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THE SUPREME COURT OF
WESTERN AUSTRALIA
1903 of 2008
NICHOLAS NIK KOK CHIN
and
TIMOTHY ROBIN THIES and
PAUL CHUNG KIONG CHIN
KENNETH MARTIN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 13 MAY 2010, AT 9.36 AM
(In Chambers)
Continued from 17/6/09
The plaintiff appeared in person.
MR S. ELLIS appeared for the first defendant.
13/5/10 52
(s&c)
THE ASSOCIATE: CIV 1903 of 2008, Chin.
KENNETH MARTIN J: Yes, now, Mr Chin, in 1903 you are appearing for yourself in person?
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Very well; and Mr Ellis?
ELLIS, MR: I appear on behalf of Mr Thies.
KENNETH MARTIN J: Yes, all right. So you're appearing for the first defendant.
ELLIS, MR: Yes.
KENNETH MARTIN J: And for the second defendant, Mr Paul Chin, there is no appearance; all right. Mr Chin?
CHIN, MR: Yes, sir?
KENNETH MARTIN J: Do you wish to make a submission to the court?
CHIN, MR: I have two submissions, your Honour. One is from Paul in CIV 1112 of 2007.
KENNETH MARTIN J: I'm not dealing with that matter yet. That's next.
CHIN, MR: Yes; and my submission on 10 May, that is in 1903, and this morning, yesterday night, I put new submission, a supplementary submission because I received a chamber summons that was served on me by Mr Thies asking for security for costs.
KENNETH MARTIN J: Yes.
CHIN, MR: My submission, your Honour, as far as the 1903 is concerned is that there was never any debt owing to Mr Thies. The evidence is very clear and my submission is that Registrar Wild in FR 417
KENNETH MARTIN J: Sorry, Registrar who?
CHIN, MR: Registrar Wild, W-i-l-d, of the Fremantle Magistrates Court, she entered into the consent judgment without jurisdiction.
KENNETH MARTIN J: All that is the subject of Commissioner Heron's judgment in the District Court.
CHIN, MR: That, sir
KENNETH MARTIN J: What I am dealing with is your section 36 Magistrates Court application which has been
13/5/10 CHIN, MR 53
programmed by Hasluck J for further directions once Mr Thies has put in his affidavit material. Now, the question is, what further directions do I make in this matter?
CHIN, MR: Sir, the further direction is that Mr Thies has not complied with Hasluck J's order that he file his defence, affidavit and defence, within 21 days. Unless there is explanation for the delay, then he is not allowed to use those documents.
KENNETH MARTIN J: So there is a delay issue on the affidavit. Let's just say that I accept the affidavit. How is the matter to progress?
CHIN, MR: Sir, the court should not accept the affidavit unless there is explanation for the delay, and the delay must be reasonable.
KENNETH MARTIN J: All right, assume that I do accept the affidavit. How do we progress that matter?
CHIN, MR: There is nothing in the affidavit that detracts from my case that
KENNETH MARTIN J: What is the procedural error that you want quashed?
CHIN, MR: The procedural error is that the first consent judgment is to (indistinct) because Registrar Wild knows and I have informed her in writing and she has received it that there was duress; that we did not voluntarily pay the money that we wanted to pay and we have to pay because he kept escalating the cost and because my son has got to go to the hospital twice. My son was in hospital because Mr Thies
KENNETH MARTIN J: Mr Chin, you don't raise your voice in my court, ever.
CHIN, MR: Sorry; sorry, your Honour.
KENNETH MARTIN J: You understand that?
CHIN, MR: Sorry. My son, your Honour, has to go to hospital and be in prison in hospital because he became insane because Mr Thies wanted money from him for no reason and there is no way out of it. Everybody in the family was scared, everyone, including myself, and he is coming again and again, again and again, again and again, and he is doing that.
KENNETH MARTIN J: Mr Chin, you don't have to go on like that.
CHIN, MR: Sorry, your Honour. How can this court allow
13/5/10 CHIN, MR 54
this injustice by any lawyer Mr Timothy Robin Thies? How
can it happen in Australia, democratic country? How can it ever happen when there was no money owing to him and he asked for money?
KENNETH MARTIN J: Just have a seat please. I'm not assisted by this submission one little bit. Mr Ellis?
ELLIS, MR: Thank you, your Honour. We would say that the first step that ought to happen is for the first defendant's application for security for costs to be considered.
KENNETH MARTIN J: Yes.
ELLIS, MR: We have put in a
KENNETH MARTIN J: Can we deal with the question of the late affidavit.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: What is the position there?
ELLIS, MR: The affidavit was late. The purpose of the affidavit was to assist with a mediation and the purpose of the affidavit was to be directed towards some issues in relation to the question of costs that Mr Justice Hasluck thought might be helpful to be explained. The affidavit was late. It's a large affidavit. It's a complicated
KENNETH MARTIN J: I have looked at it, yes.
ELLIS, MR: Yes. There's a great deal of detail. To some extent it's sort of a situation of the cobbler's children have no shoes.
KENNETH MARTIN J: Yes.
ELLIS, MR: It was a matter that was substantially prepared by Mr Thies himself and it was late. We would say though that there is no substantial injustice to Mr Chin arising out of it. He has had the affidavit for some months. There have been - as I recall, at the directions hearing before Mr Justice Hasluck, dates for the mediation were deferred for some period of time because Mr Chin was overseas.
There has been a substantial I suppose gap in the progress of the matter since then. The delay is not something that we would say is of any significance in the overall conduct of the matter, so we would seek leave to have that affidavit, I suppose the time for filing that affidavit extended.
13/5/10 ELLIS, MR 55
KENNETH MARTIN J: Yes, all right. Then in terms of the substantive determination of the section 36 application, I hear what you say about a security for costs order and I will come to that.
ELLIS, MR: Yes.
KENNETH MARTIN J: What I have in mind though is trying to get some sort of handle on what is the jurisdictional error, bearing in mind that it's not a de novo review of any of the decisions below. It's something in the nature of prerogative relief by analogy but it certainly isn't prerogative relief.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: It doesn't seem to have been defined anywhere, other than the fact that Mr Thies has been given an opportunity to answer the ex parte application and has done so.
ELLIS, MR: To answer the judgment of
KENNETH MARTIN J: Yes.
ELLIS, MR: Yes. Perhaps I can take your Honour to the notice of originating motion which kicked the proceedings off. At page 3 of that document there is a list of the grounds of the application and those grounds ought to provide some assistance to the court in determining at least what the arguments are.
13/5/10 ELLIS, MR 56
I think as your Honour mentioned the last time this matter was before you there's, we would say, no jurisdiction to review the decision of Herron C. So we would say that the grounds (a), (b) and (d) can have no substance; and we would say in relation to Magistrate Musk that there was an appeal from her judgment, that was the appeal to Herron C. It would have been open to
KENNETH MARTIN J: It was essentially a summary dismissal, was it not, of
ELLIS, MR: Yes.
KENNETH MARTIN J: the application to set aside the administratively obtained consent to judgment based on the compromise and the deed of settlement.
ELLIS, MR: Yes; and she more or less said that she didn't think that she had jurisdiction to make that sort of order, particularly in light of the fact that decisions of registrars can be appealed to a magistrate.
KENNETH MARTIN J: Yes.
ELLIS, MR: She said, "No, I can't do that," and then there was an appeal from her decision to Herron C; and we would also say, and it's only one paragraph on page 3 but we would say that that was a matter that either could have been raised before Herron C or was raised before Herron C and either way Mr Chin shouldn't get a second bit at the cherry.
We would say that leaves us with paragraph (e) which deals with effectively there were two decisions of Magistrate Michelides and what he was considering was an appeal from the decision of the registrar to enter judgment in accordance with the compromise. The first thing he did was refuse Mr Chin an extension of time within which to make the appeal and secondly, he went on to deal with the merits of that application and we would say that's really the only matter which ought to be live before the court and perhaps it would be appropriate for the first defendant to make an application to strike out, so much of the application is to formally apply to strike out so much of the application as relates to the decisions of Herron C and Magistrate Musk for the reason that I have outlined.
KENNETH MARTIN J: Yes.
ELLIS, MR: Then we get to the question of the decision of Magistrate Michelides and it's a question of, as you have indicated, teasing out what it is about those grounds.
KENNETH MARTIN J: Looking at Hasluck J's reasons on the ex parte application where he considered one side of the
13/5/10 ELLIS, MR 57
9.45
material before him and in his comprehensive reasons
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: indicated that the only thing that was really troubling him was the question of how in the context of the deed of settlement and the compromise that was apparently reached, at least for a time in 2007, a bill of costs at a certain level could be issued then withdrawn and then be reissued, in effect, at a higher level and that was essentially, as I understand it, the point that he gave - or he wanted to hear the other side and that's what Mr Thies's affidavit deals with.
ELLIS, MR: Yes. We say of course that the issue really is whether there's a bona fides claim for the amounts and whether there was a genuine compromise.
KENNETH MARTIN J: A sustained bona fides compromise.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: Yes.
ELLIS, MR: That's the way we see it.
KENNETH MARTIN J: I'm just struggling to see the jurisdictional or procedural fairness error associated with that.
ELLIS, MR: Yes. It's really an assertion that the magistrate should have come to a different conclusion, which of course isn't a jurisdictional error.
KENNETH MARTIN J: No.
ELLIS, MR: I mean, the difficult will be, with respect to Mr Chin, obtaining grounds which identify the error in jurisdictional terms rather than grounds which go to the merits.
KENNETH MARTIN J: It seems fairly obvious to me that until we define the area of dispute in proper terms from a jurisdictional perspective tied back to section 36
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: that the potential for this to go off the rails into irrelevant areas, areas that have been decided and put to bed and should not be reopened, is massive.
ELLIS, MR: Yes. It's just a question of identifying a mechanism which will confine the arguments to jurisdictional arguments.
13/5/10 ELLIS, MR 58
KENNETH MARTIN J: Bearing in mind the position of the parties, we will come to the security for costs in a moment but it seems to me that what should happen is that I think you on behalf of the defendant should identify what, if anything, the subject of a section 36 inter partes determination.
ELLIS, MR: Yes.
KENNETH MARTIN J: And that should be sent to Mr Chin for his consideration and then in due course I need to set the parameters of what's to be ventilated under section 36. Then in that context we can deal with the question of security. I notice there's some late materials that have come in at the eleventh hour. The most I can do this morning, I think, is just make some programming orders.
ELLIS, MR: Yes, your Honour, that's all we expected would happen.
KENNETH MARTIN J: Yes.
ELLIS, MR: The minute of proposed directions is about programming that application.
KENNETH MARTIN J: Yes. All right, thanks. I understand that then.
ELLIS, MR: Thank you, your Honour.
KENNETH MARTIN J: Mr Chin?
CHIN, MR: Yes, sir?
KENNETH MARTIN J: We need to crystallise the section 36 issue.
CHIN, MR: Yes. The section 36 issue revolves around the abuse of power of Registrar Waugh, Magistrate Musk, Magistrate Michelides and their Honours - Herron C. Magistrate
KENNETH MARTIN J: You can't touch Herron C's decision under section 36 of the Magistrates Act
CHIN, MR: Yes, I understand, sir.
KENNETH MARTIN J: because he's acting as a judge of the District Court.
CHIN, MR: I understand, sir. This court, section 36 has no jurisdiction on Herron C's decision but Herron C's decision was made as an abuse of power and without jurisdiction and therefore when the root has been cut off there is the leaf and the stem is no longer standing; it falls, as the root has fallen. There is no more root
13/5/10 59
because Magistrate Michelides and Magistrate Musk both of them agreed to withdraw their decision and their decision is no longer standing.
KENNETH MARTIN J: No. They are still valid decisions until I or some member of the court quashes them under section 36. At the moment those magistrates have indicated to the court that they will abide by the decision of the court and they are not playing an active part in proceedings.
CHIN, MR: Yes. In order
KENNETH MARTIN J: You would have a substantive determination whether any quashing should be made or not.
13/5/10 CHIN, MR 60
CHIN, MR: In there is no reason why this honourable court should not quash those decisions when the magistrates themselves who make the decision has quashed them.
KENNETH MARTIN J: See, that's the very question and I have to determine that at a hearing. It's not a matter of just saying that it should happen. It's a matter of considering an argument and evidence.
CHIN, MR: They have admitted unless they come to this court and defend themselves and say "our decision still stands" and still
KENNETH MARTIN J: Wasn't
CHIN, MR: Sir, they're not allowed to blow hot and cold. They cannot say, "I decided I'm for Hasluck J in this," and then they cannot say, "I cannot" - because once they make the decision they have made the decision and the decision is made on the advice of the state solicitor.
KENNETH MARTIN J: Mr Chin, it seems to me that you are in extreme need of proper legal assistance in order to put your case and that you are not doing a very good job at the moment because you don't actually understand what's going on. It just seems to me that you are out of your depth at this point in time in pursuing this application. My advice to you would be to get some legal assistance by someone who actually understands administrative law and understands section 36 of the Magistrates Court Act.
CHIN, MR: Sir, if there's no justice for me I don't want to touch law any more. I have done everything that I want to do and it is for this court to dispense the justice. I have no money to spend.
KENNETH MARTIN J: You are arguing over, as I understand it, $6000.
CHIN, MR: It's $6000 that belongs to me and I'm arguing
KENNETH MARTIN J: It's the Supreme Court of Western Australia.
CHIN, MR: Yes.
KENNETH MARTIN J: You are running up massive amounts of cost over a relatively small amount of money paid in 2007.
CHIN, MR: The provision of section 25 and 31 of the Magistrates Court (Civil Proceedings) Act says that because I began the case that is under seven thousand five is a minor case and unless I do something wrong then I'm not liable for any cost, there is no not going to be any
13/5/10 CHIN, MR 61
9.52
security for costs because the case that was a zero cost and then there was a disputed $3500 costs. They're all under the provisions of the minor case provisions and the minor case provision says exactly that
KENNETH MARTIN J: That's all very well and good in the Magistrates Court but it doesn't apply in the Supreme Court.
CHIN, MR: It applies even to the Supreme Court because it start from there.
KENNETH MARTIN J: No. No.
CHIN, MR: Sir, I have studied this case
KENNETH MARTIN J: You need legal assistance, Mr Chin. You just obviously don't understand.
CHIN, MR: I have studied this case. I have studied this case. I know the ins and outs of everything in this case. Sir, you have just been into this case and you have not - you are not acquainted with everything there. You can find
KENNETH MARTIN J: Mr Chin, that's inappropriate. I'm not hearing that.
CHIN, MR: I'm sorry, sir.
KENNETH MARTIN J: There was a mediation in this matter that failed.
CHIN, MR: Say again?
KENNETH MARTIN J: There was a mediation that was unsuccessful in this matter. Correct?
CHIN, MR: Yes. It is not I who doesn't want to mediate. I'm prepared to mediate. Any time I'm prepared to mediate. Now, I want to say these sections 25 and 31 that is being - before it is being legislated, the legislative intention of parliament is that those section, even if you bring it to the highest court of the land, all costs incurred will not be incurred by me. That is the legislative intent of those minor case provisions and that is in my submission and is everywhere within the (indistinct) materials that is before this court.
KENNETH MARTIN J: Yes. All right. Have a seat, Mr Chin.
Mr Ellis, how are you placed in June for a directions hearing?
13/5/10 CHIN, MR 62
ELLIS, MR: Yes, I can attend the directions hearing.
KENNETH MARTIN J: 17 June?
ELLIS, MR: Sorry, your Honour. That's fine, your Honour.
KENNETH MARTIN J: Thank you. Mr Chin?
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Sorry, you were motioning. You would like something?
CHIN, MR: Three weeks. Yes, that will be suitable. What is the date, sir?
KENNETH MARTIN J: I have in mind another directions hearing on 17 June 2010.
CHIN, MR: 17 June is okay for me, sir.
KENNETH MARTIN J: It's more than a month from now.
CHIN, MR: Yes. Sir, what do we prepare for the directions hearing?
KENNETH MARTIN J: I'm just about to tell you, so have a seat. If you have the minute that Mr Ellis submitted overnight - I'm not sure that you do. Do you have a copy of the materials that were submitted yesterday by the first defendant?
CHIN, MR: Yes. Sir, I would like to say this: there is no reason for security of costs because
KENNETH MARTIN J: We have to have a determination about that.
CHIN, MR: (indistinct)
KENNETH MARTIN J: We will hear an argument about that.
CHIN, MR: Yes. It is in my submission here and sections 25 and 31 is there and all the evidentiary materials
KENNETH MARTIN J: We are not going to determine it now. I'm going to determine it in the future.
CHIN, MR: Yes, sir.
KENNETH MARTIN J: Have a seat.
CHIN, MR: Thank you.
13/5/10 CHIN, MR 63
10.00
KENNETH MARTIN J: Mr Ellis, what I propose by reference to the terms of the first defendant's minute of proposed directions of yesterday is as follows, I will make order 1 in these terms: the time to file and serve the affidavit of Mr Thies be extended to 7 October 2009 (sic) and Hasluck J's orders be varied to allow the receipt of that affidavit.
