[1] “5. Abuse of process: Reference by Registrar to Judge
(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the Registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a Judge or a Master first had and obtained by the party seeking to file or issue it.
[1] The First Judgement of Justice Chaney: http://decisions.justice.wa.gov.au/SAT/SATdcsn.nsf in CHIN and WEST AUSTRALIAN LEGAL PRACTICE BOARD [2008] WASAT 252
[1] The Second Judgment of Justice Chaney also referred to as the res judicata point judgment which is the first stage of the res judicata proceedings in VR 87 of 2009 at: http://decisions.justice.wa.gov.au/SAT/SATdcsn.nsf in LEGAL PROFESSION COMPLAINTS COMMITTEE and CHIN [2009] WASAT 219
[1] The Pseudo Board exists because it was not able to validate its delegated powers by valid minutes as required under ss 10 and 11 of the former LP Act and rr. 15 and 17 of the former Legal Practice Board Rules 2004 to impose conditions on my practice certificate under s. 40 of the former LP Act which shows a majority consent of all members of the Board.
Section 10. Committees
(1) The Board may —
a) appoint committees of members of the Board; and
b) discharge, alter or reconstitute any committee.
(2) A committee is to comply with any direction or requirement of the Board.
(3) A committee may, with the approval of the Board, invite any person, including a member of staff, to participate in a meeting of the committee but such a person cannot vote on any resolution before the committee.
(4) Subject to subsection (2), a committee may determine its own procedure.
Section 11 Delegation
(1) The Board may delegate to a committee established under section 10 any power or duty of the Board under this Act other than this power of delegation.
(2) The delegation must be in writing executed by the Board.
(3) A committee to whom a power or duty is delegated under this section cannot delegate that power or duty.
(4) A committee exercising or performing a power or duty that has been delegated to that committee under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5) Nothing in this section limits the ability of the Board to perform a function through an officer or agent in the normal course of business.
(6) This section does not apply to the execution of documents but authority to execute documents on behalf of the Board can be given under section 16.
15 .Resolution without meeting
(1) A resolution in writing signed, or otherwise assented to, by at least 4 members of the Board has the same effect as if it had been passed at a meeting of the Board.
(2) Subrule (1) does not apply unless —
(a) each member of the Board has been given a notice —
(i) setting out the proposed resolution; and
(ii)requesting the member to respond in writing to the secretary indicating whether the member supports or opposes the resolution not later than the time specified in the notice (the response time ); and
(b) the majority of members whose responses are received by the secretary at or before the response time support the resolution.
(3) A resolution made under subrule (1) is taken to have been passed at the later of —
(a) the response time; or
(b) the time when the fourth member signed or otherwise assented to the resolution.
(4) The non-receipt by a member of the Board of notice of the resolution does not affect the validity of the resolution.
17 .Minutes
(1) The secretary is to keep minutes of every Board meeting.
(2) The minutes, when signed by the chairperson of that or a subsequent meeting, are binding and conclusive for all purposes.
[1] Id.
[1] The Licensor of my legal practice licence cannot unjustifiably withhold its renewal because I have legitimate expectations affecting its duties as a legitimate regulator of the legal profession. On the other hand, the Pseudo Board cannot with malice seeks an arbitrary decision from the Tribunal to impose conditions on my practice certificate under section 40 of the former LP Act just for a whim that I am probably deficient in my professional knowledge. The right course of action it should take is to find me through the tribunal that I am indeed unfit to practice law in accordance with s. 39of the former LP Act, as follows:
39 .Unfit, incapable or insolvent practitioners
(1) In this section —
impairment means —
(a) mental disability;
(b) injury;
(c) physical illness;
(d) dependence on alcohol;
(e) addiction to a deleterious drug or substance;
incapable practitioner means a legal practitioner whose impairment is such that the ability of the person to practise as a legal practitioner is, or is likely to be, adversely affected;
insolvent practitioner means —
(a) a legal practitioner who is an insolvent under administration within the meaning of the Corporations Act;
(b) a legal practitioner director of an incorporated legal practice that is insolvent within the meaning of the Corporations Act;
unfit practitioner means a legal practitioner who —
(a) is not a fit and proper person to hold a practice certificate;
(b) has failed to comply with a condition to which the issue of the practitioner’s practice certificate was subject;
(c) has contravened an order made in respect of the practitioner under, or in a proceeding commenced under, this Act by a regulatory authority;
(d) has contravened a provision of this Act;
(e) is in prison; or
(f) is otherwise unfit to engage in legal practice.
