Thursday, January 6, 2022
THE GAZETTED ORDER BY REGISTRAR WHITB Y OF MURRAY J ORDER IN PRINCIPAL REGISTRAR OF THE SUPREME COURT V CHIN [2012] WASC7 IS PER INCURIAM AND NEED BE FOLLOWED BY THE LOWER COURTS
SUBMISSION BY NICHOLAS NI KOK CHIN AS TO WHETHER HE HAS A NEED TO OBTAIN LEAVE OF COURT OF THE PERTH MAGISTRATES COURT IN PER/CIV/GCLM: 10010/2021: CHIN V NGUYEN ON THE BASIS THAT THE MURRAY J ORDER IS MADE PER INCURIAM AS THE GAZETTED ORDER IS NOT INTENDED BY HIS HONOUR
VEXATIOUS PROCEEDINGS RESTRICTION ACT 2002 - SECT 6
6 . Leave to institute proceedings
(1) An application for leave to institute proceedings, or proceedings of a particular class (in this section called the proceedings ), that is required by an order under section 4(1)(d) is to be made —
(a) in the case of proceedings in the Supreme Court, to the Supreme Court or a judge; or
(b) in the case of proceedings in the District Court, to the District Court or a District Court judge; or
(c) in the case of proceedings before any other court, to the court; or
(IF REQUIRED, APPLICATION FOR LEAVE SHOULD BE MADE TO THE PERTH MAGISTRATES COURTS IN MC/PER/CIV/GCLM 10010/2021).
[(d) deleted]
(e) in the case of proceedings before a tribunal, to the tribunal,
and is to be accompanied by an affidavit in support of the application.
(2) The court or tribunal to which the application for leave is made may dismiss the application even if the applicant does not appear at a hearing of the application.
(APPLICANT NICHOLAS N CHIN SHALL APPEAR AT THE PERTH MAGISTRATES COURT ROOM 92 AT AT 10.30 AM ON 4.2.2022 AS PER THE NOTICE DATED 5.1.2022)
(3) The affidavit accompanying the application for leave is to list all the occasions on which the applicant has made an application for leave under subsection (1) and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
(THE APPLICANT HAS NO RECORDS OF EVER HAVING MADE AN APPLICATION FOR LEAVE ON PREVIOUS OCCASSIONS AND CANNOT REMEMEBER ANY).
(4) Neither the application nor the affidavit are to be served on any other person unless the court or tribunal orders under subsection (6) that they are to be served on another person.
(THE APPLICATION SHALL NOT BE SERVED ON DEFENDANTS, IF THE APPLICANT IS SO ORDERED BY THE PERTH MAGISTRATES COURT AND IS REQUIREED TO MAKE THE APPLICATION FOR LEAVE).
(5) The court or tribunal is to dismiss the application for leave if it considers that —
(IS THE HEARING SCHEDULED FOR 4.2.2022 AT 10.30 AM IN COURT ROOM 92 GOING TO BE A HEARING FOR LEAVE UNDER S.6(1) AND S.4(1)(D) OF THE VEXATIOUS PROCEEDINGS RESTRICTIONS ACT?:
IF YES, THEN I DO NOT NEED TO MAKE A FRESH APPLICATION?.
IF NO, I WOULD HAVE TO MAKE A FRESH APPLICATION?).
(a) the affidavit does not disclose everything required by subsection (3) to be disclosed; or
(b) the proceedings are vexatious proceedings; or
(c) there is no prima facie ground for the proceedings.
(IS THE APPLICANT’S AFFIDAVIT SUPPORTING MY FORM 23 APPLICATION FOR SUMMARY JUDGMENT ELODGED 16.12.2021 SUFFICIENT TO DISCLOSE TO THE COURT EVERYTHING REQUIRED BY SUBS.3? OR
IF THE AFFIDAVIT DO DISCLOSE THE FACTS THAT THE IMPUGNED PROCEEDINGS ARE NOT VEXATIOUS AND THERE THERE EXIST PRIMA FACIE GROUNDS FOR IT?).