ELLIS, MR: Thank you, your Honour.
KENNETH MARTIN J: Then by reference to the terms of your minute the second order will be the former order 1, which will be that the plaintiff do on or before 3 June 2010 file and serve any affidavit material upon which he proposes to rely in relation to the first defendant's summons of 12 May 2010. That will be my proposed order 2. Order 3 will be the former order 2. Order 4 will be the former order 3. I won't make an order in terms of the proposed paragraph 4.
I propose, Mr Ellis, to augment draft order 5 about the draft agreed chronology by adding as follows: after the words "do file and serve" it would "a minute setting out the matters, if any, that the first defendant contends should be the subject of the plaintiff's section 36 Magistrates Court application as well as" - and then it will run as you have it - "a draft agreed chronology of events for comment by the plaintiff and the second defendant."
ELLIS, MR: Perhaps it might be more appropriate to word that "the first defendant accepts might reasonably be the subject" because we don't of course contend that any of it's appropriate.
KENNETH MARTIN J: Yes. "The first defendant accepts should be the subject of the plaintiff's section" - that may well entail a striking out of certain matters within the originating summons, as you foreshadowed, on the basis that there's no jurisdiction to deal with those matters. So I see that is embraced within amended order 5.
ELLIS, MR: Yes, thank you.
KENNETH MARTIN J: Then I propose to bring the matter back for directions on 17 June at 9.15 with a view to setting a time for argument in regard to the security for costs application. We will deal with the other matter. Maybe we should deal with the security for costs before but I will be assisted in the security application by knowing the ambit of the matters in dispute.
ELLIS, MR: Yes, your Honour.
KENNETH MARTIN J: All right. So that's what I have in mind.
13/5/10 ELLIS, MR 64
ELLIS, MR: Thank you, your Honour.
CHIN, MR: I would like to add one order. There must be a legal determination on the crux of the matter. The crux of the matter is that no debt was ever owing. There was no debt. If there was no debt, why all this
KENNETH MARTIN J: Mr Chin, there's a judgment for a debt. That's the problem. It hasn't been set aside by any court.
CHIN, MR: Sir, there was a judgment for debt that was an abuse of power
KENNETH MARTIN J: That's your argument and that argument hasn't been upheld or finally decided by any court to date. What we are programming is a basis upon which we can get to the point of making a decision on that argument, if you are allowed to make it within the confines of section 36 of the Magistrates Court Act.
CHIN, MR: We need to make that determination first because if we don't make that determination, we are going on and on.
KENNETH MARTIN J: Mr Chin, we are going on and on because you are the protagonist making it go on and on, and I'm trying to get to a point of determining it on the basis that each side has their point of view put.
CHIN, MR: The point is there was never any debt. That is the point which the court must determine.
KENNETH MARTIN J: Mr Chin, that is in dispute.
CHIN, MR: There was no dispute about it because he admits it. How can - he admits it himself. How can it be a dispute?
KENNETH MARTIN J: There are two sides to every story, Mr Chin, and that's one side of the story but it is strongly refuted on the other side.
CHIN, MR: It is not his side of the story. It is his own admission that
KENNETH MARTIN J: Mr Chin, you would be very wise to get some independent legal advice to assist you. I will also make an order that the transcript of today be provided to the parties. That will be order 7. The costs will be in the cause. That will be order 8. All right. Orders in these terms will be made. My associate will make a record of them and they will be provided to the parties.
ELLIS, MR: Thank you, your Honour.
13/5/10 CHIN, MR 65
KENNETH MARTIN J: All right. That concludes CIV 1903 of 2008.
AT 10.08 AM THE MATTER WAS ADJOURNED UNTIL
THURSDAY, 17 JUNE 2010
13/5/10 66
Wednesday, May 19, 2010
Sunday, May 9, 2010
WRITTEN SUBMISISSION BY PAUL CK CHIN FOR JUSTICE KENNETH MARTIN IN CIV 1112 OF 2010
IN THE SUPREME COURT CIV 1112 OF 2007
OF WESTERN AUSTRALIA
BETWEEN
TIMOTHY ROBIN THIES PLAINTIFF
AND
PAUL CHUNG KIONG CHIN FIRST DEFENDANT
AND
REGISTRAR OF TITLES SECOND DEFENDANT
OUTLINE OF WRITTEN SUBMISSIONS FILED BY FIRST DEFENDANT IN CIV 1112 OF 2007 PURSUANT TO DIRECTIONS HEARING BEFORE JUSTICE KENNETH MARTIN ON 30.4.2010 DELIMITING NICHOLAS N CHIN’S CAPACITY AS FREE AGENT FOR HIS SON THE FIRST DEFENDANT CONTRARY TO AGREEMENT REACHED BETWEEN NICHOLAS N CHIN AND MR. TIMOTHY ROBIN THIES THAT PAUL REMAINS INACTIVE IN THE RELEVANT PROCEEDINGS ON 17.6.2009, SUCH AGREEMENT HAVING BEEN ACHIEVED BY THE PARTIES BEFORE JUSTICE HASLUCK.
----------------------------------------------------------------------------------------------------------
Date of Document: 10th May 2010
Date of Filing: 10th May, 2010
Filed and prepared by the First Defendant on his own behalf as self-representing litigant:
PAUL CHUNG KIONG CHIN
387, Alexander Drive Phone & Fax: 618 9275 7440
DIANELLA WA 6059 Email: nnchin@msn.com
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TABLE OF CONTENTS PAGE NUMBERS
MY FATHER THE PLAINTIFF IN THE REVIEW ORDER CASE 2
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE 2
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON 3
CAVEAT CASE AND REVIEW ORDER CASE ARE MERGED 3
MR THIES AND HIS AGENT BE FOREWARD THAT THEY ARE LIABLE CRIMINALLY FOR TORTURING ME AGAIN: 4
WHY MY FATHER IS NOT ‘HOPELESSLY CONFLICTED’ WHEN HE ADVOCATES MY CAVEAT CASE: 4
THE ISSUE OF OUR TERMINATION OF MR. THIES LEGAL SERVICES STOPPING THE ESCALATION OF UNCONSCIONABLE COSTS OF MR. THIES HAS NEVER BEEN LITIGATED BEFORE IN THE COURTS BELOW: 5
REFERENCES TO FRAUD HINTED AT BY JUSTICE HASLUCK 6
MR. THIES IS CULPABLE FOR INCURRING DAMAGES FOR THE WRONGFUL CAVEAT WHICH HAS BEEN QUANTIFIED AT $100.00 PER DAY AND CONTINUING 6
MR. THIES DOES NOT HAVE THE HONEST BELIEF THAT HE HAD A CAVEATABLE INTERESTS IN THE CAVEAT PROPERTY 7
NO SERIOUS QUESTION TO BE TRIED THEREFORE CAVEAT CASE TO BE DETERMINED IN THE REVIEW ORDER CASE 8
MR. THIES DID NOT EVEN HAVE AN EQUITABLE MORTGAGE NOR CHARGE NOR EVEN A PERSONAL RIGHT BECAUSE THE PARTIES WERE NEVER AD 10
IDEM ON THIS 10
TRANSFER OF LAND ACT 1893 CLEARLY REFLECTS THE COMMON LAW AS INDICATED ABOVE: 12
CONCLUSION: 13
Your Honour
MY FATHER THE PLAINTIFF IN THE REVIEW ORDER CASE
1. My father Nicholas N Chin is made the Plaintiff by His Honour Justice Hasluck when the Review Order was granted by His Honour Justice Hasluck in his judgment in the case of RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 in accordance with s.36 of the Magistrates Court Act, 2004 in CIV 1903 of 2008 (the Review Order).
2. His Honour made the Respondent to this Review Order Mr. Timothy Robin Thies the First Defendant and me as the Second Defendant (the Review Order case).
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE
3. It is implicit in the subsequent proceedings in the Review Order case that Mr. Thies should not be seen anymore to be exploiting my vulnerabilities as I have a thin skull. I cannot be subject to stress as I do not understand the law and whenever I am pressured by Mr. Thies, I succumbed to him. As a consequence, neither Mr. Thies nor his counsel should use their legal skills and their unconscionable conduct to corner me again as a victim of their predatory conduct, which contains all the elements of professional misconduct by intimidating me and by seeking me to confront him in court knowing that I am powerless by their the exclusion of my father Nicholas N Chin who is always there to protect me. I was promised by Mr. Scott Ellis acting as counsel for Mr. Thies in the presence of Justice Hasluck on 17.6.2009 that my name be entered as the Second Defendant on condition that I remain inactive and that I will not be liable for any costs consequences. However, his Honour Justice Kenneth Martin on 30.4.2010 in the directions before my father does require me to write this Written submission for my CIV 1112 of 2007 case (the Caveat Case) where I am the First Defendant litigant in person as my father is being excluded unjustifiably from acting as my free agent and/or my Mc Kenzie friend though he has never acted as my solicitor in the past. He is a barrister and solicitor and his name has not been struck off the roll and he is therefore entitled to use his title.
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON
4. There is no professional relationship of client and solicitor between my father and myself in all his dealings with Mr. Thies all this while as my father is doing his duties as any father would do for any of his son and all his works are on a pro-bono basis to me. It is therefore incorrect for Your Honour to stop my father from speaking up for me in the Caveats Case unless you can provide a justification for doing so in accordance with the law.
5. My father’s interests in the Caveat Case right from its inception and my interests in this matter have always been coinciding with each other and I cannot see the reason as to why Your Honour is saying that my father is acting in conflicts of interests or that he is seriously conflicted when he speaks up for my Caveats Case.
6. I do not understand why you are doing this despite the agreement already reached between Mr. Thies and his counsel barrister Scott Ellis that was recorded in the transcript of the proceedings on 17.6.2009 that I play no active part in the proceedings in the Review Order Case which has a direct bearing in the Caveat’s Case. I understand that Your Honour is not up to date with the contents of the said transcript and have therefore made the error in Your Honour’s comment on the 30.4.2010 with regard to this issue.
7. Your Honour, no one should exploit my vulnerabilities, defraud me of monies and abused their powers as officers of this Honourable Court whilst doing so. Mr. Thies is clearly guilty of professional misconduct and the evidentiary materials point to this state of affairs. It is for this Honourable Court to do justice to all members of the public in accordance with the law.
CAVEAT CASE AND REVIEW ORDER CASE ARE MERGED
8. The Caveat case should now be merged with the Review Order case and if Your Honour has any justification for not doing so, the Caveats Case should then be put aside and the issues in the Review Orders Case should be thrashed out first between the contending parties. A final decision made in the Review Case would have the necessary consequential effect on the Caveat Case at a later stage. It is agreed that Mr. Thies shall not contact me but shall only contact my father and deal with him direct on all relevant matters.
MR THIES AND HIS AGENT BE FOREWARD THAT THEY ARE LIABLE CRIMINALLY FOR TORTURING ME AGAIN:
9. It has been made clear to Mr. Thies that he should not trouble nor contact me and any contact should be through my father Nicholas N Chin, lest I get sick again and if I do get sick as a result of Mr. Thies troubling me, then I shall hold him liable for all the consequential damages. Mr. Thies is causing me mental torture and had resulted in my relapsing into my illness already on two occasions in the past. Your Honour should be familiar with all the evidentiary materials, which had been presented in the Courts below and I appreciate the learned Justice Hasluck for his willingness to do justice by taking pains to go through all those materials before this Honourable Court. On one occasion as indicated in the said transcript His Honour was ailing at the thought of the mental torture that was caused to me by Mr. Thies who has no conscience as a human being. In this regard, I would like to quote the following passage of my father’s letter to all Members of Parliament of WesternAustralia dated Monday, May 03, 2010 7:41 PM, in the following words:
“—UN Convention Against Torture
On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Since that time a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention Against Torture and for international conflicts the Geneva Conventions III and IV.
The Government of Western Australia is obliged to take steps to prevent this unlawful torture as provided by Article II:
Article 2 of the United Nations Convention Against Torture provides:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.”
WHY MY FATHER IS NOT ‘HOPELESSLY CONFLICTED’ WHEN HE ADVOCATES MY CAVEAT CASE:
10. My father is the person who initiated this contractual relationship with Mr. Thies on my behalf and at all material times I respect him as my father and I had followed his decision not as a solicitor but as my natural father who is naturally inclined to protect me as his son.
11. There is never a solicitor client relationship between my father and me but there is a contractual solicitor client relationship between my father and Mr. Thies and I was a pawn caught in between and although my name is included I am never an active party to this relationship. If I had a choice, I would never have engaged Mr. Thies as my solicitor.
12. I allowed my father to deal with these matters and it is his right to continue dealing with Mr. Thies to solve the problem he got himself into until it reaches an outcome. The Outcome will then determine the Caveat’s case. I do not want to deal with it as it stems from Mr. Thies wrongs to me and it is for him to set it aright.
13. I shall not be responsible for the incurrence of any costs in this Caveat case and in the Review Order Case and I am making it clear that I shall not be responsible for any costs orders against me as it is not my act as is conceded to by His Honour Justice Hasluck on 7.6.2009. If this Honourable Court were to allow Mr. Thies to defraud me of my property, so be it and it is for this Court to do justice to me in accordance with my human rights as enshrined in the Constitution of Australia as a democratic government in this world. It is duty of this Court to uphold justice and any person like Mr. Thies or his counsel were to do this not in accordance with the law and their conscience then they can be cited for contempt of court.
THE ISSUE OF OUR TERMINATION OF MR. THIES LEGAL SERVICES STOPPING THE ESCALATION OF UNCONSCIONABLE COSTS OF MR. THIES HAS NEVER BEEN LITIGATED BEFORE IN THE COURTS BELOW:
14. This Honourable Court must have regard to the crux of the matter which lies only on one issue: Mr. Thies’ acceptance of my termination of legal services to me occurred on 22.2.2005 and any further costs which Mr. Thies is claiming from is based on fraud. My father is the person responsible for approving the bills of Mr. Thies and how can this Honourable Court exclude him from dealing with his own matters as a litigant in person. I quote the words of Justice Hasluck at para. 136 of the judgment as follows:
“I have been unable to discern in their reasons a fully considered
response to a central feature of the applicant's complaint, as reflected in
the affidavits before me, that he and his son terminated their contractual
relationship with the respondent in the manner allowed for by the costs
agreement at an early stage; that is, on or about 22 February 2005.”
15. The actual point of dispute now is the sum of $3,500.00 as indicated by His Honour at paragraph 137 of the judgment in the following words:
“In that regard, the applicant points to the respondent's email letter
dated 22 February 2005 directed to the applicant and his son which
commences 'I acknowledge termination of my retainer in the above matter
and Paul's request to have his file back.' At that time, it is said, the
amount ostensibly outstanding by way of legal costs was the sum of
$3,500 as suggested by the respondent's invoice 5028 dated 3 March
2005.”
16. His Honour further elaborated on the unconscionable conduct of Mr. Thies
as follows at para. 138 of the judgment:
“There is therefore evidentiary materials before me to suggest that the
contractual relationship between the parties was brought to an end as at
22 February 2005, being three months after the costs agreement was
signed in early November 2004. It is not clear to me on these materials
how it came about that thereafter the respondent was able to keep
rendering further bills progressively which amounted in the end to a total
figure close to $25,000. There is also the question of whether the costs
agreement was subject to a collateral contract of the kind contended for by
the applicant (said to have been effected by the respondent's letter to the
applicant dated 3 November 2004) whereby time costs bills were to be
approved by the applicant.”
REFERENCES TO FRAUD HINTED AT BY JUSTICE HASLUCK
17. The Review Order Case made 7 references to fraud at paras 119, 122, 123, 134, and also seven references to “unconscionable” or “unconscionability” at paras. 126, 134, 135, 145 and 151. They are all made in respect of or hinting towards the professional misconduct of Mr. Timothy Robin Thies who is guilty of abusing his powers as a solicitor by advancing his own personal interests ahead of his client’s interests, exploiting my vulnerabilities as a person who has a thin skull and he knew of this and is always conscious of doing it despite the protestations of my father and he had indeed defrauded me of monies which I never owe him at all as he was claiming for some $25,000.00 and he finally succeeded in defrauding me and my father in the sum of $11,500.00. His professional misconduct is one that is consistent and blatant and is of substantial nature and is contrary to the provisions of s. 402 and 403 of the Legal Profession Act, 2008 (WA).
MR. THIES IS CULPABLE FOR INCURRING DAMAGES FOR THE WRONGFUL CAVEAT WHICH HAS BEEN QUANTIFIED AT $100.00 PER DAY AND CONTINUING
18. Section 140 of the Transfer of Land Act, 1893 (WA) provides for damages which my father had notified Mr. Thies that he would be liable for and he still persists in trying to covet my home, as follows:
“Compensation for lodging caveat without reasonable cause
Any person lodging any caveat with the Registrar either against bringing land under this Act or otherwise without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a judge on a summons in chambers shall deem just and order.”
19. I am making this Summons in Chambers to recover these damages and all the evidentiary materials of Mr. Thies’ fraudulent intentions are clear before this Honurable Court on the following facts:
20.