(2) If an applicant for, or holder of, a practice certificate is an insolvent practitioner, the Board may apply to the State Administrative Tribunal for a hearing and determination under section 188.
(3) If the Board suspects or believes that —
(a) an applicant for, or holder of, a practice certificate is an incapable practitioner or an unfit practitioner; and
(b) it would —
(i) be in the public interest or in the interest of the legal practitioner’s clients or potential clients; or
(ii)protect the integrity of the legal profession or the administration of justice, if the application were refused, or the practice certificate suspended or cancelled, the Board may, without further inquiry, apply to the State Administrative Tribunal for a hearing and determination under section 188.
[1] 40 Conditions may be imposed upon practice certificate
(1) The Board may issue a practice certificate unconditionally or subject to conditions.
(2) The Board may, by notice in writing given to the holder of a practice certificate, add to, vary or revoke a condition of a practice certificate, whether or not the certificate was originally issued unconditionally.
(3) Without limiting subsection (1), the conditions that may be imposed include —
(a) restricting the entitlement of the holder of the certificate to practise to certain specified classes of legal practice;
(b) prohibiting the holder of the certificate from engaging in certain specified classes of legal practice;
(c) requiring the holder of the certificate to undertake all legal practice or certain specified classes of legal practice subject to supervision of a specified type;
(d) requiring the holder of the certificate to engage in legal practice only in a type or types of legal practice or in the employment of a specified person;
(e) requiring the holder of the certificate to undertake and complete to the satisfaction of the Board continuing legal education or training of a type or types specified by the Board;
(f) requiring the holder of the certificate to cease employing a specified person or persons.
[(4) repealed]
(5) A legal practitioner who is the holder of a practice certificate must not contravene a condition imposed on the certificate.
[1] http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf in CHIN -v- LEGAL PRACTICE BOARD WESTERN AUSTRALIA [2009] WASCA 117
[1] http://www.austlii.edu.au/au/cases/cth/HCASL/2010/4.html in the case of: Chin v Legal Practice Board of Western Australia [2010] HCASL 4 (10 March 2010)
[1] The live issues for the purpose of this Application in CIV 1019 of 2010 for Certiorari Orders are those issues affecting the mala fides of the Pseudo Full Board which was avoided by Justice Chaney in his First Judgment or rather he did not made a decision on them. These lives issues therefore do not merge into the previous judgments for Leave to Appeal in the Court of Appeal in CACV 105 of 2008 and P36 of 2009 in the High Court of Australia but have a separate existence of their own and is available for the judgment of the Supreme Court in this my current application. Those live issues have never been issues of facts or law in the judgment of Judge Eckert in VR 137 of 2006 on 12.9.2006 or in the antecedent decisions of those court-like tribunals’ decision of the LPCC or the PAC.
[1] See: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666.
[1] Pettitt v Dunkley [1971] 1 NSWLR 376 at 388 which held that his obligations to give reasons as: "an obligation concerning the giving of reasons, lies on any court, including an intermediate court of appeal, so far as it is necessary to enable the case properly and sufficiently to be laid before the higher appellate court".
[1] Evans v The Queen (2006) 164 A Crim R 489 at 522 [272].
[1] Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 573 [160].
[1] Deakin v Webb (1904) 1 CLR 585 at 604-605; Osmond (1986) 159 CLR 656 at 666; Jacobs v London County Council [1950] AC 361 at 369.
[1] Smits v Roach (2006) 227 CLR 423 at 459-460 [104].
[1] Smits (2006) 227 CLR 423 at 461 [111], referring to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 362-363 [79]-[82], 372-373 [115]-[117].
