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 – Section 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;
(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 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 OCCASIONS AND CANNOT REMEMBER 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 REQUIRED 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
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Delete`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
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