1.1. Mr. Thies knows that I owe him a zero sum debt at the time of my termination of his legal services on 22.2.2005.
2.2. Mr. Thies through his own admissions is making up the debt of $3,500.00
3.3. Mr. Thies escalated that zero sum debt to more than
$25,000.00 by exploiting my vulnerabilities and succeeded in defrauding me of the sum of $11,500.00.
4.4. Mr. Thies was able to defraud me and my father because he exerted duress on us by threats that his legal costs will keep on expanding with no limits in sight and any reasonable person would have succumbed to this threat.
5.5. My father and I were afraid of his threats and succumbed to the duress to pay him the sum of $11,500.00
6.6. Subsections 25(1) and 25(9) of the Magistrates Court (Civil Proceedings) Act, 2004 provides for me to claim back from Mr. Thies all my expenses and losses which include the damages of $100.00 per day which is quantified for him because I could not sell this home property for the right price in the property market at the right time.
MR. THIES DOES NOT HAVE THE HONEST BELIEF THAT HE HAD A CAVEATABLE INTERESTS IN THE CAVEAT PROPERTY
21. Malcolm C J in Bolton v Excell, unreported; FCt SCt of WA; Library 930175; 22 February 1993 states the principles applicable for damages under s.140 as follows:
1.1. The onus is on me, the First Defendant in the Caveat Case to prove that the Plaintiff Mr. Thies’ unlawful caveat was lodged without reasonable cause.
2.2. The test for “without reasonable cause” is whether the First Defendant had an honest belief based on reasonable grounds that he had such an interest.
3.3. The evidence before this Honourable Court and in the courts below shows that HE DID NOT HAVE THIS HONEST BELIEF based on the following grounds:
21.3.1. at the date before he lodged the caveat, he was notified that he did not have a proprietary interests or an equitable charge on the Caveat property;
21.3.2. he therefore did not have an equitable interests to justify a Caveatable interest in the caveat land.
21.3.3. his original belief that he had a caveatable interests in the caveat land was shattered by my father informing him that his costs agreement did not specifically refer to a particular land or the Caveat Property was never specifically identified; it merely signifies a general claim to any property real or personal that I might have and this would have have given rise to a equitable charge even if there was a debt owing to Mr. Thies but here was a zero sum debt;
21.3.4. he was not aware at the time of the signing of the costs agreement that I even own this Thornlie home;
21.3.5. he did not do anything to the caveat land in order to justify a caveatable or equitable claim over the caveat land;
21.3.6. there was no monies owing to him but only the disputed sum of $3,500.00 purportedly claimed by him.
4.4. The fact that the First Defendant DID NOT HAVE THIS HONEST BELIEF is to be judged as of the date that the unlawful caveat was lodged on 11.12.2006 and by the 30.1.2007, he was again NOTIFIED that he did not have an equitable interests over the Caveat Property found at page 40 my Affidavit quoting Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196 where the learned authors said:
“The only actual requirements of the equitable charge seems to be, first, intention; secondly, if over land, the presence of writing; third, the existence of definite ascertainable property, even though future, over which it is contemplated that the charge shall exist; and lastly, in a few exceptional cases, the presence of consideration; consideration would not save a purely oral agreement.”
20. The test of his honest belief has both subjective and objective elements:
20.1. The subjective element: he had an honest belief that he had a caveatable interest in the land which has been proven that he has not as indicated above.
20.2. The objective element to be based on reasonable grounds - against the background of all the relevant facts and circumstances. All the relevant facts and circumstances have already been examined by the thorough manner in which His Honour Justice Hasluck has gone through the voluminous evidence.
20.3. The Review Order Case bears six references to the impugned caveat of Mr. Thies at paras. 22, 23, 24, 32 and 141 which impinges on Mr. Thies dishonesty in lodging the caveat by stealth which caused the duress upon me to pay him the ransom money of $11,500.00 and he was still as greedy as ever even after the settlement day of the extorted monies which he obtained from me and my father. He is a modern day Robin Hood alas, there are no poor people around him and I am not the rich baron but a poor exploited person who had worked hard to earn his living.
NO SERIOUS QUESTION TO BE TRIED THEREFORE CAVEAT CASE TO BE DETERMINED IN THE REVIEW ORDER CASE:
21. I as the Second Defendant must demonstrate on the evidence that First
Defendant’s claim to a caveatable interest in the caveat Land raises a serious
question to be tried. When this Honourable Court is satisfied that this condition is being fulfilled, then, except in the most exceptional circumstances, this Caveat Case shall not be determined on originating summons. See Porter v McDonald [1984] WAR 271 at 276; Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997.
22. It is patently clear to this Court that the Respondent cannot make any ground or justification for having unlawfully lodged his Caveat on the Caveat Property but it is not appropriate for this Court to attempt to resolve the conflict of evidence based on affidavits alone but it must have recourse to the whole history of the circumstances affecting this case: See Eng Mee Yong (supra) at 341; Halse (supra) per Parker J at page 4. In this context, Brinsden J observed in Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141 in the following words:
'... the jurisdiction granted by section 138 should not be exercised so as to remove a caveat unless the case is one in which it is patently clear that the estate or interest sought to be protected cannot be made out and that degree of clarity will not emerge if there are disputed questions of fact, when the respondent should be left to proceed by way of action to establish the claimed interest or estate.'
23. In this case, the Respondent in the Review Order case is unable to demonstrate a reasonably arguable case as to the existence of his caveatable interest, the ordinary course is therefore that the Unlawful Caveat should not remain and the disputed question should not be left for trial in the Caveats Case but should be disposed of in the Review Order case as the law does not require for it to be resolved by way of originating summons. It is clear that the Respondent to the Review Order Case is making merely a frivolous and vexatious claim in his Caveats Case as it is plain to this Court that he claim of a caveatable interests is unlikely to succeed and he is making it difficult for me as the Defendant to defend his unmeritorious claim in the Caveat Case. SeeHalse (supra) per Parker J at page 14.
24. Your Honour, I quote the case of Bonini v Western Australian Real Estate Custodian Ltd [2001] WASC 258 Pullin J had this to say at par 11:
"In proceedings under s 138B(2), to extend the operation of a caveat, the court has jurisdiction to decide whether the caveator's claim 'has or may have substance'. In most cases, the practical reasons will still require only a decision about whether the caveator's claim 'may have' substance; in other words, if the caveator has an arguable case. However, there is no longer any legal reason why, in a clear case, the court cannot finally decide that the caveator's claim 'has' substance, ie to finally decide the caveator's claim. And see Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524, par 4."
MR. THIES DID NOT EVEN HAVE AN EQUITABLE MORTGAGE NOR CHARGE NOR EVEN A PERSONAL RIGHT BECAUSE THE PARTIES WERE NEVER AD
IDEM ON THIS
25. In MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248, the learned Justice Hasluck has the following to say:
33. It follows from these cases that I must begin by looking at the question of
whether the caveator in the present case can be said to have a caveatable
interests.
34. In earlier discussion I noted that by s 137 of the Transfer of Land Act that
a caveat can be lodged where a person claims "any estate or interest" in the
subject land. The decided cases recognise that it is only a person who has or
claims a legal or equitable interest in land in the nature of an estate or equitable
claim who can lodge a caveat. For example, the High Court held in Municipal
District of Concord v Coles (1906) 3 CLR 96 that a municipal council has not
such an estate or interest in land dedicated to the public as a road as will entitle
it to lodge a caveat.
35. The conventional wisdom in various Australian jurisdictions is that caveats
may only be lodged to protect proprietary interests in land: See Bradbrook
MacCallum and Moore, "Australian Real Property Law" (2nd ed) at par 4.83.
However, in regard to Western Australia it has been argued that the wording
of s 137 of the Transfer of Land Act results in a proprietary interest not being
necessary to establish a caveatable interest . It has been suggested by one
author that the term "interest" is the relevant statutory provision does
not per se import a proprietary interest: See Boyle: " Caveatable Interests"
(1995) 69 ALJ 237. The learned author submits that an equitable interest of the
sort often dismissed as in the nature of a claim in personam, a mere personal
right, is a caveatable interest in the subject land.
36. The same author goes on to say this at 240 of the relevant article:
"A caveat is a statutory injunction: Barry v Heider [1914] 19 CLR 197 at 221. It confers no proprietary interest. Its purpose and function is to maintain the status quo to preserve and protect the rights of a caveator. It prohibits the caveator's interest from being defeated by the registration of a dealing without the caveator having first had the opportunity to invoke the assistance of a court to give effect to the interest: see Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222. The interest may arise through the application of legal rules and principles, or it may arise because a specific equitable remedy exists to protect it. To limit the right to caveat only to interests classified as proprietary in nature is to deny a chief purpose of caveats."
In Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584 at 594-595 Buckley LJ discussed the difference between an equitable mortgage and an equitable charge. As that discussion shows, an equitable mortgage is created when the legal owner of the property constituting the security enters into some instrument or does some act which, though insufficient to confer a legal title in the subject matter upon the mortgagee, nevertheless demonstrates a binding intention to create a security in favour of the mortgagee or, in other words, evidences a contract to do so. By contrast, an equitable charge is created when property is expressly or constructively made liable, or specially appropriated, to the discharge of a debt or some other obligation, and confers on the chargee a right of realisation by judicial process, that is to say, by the appointment of a receiver or an order for sale.
In the present case, if the plaintiff is to succeed it will be on the basis that the September Deed created an equitable mortgage rather than an equitable charge. As it happens, it seems that the result would be same: because the Forest Hill property has been sold, enforcement by way of foreclosure, appointment of a receiver or sale is no longer possible. But it is clear that if a person has an equitable mortgage or charge over land and the land is sold, the mortgage or charge attaches to the fund which is produced by the sale (see Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 at 682 per Young J) and, as mentioned above, Anderson J has ordered that the Evenwood Fund stand in lieu of any security interest in the Forest Hill property that the plaintiff may have.
The primary question is whether cl 6.6 created an equitable mortgage or whether it created merely a personal covenant. In Cradock v Scottish Provident Institution (1893) 69 LT 380 at 382, Romer J said,
"To constitute a charge in equity by deed or writing it is not necessary that any general words of charge should be used. It is sufficient if the court can fairly gather from the instrument an intention by the parties that the property therein referred to should constitute a security."
As Lord Macnaghten said in William Brandt's Sons & Co v Dunlop Rubber Company [1905] AC 454 at 462, when speaking of an equitable assignment, "The language is immaterial if the meaning is plain." Further, in deciding whether the transaction is one creating an equitable mortgage or some other legal relationship all relevant circumstances, as well as the terms of the document, must be considered (see Fisher & Lightwood's Law of Mortgage Aust ed (1995) para 1.23).
The second defendants never became the sole registered proprietors of the Forest Hill property, and there is no direct evidence before the Court as to what Mr Foster was told about their intentions in that regard before he executed the September Deed. However, bearing in mind that only ten days previously in his letter of 25 August 1995 he had required full security by way of mortgage over the property, I infer that he accepted the insertion of cl 6.6 only because he was led to believe that the second defendants were about to become the sole registered proprietors. Otherwise, surely he would have insisted upon their execution then and there of a registrable mortgage of their two-thirds interest. As it is, the clause contains a clear undertaking by the second defendants to grant a third registered mortgage by way of security, and the second defendants already were the legal owners and registered proprietors as tenants in common of two-thirds of the property the subject of the undertaking. Each, therefore, was able to mortgage or otherwise deal separately with his respective share. Again, the obligation secured relates to the repayment of moneys which were to be advanced upon execution of the document: the obligation was immediate and not contingent. In those circumstances, I conclude that the clause granted to the plaintiff an equitable mortgage over the property.
EVEN IF THE ZERO SUM DEBT BECOMES CONJURED UP INTO A $3,500.00 DEBT IN THE MIND OF MR. THIES, IT STILL DOES NOT JUSTIFY A CAVEAT:
26. See the case of: See: Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475 from which is quoted the following:
“The existence of a debt is NEVER, of itself, sufficient grounds to justify a caveat. The debt must be supported by a document in writing evidencing the debt AND charging the land with liability to pay the debt. A document that evidences the debt, but does not charge the land, is not a good basis for a caveat.”
27. Paragraph 25 above refers to an equitable claim in the nature often dismissed as a Claim In personam or a personal right can justify caveatable interests in WA. Such a claim is directed towards a particular person instead of towards a thing as a claim in rem. In personam mean that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there. It is rather far fetched for Mr. Thies to conceive of a zero sum debt which he imagines to be $3,500.00 and then escalate it to $25,000.00 to warrant to this Honourable Court that he has a caveatable interests and being firmly of this belief he subsequently refused to release it even after payments has been made to him. This is a highly preposterous situation for a lawyer who is supposed to do justice to the common man.
TRANSFER OF LAND ACT 1893 CLEARLY REFLECTS THE COMMON LAW AS INDICATED ABOVE:
28. Even if Mr. Thies has got a personal right against me or even a claim in personam against me, by any stretch of imagination, he cannot have any conceivable caveatable interests under s.137 of the Transfer of Land Act , 1893 (WA). According to the learned author Sandra Boyle in CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED found at: http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html, she identifies four categories of caveatable interests in that section as:
(a) any estate or interest in land under the operation of this Act;
(b) any estate or interest under any:
i) unregistered instrument;
ii) document; or
iii) writing
in any lease mortgage or charge;
(c) any estate or interest in any equitable mortgage or charge by a deposit without writing; and
(d) any estate or interest which arises
i) by devolution in law; or
ii) otherwise.
CONCLUSION:
29. Therefore, my claim against Mr. Thies for him to return all the monies he has taken from both myself and my dad together with interests at the rate of 6.00% p.a. from the date he had defrauded me and my father and the damages for the wrongful caveat that he had caused me in accordance with s.140 of the TLA Act and s.25(1) and 25(9) of the MCCP Act. I am compassionate for Mr. Thies in that I do not want to make any claims against him for the nervous shock he had caused to me and my father and other members of my family including my mother.
Signed by: ………………………………… ….
PAUL CHUNG KIONG CHIN
LIST OF AUTHRORITIES
STATUTE LAW:
1. 25(1) and 25(9) of the Magistrates Court (Civil Proceedings) Act, 2004
2. S. 137, 138 and 140 of the Transfer of Land Act, 1893 (WA);
3. S.36 of the Magistrates Court Act, 2004 (WA);
4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, 10 December 1984;
5. Universal Declaration of Human Rights, United Nations, 10 December 1948;
ARTICLES:
6. CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED, Article in the Elaw Electronic Law Journal of the Murdoch School of Law by Sandra Boyle found at: http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html
7. Boyle: " Caveatable Interests" (1995) 69 ALJ 237.
CASE LAW:
8. Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524, par 4;
9. Barry v Heider [1914] 19 CLR 197 at 221;
10. Bolton v Excell, unreported; FCt SCt of WA; Library 930175; 22 February 1993 per Malcolm C J.
11. Bonini v Western Australian Real Estate Custodian Ltd [2001] WASC 258 Pullin J at par 11;
12. Cradock v Scottish Provident Institution (1893) 69 LT 380 at 382;
13. Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141;
14. Eng Mee Yong (supra) at 341;
15. Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997; Also: Halse (supra) per Parker J at page 4;
16. Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222;
17. MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248;
18. Municipal District of Concord v Coles (1906) 3 CLR 96;
19. Porter v McDonald [1984] WAR 271 at 276;
20. RE MICHELIDES; EX PARTE CHIN [2008] WASC 256;
21. see Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 at 682 per Young J;
22. Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475;
23. Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196
24. William Brandt's Sons & Co v Dunlop Rubber Company [1905] AC 454 at 462;
OF WESTERN AUSTRALIA
BETWEEN
TIMOTHY ROBIN THIES PLAINTIFF
AND
PAUL CHUNG KIONG CHIN FIRST DEFENDANT
AND
REGISTRAR OF TITLES SECOND DEFENDANT
OUTLINE OF WRITTEN SUBMISSIONS FILED BY FIRST DEFENDANT IN CIV 1112 OF 2007 PURSUANT TO DIRECTIONS HEARING BEFORE JUSTICE KENNETH MARTIN ON 30.4.2010 DELIMITING NICHOLAS N CHIN’S CAPACITY AS FREE AGENT FOR HIS SON THE FIRST DEFENDANT CONTRARY TO AGREEMENT REACHED BETWEEN NICHOLAS N CHIN AND MR. TIMOTHY ROBIN THIES THAT PAUL REMAINS INACTIVE IN THE RELEVANT PROCEEDINGS ON 17.6.2009, SUCH AGREEMENT HAVING BEEN ACHIEVED BY THE PARTIES BEFORE JUSTICE HASLUCK.