[1] See: Rees v Crane [1994] 2 AC 173 at 187-188 (PC); cf Fingleton v The Queen (2005) 227 CLR 166 at 229-230 [187]-[191].
[1] See: International Covenant on Civil and Political Rights, art 14.1. See also Universal Declaration of Human Rights, art 10; European Convention on Human Rights, art 6(1); American Convention on Human Rights, art 8(1); and African Charter on Human and Peoples' Rights, art 7(1)(b).
[1] See: R v Fleming [1998] HCA 68 at [22].
See the judgment of Justice Hasluck vindicating my rights that I did not make false accusation against fellow legal practitioner Timothy Robin Thies in http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf in the case of: RE MICHELIDES; EX PARTE CHIN [2008] WASC 256;
See also the judgment of the Court of Appeal at http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf in CHIN -v- HALL [2009] WASCA 216 which is a near perfect judgment except for the error of facts and law with regard to the falsification of the court records by Mr. David Taylor as found in paras. 54 and 55 of that judgment; this is now the subject of my Application for Special Leave to Appeal to the High Court in P1 of 2010. This would vindicate my rights that I have not made false allegations against Mr. David Taylor.
See the comments by Justice Chaney with regard to Mr. Alessandro Bertini who was a witness in the case of the First Judgment. Justice Jenkins later partially vindicated the rights of Mr. Bertini thus preventing him from being cowered, pillaged and plundered by members of the legal profession for which the LPCC is guilty of making selective prosecutions: RE BERTINI; EX PARTE BERTINI [2010] WASC 34 at http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf
[1] See L Hand, "Thomas Walter Swan" in The Spirit of Liberty" (1959), 158 at 165 which states:
"There are those who insist that detachment is an illusion; that our conclusions, even when their bases are sifted, always reveal a passional foundation. Even so; though they be throughout the creatures of past emotional experience, it does not follow that experience can never predispose us to impartiality. A bias against bias may be as likely a result of some buried crises, as any other bias"
See also: H Shanks, The Art and Craft of Judging: The Decisions of Judge Learned Hand (1968) at 20; L Hand, "The Contribution of an Independent Judiciary to Civilization" in The Spirit of Liberty (1959), 118 at 121.
[1] Dietrich v The Queen (1992) 177 CLR 292 at 318-321:
"I do not doubt that the courts of this country, and especially this Court as the ultimate court of appeal, acting within their respective jurisdictions and in response to the exigencies of particular cases, create new rules of the common law. The common law has been created by the courts and the genius of the common law system consists in the ability of the courts to mould the law to correspond with the contemporary values of society. ... In modern times, the function of the courts in developing the common law has been freely acknowledged. The reluctance of the courts in earlier times to acknowledge that function was due in part to the theory that it was the exclusive function of the legislature to keep the law in a serviceable state. But legislatures have disappointed the theorists and the courts have been left with a substantial part of the responsibility for keeping the law in a serviceable state, a function which calls for consideration of the contemporary values of the community. ... Even if the perception of contemporary values is coloured by the opinions of individual judges, judicial experience in the practical application of legal principles and the coincidence of judicial opinions in appellate courts provide some assurance that those values are correctly perceived. The responsibility for keeping the common law consonant with contemporary values does not mean that the courts have a general power to mould society and its institutions according to judicial perceptions of what is conducive to the attainment of those values. ... Most significantly, there are limits inherent in the very technique by which the courts develop the common law ... In this case, the legitimacy and the scope of the judicial function of changing the common law call for consideration. There is no common law entitlement to legal aid. Should there be? How can such an entitlement be enforced? Who is to pay for it? The issues to be considered go beyond the question of an entitlement to legal aid; they touch the legitimacy of judicial legislation"
[1] In Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26, the then President of the NSW Court of Appeal said:
"There is no suggestion that the judicial function of developing the common law is confined to the High Court of Australia Australia
[1] A Watson, "Some Psychological Aspects of the Trial Judge's Decision-Making" 39 Mercer L Rev 937 at 938 (1988)
[1] Ibid, at 940; See also: T Ellis and C Showalter, "Work-Related Stress in American Trial Judges" 22 Bulletin of the American Academy
[1] See: W Cannon, The Wisdom of the Body (1939); S Rado , Adaptational Psychodynamics (1969) at 25-47.
