Tuesday, September 1, 2026

Request for Administrative Reallocation of VPRA s 6(1) Application



7 comments:

  1. Nicholas N CHIN
    Sep 1, 2026, 5:27 PM (15 hours ago)
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    To: The Principal Registrar All Registrars of the Supreme Court of Western Australia The Honourable the Chief Justice of Western Australia
    From: Nicholas Ni Kok Chin Perth, Western Australia

    Subject: Misapprehension of Judicial Function Under VPRA s 6(1) and s 6(5) — Request for Administrative and Judicial Clarification

    1. Purpose of This Letter
    This letter accompanies my memorandum dated 1 September 2026. Its purpose is to respectfully identify a misapprehension of judicial function that has arisen in the series of VPRA decisions delivered by Justice Gething in:

    Nicholas Ni Kok Chin [2026] WASC 40

    Nicholas Ni Kok Chin [2026] WASC 90

    Nicholas Ni Kok Chin [2026] WASC 157

    Nicholas Ni Kok Chin [2026] WASC 369

    The issue is not personal. It is structural and concerns the correct application of the VPRA and the proper scope of judicial duty under s 6(1) and s 6(5).

    2. The Misapprehension of Role Under VPRA s 6(1)
    In WASC 369, Justice Gething stated:

    “The appropriate forum for determination of that issue is by way of an appeal to the Court of Appeal, not a request for me to reconsider the issue.”

    This statement reveals a fundamental misapprehension of the judge’s statutory role.

    Under VPRA s 6(1):

    Each application for leave is a fresh and independent judicial determination.

    The judge must assess prima facie grounds on the material filed in that application.

    The judge is not functus officio on any legal issue previously considered.

    The judge cannot decline to reconsider a legal question merely because he previously ruled on it.

    The VPRA does not create a doctrine of “issue finality” within the leave jurisdiction.

    3. Misapplication of VPRA s 6(5)
    Justice Gething repeatedly applied a merits‑based test, not the statutory prima facie test.

    The judgment states:

    “They do not raise any argument … which has not already been considered and rejected by me.”

    This is not the test under s 6(5).

    The correct test is:

    Whether the proposed proceeding discloses a prima facie ground,

    Not whether the judge personally agrees with the legal argument,

    And not whether the argument was previously rejected in a different VPRA application.

    By treating earlier decisions as binding on subsequent applications, the judge has:

    Collapsed the prima facie test into a merits test,

    Foreclosed reconsideration of statutory construction,

    Converted VPRA leave into a de facto permanent bar, contrary to Parliament’s intention.

    4. Failure to Consider Mandatory Relevant Matters
    In WASC 369, the judgment does not address:

    Transfer of Land Act ss 201 and 205 compensation rights,

    The statutory preservation of pre‑existing quasi‑easements under s 52 PLA,

    The administrative consequences for the Registrar of Titles.

    These matters were squarely raised in the originating motion and affidavit.

    A failure to consider mandatory relevant considerations is a jurisdictional error, not a discretionary one.




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  2. ANNEXURE A — MEMORANDUM TO
    THE CHIEF JUSTICE OF WESTERN
    AUSTRALIA
    Re: Mandatory Judicial Re‐Determination of the Construction of s.52 Property Law Act
    1969 (WA)
    To: The Honourable the Chief Justice of Western Australia
    From: Nicholas Ni Kok Chin Perth, Western Australia
    Subject: Request for Judicial Re‐Determination of the Proper Construction of s.52 Property
    Law Act 1969 (WA) — VPRA Contains No Appeal Mechanism
    1. Purpose of this Memorandum
    This memorandum accompanies my cover letter addressed to all Registrars of the Supreme
    Court of Western Australia. Its purpose is to bring to your attention a systemic legal issue
    arising from the interpretation of Section 52 Property Law Act 1969 (WA) (“s.52 PLA”)
    adopted in Nicholas Ni Kok Chin [2026] WASC 90 and [2026] WASC 369.
    The issue cannot be corrected through an appeal to the Court of Appeal because the
    Vexatious Proceedings Restriction Act 2002 (WA) (“VPRA”) provides no statutory right
    of appeal from a refusal of leave under s.6(1). Accordingly, the matter requires
    determination by another judge of the Supreme Court to prevent the entrenchment of a
    doctrinal error with ongoing administrative consequences.
    2. No Appeal Lies to the Court of Appeal Under the
    VPRA
    The VPRA establishes a closed statutory regime governing applications for leave to
    commence proceedings. The Act:
    ● confers jurisdiction on a judge of the Supreme Court under s.6(1);
    ● requires the judge to determine whether a prima facie ground exists under s.6(5);
    ● does not provide any right of appeal from a refusal of leave;
    ● does not incorporate the appeal provisions of the Supreme Court Act 1935 (WA);
    ● does not permit a challenge to the refusal through ordinary appellate channels.
    Therefore:

    The erroneous construction of s.52 PLA adopted in WASC 90 and WASC
    369 cannot be corrected by the Court of Appeal.
    This creates a structural problem: a legal error of general importance has been made, but
    the statutory framework prevents appellate correction.
    3. The Error Is Systemic and Affects the Court’s
    Administrative Arm
    The construction adopted by Justice Gething — namely, that:
    “s 52 does not create a statutory implied easement”
    is contrary to the historical doctrine codified by Parliament, including:
    ● Pyer v Carter (1857)
    ● Wheeldon v Burrows (1879)
    ● Pwllbach Colliery (1915)
    ● Wong v Beaumont (1965)
    and contrary to the statutory purpose of s.52 PLA.
    This error:
    ● affects all future VPRA applications involving s.52 PLA;
    ● affects the administrative practice of the Registrar of Titles;
    ● affects the integrity of the land register;
    ● affects the rights of landowners whose pre‐existing uses were preserved by statute;
    ● risks perpetuating a misunderstanding of s.52 PLA across the Court’s administrative
    and judicial functions.
    Because the VPRA prevents appellate correction, the error will remain indefinitely unless
    addressed by another judge.
    4. Necessity for Determination by Another Judge
    Given:
    ● the absence of an appeal mechanism under the VPRA;
    ● the systemic nature of the legal error;
    ● the administrative consequences for Landgate and the Registrar of Titles;
    ● the doctrinal importance of s.52 PLA;
    ● and the need for consistency in the Court’s jurisprudence;
    it is necessary that:
    Another judge of the Supreme Court be allocated to determine the proper
    construction of s.52 PLA, independent of the VPRA leave regime.

    This is the only lawful pathway to correct the doctrinal error and prevent its entrenchment.
    5. Request
    I respectfully request that:
    1. The issue of the proper construction of s.52 PLA be referred to another judge of the
    Supreme Court for determination;
    2. The Court provide administrative guidance to the Registrar of Titles to ensure that
    statutory rights arising under s.52 PLA are correctly recorded and maintained;
    3. The Court take steps to prevent the perpetuation of the erroneous construction
    adopted in WASC 90 and WASC 369.
    Yours respectfully,
    Nicholas Ni Kok Chin Perth, Western Australia
    DATED 1ST SEPTEMBER, 2026.

    ReplyDelete
  3. JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    CITATION : NICHOLAS NI KOK CHIN [2026] WASC 369
    CORAM : GETHING J
    HEARD : 27 AUGUST 2026
    DELIVERED : 1 SEPTEMBER 2026
    FILE NO/S : CIV 1628 of 2026
    BETWEEN : NICHOLAS NI KOK CHIN
    Plaintiff

    ReplyDelete
  4. Solicitors:
    Plaintiff : In Person
    Case(s) referred to in decision(s):
    Nicholas Ni Kok Chin [2026] WASC 157
    Nicholas Ni Kok Chin [2026] WASC 40
    The Principal Registrar of the Supreme Court v Chin [2012] WASC 7

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  5. https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision?returnUrl=%2feCourtsPortal%2fDecisions%2fFilter%2fSC%2fRecentDecisions&id=9882d22c-d291-4727-9a68-7193295ee51c

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  6. GETHING J

    Page 3

    GETHING J:
    1 By originating motion filed on 14 May 2026, Nicholas Ni Kok
    Chin (the Applicant) seeks leave to commence proceedings pursuant to
    Vexatious Proceedings Restriction Act 2002 (WA) (VPRA) s 6(1).
    Leave is required as in 2012 the Supreme Court prohibited Mr Chin
    from instituting proceedings in any Western Australian court or tribunal
    without the leave of the court.1
    2 The proceedings which Mr Chin seeks leave to commence are
    against the State of Western Australia and the Registrar of Titles
    (Proposed Proceedings). The Proposed Proceedings relate to a
    commercial property in Malaga. The relief sought is set out in the
    originating motion in the following terms:
    A. Compensation under the Transfer of Land Act 1893 (WA)
    A.1 Compensation under ss 201(1) and 205(1) for
    deprivation of an estate or interest in land, including the
    loss of the 31 items of plant and equipment formerly
    located at Unit 1/383 and registered under PPSR No.
    20170412006511.