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Date of Document: 10th May 2010
Date of Filing: 10th May, 2010
Filed and prepared by the First Defendant on his own behalf as self-representing litigant:
PAUL CHUNG KIONG CHIN
387, Alexander Drive Phone & Fax: 618 9275 7440
DIANELLA WA 6059 Email: nnchin@msn.com
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TABLE OF CONTENTS PAGE NUMBERS
MY FATHER THE PLAINTIFF IN THE REVIEW ORDER CASE 2
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE 2
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON 3
CAVEAT CASE AND REVIEW ORDER CASE ARE MERGED 3
MR THIES AND HIS AGENT BE FOREWARD THAT THEY ARE LIABLE CRIMINALLY FOR TORTURING ME AGAIN: 4
WHY MY FATHER IS NOT ‘HOPELESSLY CONFLICTED’ WHEN HE ADVOCATES MY CAVEAT CASE: 4
THE ISSUE OF OUR TERMINATION OF MR. THIES LEGAL SERVICES STOPPING THE ESCALATION OF UNCONSCIONABLE COSTS OF MR. THIES HAS NEVER BEEN LITIGATED BEFORE IN THE COURTS BELOW: 5
REFERENCES TO FRAUD HINTED AT BY JUSTICE HASLUCK 6
MR. THIES IS CULPABLE FOR INCURRING DAMAGES FOR THE WRONGFUL CAVEAT WHICH HAS BEEN QUANTIFIED AT $100.00 PER DAY AND CONTINUING 6
MR. THIES DOES NOT HAVE THE HONEST BELIEF THAT HE HAD A CAVEATABLE INTERESTS IN THE CAVEAT PROPERTY 7
NO SERIOUS QUESTION TO BE TRIED THEREFORE CAVEAT CASE TO BE DETERMINED IN THE REVIEW ORDER CASE 8
MR. THIES DID NOT EVEN HAVE AN EQUITABLE MORTGAGE NOR CHARGE NOR EVEN A PERSONAL RIGHT BECAUSE THE PARTIES WERE NEVER AD 10
IDEM ON THIS 10
TRANSFER OF LAND ACT 1893 CLEARLY REFLECTS THE COMMON LAW AS INDICATED ABOVE: 12
CONCLUSION: 13
Your Honour
MY FATHER THE PLAINTIFF IN THE REVIEW ORDER CASE
1. My father Nicholas N Chin is made the Plaintiff by His Honour Justice Hasluck when the Review Order was granted by His Honour Justice Hasluck in his judgment in the case of RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 in accordance with s.36 of the Magistrates Court Act, 2004 in CIV 1903 of 2008 (the Review Order).
2. His Honour made the Respondent to this Review Order Mr. Timothy Robin Thies the First Defendant and me as the Second Defendant (the Review Order case).
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE
3. It is implicit in the subsequent proceedings in the Review Order case that Mr. Thies should not be seen anymore to be exploiting my vulnerabilities as I have a thin skull. I cannot be subject to stress as I do not understand the law and whenever I am pressured by Mr. Thies, I succumbed to him. As a consequence, neither Mr. Thies nor his counsel should use their legal skills and their unconscionable conduct to corner me again as a victim of their predatory conduct, which contains all the elements of professional misconduct by intimidating me and by seeking me to confront him in court knowing that I am powerless by their the exclusion of my father Nicholas N Chin who is always there to protect me. I was promised by Mr. Scott Ellis acting as counsel for Mr. Thies in the presence of Justice Hasluck on 17.6.2009 that my name be entered as the Second Defendant on condition that I remain inactive and that I will not be liable for any costs consequences. However, his Honour Justice Kenneth Martin on 30.4.2010 in the directions before my father does require me to write this Written submission for my CIV 1112 of 2007 case (the Caveat Case) where I am the First Defendant litigant in person as my father is being excluded unjustifiably from acting as my free agent and/or my Mc Kenzie friend though he has never acted as my solicitor in the past. He is a barrister and solicitor and his name has not been struck off the roll and he is therefore entitled to use his title.
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON
4. There is no professional relationship of client and solicitor between my father and myself in all his dealings with Mr. Thies all this while as my father is doing his duties as any father would do for any of his son and all his works are on a pro-bono basis to me. It is therefore incorrect for Your Honour to stop my father from speaking up for me in the Caveats Case unless you can provide a justification for doing so in accordance with the law.
5. My father’s interests in the Caveat Case right from its inception and my interests in this matter have always been coinciding with each other and I cannot see the reason as to why Your Honour is saying that my father is acting in conflicts of interests or that he is seriously conflicted when he speaks up for my Caveats Case.
6. I do not understand why you are doing this despite the agreement already reached between Mr. Thies and his counsel barrister Scott Ellis that was recorded in the transcript of the proceedings on 17.6.2009 that I play no active part in the proceedings in the Review Order Case which has a direct bearing in the Caveat’s Case. I understand that Your Honour is not up to date with the contents of the said transcript and have therefore made the error in Your Honour’s comment on the 30.4.2010 with regard to this issue.
7. Your Honour, no one should exploit my vulnerabilities, defraud me of monies and abused their powers as officers of this Honourable Court whilst doing so. Mr. Thies is clearly guilty of professional misconduct and the evidentiary materials point to this state of affairs. It is for this Honourable Court to do justice to all members of the public in accordance with the law.
CAVEAT CASE AND REVIEW ORDER CASE ARE MERGED
8. The Caveat case should now be merged with the Review Order case and if Your Honour has any justification for not doing so, the Caveats Case should then be put aside and the issues in the Review Orders Case should be thrashed out first between the contending parties. A final decision made in the Review Case would have the necessary consequential effect on the Caveat Case at a later stage. It is agreed that Mr. Thies shall not contact me but shall only contact my father and deal with him direct on all relevant matters.
MR THIES AND HIS AGENT BE FOREWARD THAT THEY ARE LIABLE CRIMINALLY FOR TORTURING ME AGAIN:
9. It has been made clear to Mr. Thies that he should not trouble nor contact me and any contact should be through my father Nicholas N Chin, lest I get sick again and if I do get sick as a result of Mr. Thies troubling me, then I shall hold him liable for all the consequential damages. Mr. Thies is causing me mental torture and had resulted in my relapsing into my illness already on two occasions in the past. Your Honour should be familiar with all the evidentiary materials, which had been presented in the Courts below and I appreciate the learned Justice Hasluck for his willingness to do justice by taking pains to go through all those materials before this Honourable Court. On one occasion as indicated in the said transcript His Honour was ailing at the thought of the mental torture that was caused to me by Mr. Thies who has no conscience as a human being. In this regard, I would like to quote the following passage of my father’s letter to all Members of Parliament of WesternAustralia dated Monday, May 03, 2010 7:41 PM, in the following words:
“—UN Convention Against Torture
On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Since that time a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention Against Torture and for international conflicts the Geneva Conventions III and IV.
The Government of Western Australia is obliged to take steps to prevent this unlawful torture as provided by Article II:
Article 2 of the United Nations Convention Against Torture provides:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.”
WHY MY FATHER IS NOT ‘HOPELESSLY CONFLICTED’ WHEN HE ADVOCATES MY CAVEAT CASE:
10. My father is the person who initiated this contractual relationship with Mr. Thies on my behalf and at all material times I respect him as my father and I had followed his decision not as a solicitor but as my natural father who is naturally inclined to protect me as his son.
11. There is never a solicitor client relationship between my father and me but there is a contractual solicitor client relationship between my father and Mr. Thies and I was a pawn caught in between and although my name is included I am never an active party to this relationship. If I had a choice, I would never have engaged Mr. Thies as my solicitor.
12. I allowed my father to deal with these matters and it is his right to continue dealing with Mr. Thies to solve the problem he got himself into until it reaches an outcome. The Outcome will then determine the Caveat’s case. I do not want to deal with it as it stems from Mr. Thies wrongs to me and it is for him to set it aright.
13. I shall not be responsible for the incurrence of any costs in this Caveat case and in the Review Order Case and I am making it clear that I shall not be responsible for any costs orders against me as it is not my act as is conceded to by His Honour Justice Hasluck on 7.6.2009. If this Honourable Court were to allow Mr. Thies to defraud me of my property, so be it and it is for this Court to do justice to me in accordance with my human rights as enshrined in the Constitution of Australia as a democratic government in this world. It is duty of this Court to uphold justice and any person like Mr. Thies or his counsel were to do this not in accordance with the law and their conscience then they can be cited for contempt of court.
THE ISSUE OF OUR TERMINATION OF MR. THIES LEGAL SERVICES STOPPING THE ESCALATION OF UNCONSCIONABLE COSTS OF MR. THIES HAS NEVER BEEN LITIGATED BEFORE IN THE COURTS BELOW:
14. This Honourable Court must have regard to the crux of the matter which lies only on one issue: Mr. Thies’ acceptance of my termination of legal services to me occurred on 22.2.2005 and any further costs which Mr. Thies is claiming from is based on fraud. My father is the person responsible for approving the bills of Mr. Thies and how can this Honourable Court exclude him from dealing with his own matters as a litigant in person. I quote the words of Justice Hasluck at para. 136 of the judgment as follows:
“I have been unable to discern in their reasons a fully considered
response to a central feature of the applicant's complaint, as reflected in
the affidavits before me, that he and his son terminated their contractual
relationship with the respondent in the manner allowed for by the costs
agreement at an early stage; that is, on or about 22 February 2005.”
15. The actual point of dispute now is the sum of $3,500.00 as indicated by His Honour at paragraph 137 of the judgment in the following words:
“In that regard, the applicant points to the respondent's email letter
dated 22 February 2005 directed to the applicant and his son which
commences 'I acknowledge termination of my retainer in the above matter
and Paul's request to have his file back.' At that time, it is said, the
amount ostensibly outstanding by way of legal costs was the sum of
$3,500 as suggested by the respondent's invoice 5028 dated 3 March
2005.”
16. His Honour further elaborated on the unconscionable conduct of Mr. Thies
as follows at para. 138 of the judgment:
“There is therefore evidentiary materials before me to suggest that the
contractual relationship between the parties was brought to an end as at
22 February 2005, being three months after the costs agreement was
signed in early November 2004. It is not clear to me on these materials
how it came about that thereafter the respondent was able to keep
rendering further bills progressively which amounted in the end to a total
figure close to $25,000. There is also the question of whether the costs
agreement was subject to a collateral contract of the kind contended for by
the applicant (said to have been effected by the respondent's letter to the
applicant dated 3 November 2004) whereby time costs bills were to be
approved by the applicant.”
REFERENCES TO FRAUD HINTED AT BY JUSTICE HASLUCK
17. The Review Order Case made 7 references to fraud at paras 119, 122, 123, 134, and also seven references to “unconscionable” or “unconscionability” at paras. 126, 134, 135, 145 and 151. They are all made in respect of or hinting towards the professional misconduct of Mr. Timothy Robin Thies who is guilty of abusing his powers as a solicitor by advancing his own personal interests ahead of his client’s interests, exploiting my vulnerabilities as a person who has a thin skull and he knew of this and is always conscious of doing it despite the protestations of my father and he had indeed defrauded me of monies which I never owe him at all as he was claiming for some $25,000.00 and he finally succeeded in defrauding me and my father in the sum of $11,500.00. His professional misconduct is one that is consistent and blatant and is of substantial nature and is contrary to the provisions of s. 402 and 403 of the Legal Profession Act, 2008 (WA).
MR. THIES IS CULPABLE FOR INCURRING DAMAGES FOR THE WRONGFUL CAVEAT WHICH HAS BEEN QUANTIFIED AT $100.00 PER DAY AND CONTINUING
18. Section 140 of the Transfer of Land Act, 1893 (WA) provides for damages which my father had notified Mr. Thies that he would be liable for and he still persists in trying to covet my home, as follows:
“Compensation for lodging caveat without reasonable cause
Any person lodging any caveat with the Registrar either against bringing land under this Act or otherwise without reasonable cause shall be liable to make to any person who may have sustained damage thereby such compensation as a judge on a summons in chambers shall deem just and order.”
19. I am making this Summons in Chambers to recover these damages and all the evidentiary materials of Mr. Thies’ fraudulent intentions are clear before this Honurable Court on the following facts:
20.
1.1. Mr. Thies knows that I owe him a zero sum debt at the time of my termination of his legal services on 22.2.2005.
2.2. Mr. Thies through his own admissions is making up the debt of $3,500.00
3.3. Mr. Thies escalated that zero sum debt to more than
$25,000.00 by exploiting my vulnerabilities and succeeded in defrauding me of the sum of $11,500.00.
4.4. Mr. Thies was able to defraud me and my father because he exerted duress on us by threats that his legal costs will keep on expanding with no limits in sight and any reasonable person would have succumbed to this threat.
5.5. My father and I were afraid of his threats and succumbed to the duress to pay him the sum of $11,500.00
6.6. Subsections 25(1) and 25(9) of the Magistrates Court (Civil Proceedings) Act, 2004 provides for me to claim back from Mr. Thies all my expenses and losses which include the damages of $100.00 per day which is quantified for him because I could not sell this home property for the right price in the property market at the right time.
MR. THIES DOES NOT HAVE THE HONEST BELIEF THAT HE HAD A CAVEATABLE INTERESTS IN THE CAVEAT PROPERTY
21. Malcolm C J in Bolton v Excell, unreported; FCt SCt of WA; Library 930175; 22 February 1993 states the principles applicable for damages under s.140 as follows:
1.1. The onus is on me, the First Defendant in the Caveat Case to prove that the Plaintiff Mr. Thies’ unlawful caveat was lodged without reasonable cause.
2.2. The test for “without reasonable cause” is whether the First Defendant had an honest belief based on reasonable grounds that he had such an interest.
3.3. The evidence before this Honourable Court and in the courts below shows that HE DID NOT HAVE THIS HONEST BELIEF based on the following grounds:
21.3.1. at the date before he lodged the caveat, he was notified that he did not have a proprietary interests or an equitable charge on the Caveat property;
21.3.2. he therefore did not have an equitable interests to justify a Caveatable interest in the caveat land.
21.3.3. his original belief that he had a caveatable interests in the caveat land was shattered by my father informing him that his costs agreement did not specifically refer to a particular land or the Caveat Property was never specifically identified; it merely signifies a general claim to any property real or personal that I might have and this would have have given rise to a equitable charge even if there was a debt owing to Mr. Thies but here was a zero sum debt;
21.3.4. he was not aware at the time of the signing of the costs agreement that I even own this Thornlie home;
21.3.5. he did not do anything to the caveat land in order to justify a caveatable or equitable claim over the caveat land;
21.3.6. there was no monies owing to him but only the disputed sum of $3,500.00 purportedly claimed by him.
4.4. The fact that the First Defendant DID NOT HAVE THIS HONEST BELIEF is to be judged as of the date that the unlawful caveat was lodged on 11.12.2006 and by the 30.1.2007, he was again NOTIFIED that he did not have an equitable interests over the Caveat Property found at page 40 my Affidavit quoting Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196 where the learned authors said:
“The only actual requirements of the equitable charge seems to be, first, intention; secondly, if over land, the presence of writing; third, the existence of definite ascertainable property, even though future, over which it is contemplated that the charge shall exist; and lastly, in a few exceptional cases, the presence of consideration; consideration would not save a purely oral agreement.”
20. The test of his honest belief has both subjective and objective elements:
20.1. The subjective element: he had an honest belief that he had a caveatable interest in the land which has been proven that he has not as indicated above.
20.2. The objective element to be based on reasonable grounds - against the background of all the relevant facts and circumstances. All the relevant facts and circumstances have already been examined by the thorough manner in which His Honour Justice Hasluck has gone through the voluminous evidence.
20.3. The Review Order Case bears six references to the impugned caveat of Mr. Thies at paras. 22, 23, 24, 32 and 141 which impinges on Mr. Thies dishonesty in lodging the caveat by stealth which caused the duress upon me to pay him the ransom money of $11,500.00 and he was still as greedy as ever even after the settlement day of the extorted monies which he obtained from me and my father. He is a modern day Robin Hood alas, there are no poor people around him and I am not the rich baron but a poor exploited person who had worked hard to earn his living.
NO SERIOUS QUESTION TO BE TRIED THEREFORE CAVEAT CASE TO BE DETERMINED IN THE REVIEW ORDER CASE:
21. I as the Second Defendant must demonstrate on the evidence that First
Defendant’s claim to a caveatable interest in the caveat Land raises a serious
question to be tried. When this Honourable Court is satisfied that this condition is being fulfilled, then, except in the most exceptional circumstances, this Caveat Case shall not be determined on originating summons. See Porter v McDonald [1984] WAR 271 at 276; Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997.
22. It is patently clear to this Court that the Respondent cannot make any ground or justification for having unlawfully lodged his Caveat on the Caveat Property but it is not appropriate for this Court to attempt to resolve the conflict of evidence based on affidavits alone but it must have recourse to the whole history of the circumstances affecting this case: See Eng Mee Yong (supra) at 341; Halse (supra) per Parker J at page 4. In this context, Brinsden J observed in Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141 in the following words:
'... the jurisdiction granted by section 138 should not be exercised so as to remove a caveat unless the case is one in which it is patently clear that the estate or interest sought to be protected cannot be made out and that degree of clarity will not emerge if there are disputed questions of fact, when the respondent should be left to proceed by way of action to establish the claimed interest or estate.'
23. In this case, the Respondent in the Review Order case is unable to demonstrate a reasonably arguable case as to the existence of his caveatable interest, the ordinary course is therefore that the Unlawful Caveat should not remain and the disputed question should not be left for trial in the Caveats Case but should be disposed of in the Review Order case as the law does not require for it to be resolved by way of originating summons. It is clear that the Respondent to the Review Order Case is making merely a frivolous and vexatious claim in his Caveats Case as it is plain to this Court that he claim of a caveatable interests is unlikely to succeed and he is making it difficult for me as the Defendant to defend his unmeritorious claim in the Caveat Case. SeeHalse (supra) per Parker J at page 14.