[1] In “Judges and the Process of Judging" in Jubilee Lectures, University of Birmingham
"Most judges are, I think, surprised at first to find how much less difficult it is in practice to make decisions on fact than it appeared to be from the Bar. My old pupil master, Lord Pearce, assured me when I was first appointed, that, in his experience, every case would decide itself, if one gave it enough time! Sooner or later something would emerge that would make the decision quite obvious. To my surprise, because I received his advice rather sceptically, it proved to be true. This is just as well because, if it were otherwise, the burden on the judges would be insupportable".
[1] This decision by Judge Eckert has no written judgment and was decided on 12.9.2006. Nothing is posted on SAT website. Her Honour’s Order was also subsequently withdrawn.
[1] See the case of Hunter v. Chief Constable of the West Midlands Police (1982) AC 529 at 536.)
[1] See my two letters responding to the LPCC dated 15.3.2010 and 17.3.2010 in 6 pages requesting for the Learned President to answer truthfully as to why he had preferred a course of action that shows that he is siding the other party. These two documents are addressed to the LPCC, the SAT Tribunal and the Chief Registrar of the Supreme Court with reference to this case in CIV 1019 of 2010. You may access them at my blogspot by typing “nicholasnchin” in Google. See Footnote No.44 below and paragraph 41 of this Written Submission as indicated below.
[1] In Walton v. Gardiner ((130) [1992] HCA 12; (1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ spoke of the court’s jurisdiction to stay proceedings that are an abuse of process in the following terms:
"extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness".
[1] See: Justice Barron, Farley vs Ireland & Others, [1997] IESC 60 at page 1521.
[1] See the letter written by the President of the Unity Party of WA to the world press regarding the comments of the former Labor premier of WA Dr. Gallop in the West Australian at the blogspot of “nicholasnchin” in Google entitled: FORMER PREMIER GEOFF GALLOP BLASTS RACISM IN AUSTRALIA - AUSTRALIA CRITICIZES MALAYSIA FOR WHAT IS HAPPENING IN ITS OWN BACKYARD at http://www.nicholasnchin.com/2010/03/former-premier-geoff-gallop-blasts.html
[1] http://en.wikipedia.org/wiki/Vexatious_litigation; http://en.wikipedia.org/wiki/Frivolous_litigation
[1] In re May (65) (1885) 28 Ch D 516 at 518.)
[1] "The doctrine of res judicata is not a technical doctrine applicable only to records. It is a very substantial doctrine, and it is one of the most fundamental doctrines of all Courts, that there must be an end of litigation, and that the parties have no right of their own accord, after having tried a question between them and obtained a decision of a Court, to start that litigation over again on precisely the same questions."
[1] See: http://www.answers.com/topic/functus-officio for the meaning of functus officio:
Functus officio, Latin for "having performed his office," is a legal term used to describe a public official, court, governing body, statute, or other legal instrument that retains no legal authority because his or its duties and functions have been completed. The term is most commonly used by a higher court as a justification for vacating or overruling all or part of a lower court's opinion. For example, if a plaintiff in a United States federal court, after filing a complaint but failing to serve it on the defendant, then files an amended complaint, the plaintiff cannot then serve the initial complaint on the defendant, because the filing of the amended complaint renders the original "functus officio." In Chandler v Alberta
[1] 39 .Unfit, incapable or insolvent practitioners
(1) In this section —
impairment means —
(a) mental disability;
(b) injury;
(c) physical illness;
(d) dependence on alcohol;
(e) addiction to a deleterious drug or substance;
incapable practitioner means a legal practitioner whose impairment is such that the ability of the person to practise as a legal practitioner is, or is likely to be, adversely affected;
insolvent practitioner means —
(a) a legal practitioner who is an insolvent under administration within the meaning of the Corporations Act;
(b) a legal practitioner director of an incorporated legal practice that is insolvent within the meaning of the Corporations Act;
unfit practitioner means a legal practitioner who —
(a) is not a fit and proper person to hold a practice certificate;
(b) has failed to comply with a condition to which the issue of the practitioner’s practice certificate was subject;
(c) has contravened an order made in respect of the practitioner under, or in a proceeding commenced under, this Act by a regulatory authority;
(d) has contravened a provision of this Act;
(e) is in prison; or
(f) is otherwise unfit to engage in legal practice.
