VOID COSTS ORDER OF MAGISTRATE SHARRATT OF THE MIDLAND MAGISTRATE COURT IN VRO 585 OF 2018

MAGISTRATES COURT OF WESTERN AUSTRALIA APPLICANT’S (NICHOLAS NI KOK CHIN) REGISTRY: MIDLAND CASE NO: VRO 585 OF 2018 APPLICANT: NICHOLAS NI KOK CHIN ADDRESS: 387 ALEXANDER DRIVE, DIANELLA WA 6059 Phone 08 92757440 Mob: 0421642735 Email: nnchin2@gmail.com RESPONDENT: IAN ROBERT JACK SOLICITOR/COUNSEL FOR THE RESPONDENT: MR W.G. VOGT ADDRESS: VOGT GRAHAM LAWYERS Suite 1, Level 5, 102, James Street, NORTHBRIDGE WA 6003 Ph: 9328 5999; Fax: 9328 6046 Email: enquiries@vogtgraham.com.au DATED: 11TH JULY, 2018 ------------------------------------------------------------------------------------------------------------------------- AMENDED SUPPLEMENTARY SUBMISSIONS BY APPLICANT FOR HIS CJEA FORM 9 SUSPENSION ORDER APPLICATION DATED AND FILED 1.8.2018 SERVED 2.8.2018 AGAINST MAGISTRATE SHARATT’S VOID COSTS ORDER - MADE IN FAVOUR OF THE RESPONDENT DATED 10.7.2018 (SUSPENSION ORDER APPLICATION) : FOR HEARING ON THURSDAY 9.8.2018 AT 9.00 AM. ------------------------------------------------------------------------------------------------------------------------- Contents THE REASONS FOR THE VOID COSTS ORDER DATED 10.7.2018 1 THE REASONS FOR MAGISTRATE’S SHARRATT WANTING IN JURISDICTION OR THE ERROR OF LAW OF MAGISTRATE SHARRATT: 2 Conclusion: 5 THE REASONS FOR THE VOID COSTS ORDER DATED 10.7.2018 1. The Belated Applicant’s Submission supported by the Aggravation resulted in the Void Costs Order which merit the Non-Requirement of Appeal as per the Applicant’s first, but belated submissions served by email and dated 11.7.2018 (the Void Costs Order). 2. The Void Costs Order is caused by the allegedly Fraudulent Cancellation of VRO 1005/2017 and Magistrate Sharratt’s Awareness which forms the Applicant’s Reliance: they had resulted in the Applicant Taken By Surprise as per the belated submissions. 3. This Court is bound by the common-law principle enunciated by the High Court of Australia as per the decision of the Court of Appeal of the Supreme Court of Western Australia in HO -v- LONERAGAN [2013] WASCA 20 at paragraph 32 are in these words (The Error of Law of Magistrate Sharratt): “It has long been held that a judicial order of a superior court, even if made in excess of jurisdiction, is at most voidable and has effect unless and until it is set aside: Scott v Bennett (1871) LR 5 HL 234, 245; Revell v Blake (1873) LR 8 CP 533, 544; Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 590 - 591; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [151]. The position in relation to inferior courts or tribunals, however, is different. In Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369, Dixon J, referring to proceedings in a Court of Petty Sessions, emphasised: [T]he clear distinction [which] must be maintained between want of jurisdiction and the manner of its exercise. Where there is a disregard of or failure to observe the conditions, whether procedural or otherwise, which attend to the exercise of jurisdiction or govern the determination to be made, the judgment or order may be set aside and avoided by proceedings by way of error, certiorari, or appeal. But, if there be want of jurisdiction, then the matter is coram non judice. It is as if there were no judge and the proceedings are as nothing. They are void, not voidable (389).” THE REASONS FOR MAGISTRATE’S SHARRATT WANTING IN JURISDICTION OR THE ERROR OF LAW OF MAGISTRATE SHARRATT: 1. The Sharratt Court is wanting in jurisdiction when it ordered the Void Costs Order of $750.00 on 10.7.2018 FOR THE ALLEGED CONTEMPT OF COURT OF THE APPLICANT against the Applicant for the following reasons: 1.1. The Applicant has never been barred or banned by His Honour Justice Murray in Principal Registrar of the Supreme Court v Chin [2012] WASC (10 January, 2012) but that Court had been misled or lead into the false belief on an error of law and error of facts that the Applicant was ever in contempt of court when he is not (indeed the finding of Magistrate Sharratt on 10.7.2018): the law does not permit such a blanket order at [149] of that wrongly cited case (the Non-Debarment). 1.2. Even if there is Non-Debarment, the learned trial judge His Honour Magistrate Sharratt must first be satisfied that the Applicant (in VRO 585 of 2018 which is a substitute for VRO 1005/2017 (the Application) (is indeed conducting vexatious proceedings pursuant to s. 4(1) of the Vexatious Proceedings Restrictions Act, 2002 (WA)) (the Condition of the VPR Act). 1.3. In this case, the Application is wrongly adjudged by the trial judge to be vexatious when the Condition of the VPR Act is not being fulfilled because the Applicant is merely attempting to reinstate VRO 1005/2017 by substituting it with the new VRO 585/2018 as directed and aided by a Midland Court Officer and he is therefore not even commencing a fresh action at all (the Non-Commencement of a New Action). 