24. Your Honour, I quote the case of Bonini v Western Australian Real Estate Custodian Ltd [2001] WASC 258 Pullin J had this to say at par 11:
"In proceedings under s 138B(2), to extend the operation of a caveat, the court has jurisdiction to decide whether the caveator's claim 'has or may have substance'. In most cases, the practical reasons will still require only a decision about whether the caveator's claim 'may have' substance; in other words, if the caveator has an arguable case. However, there is no longer any legal reason why, in a clear case, the court cannot finally decide that the caveator's claim 'has' substance, ie to finally decide the caveator's claim. And see Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524, par 4."
MR. THIES DID NOT EVEN HAVE AN EQUITABLE MORTGAGE NOR CHARGE NOR EVEN A PERSONAL RIGHT BECAUSE THE PARTIES WERE NEVER AD
IDEM ON THIS
25. In MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248, the learned Justice Hasluck has the following to say:
33. It follows from these cases that I must begin by looking at the question of
whether the caveator in the present case can be said to have a caveatable
interests.
34. In earlier discussion I noted that by s 137 of the Transfer of Land Act that
a caveat can be lodged where a person claims "any estate or interest" in the
subject land. The decided cases recognise that it is only a person who has or
claims a legal or equitable interest in land in the nature of an estate or equitable
claim who can lodge a caveat. For example, the High Court held in Municipal
District of Concord v Coles (1906) 3 CLR 96 that a municipal council has not
such an estate or interest in land dedicated to the public as a road as will entitle
it to lodge a caveat.
35. The conventional wisdom in various Australian jurisdictions is that caveats
may only be lodged to protect proprietary interests in land: See Bradbrook
MacCallum and Moore, "Australian Real Property Law" (2nd ed) at par 4.83.
However, in regard to Western Australia it has been argued that the wording
of s 137 of the Transfer of Land Act results in a proprietary interest not being
necessary to establish a caveatable interest . It has been suggested by one
author that the term "interest" is the relevant statutory provision does
not per se import a proprietary interest: See Boyle: " Caveatable Interests"
(1995) 69 ALJ 237. The learned author submits that an equitable interest of the
sort often dismissed as in the nature of a claim in personam, a mere personal
right, is a caveatable interest in the subject land.
36. The same author goes on to say this at 240 of the relevant article:
"A caveat is a statutory injunction: Barry v Heider [1914] 19 CLR 197 at 221. It confers no proprietary interest. Its purpose and function is to maintain the status quo to preserve and protect the rights of a caveator. It prohibits the caveator's interest from being defeated by the registration of a dealing without the caveator having first had the opportunity to invoke the assistance of a court to give effect to the interest: see Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222. The interest may arise through the application of legal rules and principles, or it may arise because a specific equitable remedy exists to protect it. To limit the right to caveat only to interests classified as proprietary in nature is to deny a chief purpose of caveats."
In Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584 at 594-595 Buckley LJ discussed the difference between an equitable mortgage and an equitable charge. As that discussion shows, an equitable mortgage is created when the legal owner of the property constituting the security enters into some instrument or does some act which, though insufficient to confer a legal title in the subject matter upon the mortgagee, nevertheless demonstrates a binding intention to create a security in favour of the mortgagee or, in other words, evidences a contract to do so. By contrast, an equitable charge is created when property is expressly or constructively made liable, or specially appropriated, to the discharge of a debt or some other obligation, and confers on the chargee a right of realisation by judicial process, that is to say, by the appointment of a receiver or an order for sale.
In the present case, if the plaintiff is to succeed it will be on the basis that the September Deed created an equitable mortgage rather than an equitable charge. As it happens, it seems that the result would be same: because the Forest Hill property has been sold, enforcement by way of foreclosure, appointment of a receiver or sale is no longer possible. But it is clear that if a person has an equitable mortgage or charge over land and the land is sold, the mortgage or charge attaches to the fund which is produced by the sale (see Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 at 682 per Young J) and, as mentioned above, Anderson J has ordered that the Evenwood Fund stand in lieu of any security interest in the Forest Hill property that the plaintiff may have.
The primary question is whether cl 6.6 created an equitable mortgage or whether it created merely a personal covenant. In Cradock v Scottish Provident Institution (1893) 69 LT 380 at 382, Romer J said,
"To constitute a charge in equity by deed or writing it is not necessary that any general words of charge should be used. It is sufficient if the court can fairly gather from the instrument an intention by the parties that the property therein referred to should constitute a security."
As Lord Macnaghten said in William Brandt's Sons & Co v Dunlop Rubber Company [1905] AC 454 at 462, when speaking of an equitable assignment, "The language is immaterial if the meaning is plain." Further, in deciding whether the transaction is one creating an equitable mortgage or some other legal relationship all relevant circumstances, as well as the terms of the document, must be considered (see Fisher & Lightwood's Law of Mortgage Aust ed (1995) para 1.23).
The second defendants never became the sole registered proprietors of the Forest Hill property, and there is no direct evidence before the Court as to what Mr Foster was told about their intentions in that regard before he executed the September Deed. However, bearing in mind that only ten days previously in his letter of 25 August 1995 he had required full security by way of mortgage over the property, I infer that he accepted the insertion of cl 6.6 only because he was led to believe that the second defendants were about to become the sole registered proprietors. Otherwise, surely he would have insisted upon their execution then and there of a registrable mortgage of their two-thirds interest. As it is, the clause contains a clear undertaking by the second defendants to grant a third registered mortgage by way of security, and the second defendants already were the legal owners and registered proprietors as tenants in common of two-thirds of the property the subject of the undertaking. Each, therefore, was able to mortgage or otherwise deal separately with his respective share. Again, the obligation secured relates to the repayment of moneys which were to be advanced upon execution of the document: the obligation was immediate and not contingent. In those circumstances, I conclude that the clause granted to the plaintiff an equitable mortgage over the property.
EVEN IF THE ZERO SUM DEBT BECOMES CONJURED UP INTO A $3,500.00 DEBT IN THE MIND OF MR. THIES, IT STILL DOES NOT JUSTIFY A CAVEAT:
26. See the case of: See: Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475 from which is quoted the following:
“The existence of a debt is NEVER, of itself, sufficient grounds to justify a caveat. The debt must be supported by a document in writing evidencing the debt AND charging the land with liability to pay the debt. A document that evidences the debt, but does not charge the land, is not a good basis for a caveat.”
27. Paragraph 25 above refers to an equitable claim in the nature often dismissed as a Claim In personam or a personal right can justify caveatable interests in WA. Such a claim is directed towards a particular person instead of towards a thing as a claim in rem. In personam mean that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there. It is rather far fetched for Mr. Thies to conceive of a zero sum debt which he imagines to be $3,500.00 and then escalate it to $25,000.00 to warrant to this Honourable Court that he has a caveatable interests and being firmly of this belief he subsequently refused to release it even after payments has been made to him. This is a highly preposterous situation for a lawyer who is supposed to do justice to the common man.
TRANSFER OF LAND ACT 1893 CLEARLY REFLECTS THE COMMON LAW AS INDICATED ABOVE:
28. Even if Mr. Thies has got a personal right against me or even a claim in personam against me, by any stretch of imagination, he cannot have any conceivable caveatable interests under s.137 of the Transfer of Land Act , 1893 (WA). According to the learned author Sandra Boyle in CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED found at: http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html, she identifies four categories of caveatable interests in that section as:
(a) any estate or interest in land under the operation of this Act;
(b) any estate or interest under any:
i) unregistered instrument;
ii) document; or
iii) writing
in any lease mortgage or charge;
(c) any estate or interest in any equitable mortgage or charge by a deposit without writing; and
(d) any estate or interest which arises
i) by devolution in law; or
ii) otherwise.
CONCLUSION:
29. Therefore, my claim against Mr. Thies for him to return all the monies he has taken from both myself and my dad together with interests at the rate of 6.00% p.a. from the date he had defrauded me and my father and the damages for the wrongful caveat that he had caused me in accordance with s.140 of the TLA Act and s.25(1) and 25(9) of the MCCP Act. I am compassionate for Mr. Thies in that I do not want to make any claims against him for the nervous shock he had caused to me and my father and other members of my family including my mother.
Signed by: ………………………………… ….
PAUL CHUNG KIONG CHIN
LIST OF AUTHRORITIES
STATUTE LAW:
1. 25(1) and 25(9) of the Magistrates Court (Civil Proceedings) Act, 2004
2. S. 137, 138 and 140 of the Transfer of Land Act, 1893 (WA);
3. S.36 of the Magistrates Court Act, 2004 (WA);
4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, 10 December 1984;
5. Universal Declaration of Human Rights, United Nations, 10 December 1948;
ARTICLES:
6. CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED, Article in the Elaw Electronic Law Journal of the Murdoch School of Law by Sandra Boyle found at: http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html
7. Boyle: " Caveatable Interests" (1995) 69 ALJ 237.
CASE LAW:
8. Australian Security Estates Pty Ltd v Bluecrest Holdings Pty Ltd [1999] NSWSC 524, par 4;
9. Barry v Heider [1914] 19 CLR 197 at 221;
10. Bolton v Excell, unreported; FCt SCt of WA; Library 930175; 22 February 1993 per Malcolm C J.
11. Bonini v Western Australian Real Estate Custodian Ltd [2001] WASC 258 Pullin J at par 11;
12. Cradock v Scottish Provident Institution (1893) 69 LT 380 at 382;
13. Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129 at 141;
14. Eng Mee Yong (supra) at 341;
15. Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997; Also: Halse (supra) per Parker J at page 4;
16. Kerabee Park Pty Ltd v Daley (1978) 2 NSWLR 222;
17. MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248;
18. Municipal District of Concord v Coles (1906) 3 CLR 96;
19. Porter v McDonald [1984] WAR 271 at 276;
20. RE MICHELIDES; EX PARTE CHIN [2008] WASC 256;
21. see Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 at 682 per Young J;
22. Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475;
23. Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196
24. William Brandt's Sons & Co v Dunlop Rubber Company [1905] AC 454 at 462;
WRITTEN SUBMISSION FOR JUSTICE KENNETH MARTIN RECUSAL RE: CIV1903 OF 2008 AND CIV 1112 OF 2007
IN THE SUPREME COURT CIV 1903 OF 2008
OF WESTERN AUSTRALIA
BETWEEN
NICHOLAS NI KOK CHIN PLAINTIFF
AND
TIMOTHY ROBIN THIES FIRST DEFENDANT
AND
PAUL CHUNG KIONG CHIN SECOND DEFENDANT
OUTLINE OF WRITTEN SUBMISSIONS FILED BY PLAINTIFF IN CIV 1903 OF 2008 FOR FURTHER DIRECTIONS HEARING SCHEDULED ON 13.5.2010. IT IS FILED PURSUANT TO DIRECTIONS HEARING BEFORE JUSTICE KENNETH MARTIN ON 30.4.2010 RE HIS HONOUR’S DENIAL OF PLAINTIFF’S CAPACITY TO ACT AS FREE AGENT FOR HIS SON PAUL IN THE CAVEATS CASE OF CIV 1112 OF 2007. THIS DENIAL IS CONTRARY TO THE AGREEMENT REACHED BETWEEN THE PARTIES ON 17.6.2009 BEFORE JUSTICE HASLUCK.
----------------------------------------------------------------------------------------------------------
Date of Document: 10th May, 2010
Date of Filing: 10th May, 2010
Filed and prepared by the First Defendant on his own behalf as self-representing litigant:
NICHOLAS NI KOK CHIN
387, Alexander Drive Phone & Fax: 618 9275 7440
DIANELLA WA 6059 Email: nnchin@msn.com
TABLE OF CONTENTS PAGE NUMBERS
A SOLICITOR FATHER ACTING IN SELF-INTEREST NOT TO BE CONFUSED AS A SOLCITOR ACTING FOR HIS SON 2
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE 4
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON 5
PARTICULARS OF THE LESS THAN IMPARTIAL MIND OF THE LEARNED JUSTICE KENNETH MARTIN AS INDICATED IN THE TRANSCRIPT OF DIRECTIONS HEARING IN CIV 1112 OF 2010 ON 30TH APRIL, 2010 6
CONCLUSION: 11
Your Honour
A SOLICITOR FATHER ACTING IN SELF-INTEREST NOT TO BE CONFUSED AS A SOLCITOR ACTING FOR HIS SON
1. I refer to the Directions Hearing in both the Review Order Case (of CIV 1903 of 2008 cited as RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 made by me in accordance with my Application pursuant to s.36 of the Magistrates Court Act, 2004) and the Caveat Case in CIV 1112 of 2007, both cases coming before Your Honour on 30.4.2010. Whence both parties were persuaded by Your Honour to study the transcript of that directions hearing before re-appearing for another directions hearing on 13.5.2010.
2. After serious consideration of the events that have transpired in that proceedings, I have today reached the irrefutable conclusion that it is a fact that Your Honour will need to recuse yourself from hearing both the Review Order Case and the Caveat Case in the interests of justice. Your Honour should reach Your Honour’s own decisions with respect to recusal without calling on counsel to consent because a consent request of this nature would be "fraught with potential coercive elements which make this practice undesirable ."
3. This is based on the ground that having regard to the circumstances which I will take pains to outline below, there remains the fact that it would be impossible for Your Honour to bring an impartial mind to the proceedings of these two cases as a judge.
4. As Your Honour should know that I am being made the Plaintiff of the further proceedings of the Review Order Case by His Honour Justice Hasluck on 17.6.2009 for obvious reasons; the fact that I have been appearing in this matter as a litigant in person for my own affairs with my son Paul C K Chin remaining in the background, right from the start. There was never any requirement imposed upon me as an officer of the court to be impartial in these proceedings . If there was, I would indeed be disqualified, just as any judge would be disqualified if he is indeed less than impartial.
5. I am the protagonist in this matter by virtue of my own rights as a litigant in person having a personal claim against the Respondent. Consequently there are no issues of my being “hopelessly conflicted ” at all material times as I am my own boss looking after my own personal affairs as a litigant in person with my son appearing as the boss in legal terms remaining in the background under legally permissible circumstances.
6. At all material times, the interests of my son Paul as the legal owner coincides with my own interests as the equitable owner of his interests, just as any father would undoubtedly have equitable ownership over his son’s property. I have never been my son’s solicitor although I am his solicitor father but I am entitled to use my label “barrister & solicitor” to indicate my social status although I have not applied for a current practice certificate, which I am entitled to with conditions imposed.
7. I have all the characteristics of a solicitor but at all material times, I am the father of Paul and have the natural inclinations just as any other natural father would have, to protect the interests of his own son.
8. This Honourable Court must divest my personality as a solicitor serving the interests of a member of a public who happens to chose me as his or her solicitor from that of a natural father who unlike most others, happens to be possessed of a legal mind. The father can be working for a member of the public to earn his living or he can be working on a pro bono basis for his own son to protect his own or his son’s interest or their mutual interests, which invariably merge or coincide to form some collective interests belonging together to both the father and son but mutually divestible from each other, in the legal sense.
9. The only criteria for the concept of conflict of interests to exist is to prevent the father from becoming impartial in the execution of his duties as an officer of the court when advocating for his son. Here, he is advocating for his own interests and hence that supposed conflict of interests is non-existent.
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE
10. It is implicit in the subsequent proceedings in the Review Order Case that neither Mr. Thies nor his counsel should be seen anymore to be exploiting the vulnerabilities of my son Paul who happens to have a thin skull. The motive for Mr. Thies to get my son Paul to become the second defendant in the Review Order Case is to seek to harass and intimidate him but in a more refined manner than it was done by him previously, which caused Paul to be subject to and to succumb to Mr. Thies’ duress. Let it be forewarned, that Mr. Thies should no longer seeks to torture Paul any further as it is a criminal offence for him to do so .
11. I was promised by Mr. Scott Ellis acting as counsel for Mr. Thies in the presence of Justice Hasluck on 17.6.2009 that Paul’s name be entered as the Second Defendant on condition that Paul were to remain inactive and that Paul will not be liable for any costs consequences.
12. However, it is an index of the learned Justice Kenneth Martin’s mind on 30.4.2010 in the directions hearing before me and Mr. Thies, and as such the learned Justice’s mind is reasonably apprehended to be biased against me and favouring Mr. Thies. This is because the learned Justice excluded me from advocating for my son Paul in the Caveat Case not in my capacity as my Paul’s solicitor or counsel which I never intended to do but merely as a self-represented litigant.
13. I say this on the ground that both the Caveat Case and the Review Order Case should be merged or amalgamated into one case as they involved the same issues of facts and law as it is in the interests of conserving the limited resources of this Honourable Court.
14. Further, when the issues of fact and law affecting the caveatable interests of Mr. Thies are clear i.e. it points to the irrefutable conclusion that Mr. Thies has no basis for lodging that unlawful caveat, an order for the removal of the Caveat need not be determined on an Originating Summon in the Caveat Case but only in the Review Case.