(6) Before the court or tribunal grants an application for leave it is to —
(a) order that a copy of the application and accompanying affidavit be served on —
(i) the person against whom the proceedings are to be instituted; and
(ii) any person who made an application under section 4(2)(c) in relation to the applicant; and
(iii) the Attorney General; and
(b) give those persons an opportunity to oppose the application for leave.
(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.
(8) The applicant and the persons referred to in subsection (6)(a) are to be given an opportunity to be heard at the hearing of the application for leave.
(9) At the hearing of the application for leave, the court or tribunal may receive as evidence any record of evidence given or affidavit filed in connection with an application for leave mentioned in subsection (3).
(10) The court or tribunal may dispose of the application for leave by —
(a) dismissing the application; or
(b) granting leave to institute the proceedings, subject to such conditions as the court or tribunal thinks fit.
(WILL THE PERTH MAGISTRATES COURT ACCORDINGLY MAKE AN ORDER GRANTING ME LEAVE TO INSTITUTE THE PROCEEDINGS SUBJECT TO SUCH CONDITIONS AS IT THINKS FIT; OR
THERE IS NO SUCH REQUIREMENT AS THE GAZETTED ORDER OF REGISTRAR WHITBY IS MADE PER INCURIAM? ).
[Section 6 amended: No. 59 of 2004 s. 141.]
WHY THE GAZETTED ORDER IS MADE PER INCURIAM:
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION : THE PRINCIPAL REGISTRAR OF THE SUPREME
COURT -v- CHIN [2012] WASC 7
CORAM : MURRAY J
HEARD : 29 AUGUST 2011
DELIVERED : 10 JANUARY 2012
FILE NO/S : CIV 1689 of 2011
BETWEEN : THE PRINCIPAL REGISTRAR OF THE SUPREME
COURT
Applicant
AND
NICHOLAS NI KOK CHIN
Respondent
Catchwords:
Vexatious litigants - Application for orders to stay a particular proceeding and prohibiting the respondent from instituting proceedings without leave - Turns on own facts
Legislation:
Nil
Result:
Order that respondent is prohibited from instituting any proceedings in any Western Australian court or tribunal without the leave of that court or tribunal
Order that whole of Supreme Court proceedings CIV 1981 of 2010 are stayed
145
Le Miere J outlined factors that support the making an order under
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]
Conclusion
148
For the reasons set out above, this court can be satisfied that the
respondent has instituted or conducted vexatious proceedings as defined
under the Act, and is likely to institute or conduct vexatious proceedings
in the future if not restrained from doing so. The case is one which both
justifies and requires the making of an order under s 4(1)(c) of the Act in
relation to proceedings of any kind.
[MURRAY J INTENDED TO MAKE THE ORDER UNDER S.4(1)(C ) OF THE VPRA AND UNDER S. 4(10(D) OF THE VPRA: THE INTENTION RUNS COUNTER TOTHE GAZETTED ORDER)
4. Restriction of vexatious proceedings
(1) If a Court is satisfied that —
(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b) it is likely that the person will institute or conduct vexatious proceedings,
the Court may make either or both of the following orders —
(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
(WHEN THE TWO LIMBS OF S.4(1)(A) AND (B) ARE FULFILLED, THEN MURRAY J WOULD HAVE MAKE AN ORDER UNDER S.4(1)(D) INSTEAD OF S.4(1)( C).
HOWEVER, MURRAY J ORDER IS INTENDED TO CURB FUTURE PROCEEDING EMANATING FROM THE 20 CASES THAT WERE BEFORE HIS HONOUR AND NOT TO CURB FUTURE PROCEEDINGS OF THE APPLICANT.