1.4. The Prohibited Proceedings as per Murray J in the cited case at [151] does prevent the Commencement of a New Action only in relation to Non-Debarment: however, the VRO 585 of 2018 does not belong to that class of cases as cited at [151] for which s. 6(1) of the VPR Act serves to protect the Respondent – even if the Respondent belongs to that class of person to be protected by s. 6(1) of the VPR Act, then only s. 4(1)(d) of the VPR Act would be invoked to require leave of the trial judge Magistrate Sharratt (the Non-VPR Leave). 1.5. By virtue of the Non-VPR Leave, the learned trial judge does not have the power to grant the Applicant that s.4(1)(d) VPR Leave on 10.7.2018 because on that date he ought to be hearing the Applicant pursuant to s.46 Restraining Orders Act, 1997 (WA) (the RO Hearing Proper) as opposed to the s.46 ROA Leave Hearing (the ROA Leave Hearing) which he should have granted to the Respondent on 29.5.2018 (the Non-Empowerment of the Contempt of Court Costs Order Dated 10.7.2018). 1.6. The Non-Empowerment of the Contempt of Court Costs Order Dated 10.7.2018 resulted in the Non-Cancellation of the VRO 1005/2017 Dated 29.5.2018 because of the missing step to progress from the ROA Leave Hearing to the ROA Hearing Proper which should have occurred consecutively on 29.5.2018 and 10.7.2018 respectively and these events did not happen because of the trial judge errors (the Missing s.46 ROA Hearing on 10.7.2018). 1.7. The Missing S. 46 ROA Hearing on 10.7.2018 is adumbrated by the learned trial judge’s error mistaking that the missing ROA Leave Hearing is synonymous with his decision to Cancel the VRO 1005/2017 on 29.5.2018 (the Mistaken Cancellation of VRO 1005/2017 on 29.5.2018). 1.8. Whilst the Mistaken Cancellation of VRO 1005/2017 does not require the Applicant as the person protected by VRO:1005/2017 to be present but the Missing s.46 ROA Hearing on 10.7.2018 do require the Applicant as the Person being protected by it, to be present: otherwise it would be a denial of natural justice to the Applicant (The VOID Cancellation of VRO: 1005/2017 on 29.5.2018). 1.9. The VOID Cancellation of VRO: 1005/2017 on 29.5.2018 has implications on the proper reading of ss. 16, 31 and 33 of the ROA as the VRO 1005/2017 has been made a FINAL ORDER which has a life-span of two years and cannot be terminated until its expiry date on 28.12.2019 (the VRO 1005/2017 FINAL ORDER OF TWO YEARS DURATION). 1.10. The VRO 1005/2017 FINAL ORDER OF TWO YEARS DURATION is made by the trial judge himself on 28.12.2017 to enable the Respondent to complete the HIA Job but the Respondent has recalcitrantly caused a delay of his SAT Mediation Agreement in CC 2487 of 2017 dated 8.1.2018 and this has escalated into the current proceedings between the Applicant’s spouse Irene Yok Moy Lem as the Owner of the Uncompleted HIA Job and the Respondent in Perth Magistrates Court 4423 of 2018 (the Purpose of VRO 1005/2017). 1.11. Until the Purpose of VRO 1005/2017 has been achieved by the parties as originally envisaged by Magistrate Sharratt himself, the Respondent has no entitlement under the law to have it fraudulently removed without the consent of the Applicant: the basis for its non-cancellation is based on the ground that it the original VRO 1005/2017 is necessary to be in force albeit even beyond its two-year limit period to protect the Applicant and his family members from harm or potential harm because the Respondent is required to be present at 387 Alexander Drive, DIANELLA WA 6059 to complete the HIA Job(the Necessary Protection). 1.12. By reason of the Necessary Protection, the Applicant has no desire at all material times to cause the Respondent any hardship or at all s a consequence of the VRO: 585/2018 as the Respondent is the author of his own hardship as he is the one who caused the delay of the completion of the HIA Job because he had recalcitrantly removed the Building Permit BC:18/0073 which he had obtained from the City of Stirling on 17.1.2018 which was worked out for him with his Implied Authority to his Assistant Fred Hancy through the assistance of the Applicant with his consent and knowledge at all material times on 16.1.2018 (the Respondent’s Recalcitrant Cancellation of the Building Permit to Complete the HIA Job). 1.13. The Necessary Protection must be in force because the Respondent had used the Respondent’s Recalcitrant Cancellation of the Building Permit to Complete the HIA Job as his bargaining tool for the VRO 1005/2017 to be uplifted or removed which the Applicant had refused (The Respondent’s Bargaining Tool). 