(2) If an applicant for, or holder of, a practice certificate is an insolvent practitioner, the Board may apply to the State Administrative Tribunal for a hearing and determination under section 188.
(3) If the Board suspects or believes that —
(a) an applicant for, or holder of, a practice certificate is an incapable practitioner or an unfit practitioner; and
(b) it would —
(i) be in the public interest or in the interest of the legal practitioner’s clients or potential clients; or
(ii)protect the integrity of the legal profession or the administration of justice, if the application were refused, or the practice certificate suspended or cancelled, the Board may, without further inquiry, apply to the State Administrative Tribunal for a hearing and determination under section 188.
[1] 40 Conditions may be imposed upon practice certificate
(1) The Board may issue a practice certificate unconditionally or subject to conditions.
(2) The Board may, by notice in writing given to the holder of a practice certificate, add to, vary or revoke a condition of a practice certificate, whether or not the certificate was originally issued unconditionally.
(3) Without limiting subsection (1), the conditions that may be imposed include —
(a) restricting the entitlement of the holder of the certificate to practise to certain specified classes of legal practice;
(b) prohibiting the holder of the certificate from engaging in certain specified classes of legal practice;
(c) requiring the holder of the certificate to undertake all legal practice or certain specified classes of legal practice subject to supervision of a specified type;
(d) requiring the holder of the certificate to engage in legal practice only in a type or types of legal practice or in the employment of a specified person;
(e) requiring the holder of the certificate to undertake and complete to the satisfaction of the Board continuing legal education or training of a type or types specified by the Board;
(f) requiring the holder of the certificate to cease employing a specified person or persons.
[(4) repealed]
(5) A legal practitioner who is the holder of a practice certificate must not contravene a condition imposed on the certificate.
[1] In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, Mason CJ, Dawson, Toohey and Gaudron JJ said of certiorari, at 580-581:
"The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. ... ... There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants."
[1] http://www.lectlaw.com/def2/q036.htm - the “Lectric Law Library:
The general rule is that a plaintiff who prosecuted an action against a defendant and obtained a valid final judgment is not able to initiate another action vs. the same defendant where:
· the claim is based on the same transaction that was at issue in the first action;
· the plaintiff seeks a different remedy, or further remedy, than what was obtained in the first action;
· the claim is of such nature as could have been joined in the first action.
[1]The words of Justice Chaney in the Second Judgment at paragraph 2 are quoted as follows:
“2 The Tribunal examined the earlier proceedings and determined that they had not determined the same question as fell for determination in these proceedings. These proceedings involve an allegation that Mr Chin's conduct amounts to professional misconduct. The earlier proceedings, although they involved consideration of some of the conduct relied upon in these proceedings, did not involve allegations of professional misconduct. Accordingly, the Tribunal concluded that the defence of res judicata was not available.”
[1] I quote the case of Henderson v. Henderson
“In trying this question I believe I state the rule of the [115]Court correctly when I say that, where a given matter becomes the subject of Litigation in, and of a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances} permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. ….
[1] In this context, DEANE AND GAUDRON JJ in Rogers
13. Considerations bearing on estoppel resulting from the failure to raise some issue which could reasonably have been raised in earlier proceedings have sometimes been conflated with considerations relevant to the various principles aimed at ensuring the final, binding and conclusive nature of judicial determinations. This seems to have been the case with the so-called "extended principle" in Henderson v. Henderson
"(t)he plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time".
[1] Ibid. See Footnote 29 attaching to paragraph 30 of this Written Submission as indicated above.