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON
15. There is no professional relationship of client and solicitor between myself as the father and Paul as my son and it has always been so in all our mutual dealings except for our relationship with Mr. Thies who is our common solicitor. There is therefore no conflict of interests existing between me and my son Paul because I do not play the public role of a solicitor between a father and a son but only the private role of safeguarding my son’s own interests just as though it was my own interests .
16. My own interests as a father of Paul merged into the interests of my son Paul in our common capacity as the owner, his being legal and mine being equitable of Paul’s own home at 29, O’Dell Street, Thornlie in the State of Western Australia which is the caveat property being the subject of Mr. Thies’ unlawful caveat. His unlawful caveat is devoid of any caveatable interests with its concomitant equitable interests . To qualify for an equitable interests in the Caveat Property, Mr. Thies no doubt has to be able to prove that we are ad idem with him in so far as the Caveat Property has been properly identified in the disputed costs agreement we had both entered into with him for his legal services which came to an abrupt stop as soon as he was seen to be reneging on the terms of that contract .
17. The evidentiary materials are before this Court is that Mr. Thies had been engaged in unconscionable conduct against me and my son by abusing his powers as a fiduciary to exploit the vulnerabilities of Paul and to threaten us with fantastic costs escalation procedures, yet unheard of for the purpose of intimidating fear into our hearts such that we both did succumb to his duress; they were unconscionably inflicted upon Paul on account of his ignorance and myself on account of my fear that my son might suffer illness of a specified kind as a result of stress. These fears are real as they had occurred in the past caused by Mr. Thies and were and are still likely to recur.
PARTICULARS OF THE LESS THAN IMPARTIAL MIND OF THE LEARNED JUSTICE KENNETH MARTIN AS INDICATED IN THE TRANSCRIPT OF DIRECTIONS HEARING IN CIV 1112 OF 2010 ON 30TH APRIL, 2010
18.0. At page 4 and 5 of the transcript, the learned Justice referred to the Affidavit filed by me appearing as solicitor for my son Paul in the Caveat Case. My name appear as the Barrister and solicitor and that is my title in social life which I am entitled to use as my name is still on the Roll of the Supreme Court of WA. I am indeed the free agent and the McKenzie friend of my son fulfilling the condition promised to me by Mr. Thies that Paul shall not be an active participant in these and other related proceedings.
19.0. I am capable of holding a practice certificate with the conditions imposed but I do not wish to apply for a practice certificate at the moment. As indicated earlier, there is a never a client-solicitor relationship between my son Paul and myself in all my dealings. I am always entitled to work as a free agent for my son on a pro bono basis and I do not contravene s.12 of the Legal Profession Act, 2008 (WA).
20.0. At page 5 the Learned Justice did not accept that the Caveat Case is related to the Review Order and he refused to give reason for his decision in this respect. The learned Justice said “please stop” and thereby denied me natural justice (see page 5 at line 25 and 27 of the transcript).
21.0. At page 6 of the transcript, the learned Justice said that I had an “appalling conflict of interest”. The learned justice is wrong in that I never practice as a solicitor for my son and therefore I have no public role interests that conflicted with my private role as a natural father of my son Paul to protect his interests which is also my own interests. Mr. Thies is our solicitor and he has a public role interests that he should never advance his personal interests to conflict with the former.
22.0. In order to avert the controversy, Paul Chin has decided to file his own Affidavit and to submit his own Written Outline of Submission dated and filed the 10th day of May, 2010.
23.0. Through judicial activism or the direct intervention of the judicial process by the Learned Justice himself in an Australian adversarial system of justice as distinct from an inquisitorial system, he is seen to be advocating for Mr. Thies in respect of his perception of an unreal conflict of interests situation but at the same he is refusing to see the conflict of interests situation of Mr. Thies himself; he is descending into the arena of conflict and is blinded by the dust of conflict.
24.0. Surely, he knows this: The true function of this Court is to hear and determine cases, according to law, without fear or favour – nothing more and nothing less . I am indeed perplexed as this is surely not the scene that I expected from the Learned Justice Martin.
25.0. At line 36 to 38 of page 6 of the transcript, the Learned Justice refers to a “basis to support a charge which supports the caveat for unpaid solicitors’s fees”. This statement by a Judge or potential judge in the Caveats warrants the reasonable belief that there has been a secret communication between the Learned Justice Martin and the other party to these proceedings and therefore warrants an immediate recusal of that learned Justice. If indeed the Learned Justice is acquainted with the evidentiary materials before him he would have reached this preposterous conclusion having regard to the fact that the costs agreement between Mr. Thies and myself and my son Paul son never specifically alluded to the Caveat Property and how on earth did Mr. Thies gets the idea that he has an equitable charge over that Caveat Property.
26.0. At the last paragraph of page 6 of the transcript, the learned Justice Martin is again stating there is a compromise when he fully knows that the facts of the case points irrevocably to the fact that the compromise had been vitiated by the duress exerted by Mr. Thies on both the father and the son. The word “duress” has been mentioned 24 times and this indicates that Justice Hasluck is mindful that the presence of duress upon the minds of both myself and my son Paul is not fanciful but something very real .
27.0. At lines 1 to 14 of page 8 of the transcript, Justice Martin is continuing to deny me natural justice by paying lip service to the fact that I am the Plaintiff in the Review Order Case. He is dictating his own version of the story by taking the sides of Mr. Thies knowing that he had been secretly communicated by barrister Scott Ellis without my knowledge as admitted subconsciously by the learned Justice at line 10 and 11 of page 3 of the transcript.
28.0. Justice Martin descended into the arena of conflict again by siding with Mr. Thies with regard to defunct order of Commissioner Herron which is an out of jurisdiction decision that has since been taken off the District Court website as no good law. He knows that s.36 of the Magistrates Court Act, 2004 does not allow Justice Hasluck to make any pronouncements on the District Court costs order that is a nullity and yet he is not accepting the argument that if the Review Order Decision has gone into the root of the matter at the Magistrates Court level before the two judicial officers Magistrate Musk and Magistrate Michelides who have consented to the withdrawal of their respective decisions, there should no longer be any debate on the intervening District Court decision of Commissioner Herron which rests on those defunct Magistrates Courts decisions in the courts below. This is a non-argument and the matter should be put to rest, lest there be an appeal again from the District Court to the Supreme Court which would cause unnecessary wastage of resources.
29.0. The next issue is the NON-COMPLIANCE by Mr. Thies as the Respondent in the Review Order Case to comply by filing an Affidavit in his Defence within 21 days of the Order dated 17.6.2009. Mr. Thies filed on the 6th day of October, 2009 after a lapse of some three months. Justice Hasluck made time of the essence of his Order. Unless there are reasonable explanations, there is no point for this Honourable Court to waste its resources on debating the contents of the two volumes of these Affidavit which points to the same contentions as brought by the Applicant for the Review Order.
30.0. Looking at page 10 and 11 of the transcript, the issue is whether I should have done something when Mr. Thies did not comply. Justice Martin said he is not there to provide me with legal advice but he is bound by law to advice me procedurally in order for the case to go on. However, I did do what I needed to do and I got a response letter from the Associate to Justice Hasluck to the effect that I have done everything that needs to be done .
31.0. The issue raised at page 11 of the transcript concerns not the $6,000.00 owing to me but the whole of the $11,500.00 that was taken by Mr. Thies from under a vitiated by duress vitiated compromise agreement, which sum Mr. Thies ought to replace. He is being forgiven for the mental trauma and harm he had caused to me and Paul and to his mother. We are not asking for damages on this mental harm. All we want is to see that a member of the legal profession must be dealt in accordance with the law for taking monies which are not due nor payable to him because there is no disputed debt at all and he has waived his defence if there is one by not complying timeously with the Order of Justice Hasluck in the Review Order case.
32.0. The jurisdictional issue of their Honour Magistrate Musk, Magistrate Michelides and Commissioner Herron of the District Court resolves around their abuse of powers as judicial officers and acting out of their jurisdictions in refusing to look into the issues of the zero sum debt and the illegal demands for monies for no debts and for not recognizing the issue of duress in accordance with the law. These issues have been spelt out by Justice Hasluck in the Review Order Case in terms of the following:
32.1. Para. 24 refer to a debt which may justify the caveat and there was not.
32.2. Para. 84 refers to s.6 of the Magistrates Court Act, 2004 (WA) which empowers both the Magistrates and Commissioner Herron to intervene but since there was no such powers accorded to them, there is therefore an abuse of power by them.
32.3. the Catchwords refers to the duress of the duress-vitiated compromise;
32.4. Para. 40 refers to the setting aside of the duress-vitiated compromise;
32.5. Para.46 refers to the duress-vitiated compromise that was before Commissioner Herron;
32.6. Para.47 refers to the error of Commissioner Herron in concluding there was no duress-vitiated compromise;
32.7. Para.55 refers to the lynchpin of the facts and law where the duress-vitiated compromise should exist;
32.8. Para.56 and 57 makes four references to the error of Magistrate Michelides who dismissed the Appeal of the Applicant regarding the duress-vitiated compromise on the unjustifiable ground of “a last ditch effort” and as “an after-thought”. The evidence before the court was that the Registrar who entered into the Consent Judgment was fully informed of the duress-situation.
32.9. Para.62 refers to the lengthy Notice of Originating Motion in the Review Order case affecting the duress-vitiated compromise;
32.10. Para. 103 is the general observation of Justice Hasluck that duress-vitiated compromise exists by virtue of the existence of the professional misconduct of the over-charging conduct of Mr. Thies.
32.11. Para.108 refers to Magistrate Musk’s refusal to set aside the duress-vitiated compromise on the ground that a perfected order affecting the Registrar’s perfected consent judgment should not be tempered with. This situation is confirmed by Commissioner Herron and is His Honour’s jurisdictional error on the ground that the Registrar’s consent judgment itself arose from a jurisdictional error.
32.12. Para. 125 refers to the actionable duress-vitiated compromise that must be set aright by this Court in accordance with the law.
32.13. Para.126 made three references to justify the fact that Mr. Thies although threatening to carry out a lawful act can bring about the duress-vitiated compromise.
32.14. Paragraph 132 refers to Magistrates Michelides error that a duress- tainted and thus a duress-vitiated order can be set aside by this Court.
32.15. Para.133 suggests the error of Commissioner Herron and Magistrate Michelides to the effect that duress-vitiated compromise can be accomplished without the free will of both the father Plaintiff and the son victim.
32.16. Para.134 relates to the setting aside of a duress-vitiated compromise that is based on fraud and unconscionable conduct based upon the evidentiary materials before this Court.
32.17. Para.135 relates to the cause of the duress-vitiated duress arising out of the economic duress, fraud, undue influence of a solicitor upon the minds of his victims resulting in the wills of the victim being over-borned and that time for appeal should be extended where there are reasonable circumstances to explain the delay.
32.18. Para.140 refers to the duress-vitiated compromise being viable on account of the escalating costs demands under circumstances when the legal services of Mr. Thies which is the source of those unexplainable costs has been terminated earlier in time so that the Applicant and his son can expect a cessation of those over-charging and excessive solicitors costs that are not within the contemplation of the contracting parties.
32.19. Para.143 refers to the fact that the duress-vitiated compromise being a reasonable and arguable case which the judicial officers in the courts below should have taken into account relevant matters and should not have taken into account irrelevant matters.
32.20. Para.145 refers to the fact that Magistrates Michelides should have allowed my Appeal by first extending the time to appeal, take into account the duress-vitiated consent judgment.
32.21. Para.149 refers to the facts that the Judicial Officers of the Courts below had erred and they agreed indeed they have erred. Commissioner Herron cannot be contacted to signify that His Honour had erred but he implied by his conduct by removing his out of jurisdiction judgment from the website of the District Court of WA such that it would continue to mislead the public.
CONCLUSION:
33. If Your Honour cannot agree with the above points I have raised, then it is very clear that Your Honour have made a pre-judgment of those issues as indicated above and they are self-evident in the transcript. The only viable solution for me then is to ask for another impartial judge to carry out his duties in accordance with his Oath of Office. I sincerely apologized to Your Honour for this intentional personal affront which I had to give to Your Honour.
34. If Your Honour still thinks that Your Honour can bring an impartial mind to these issues, then I would expect all future decisions of Your Honour to be made transparently and are to be made with full explanations with logical human reasoning based on relevant issues of facts and law and Your Honour must not take into account irrelevant issues of facts or law or refuse to take into account relevant issues of facts and law.
35. Consequently, I would not want any issues that have been explained by the learned Justice Hasluck in the Review Order case to be avoided at all costs by Your Honour, such that we can together avoid the public perception that justice is not palpably seen to be done fairly to all parties concerned.
36. We are trying to avoid the public perception that all lawyers are not seemingly to be acting legally. I want to be the lawyer who is acting legally and with conscience and in these contexts I want the public interests to be upheld by our legal system which is seen to be palpably working in the public interests.
Signed by: ………………………………… ….
LIST OF AUTHORITIES
STATUTE LAW
1. Legal Profession Act, 1008 (WA) s.12;
2. Magistrates Courts Act, 2004 (WA) s.6;
3. UN Convention Against Torture
ARTICLES:
4. CJE Opinion No. 92-1 of The Massachusetts Judicial Branch: Judicial Ethics Opinions: Hearing De Novo Retrials of Cases Tried by Judge's Father,an ADA, and Trials Involving The District Attorney's Staff found at:
http://www.mass.gov/courts/sjc/cje/92-1h.html
5. Judicial Activism found at http://www.conservapedia.com/Judicial_Activism;
6. Boyle, S: an article in the Murdoch Law School Electronic Journal, found at http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html entitled: CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED said at para.1;
7. Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196;
8. LAWASIA Conference, Tokyo an article by JUSTICE ALWYNNE ROWLANDS AO entitled: ASPECTS OF JUDICIAL PROFESSIONALISM IN THE AUSTRALIAN FAMILY LAW CONTEXT 1 September 2003
CASE LAW:
9. BPR -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 41 per ROBERTS-SMITH JA at paragrraph 79;
10. DIAGNOSTIC MEDLAB LTD V AUCKLAND DISTRICT HEALTH BOARD, WAITEMATA DISTRICT HEALTH BOARD, COUNTIES-MANUKAU DISTRICT HEALTH BOARD AND ORS HC AK CIV 2006-404-4724 [2007] NZHC 177 (20 March 2007);
11. Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997.
12. Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294”
13. MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248;
14. Porter v McDonald [1984] WAR 271 at 276;
15. RE BURTON; EX PARTE LOWE & ANOR [2003] WASCA 306 as per Murray J, Barker J and Roberts-Smith J in paragraph 63;
16. Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986) per Dawson J, at para.2;
17. RE MICHELIDES; EX PARTE CHIN [2008] WASC 256;
18. Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475;
OF WESTERN AUSTRALIA
BETWEEN
NICHOLAS NI KOK CHIN PLAINTIFF
AND
TIMOTHY ROBIN THIES FIRST DEFENDANT
AND
PAUL CHUNG KIONG CHIN SECOND DEFENDANT
OUTLINE OF WRITTEN SUBMISSIONS FILED BY PLAINTIFF IN CIV 1903 OF 2008 FOR FURTHER DIRECTIONS HEARING SCHEDULED ON 13.5.2010. IT IS FILED PURSUANT TO DIRECTIONS HEARING BEFORE JUSTICE KENNETH MARTIN ON 30.4.2010 RE HIS HONOUR’S DENIAL OF PLAINTIFF’S CAPACITY TO ACT AS FREE AGENT FOR HIS SON PAUL IN THE CAVEATS CASE OF CIV 1112 OF 2007. THIS DENIAL IS CONTRARY TO THE AGREEMENT REACHED BETWEEN THE PARTIES ON 17.6.2009 BEFORE JUSTICE HASLUCK.
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Date of Document: 10th May, 2010
Date of Filing: 10th May, 2010
Filed and prepared by the First Defendant on his own behalf as self-representing litigant:
NICHOLAS NI KOK CHIN
387, Alexander Drive Phone & Fax: 618 9275 7440
DIANELLA WA 6059 Email: nnchin@msn.com
TABLE OF CONTENTS PAGE NUMBERS
A SOLICITOR FATHER ACTING IN SELF-INTEREST NOT TO BE CONFUSED AS A SOLCITOR ACTING FOR HIS SON 2
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE 4
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON 5
PARTICULARS OF THE LESS THAN IMPARTIAL MIND OF THE LEARNED JUSTICE KENNETH MARTIN AS INDICATED IN THE TRANSCRIPT OF DIRECTIONS HEARING IN CIV 1112 OF 2010 ON 30TH APRIL, 2010 6
CONCLUSION: 11
Your Honour
A SOLICITOR FATHER ACTING IN SELF-INTEREST NOT TO BE CONFUSED AS A SOLCITOR ACTING FOR HIS SON
1. I refer to the Directions Hearing in both the Review Order Case (of CIV 1903 of 2008 cited as RE MICHELIDES; EX PARTE CHIN [2008] WASC 256 made by me in accordance with my Application pursuant to s.36 of the Magistrates Court Act, 2004) and the Caveat Case in CIV 1112 of 2007, both cases coming before Your Honour on 30.4.2010. Whence both parties were persuaded by Your Honour to study the transcript of that directions hearing before re-appearing for another directions hearing on 13.5.2010.