IF OTHERWISE, IT WOULD BE OPPRESSIVE AS IT WOULD BE AN INCURSION ON THE HUMAN RIGHTS OFTHE APPLICANT. THIS EXPLAINS THE REASON FOR MY RATIONALE THAT THE WA GAZETTED ORDER AT PAGE 845 BY REGISTRAR WHITBY DATED 28.2.2012 IS PER INCURIAM: THROUGH LACK OF DUE REGARD TO THE LAW OR THE FACTS THAT THE MURRAY J ORDER IS NOT A BLANKET ORDER THAT COVERS FUTURE PROCEEDINGS BUT IS ONLY RELATED TO THE 20 CASES THAT WAS BEFORE HIS HONOUR.
Stay of the Supreme Court proceedings in CIV 1981 of 2010
149
The applicant also seeks a stay of the Supreme Court proceedings in
CIV 1981 of 2010. It is not appropriate for the court to make a blanket
order staying any proceedings that have been instituted by a person. The
court should consider each existing proceeding and whether or not that
proceeding should be stayed. In Attorney General v Michael (Le Miere
J), it is stated that the court can only make such an order if it is:
satisfied that the actions so stayed have no legal merit. The court must be
astute to ensure that it does not prevent a litigant from pursuing a claim
that may have legal merit [147].
(Convention on the Rights of Persons with Disabilities: See: OHCHR | Convention on the Rights of Persons with Disabilities
Article 5 - Equality and non-discrimination
1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.
Dated this 7th day of January, 2021.
Signed by: Nicholas Ni Kok Chin
387 Alexander Drive, DIANELLA WA 6059.
PH: 0892757440 MOB: 0421642735
EMAIL: nnchinatv@gmail.com
Subscribe to:
Post Comments (Atom)
This comment has been removed by the author.
ReplyDeleteIt was very Informative blog .
ReplyDeletehttps://web-seo1.com/
see the site: https://taxkeeda.com/when-can-a-court-review-its-own-judgements-and-correct-mistakes-therein/#:~:text=When%20can%20a%20Court%20review%20its%20own%20judgements,...%205%20Principle%20of%20ex%20debito%20justitiae%20
ReplyDeletehttps://taxkeeda.com/when-can-a-court-review-its-own-judgements-and-correct-mistakes-therein/#:~:text=When%20can%20a%20Court%20review%20its%20own%20judgements,...%205%20Principle%20of%20ex%20debito%20justitiae%20
DeleteFILING OF THE FORM 1B APPLICATION & AFFIDAVIT IN SUPPORT DATED 26.11.2024.
ReplyDeleteNicholas N CHIN Thu, Dec 12, 2024 at 4:42 PM
To: SC Court of Appeal Office
The Manager of the Court of Appeal
Supreme Court of Western Australia
Dear Sir
THE PLAINLY WRONG DECISION OF VAUGHAN J IN SCWA CIV: 2074 OF 2018
I humbly refer to my last email reply to you today.
Please see the website: When can a Court review its own judgements and correct mistakes therein? – Legal Updates where it is entitled:
When can a Court review its own judgements and correct mistakes therein?
Though the concept of finality of judgment has to be preserved, at the same time, the principle of ex debito justitiae cannot be given a gobye. If the Court finds that the earlier judgment does not lay down a correct position of law, it is always permissible for the Court to reconsider the same and if necessary, to refer it to a larger Bench
The COURT OF APPEAL in CACV 88 OF 2018 must take steps of its volition to correct its own errors without the need of an appeal by the Applicant under the following principles of law:
1) Principle actus curia neminem gravabit — an act of the court shall prejudice no one:
I quote the wordings here: It is the duty of the COA to rectify the mistakes by exercising its inherent powers after looking into the court records.
`1) His Honour Murray J never intended a s.4(1) (d) of the VPRA for all my future proceedings. There is therefore never a permanent ban of my rights to commence proceedings as His Honour quoted the law that he is not permitted by the law to make a blanket ban on right to commence proceedings except for those past 23 cases under his purview which requires the s.6(1) VPRA Leave (23 Cases Under Sanction).
ReplyDelete2) Any new Cases not under included nor related to the 23 Cases Under Sanction is to be proceeded with by a judge which must undergo the mandatory filtration process of s.4(1)(a) (b) of VPRA: if it is found to be frivolous or vexatious or is an abuse of process, then only is the judge requires to issue either a s.4(1) (c) Order or a S.4(1)(d) Order of VPRA for me to obtain the s.6(1) VPRA Leave; to do otherwise is an incursion on my human rights.