    B. Declarations concerning the statutory implied easement
    under s 52 Property Law Act 1969 (WA)
    B.1 A declaration that Unit 1 on Strata Plan 34659
    (Unit 1/383) satisfies the legal requirements for
    creation of a statutory implied easement, including that:
    (i) Prior to subdivision, Lot 12 (383 Victoria
    Road) was held in common ownership by St
    Mark Investment Pty Ltd (unity of
    possession);
    (ii) During unity of possession, the portion now
    comprising Unit 1/383 was designated and
    operated as the Victoria Road Lunch Br.
    (iii) The lunch bar portion enjoyed continuous and
    apparent quasi-easement rights over adjoining
    parts of Lot 12;
    (iv) The quasi-easement was reasonably necessary
    for the enjoyment of Unit 1/383 at the time of
    subdivision;

    1 The Principal Registrar of the Supreme Court v Chin [2012] WASC 7.

    [2026] WASC 369

    GETHING J

    Page 4
    (v) The easement was not expressly excluded in
    the instrument of subdivision; and
    (vi) Upon subdivision, the easement attached to
    Unit 1/383 as an incident of the land.
    C. Declarations concerning extinguishment and loss
    C.1 Declarations identifying the existence, scope, and
    purported extinguishment of the statutory implied
    easement, including that:
    (i) Any purported extinguishment was effected
    without lawful authority or compliance with
    the Transfer of Land Act 1893 (WA);
    (ii) Such extinguishment was invalid and of no
    legal effect; and
    (iii) The loss of the 31 items of plant and
    equipment was caused by enforcement of the
    void order made by Magistrate Ward in
    MC/PER/CIV 10010/2020.

    D. Damages
    D.1 Damages for deprivation of an estate or interest in land,
    including consequential loss arising from removal, sale
    or destruction of the 31 items of plant and equipment.

    E. Further relief
    E.1 Such further or other orders as the Court considers
    appropriate.

    ReplyDelete
  7. 3 So far this year, the Applicant has made three applications relating
    to the same matter, each of which have been decided by me:
    (a) an application by originating motion filed 27 January 2026,
    dismissed on 13 February 2026 (February Decision);2
    (b) an application by originating motion filed 3 March 2026,
    dismissed on 27 March 2026 (March Decision);3
    and

    2 Nicholas Ni Kok Chin [2026] WASC 40.
    3 Nicholas Ni Kok Chin [2026] WASC 90.

    [2026] WASC 369

    GETHING J

    Page 5
    (c) an application by originating motion filed 16 April 2026,
    dismissed on 4 May 2026 (May Decision).4

    4 The Applicant filed affidavit sworn by him on 9 May 2026 as well
    as the following submissions:
    (a) 'Written Submissions of the Applicant' filed 16 May 2026;
    (b) 'Second Submission – Factual Matrix' filed 22 May 2026;
    (c) 'Third Full Submission of the Applicant' filed 23 May 2026;
    (d) 'Fourth Full Submissions of the Applicant to Correct Section 3
    of the Third Submissions' filed 23 May 2026;
    (e) 'Consolidated Submissions for Hearing' filed 3 June 2026;
    (f) 'Sixth Submission' filed 4 June 2026;
    (g) 'Sixth Written Submission' filed 19 June 2026;
    (i) 'Eighth Written Submission' filed 19 June 2026;
    (j) 'Ninth Written Submission of the Plaintiff' filed 21 June 2026;
    (k) 'Oral & Written Submission (Hand-Up)' filed 22 June 2026;
    (l) 'Eleventh Written Submission of the Plaintiff' filed 26 June
    2026;
    (m) 'Twelfth Written Submission' filed 27 June 2026;
    (n) 'Thirteenth Written Submission (Consolidated)' filed 4 July
    2026;
    (o) 'Fourteenth Written Submission' filed 5 July 2026;
    (p) 'Fifteenth Written Submission of the Plaintiff' filed 16 August
    2026;
    (q) 'Written Submission No. 16' filed 21 August 2026;
    (r) 'WS16 – Written Submissions of the exparte Applicant' filed
    22 August 2026;

    4 Nicholas Ni Kok Chin [2026] WASC 157.

    [2026] WASC 369

    GETHING J

    Page 6
    (s) 'MUCC Consideration Notification', handed up at the hearing
    on 27 August 2026;
    (t) 'Oral Script for Justice Gething', handed up at the hearing on
    27 August 2026;
    (u) '17th Written Submissions', handed up at the hearing on
    27 August 2026; and
    (v) 'Contingent WS16', handed up at the hearing on 27 August
    2026.

    5 I have read each set of submissions. They do not raise any
    argument relevant to the grant of leave to commence the Proposed
    Proceedings which has not already been considered and rejected by me
    in the February Decision, March Decision or May Decision. Nor did
    his oral submissions. The foundational legal premise of the Proposed
    Proceedings is that Property Law Act 1969 (WA) s 52 creates a
    'statutory implied easement'. As I set out in the May Decision ([9]), it
    does not.
    6 At points in the documents I have set out at [4], and in oral
    argument, the Applicant asserts that I have made errors in one of my
    earlier decisions. The appropriate forum for determination of that issue
    is by way of an appeal to the Court of Appeal, not a request, in effect,
    for me to reconsider the issue.
    7 I find that there is no prima facie ground for the Proposed
    Proceedings for the purposes of VPRA s 6(5). Therefore I must dismiss
    the application.

    I certify that the preceding paragraph(s) comprise the reasons for decision of
    the Supreme Court of Western Australia.
    CC
    Associate to the Hon Justice Gething
    1 SEPTEMBER 2026

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