2. After serious consideration of the events that have transpired in that proceedings, I have today reached the irrefutable conclusion that it is a fact that Your Honour will need to recuse yourself from hearing both the Review Order Case and the Caveat Case in the interests of justice. Your Honour should reach Your Honour’s own decisions with respect to recusal without calling on counsel to consent because a consent request of this nature would be "fraught with potential coercive elements which make this practice undesirable ."
3. This is based on the ground that having regard to the circumstances which I will take pains to outline below, there remains the fact that it would be impossible for Your Honour to bring an impartial mind to the proceedings of these two cases as a judge.
4. As Your Honour should know that I am being made the Plaintiff of the further proceedings of the Review Order Case by His Honour Justice Hasluck on 17.6.2009 for obvious reasons; the fact that I have been appearing in this matter as a litigant in person for my own affairs with my son Paul C K Chin remaining in the background, right from the start. There was never any requirement imposed upon me as an officer of the court to be impartial in these proceedings . If there was, I would indeed be disqualified, just as any judge would be disqualified if he is indeed less than impartial.
5. I am the protagonist in this matter by virtue of my own rights as a litigant in person having a personal claim against the Respondent. Consequently there are no issues of my being “hopelessly conflicted ” at all material times as I am my own boss looking after my own personal affairs as a litigant in person with my son appearing as the boss in legal terms remaining in the background under legally permissible circumstances.
6. At all material times, the interests of my son Paul as the legal owner coincides with my own interests as the equitable owner of his interests, just as any father would undoubtedly have equitable ownership over his son’s property. I have never been my son’s solicitor although I am his solicitor father but I am entitled to use my label “barrister & solicitor” to indicate my social status although I have not applied for a current practice certificate, which I am entitled to with conditions imposed.
7. I have all the characteristics of a solicitor but at all material times, I am the father of Paul and have the natural inclinations just as any other natural father would have, to protect the interests of his own son.
8. This Honourable Court must divest my personality as a solicitor serving the interests of a member of a public who happens to chose me as his or her solicitor from that of a natural father who unlike most others, happens to be possessed of a legal mind. The father can be working for a member of the public to earn his living or he can be working on a pro bono basis for his own son to protect his own or his son’s interest or their mutual interests, which invariably merge or coincide to form some collective interests belonging together to both the father and son but mutually divestible from each other, in the legal sense.
9. The only criteria for the concept of conflict of interests to exist is to prevent the father from becoming impartial in the execution of his duties as an officer of the court when advocating for his son. Here, he is advocating for his own interests and hence that supposed conflict of interests is non-existent.
PAUL NOT LIABLE FOR COSTS AS LONG AS HE IS INACTIVE
10. It is implicit in the subsequent proceedings in the Review Order Case that neither Mr. Thies nor his counsel should be seen anymore to be exploiting the vulnerabilities of my son Paul who happens to have a thin skull. The motive for Mr. Thies to get my son Paul to become the second defendant in the Review Order Case is to seek to harass and intimidate him but in a more refined manner than it was done by him previously, which caused Paul to be subject to and to succumb to Mr. Thies’ duress. Let it be forewarned, that Mr. Thies should no longer seeks to torture Paul any further as it is a criminal offence for him to do so .
11. I was promised by Mr. Scott Ellis acting as counsel for Mr. Thies in the presence of Justice Hasluck on 17.6.2009 that Paul’s name be entered as the Second Defendant on condition that Paul were to remain inactive and that Paul will not be liable for any costs consequences.
12. However, it is an index of the learned Justice Kenneth Martin’s mind on 30.4.2010 in the directions hearing before me and Mr. Thies, and as such the learned Justice’s mind is reasonably apprehended to be biased against me and favouring Mr. Thies. This is because the learned Justice excluded me from advocating for my son Paul in the Caveat Case not in my capacity as my Paul’s solicitor or counsel which I never intended to do but merely as a self-represented litigant.
13. I say this on the ground that both the Caveat Case and the Review Order Case should be merged or amalgamated into one case as they involved the same issues of facts and law as it is in the interests of conserving the limited resources of this Honourable Court.
14. Further, when the issues of fact and law affecting the caveatable interests of Mr. Thies are clear i.e. it points to the irrefutable conclusion that Mr. Thies has no basis for lodging that unlawful caveat, an order for the removal of the Caveat need not be determined on an Originating Summon in the Caveat Case but only in the Review Case.
NO PROFESSIONAL RELATIONSHIP BETWEEN FATHER AND SON
15. There is no professional relationship of client and solicitor between myself as the father and Paul as my son and it has always been so in all our mutual dealings except for our relationship with Mr. Thies who is our common solicitor. There is therefore no conflict of interests existing between me and my son Paul because I do not play the public role of a solicitor between a father and a son but only the private role of safeguarding my son’s own interests just as though it was my own interests .
16. My own interests as a father of Paul merged into the interests of my son Paul in our common capacity as the owner, his being legal and mine being equitable of Paul’s own home at 29, O’Dell Street, Thornlie in the State of Western Australia which is the caveat property being the subject of Mr. Thies’ unlawful caveat. His unlawful caveat is devoid of any caveatable interests with its concomitant equitable interests . To qualify for an equitable interests in the Caveat Property, Mr. Thies no doubt has to be able to prove that we are ad idem with him in so far as the Caveat Property has been properly identified in the disputed costs agreement we had both entered into with him for his legal services which came to an abrupt stop as soon as he was seen to be reneging on the terms of that contract .
17. The evidentiary materials are before this Court is that Mr. Thies had been engaged in unconscionable conduct against me and my son by abusing his powers as a fiduciary to exploit the vulnerabilities of Paul and to threaten us with fantastic costs escalation procedures, yet unheard of for the purpose of intimidating fear into our hearts such that we both did succumb to his duress; they were unconscionably inflicted upon Paul on account of his ignorance and myself on account of my fear that my son might suffer illness of a specified kind as a result of stress. These fears are real as they had occurred in the past caused by Mr. Thies and were and are still likely to recur.
PARTICULARS OF THE LESS THAN IMPARTIAL MIND OF THE LEARNED JUSTICE KENNETH MARTIN AS INDICATED IN THE TRANSCRIPT OF DIRECTIONS HEARING IN CIV 1112 OF 2010 ON 30TH APRIL, 2010
18.0. At page 4 and 5 of the transcript, the learned Justice referred to the Affidavit filed by me appearing as solicitor for my son Paul in the Caveat Case. My name appear as the Barrister and solicitor and that is my title in social life which I am entitled to use as my name is still on the Roll of the Supreme Court of WA. I am indeed the free agent and the McKenzie friend of my son fulfilling the condition promised to me by Mr. Thies that Paul shall not be an active participant in these and other related proceedings.
19.0. I am capable of holding a practice certificate with the conditions imposed but I do not wish to apply for a practice certificate at the moment. As indicated earlier, there is a never a client-solicitor relationship between my son Paul and myself in all my dealings. I am always entitled to work as a free agent for my son on a pro bono basis and I do not contravene s.12 of the Legal Profession Act, 2008 (WA).
20.0. At page 5 the Learned Justice did not accept that the Caveat Case is related to the Review Order and he refused to give reason for his decision in this respect. The learned Justice said “please stop” and thereby denied me natural justice (see page 5 at line 25 and 27 of the transcript).
21.0. At page 6 of the transcript, the learned Justice said that I had an “appalling conflict of interest”. The learned justice is wrong in that I never practice as a solicitor for my son and therefore I have no public role interests that conflicted with my private role as a natural father of my son Paul to protect his interests which is also my own interests. Mr. Thies is our solicitor and he has a public role interests that he should never advance his personal interests to conflict with the former.
22.0. In order to avert the controversy, Paul Chin has decided to file his own Affidavit and to submit his own Written Outline of Submission dated and filed the 10th day of May, 2010.
23.0. Through judicial activism or the direct intervention of the judicial process by the Learned Justice himself in an Australian adversarial system of justice as distinct from an inquisitorial system, he is seen to be advocating for Mr. Thies in respect of his perception of an unreal conflict of interests situation but at the same he is refusing to see the conflict of interests situation of Mr. Thies himself; he is descending into the arena of conflict and is blinded by the dust of conflict.
24.0. Surely, he knows this: The true function of this Court is to hear and determine cases, according to law, without fear or favour – nothing more and nothing less . I am indeed perplexed as this is surely not the scene that I expected from the Learned Justice Martin.
25.0. At line 36 to 38 of page 6 of the transcript, the Learned Justice refers to a “basis to support a charge which supports the caveat for unpaid solicitors’s fees”. This statement by a Judge or potential judge in the Caveats warrants the reasonable belief that there has been a secret communication between the Learned Justice Martin and the other party to these proceedings and therefore warrants an immediate recusal of that learned Justice. If indeed the Learned Justice is acquainted with the evidentiary materials before him he would have reached this preposterous conclusion having regard to the fact that the costs agreement between Mr. Thies and myself and my son Paul son never specifically alluded to the Caveat Property and how on earth did Mr. Thies gets the idea that he has an equitable charge over that Caveat Property.
26.0. At the last paragraph of page 6 of the transcript, the learned Justice Martin is again stating there is a compromise when he fully knows that the facts of the case points irrevocably to the fact that the compromise had been vitiated by the duress exerted by Mr. Thies on both the father and the son. The word “duress” has been mentioned 24 times and this indicates that Justice Hasluck is mindful that the presence of duress upon the minds of both myself and my son Paul is not fanciful but something very real .
27.0. At lines 1 to 14 of page 8 of the transcript, Justice Martin is continuing to deny me natural justice by paying lip service to the fact that I am the Plaintiff in the Review Order Case. He is dictating his own version of the story by taking the sides of Mr. Thies knowing that he had been secretly communicated by barrister Scott Ellis without my knowledge as admitted subconsciously by the learned Justice at line 10 and 11 of page 3 of the transcript.
28.0. Justice Martin descended into the arena of conflict again by siding with Mr. Thies with regard to defunct order of Commissioner Herron which is an out of jurisdiction decision that has since been taken off the District Court website as no good law. He knows that s.36 of the Magistrates Court Act, 2004 does not allow Justice Hasluck to make any pronouncements on the District Court costs order that is a nullity and yet he is not accepting the argument that if the Review Order Decision has gone into the root of the matter at the Magistrates Court level before the two judicial officers Magistrate Musk and Magistrate Michelides who have consented to the withdrawal of their respective decisions, there should no longer be any debate on the intervening District Court decision of Commissioner Herron which rests on those defunct Magistrates Courts decisions in the courts below. This is a non-argument and the matter should be put to rest, lest there be an appeal again from the District Court to the Supreme Court which would cause unnecessary wastage of resources.
29.0. The next issue is the NON-COMPLIANCE by Mr. Thies as the Respondent in the Review Order Case to comply by filing an Affidavit in his Defence within 21 days of the Order dated 17.6.2009. Mr. Thies filed on the 6th day of October, 2009 after a lapse of some three months. Justice Hasluck made time of the essence of his Order. Unless there are reasonable explanations, there is no point for this Honourable Court to waste its resources on debating the contents of the two volumes of these Affidavit which points to the same contentions as brought by the Applicant for the Review Order.
30.0. Looking at page 10 and 11 of the transcript, the issue is whether I should have done something when Mr. Thies did not comply. Justice Martin said he is not there to provide me with legal advice but he is bound by law to advice me procedurally in order for the case to go on. However, I did do what I needed to do and I got a response letter from the Associate to Justice Hasluck to the effect that I have done everything that needs to be done .
31.0. The issue raised at page 11 of the transcript concerns not the $6,000.00 owing to me but the whole of the $11,500.00 that was taken by Mr. Thies from under a vitiated by duress vitiated compromise agreement, which sum Mr. Thies ought to replace. He is being forgiven for the mental trauma and harm he had caused to me and Paul and to his mother. We are not asking for damages on this mental harm. All we want is to see that a member of the legal profession must be dealt in accordance with the law for taking monies which are not due nor payable to him because there is no disputed debt at all and he has waived his defence if there is one by not complying timeously with the Order of Justice Hasluck in the Review Order case.
32.0. The jurisdictional issue of their Honour Magistrate Musk, Magistrate Michelides and Commissioner Herron of the District Court resolves around their abuse of powers as judicial officers and acting out of their jurisdictions in refusing to look into the issues of the zero sum debt and the illegal demands for monies for no debts and for not recognizing the issue of duress in accordance with the law. These issues have been spelt out by Justice Hasluck in the Review Order Case in terms of the following:
32.1. Para. 24 refer to a debt which may justify the caveat and there was not.
32.2. Para. 84 refers to s.6 of the Magistrates Court Act, 2004 (WA) which empowers both the Magistrates and Commissioner Herron to intervene but since there was no such powers accorded to them, there is therefore an abuse of power by them.
32.3. the Catchwords refers to the duress of the duress-vitiated compromise;
32.4. Para. 40 refers to the setting aside of the duress-vitiated compromise;
32.5. Para.46 refers to the duress-vitiated compromise that was before Commissioner Herron;
32.6. Para.47 refers to the error of Commissioner Herron in concluding there was no duress-vitiated compromise;
32.7. Para.55 refers to the lynchpin of the facts and law where the duress-vitiated compromise should exist;
32.8. Para.56 and 57 makes four references to the error of Magistrate Michelides who dismissed the Appeal of the Applicant regarding the duress-vitiated compromise on the unjustifiable ground of “a last ditch effort” and as “an after-thought”. The evidence before the court was that the Registrar who entered into the Consent Judgment was fully informed of the duress-situation.
32.9. Para.62 refers to the lengthy Notice of Originating Motion in the Review Order case affecting the duress-vitiated compromise;
32.10. Para. 103 is the general observation of Justice Hasluck that duress-vitiated compromise exists by virtue of the existence of the professional misconduct of the over-charging conduct of Mr. Thies.
32.11. Para.108 refers to Magistrate Musk’s refusal to set aside the duress-vitiated compromise on the ground that a perfected order affecting the Registrar’s perfected consent judgment should not be tempered with. This situation is confirmed by Commissioner Herron and is His Honour’s jurisdictional error on the ground that the Registrar’s consent judgment itself arose from a jurisdictional error.
32.12. Para. 125 refers to the actionable duress-vitiated compromise that must be set aright by this Court in accordance with the law.
32.13. Para.126 made three references to justify the fact that Mr. Thies although threatening to carry out a lawful act can bring about the duress-vitiated compromise.
32.14. Paragraph 132 refers to Magistrates Michelides error that a duress- tainted and thus a duress-vitiated order can be set aside by this Court.
32.15. Para.133 suggests the error of Commissioner Herron and Magistrate Michelides to the effect that duress-vitiated compromise can be accomplished without the free will of both the father Plaintiff and the son victim.
32.16. Para.134 relates to the setting aside of a duress-vitiated compromise that is based on fraud and unconscionable conduct based upon the evidentiary materials before this Court.
32.17. Para.135 relates to the cause of the duress-vitiated duress arising out of the economic duress, fraud, undue influence of a solicitor upon the minds of his victims resulting in the wills of the victim being over-borned and that time for appeal should be extended where there are reasonable circumstances to explain the delay.
32.18. Para.140 refers to the duress-vitiated compromise being viable on account of the escalating costs demands under circumstances when the legal services of Mr. Thies which is the source of those unexplainable costs has been terminated earlier in time so that the Applicant and his son can expect a cessation of those over-charging and excessive solicitors costs that are not within the contemplation of the contracting parties.
32.19. Para.143 refers to the fact that the duress-vitiated compromise being a reasonable and arguable case which the judicial officers in the courts below should have taken into account relevant matters and should not have taken into account irrelevant matters.
32.20. Para.145 refers to the fact that Magistrates Michelides should have allowed my Appeal by first extending the time to appeal, take into account the duress-vitiated consent judgment.
32.21. Para.149 refers to the facts that the Judicial Officers of the Courts below had erred and they agreed indeed they have erred. Commissioner Herron cannot be contacted to signify that His Honour had erred but he implied by his conduct by removing his out of jurisdiction judgment from the website of the District Court of WA such that it would continue to mislead the public.
CONCLUSION:
33. If Your Honour cannot agree with the above points I have raised, then it is very clear that Your Honour have made a pre-judgment of those issues as indicated above and they are self-evident in the transcript. The only viable solution for me then is to ask for another impartial judge to carry out his duties in accordance with his Oath of Office. I sincerely apologized to Your Honour for this intentional personal affront which I had to give to Your Honour.
34. If Your Honour still thinks that Your Honour can bring an impartial mind to these issues, then I would expect all future decisions of Your Honour to be made transparently and are to be made with full explanations with logical human reasoning based on relevant issues of facts and law and Your Honour must not take into account irrelevant issues of facts or law or refuse to take into account relevant issues of facts and law.
35. Consequently, I would not want any issues that have been explained by the learned Justice Hasluck in the Review Order case to be avoided at all costs by Your Honour, such that we can together avoid the public perception that justice is not palpably seen to be done fairly to all parties concerned.