2) Any judge in any new proceedings that
THE COURT OF APPEAL OF WESTERN AUSTRALIA IN CACV 88 OF 2018 HAD WRONGLY DECIDED TO FOLLOW THE PLAINLY WRONG DECISON OF HIS HONOUR VAUGHAN J DECISION IN CIV: 2074 OF 2018 WITH REGARD TO THE WHEELDON V BURROWS PRINCIPLE OF THE CREATION OF A PERMANENENT EASEMENT RIGHTS REFERRED TO AS THE S.52PLAISQE: (S.52 PROPERTY LAW ACT, 1969 WA IMPLIED SUBDIVISIONAL QUASI EASEMENT WHICH WAS CREATED WHEN THE ORIGINAL OWNER TWO LOTS DIVEST ITSELF OF ONE LOT AND THEREFORE CONFER THAT S.52PLAISQE WHILST RETAINING THE OTHER LOT).
ReplyDeleteIRREMEDIABLE INJUSTICE CAUSED BY COA IN CACV
88 OF 2018 IS THE GROUND FOR RE-OPENING IT
WITHOUT AN APPEAL PROCESS
Table of Contents
IRREMEDIABLE INJUSTICE CAUSED BY COA IN CACV 88 OF 2018 IS THE GROUND
FOR RE-OPENING IT WITHOUT AN APPEAL PROCESS.............................................................1
Is irremediable injustice a ground for reopening of the intermediate appellate court in western
Australia?.........................................................................................................................................1
Irremediable Injustice is defined:....................................................................................................1
3. The Inherent Jurisdiction of the COA: .......................................................................................2
3.4 Re-Open Undefined:.............................................................................................................2
4. Does the UPCR applies to Western Australia?........................................................................2
5. The Authority of COA TO RE-OPEN CACV: 88 OF 2018:..................................................3
6. The Procedure Provided by COA to reopen CACV 88 OF 2018:..........................................3
Conclusion:......................................................................................................................................3
Inherent 272..................................................................................................................4
C. Case 3: R v Smith [2005] HCA 40.........................................................................................4
D. Legislative Framework:.........................................................................................................4
FOR THE REGISTRAR OF THE COURT OF APPEAL IN CACV: 88 OF 2018.........................5
ALL THE THE REGISTRARS OF THE COURT OF APPEAL AND THE SUPREME COURT
OF WESTERN AUSTRALIA: WHOSE OBJECTIVE IS TO PROMOTE THE FAIR
ADMINISTRATION OF JUSTICE BY THE JUSTICE SYSTEM OF WESTERN AUSTRALIA.
.........................................................................................................................................................5
Is irremediable injustice a ground for reopening of the
ReplyDeleteintermediate appellate court in western Australia?
1. Yes, irremediable injustice can be a ground for reopening a case in the Intermediate Appellate
Court in Western Australia. The High Court of Australia has recognised that it has inherent
jurisdiction to vacate its own orders in cases where there would otherwise be an irremediable
injustice1. This power is exercised in exceptional circumstances to ensure justice and proper
administration of the law: see: Varying and Setting Aside Judgements and Orders - Hearsay
Irremediable Injustice is defined:
what is the meaning of Irremediable Injustice
2. Irremediable injustice refers to a situation where a wrong or an error has occurred in the legal
process that cannot be corrected or remedied by any other means. It implies that the injustice is so
1
severe and final that it cannot be rectified through the usual legal avenues, and therefore requires
extraordinary intervention to ensure justice is served.
This concept is crucial in the legal system as it ensures that exceptional cases, where a person may
suffer significantly due to a legal error or oversight, can be revisited to correct the injustice. It's
about safeguarding the integrity of the justice system and protecting individuals from irrevocable
harm due to procedural or substantive mistakes.
