if I make that application under section 58 and it was refused but the reason for the refusal does not relate to the issue that I advance before the court, the court just dismissed my application for one of care, the court just dismiss it without giving any proper reason and I cannot be described as a frivolous and vexatious litigant. 

McKECHNIE J:   Very well.  Thank you, Mr Chin.  Ms Le Miere, do you have anything in response?

LE MIERE, MS:   No, your Honour. 

McKECHNIE J:   The court will reserve its decision on this application. 

AT 11.25 AM THE MATTER WAS ADJOURNED ACCORDINGLY

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