1.14. The Applicant was not able to accept the Respondent’s Bargaining Tool because the Respondent has been erratic in his conduct and is without integrity in his past misconduct as he had evinced no serious intention to complete the HIA Job even after he had entered into a SAT Mediation Agreement dated 8.1.2018 with Madam Irene Yok Moy Lem who is the Applicant’s spouse (Lack of Faith in the Respondent). 1.15. The Lack of Faith in the Respondent is caused by the Respondent not completing the HIA Job according to the specifications and plans issued by the Consulting Engineers Green Start and not complying with his contractual duties to obtain first building permit, the necessary planning approvals and the development approvals for the HIA Job. He in turn had caused the Applicant’s Spouse Madam Irene Yok Moy Lem to be wrongfully and maliciously prosecuted by the City of Stirling in PE 6810, PE6811, PE6812, PE6813 all of 2018 namely: City of Stirling v Lem Case No. 42045 which is scheduled for hearing at the Perth Magistrates Court on 31.10.2018 (the Misconduct of the Respondent) 1.16. The Misconduct of the Respondent has resulted in the Building Commission of WA Enforcement Division Senior Investigator Ms. Michelle Gaudieri, currently investigating the Respondent’s Misconduct which originates from the Respondent having been prosecuted by the City of Stirling in PE 6817 of 2018 and fined $20,000.00 on 16.2.2018 by Magistrate G. Lawrence for not building according to plans and specifications submitted by him to the City. The Respondent misled the Lawrence Court by not informing it of his contractual duties as explained in the Misconduct of the Respondent and he is also believed to have instigated the City of Stirling to cause the Persecution of the Madam Lem by the City of Stirling albeit, maliciously (the Conviction of the Respondent). 1.17. But for the Conviction of the Respondent, the Applicant’s Spouse Irene Yok Moy Lem would not have to go through the rigmarole of defending the malicious persecutions of the City of Stirling engendered by the Misconduct of the Respondent: the delegated contractual Builder’s Responsibilities of obtaining the necessary building permits and planning and development approvals on time is the reason for the persecution of the owner of the HIA Job (Respondent’s Neglect Caused the Owner to be Persecuted). . . 1.18. It is therefore impossible for the Applicant to avoid the ensuing hardship caused by the reinstatement of the VRO 1005/2017 with the VRO 585/2017 as the fear of potential harm arising from the threats oral, written or implied by the Respondent, is real for the Necessary Protection as cited above as the Respondent is so unpredictable as to what he would do as past experiences have shown for which harm had occurred and may arise again (the Unpredictability of the Respondent). 1.19. Every allegation made above can be proven by documentary evidence by the Applicant even though these Submissions are not evidence in court. The Owner of the HIA Job and her spouse the Applicant are willing to be examined in court in the presence of a Mandarin Language Interpreter for Madam Irene Yok Moy Lem. The Applicant is willing to be cross-examined by the Respondent’s counsel and to provide the necessary documents. But it is not in the nature of the Owner to harbour ill-will against the Respondent despite the Applicant himself having been assaulted by the latter on 3.11.2017 and this assault forms the subject matter of this VRO:1005/2017 which is imposed by the directions of Police WA. The enmity of the Respondent arises because the Owner of the HIA Job was forced to withhold the final payment of the HIA Job Contract Price that was dissipated by the extra costs of professional engineers and architectural expenses for complying with the City of Swan Orders of Ms. Johnson and Mr. Devecchis to rectify the deficiencies of the HIA Job which is faulted upon the Respondent. This had resulted in some overreaching payments made by the Owners who are the Applicant and his Spouse. Whilst Mr. Fred Hancy, the Respondent’s building partner, is ever willing to complete the job the Respondent is the stumbling block for an amicable conclusion of this matter. The Owner is awaiting the processing of the HIA Builders Warranty Insurance Claim pending the settlement of the issues for which the VRO 585 of 2018 must be on to protect the Applicant. Conclusion: Based on the above reasons, the VRO 1005/2017 as substituted by VRO 585/2018 should be reinstated by this Court and the Void Costs Order be and is never enforceable against the Applicant by the Perth Assistant Bailiff who had attached the stated vehicle on 1.8.2018, which does not belong to the Applicant. SIGNATURE OF NICHOLAS NI KOK CHIN AS THE APPLICANT: Dated 6th August, 2018.