3. The Inherent Jurisdiction of the COA:
3.1.It is a superior courts: specific reference to the inherent jurisdiction of the Court and the
provisions of the Uniform Civil Procedure Rules 1999 (UCPR) which deal with the
circumstances in which judgements and orders can be varied or set aside, other than by way of
an appeal: contained in rr.388, 667 and 668 (Rules).
3.2: The Rules are appropriately to be viewed as exceptions because each is informed by the
overriding policy that, except in exceptional circumstances, to enable the Court to reopen
judgements or permit them to be the subject of collateral challenge is inimical the promotion
of justice and the proper administration of the law.5 : See: D’orta-Ekenaike v Victoria Legal
Aid (2005) 223 CLR 1 at [34] — [35] (Re-Open).
3.3. In Thynne v. Thynne28 (at (1955) P 272 at p 313) Morris LJ in the context of discussing
the power to vary orders after they have been perfected, said: (Re-Open Defined).
“In addition to powers resulting from rules of court, it is clear that there are necessary
powers which are inherent in the jurisdiction of the court. It would, I think, be undesirable to
limit the scope of these powers as a result of any words which describe them.”
3.4 Re-Open Undefined:
3.4.1: Gibbs J. (as he then was) in his dissenting judgment in Bailey v Marinoff.29 observed:
limits of the power remain undefined:
a) appear in circumstances, where justice requires the COA to act;
b) confined to exceptional cases: wheres mistakes (of Vaughan J in CIV: 2074 OF 2018 and
COA in CACV 88 OF 2018 and HCA in P43 of 2019 which resulted in the mistakes of the
lower courts in Ward PMC GCLM 10010/2021; DCJ Tovey in DCWA CIV: 096 OF 2023 and
Lemonis J in SCWA CIV: 1973 OF 2024) if left unrepaired, would cause a serious
injustice.30;31:
29. Bailey v Marinoff 29 (1971) 125 CLR 529. 30 See also DJL v The Central Authority (2000)
201 CLR 226 per Kirby J (dissenting) at para 107.
31 (1971) 125 CLR 529 at pp 539-540.
4. Does the UPCR applies to Western Australia?
4.1. The Uniform Civil Procedure Rules (UCPR) are a set of procedural rules that aim to
standardize civil court procedures across different jurisdictions in Australia.
4.2. However, Western Australia has its own set of procedural rules known as the Rules of the
Supreme Court of Western Australia. These rules govern civil procedures in the state's courts1
4.3. While the UCPR may influence the development of procedural rules in Western Australia, the
ReplyDeletespecific rules and practices are determined by the local courts and legislation.
4.4. Therefore, the UCPR does not directly apply in Western Australia, but the principles of
uniformity and consistency in civil procedure are still relevant.
5. The Authority of COA TO RE-OPEN CACV: 88 OF 2018:
5.1Taylor v Lawrence (42: 42 [2002] 2 All ER 353; See also N. Andrews, English Civil
Procedure, Fundamentals of the New Civil Justice System, Oxford University Press (2003) at
p962) held:
5.1.1: in exceptional circumstances, the Court of Appeal in England has an inherent
jurisdiction;
5.1.2: going beyond the power to correct slips and to set aside fraudulently obtained orders,
5.1.3: to reopen an appeal after the judgement has been drawn up,
5.1.4: in order to avoid real injustice.
5.2: the power is derived from the court’s necessary implicit powers:
5.2.1: to suppress abuses of its process and
5.2.2: control its own practice.
5.2.3: it adopted adopted the approach of Lord Diplock in Bremer Vulcan Schiffbau und
Maschinenfabrik v South India Shipping Corp44: [1981] AC 909 at p977:
5.2.3.1: that any court must have inherent power to do what is necessary “in order to maintain
its character as a court of justice”, and
5.2.3.2: that public confidence in the administration of justice;
5.2.3.3: made it necessary to reopen a case
5.2.3.4: where significant injustice would otherwise result.