[1] Email from the Associate to Justice Chaney Ms. Toni Sherwood dated Friday 5.3.2010 at 11.08 am to me which details the fact that the scheduled hearing of the res judicata proceedings in VR 87 of 2009 is to be heard before the Deputy President of SAT Her Honour Judge Pritchard on 18-20 May, 2010 following a further directions hearing on 13.4.2010 by Justice Chaney himself.
[1] For the purposes of this Act —
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
[1] (1) For the purposes of this Act —
(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For the purpose of finding that an Australian legal practitioner is not a fit and proper
person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate
[1] The s.8 Suitability Matters is being defined as follows:
8 . Suitability matters
(a) whether the person is currently of good fame and character;
(b) whether the person is or has been an insolvent under administration;
(c) whether the person has been convicted of an offence in Australia
(i) the nature of the offence; and
(ii) how long ago the offence was committed; and
(iii)the person’s age when the offence was committed;
(d) whether the person has engaged in legal practice in Australia
(i) unlawfully; or
(ii)when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law; or
(iii) if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended;
(e) whether the person has practised law in a foreign country —
(i) when not permitted under a law of that country to do so; or
(ii) if permitted to do so, in contravention of a condition applicable to the permission;
(f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following —
(i) this Act or a previous Act;
(ii) a corresponding law or corresponding foreign law;
(g) whether the person —
(i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia
(ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt;
(h) whether the person’s name has been removed from —
(i) the local roll, and has not since been restored to or entered on a local roll; or
(ii) an interstate roll, and has not since been restored to or entered on an interstate roll; or
(iii) a foreign roll;
(i) whether the person’s right to engage in legal practice has been suspended or cancelled in Australia
(j) whether the person has contravened, in Australia
(k) whether, under this Act, a previous Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person;
(l) whether the person is or has been subject to an order under this Act, a previous Act, a law of the Commonwealth or a corresponding law, disqualifying the applicant from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice;
(m) whether the person is currently unable to carry out the inherent requirements of practice as an Australian legal practitioner.
(2) A matter mentioned in subsection (1) is a suitability matter even if it happened before the commencement of this section.
[1] In one directions hearing session before the learned Justice Chaney in the second stage of the Second Judgment recently, I broached the subject of the fact that I can never be guilty of professional misconduct given the circumstances of my case which His Honour is already acquainted with in his First Judgment. His Honour’s response to me was to the effect that I had already by then been found guilty of professional misconduct upon the res judicata issues belonging to his First Judgment. This statement is illogical because he is contradicting his own previous judgment of the res judicata issues. I could not understand the logic that His Honour can prejudge on the res judicata issues as an ex-functus officio judge in the Second Judgment as if he was coming a mission to fulfill. He partook in the first stage of the Second Judgment in his res judicata point judgment delivered on 4.11.2009 and is proposing to control the destiny of the later stages of the Second Judgment. He is only prepared to recuse himself only after he had laid down the groundwork for the Second Judgment to be finalized. This proposition of Justice Chaney with a biased mind is frightening me out of my wits. Therefore I have to apply for the Certiorari Orders in the Supreme Court in CIV 1019 of 2010 to stay his orders and his further involvement in the later stages of the Second Judgment. My confidence in his impartiality, independence and integrity as a judge (for the later stages of the Second Judgment) had therefore been totally destroyed by the learned Justice’s attitude; it is as if he is finding a loop hole to plug in his pre-conceived ideas about me. His mission now is obvious and is anybody’s guess.
[1] CORRUPTION AND CRIME COMMISSION ACT 2003 - SECT 18
18 Misconduct function
(1) It is a function of the Commission (the misconduct function ) to ensure that an allegation about, or information or matter involving, misconduct is dealt with in an appropriate way.