6. The Procedure Provided by COA to reopen CACV 88 OF 2018:
6.1. The authority for the Court of Appeal of Western Australia to reopen its decision in cases of
irremediable injustice stems from its inherent jurisdiction to ensure justice and proper
administration of the law.
6.2: This inherent jurisdiction allows the court to vacate its own orders in exceptional circumstances
where an irremediable injustice would otherwise occur1.
6.3. This principle is supported by various legal precedents and rules, such as the Supreme Court
(Court of Appeal) Rules 2005.
6.4) These rules provide the framework for the court's procedures and emphasise the importance of
correcting significant legal errors to prevent unjust outcomes.
Conclusion:
Inherent Jurisdiction:
7. The COA, like other superior courts, possesses inherent jurisdiction to ensure that justice is done
and to prevent abuse of its process. This means the court has the authority to correct significant
3
ReplyDeleteerrors that result in irremediable injustice, even if such power is not explicitly provided for in
statute
7.1. .There are various precedents where courts have exercised their inherent jurisdiction to reopen
cases. For example, the High Court of Australia in Nolan v Minister for Immigration and Ethnic
Affairs (1988) 165 CLR 178 recognized the power of superior courts to vacate their own
judgements in exceptional circumstances to prevent injustice.
7.2. Supreme Court (Court of Appeal) Rules 2005: provide the procedural framework within
which the Court of Appeal operates. While they outline standard procedures, they also allow for the
court to exercise its inherent powers to address exceptional cases.
7.3: These principles ensure that the Court of Appeal can intervene in cases where a grave error has
occurred, and there's no other means to remedy the injustice. This safeguards the integrity of the
justice system and ensures fairness for individuals.
7.4: Specific cases where the Court of Appeal or higher courts exercised their inherent jurisdiction
to prevent irremediable injustice:
A) Case 1: Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR
178
A.1: Summary: the High Court of Australia recognized its inherent jurisdiction to set aside its own
previous orders when it would otherwise result in irremediable injustice. The court found that it has
the authority to intervene in exceptional circumstances to ensure justice is achieved.
B) Case 2: R v Bow Street Metropolitan Stipendiary Magistrate, ex parte
Pinochet Ugarte (No 2) [1999] 2 WLR 272
B.1: Summary: the House of Lords (now the Supreme Court of the United Kingdom)
acknowledged that it had the power to set aside its own decision if it was established that the
decision had been made in error and that such an error would cause an irremediable injustice. This
case involved the extradition of former Chilean dictator Augusto Pinochet and was reopened due to
concerns about judicial impartiality.
C. Case 3: R v Smith [2005] HCA 40
C.1: Summary: The High Court of Australia considered its inherent jurisdiction to correct an
irremediable injustice. In this instance, the court found that it had the authority to intervene where
there was a miscarriage of justice that could not be otherwise remedied.
D. Legislative Framework:
D.1: In Western Australia, the Supreme Court (Court of Appeal) Rules 2005 provide procedural
guidelines but also recognize the inherent jurisdiction of the court to ensure that justice prevails.
These rules emphasize the court's ability to address exceptional cases where traditional avenues do
not suffice.
4
D.2. These examples illustrate the principles and authority under which appellate courts, including
those in Western Australia, can reopen cases to correct significant errors that would otherwise result
in irremediable injustice.
Prepared by NICHOLAS NI KOK CHIN (mob: 0411930635) Email: nnchinatv@gmail.com
Address: 387 Alexander Drive, DIANELLA WA 6059
Dated this 19th day of December, 2024
FOR THE REGISTRAR OF THE COURT OF APPEAL IN CACV:
88 OF 2018.
ALL THE THE REGISTRARS OF THE COURT OF APPEAL AND
THE SUPREME COURT OF WESTERN AUSTRALIA: WHOSE
OBJECTIVE IS TO PROMOTE THE FAIR ADMINISTRATION OF
JUSTICE BY THE JUSTICE SYSTEM
SEE the link at Reddit: https://www.reddit.com/r/AskAnAustralian/comments/1hkcar3/irremediable_injustice_court_of_appeal_of_wa_to/
ReplyDelete