(2) Without limiting how the Commission may perform the misconduct function, the Commission performs the function by —
(a) receiving and initiating allegations of misconduct;
(b) considering whether action is needed in relation to allegations and matters related to misconduct;
(c) investigating or taking other action in relation to allegations and matters related to misconduct if it is appropriate to do so, or referring the allegations or matters to independent agencies or appropriate authorities so that they can take action themselves or in cooperation with the Commission;
(d) monitoring the way in which independent agencies and appropriate authorities take action in relation to allegations and matters that are referred to them by the Commission;
(e) regardless of whether or not there has been an allegation of misconduct, investigating whether misconduct —
(i) has or may have occurred;
(ii) is or may be occurring;
(iii) is or may be about to occur; or
(iv) is likely to occur;
(f) making recommendations and furnishing reports on the outcome of investigations;
(g) consulting, cooperating and exchanging information with independent agencies, appropriate authorities and —
(i) the Commissioner of the Australian Federal Police;
(ii) the Commissioner of a Police Force of another State or Territory;
(iii) the CEO of the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;
(iv) the Commissioner of Taxation holding office under the Taxation Administration Act 1953 of the Commonwealth;
(v) the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979 of the Commonwealth;
(vi) the Director of the Australian Transaction Reports and Analysis Centre under the Financial Transaction Reports Act 1988 of the Commonwealth;
(vii) any person, or authority or body of this State, the Commonwealth, another State or a Territory that is declared by the Minister to be a person, authority or body to which this paragraph applies;
(h) assembling evidence obtained in the course of exercising the misconduct function and —
(i) furnishing to an independent agency or another authority, evidence which may be admissible in the prosecution of a person for a criminal offence against a written law or which may otherwise be relevant to the functions of the agency or authority; and
(ii) furnishing to the Attorney General or a suitable authority of another State, a Territory, the Commonwealth or another country, evidence which may be admissible in the prosecution of a person for a criminal offence against a law of the jurisdiction concerned or which may otherwise be relevant to that jurisdiction.
(3) When the Commission is deciding whether further action for the purposes of this Act in relation to an allegation is warranted, the matters to which it may have regard include the following —
(a) the seriousness of the conduct or involvement to which the allegation relates;
(b) whether or not the allegation is frivolous or vexatious or is made in good faith;
(c) whether or not the conduct or involvement to which the allegation relates is or has been the subject of appropriate investigatory or other action otherwise than for the purposes of this Act;
(d) whether or not, in all the circumstances, the carrying out of further action for the purposes of this Act in relation to the allegation is justified or is in the public interest.
Criminal Code Act, 1913 WA
s. 83. Corruption
Any public officer who, without lawful authority or a reasonable excuse —
(a) acts upon any knowledge or information obtained by reason of his office or employment;
(b) acts in any matter, in the performance or discharge of the functions of his office or employment, in relation to which he has, directly or indirectly, any pecuniary interest; or
(c) acts corruptly in the performance or discharge of the functions of his office or employment,
so as to gain a benefit, whether pecuniary or otherwise, for any person, or so as to cause a detriment, whether pecuniary or otherwise, to any person, is guilty of a crime and is liable to imprisonment for 7 years.
84. Application of s. 121 to judicial corruption not affected
In sections 82 and 83 public officer does not include the holder of a judicial office within the meaning of section 121.
121. Judicial corruption
Any person who —
(1) Being the holder of a judicial office, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in his judicial capacity; or
(2) Corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure to, upon, or for any person holding a judicial office, or to, upon, or for any other person, any property or benefit of any kind on account of any such act or omission on the part of the person holding the judicial office;
is guilty of a crime, and is liable to imprisonment for 14 years.
The term holder of a judicial office in this section includes an arbitrator or umpire and any member of any board or court of conciliation or arbitration; but in the case of an offence committed by or with respect to any such person, the longest term of imprisonment is 7 years.
A prosecution for an offence under paragraph (1) can not be begun except —
(a) by a public officer acting in the course of his duties; or
(b) by or with the consent of the Attorney General.
[1] In this context, I quote Owen J in McKechnie v Campbell
"I think this dicta is important for a number of reasons. It reinforces the view that it is a grave step to strike out proceedings as an abuse of process. None the less, if the factual and legal basis is made out the court has a duty, not a discretion, to intervene."
[1] In Walton v Gardiner (1993) 177 CLR 378, the term "abuse of process" describes a variety of circumstances. This concept was defined in broad terms in the joint judgment of Mason CJ, Deane and Dawson J (at 392-393) in these terms:
"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'."