36. We are trying to avoid the public perception that all lawyers are not seemingly to be acting legally. I want to be the lawyer who is acting legally and with conscience and in these contexts I want the public interests to be upheld by our legal system which is seen to be palpably working in the public interests.
Signed by: ………………………………… ….
LIST OF AUTHORITIES
STATUTE LAW
1. Legal Profession Act, 1008 (WA) s.12;
2. Magistrates Courts Act, 2004 (WA) s.6;
3. UN Convention Against Torture
ARTICLES:
4. CJE Opinion No. 92-1 of The Massachusetts Judicial Branch: Judicial Ethics Opinions: Hearing De Novo Retrials of Cases Tried by Judge's Father,an ADA, and Trials Involving The District Attorney's Staff found at:
http://www.mass.gov/courts/sjc/cje/92-1h.html
5. Judicial Activism found at http://www.conservapedia.com/Judicial_Activism;
6. Boyle, S: an article in the Murdoch Law School Electronic Journal, found at http://www.murdoch.edu.au/elaw/issues/v1n1/boyle11.html entitled: CAVEATABLE INTERESTS - THE COMMON LORE DISTINGUISHED said at para.1;
7. Sykes, E and S Walker: The Law of Securities, The Law Book Company Ltd, 1993 at page 196;
8. LAWASIA Conference, Tokyo an article by JUSTICE ALWYNNE ROWLANDS AO entitled: ASPECTS OF JUDICIAL PROFESSIONALISM IN THE AUSTRALIAN FAMILY LAW CONTEXT 1 September 2003
CASE LAW:
9. BPR -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 41 per ROBERTS-SMITH JA at paragrraph 79;
10. DIAGNOSTIC MEDLAB LTD V AUCKLAND DISTRICT HEALTH BOARD, WAITEMATA DISTRICT HEALTH BOARD, COUNTIES-MANUKAU DISTRICT HEALTH BOARD AND ORS HC AK CIV 2006-404-4724 [2007] NZHC 177 (20 March 2007);
11. Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997.
12. Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294”
13. MIDLAND BRICK COMPANY PTY LTD -v- WELSH & ANOR [2002] WASC 248;
14. Porter v McDonald [1984] WAR 271 at 276;
15. RE BURTON; EX PARTE LOWE & ANOR [2003] WASCA 306 as per Murray J, Barker J and Roberts-Smith J in paragraph 63;
16. Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986) per Dawson J, at para.2;
17. RE MICHELIDES; EX PARTE CHIN [2008] WASC 256;
18. Surfers Paradise Coaches P/L v TSU Chan Lin [2007] NSWSC 475;
Monday, May 3, 2010
THE HAKKA PEOPLE OF MALAYSIA: NGAI HE HAK NGIN OH
Hi: If you are a Hakka or are interested in the Hakka Clan people who came originally came from South China, here are some wonder links:
a) Tales of some Hakka Towns in Malaysia at http://www.asiawind.com/pub/forum/fhakka
/mhonarc/msg02205.html
b) You can even entertain yourself with some Hakka Songs in You Tube at: http://www.youtube.com/watch?v=V2ngTZNSRoU
c) Hi Hakka lao, ngi hao mo, find it at the link: http://www.asiawind.com/forums/list.php?f=1
d) Hakka food at Pusing and more http://www.asiawind.com/forums/read.php?f=1&i=12838&t=12838&v=f http://www.asiawind.com/forums/read.php?f=1&i=12200&t=12200&v=f http://www.asiawind.com/forums/read.php?f=1&i=5707&t=5693&v=f
PLEASE NOTE: If you cannot readily click on the link, you can copy them into a Google Search Machine and enjoy yourself.
Cheers
NICHOLAS N CHIN
a) Tales of some Hakka Towns in Malaysia at http://www.asiawind.com/pub/forum/fhakka
/mhonarc/msg02205.html
b) You can even entertain yourself with some Hakka Songs in You Tube at: http://www.youtube.com/watch?v=V2ngTZNSRoU
c) Hi Hakka lao, ngi hao mo, find it at the link: http://www.asiawind.com/forums/list.php?f=1
d) Hakka food at Pusing and more http://www.asiawind.com/forums/read.php?f=1&i=12838&t=12838&v=f http://www.asiawind.com/forums/read.php?f=1&i=12200&t=12200&v=f http://www.asiawind.com/forums/read.php?f=1&i=5707&t=5693&v=f
PLEASE NOTE: If you cannot readily click on the link, you can copy them into a Google Search Machine and enjoy yourself.
Cheers
NICHOLAS N CHIN
Saturday, May 1, 2010
ALL PARLIAMENTARIANS IN WESTERN AUSTRALIA ARE INFORMED THATTHE THE JUDICIAL SYSTEM IN WA IS CEASING TO FUNCTION
________________________________________
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Sunday, 2 May 2010 11:13 AM
To: 'contact@resident-of-the-world.com'
Subject: FW: THE JUSTICE SYSTEM IN WA IS CEASING TO FUNCTION IN WA : See my Blogspot: http://nicholasnchin.blogspot.com/
________________________________________
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Sunday, 2 May 2010 11:11 AM
To: 'peter.abetz@mp.wa.gov.au'; 'frank.alban@mp.wa.gov.au'; 'lisa.baker@mp.wa.gov.au'; 'Premier.Barnett@dpc.wa.gov.au'; 'ken.baston@mp.wa.gov.au'; 'liz.behjat@mp.wa.gov.au'; 'matt.benson@mp.wa.gov.au'; 'matt.benson@mp.wa.gov.au'; 'geraldton@mp.wa.gov.au'; 'john.bowler@mp.wa.gov.au'; 'ian.britza@mp.wa.gov.au'; 'helen.bullock@mp.wa.gov.au'; 'troy.buswell@mp.wa.gov.au'; 'adele.carles@mp.wa.gov.au'; 'Minister.Castrilli@dpc.wa.gov.au'; 'john.castrilli@mp.wa.gov.au'; 'vincent.catania@mp.wa.gov.au'; 'robin.chapple@mp.wa.gov.au'; 'jim.chown@mp.wa.gov.au'; 'Minister.Collier@dpc.wa.gov.au'; 'Minister.Constable@dpc.wa.gov.au'; 'elizabeth.constable@mp.wa.gov.au'; 'kwinana@mp.wa.gov.au'; 'murray.cowper@mp.wa.gov.au'; 'mia.davies@mp.wa.gov.au'; 'Minister.Day@dpc.wa.gov.au'; 'john.day@mp.wa.gov.au'; 'ed.dermer@mp.wa.gov.au'; 'kate.doust@mp.wa.gov.au'; 'wendy.duncan@mp.wa.gov.au'; 'sue.ellery@mp.wa.gov.au'; 'brian.ellis@mp.wa.gov.au'; 'Minister.Faragher@dpc.wa.gov.au'; 'adele.farina@mp.wa.gov.au'; 'shaz.fungclarke@mp.wa.gov.au'; 'nikki.day@mp.wa.gov.au'; 'joe.francis@mp.wa.gov.au'; 'nollamara@mp.wa.gov.au'; 'nick.goiran@mp.wa.gov.au'; 'Minister.Grylls@dpc.wa.gov.au'; 'brendon.grylls@mp.wa.gov.au'; 'philippa.reid@mp.wa.gov.au'; 'kim.hames@mp.wa.gov.au'; 'liza.harvey@mp.wa.gov.au'; 'alyssa.hayden@mp.wa.gov.au'; 'colin.holt@mp.wa.gov.au'; 'lcoogan@parliament.wa.gov.au'; 'barry.house@mp.wa.gov.au'; 'john.hyde@mp.wa.gov.au'; 'albert.jacob@mp.wa.gov.au'; 'Minister.Jacobs@dpc.wa.gov.au'; 'graham.jacobs@mp.wa.gov.au'; 'Minister.Johnson@dpc.wa.gov.au'; 'rob.johnson@mp.wa.gov.au'; 'cannington@mp.wa.gov.au'; 'john.kobelke@mp.wa.gov.au'; 'carine@mp.wa.gov.au'; 'fran.logan@mp.wa.gov.au'; 'lynn.maclaren@mp.wa.gov.au'; 'armadale@mp.wa.gov.au'; 'Minister.Marmion@dpc.wa.gov.au'; 'bill.marmion@mp.wa.gov.au'; 'carol.martin@mp.wa.gov.au'; 'mark.mcgowan@mp.wa.gov.au'; 'john.mcgrath@mp.wa.gov.au'; 'Minister.McSweeney@dpc.wa.gov.au'; 'sandra.scott@mp.wa.gov.au'; 'wanneroo@mp.wa.gov.au'; 'michael.mischin@mp.wa.gov.au'; 'andrea.mitchell@mp.wa.gov.au'; 'Minister.Moore@dpc.wa.gov.au'; 'norman.moore@mp.wa.gov.au'; 'helen.morton@mp.wa.gov.au'; 'mick.murray@mp.wa.gov.au'; 'mike.nahan@mp.wa.gov.au'; 'Minister.OBrien@dpc.wa.gov.au'; 'simon.obrien@mp.wa.gov.au'; 'joondalup@mp.wa.gov.au'; 'paul.papalia@mp.wa.gov.au'; 'Minister.Porter@dpc.wa.gov.au'; 'christian.porter@mp.wa.gov.au'; 'john.quigley@mp.wa.gov.au'; 'girrawheen@mp.wa.gov.au'; 'melanie.archer@mp.wa.gov.au'; 'Minister.Redman@dpc.wa.gov.au'; 'terry.redman@mp.wa.gov.au'; 'leader@loop.wa.gov.au'; 'midland@mp.wa.gov.au'; 'westswan@mp.wa.gov.au'; 'linda.savage@mp.wa.gov.au'; 'darlingrange@mp.wa.gov.au'; 'tom.stephens@mp.wa.gov.au'; 'michael.sutherland@mp.wa.gov.au'; 'sally.talbot@mp.wa.gov.au'; 'chris.tallentire@mp.wa.gov.au'; 'david.templeman@mp.wa.gov.au'; 'willagee@mp.wa.gov.au'; 'ken.travers@mp.wa.gov.au'; 'max.trenorden@mp.wa.gov.au'; 'andrew.waddell@mp.wa.gov.au'; 'Minister.Waldron@dpc.wa.gov.au'; 'twaldron@mp.wa.gov.au'; 'giz.watson@mp.wa.gov.au'; 'peter.watson@mp.wa.gov.au'; 'martin.whitely@mp.wa.gov.au'; 'grant.woodhams@mp.wa.gov.au'; 'janet.woollard@mp.wa.gov.au'; 'victoriapark@mp.wa.gov.au'; 'alison.xamon@mp.wa.gov.au'; 'alison.xamon@mp.wa.gov.au'
Cc: 'Eddie Hwang'; 'eddieh@westnet.com.au'
Subject: THE JUSTICE SYSTEM IN WA IS CEASING TO FUNCTION IN WA : See my Blogspot: http://nicholasnchin.blogspot.com/
To All Members of Parliament of Western Australia:
Below is a copy of my letter to the State Administrative Tribunal of Western Australia and to the Legal Profession Complaints Committee of Western Australia.
I lament the death of our system of democratic government in Western Australia. As an Australian Citizen I am not being allowed to exercise my dissent at the way I have been treated by unfair administrative practices of the regulator of the legal profession in Western Australia. Now I have the whole system is now ganging up against me for whistle-blowing the fact that our government as the trustee of the people in Western Australia has to uphold the public interests to protect innocent members of the public from marauding members of the legal profession.
Those public interests concerns the fact that ordinary members of the public who are not well versed in the law must not be pillaged and plundered by erring members of the legal profession with impunity. To read more Google my name: nicholas n chin or see my website at: http://nicholasnchin.blogspot.com/
Or http://www.nicholasnchin.com/.
The contents of my letter are indicated below:
“My ref: VR87OF2009; Your ref: S232/09
The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099 ATTEN: JUDGE PRITCHARD
Dear Sir FACSIMILE TRANSMISSION
VR 87 0F 2009: LPCC V CHIN
Thank you for your Notice of Directions Hearing scheduled for 4.5.2010 and the Orders of Her Honour Deputy President dated 28.4.2010. I would like to state the following:
a) A simple solution to my problem that seems not to have been heard by His Honour Justice EM Heenan in my Application for Certiorari Orders in CIV 1019 of 2010 that was delivered on 21.4.2010 and published today, would have been:
a.1. a determination on the live issue that was never litigated at all levels of proceedings so far, concerns the unlawful authority of the Pseudo Board which represents the LPB which did not act in good faith to impose a constraint on my independent legal practice for the secret agenda of protecting their cronies. Everyone is trying to avoid this issue and is refusing to face reality but is putting the blame only on me.
a.2. the res judicata issues of facts and law enveloped by the current action of the LPCC in VR 87 of 2009 that ought never to have been proceeded with because there is never going to be any FURTHER REMEDY of my non-existent professional misconduct on those res judicata issues as they are being proscribed by a common law principle of law, that has been accepted by the High Court of Australia.
b) Based on the above premise, it is pointless for any hearing scheduled on 18.5.2010 to be proceeded
with, regarding those res judicata issues as Justice Chaney is clearly wrong in his res judicata judgment delivered on 4.11.2009 and it would be a waste of governmental resources if SAT were to do so. Even so, the trial as scheduled would not be fair to me unless SAT takes the initiative of calling for all those papers filed in CIV1019 of 2010.
c) I apologize to Justice Heenan for saying this, but it is a fact that the learned Justice did not put his heart and soul into understanding and thereby deciding CIV11019 of 2010 equitably; this has caused me to lodge an Appeal Notice in the Court of Appeal of the Supreme Court of Western Australia in CACV41 of 2010 on the 22.4.2010.
d) I have also lodged documents with the Chief Registrar of the Supreme Court to take Mandamus Orders proceedings against the learned Justice Chaney and the learned Justice Heenan so as to compel them to do their duties in accordance with their oath of Office.
e) If I were to receive tremendous resistance in my pursuit of the truths and justice as I have been much maligned, I would just have to give it up and retire and never touch law again. All I am fighting for is for the public interests that lawyers NOT be allowed to plunder and pillage innocent members of the public and get away with it. If I am not allowed to do this by our government, then I would just resign and retire and let others fight these thankless tasks.
f) If you need further information, I will be constantly updating my blogspot, access to which, you can always obtain by Googling my name: nicholasnchin.
Yours faithfully
NICHOLAS N CHIN
The Principal Registrar
Mr. Keith Frederick Chapman
Supreme Court of WA Stirling Gardens, Barrack Street
PERTH WA 6000 Associate: Tel: 08 9421 5302 Fax: 08 92218350
The Legal Profession Complaints Committee
Atten: Legal Officer Ms. Caroline Brookes PO Box: Z5293, St. Georges Terrace, PERTH WA 6831
Facsimile: 9461 2265
I would appeal to all members of our government to use your conscience to allow a fellow human being to be accorded his human rights and not me to subject to torture and harassment in accordance with the provisions our the Declaration of Human Rights as follows:
All human beings are born free and equal in dignity and rights...
These opening words of Article 1 of the Universal Declaration of Human Rights, approved by the embryonic United Nations General Assembly on 10th December 1948, sought to capture a timeless truth to frame the protection of our rights. The language echoes the 1776 American Declaration of Independence and resonates still in 21st century calls to action, such as Amnesty International’s 2009 Demand Dignity campaign.
Article 2 translates the poetry of freedom into the solid principle of non-discrimination that protects disadvantaged groups in all international human rights law:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion...
The State of Western Australian must not inflict torture upon me by closing all avenues for me to appeal or to access the Crime Corruption Commission or to access the Parliamentary Inspector to redress my grievances contrary to the provisions of Torture, according to the United Nations Convention Against Torture, which is:
...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
—UN Convention Against Torture[1]
On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[6] Since that time a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention Against Torture and for international conflicts the Geneva Conventions III and IV.
The Government of Western Australia is obliged to take steps to prevent this unlawful torture as provided by Article II:
Article 2 of the United Nations Convention Against Torture provides:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Yours faithfully
NICHOLAS N CHIN
387, ALEXANDER DRIVE
DIANELLA WA 6059
Phone: +61892757440; Mobile: +61421642735
Emails: nnchin1@gmail.com; nnchin@msn.com; nnchin09@tpg.com.au
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Sunday, 2 May 2010 11:13 AM
To: 'contact@resident-of-the-world.com'
Subject: FW: THE JUSTICE SYSTEM IN WA IS CEASING TO FUNCTION IN WA : See my Blogspot: http://nicholasnchin.blogspot.com/
________________________________________
From: Nicholas N Chin [mailto:nnchin09@tpg.com.au]
Sent: Sunday, 2 May 2010 11:11 AM
To: 'peter.abetz@mp.wa.gov.au'; 'frank.alban@mp.wa.gov.au'; 'lisa.baker@mp.wa.gov.au'; 'Premier.Barnett@dpc.wa.gov.au'; 'ken.baston@mp.wa.gov.au'; 'liz.behjat@mp.wa.gov.au'; 'matt.benson@mp.wa.gov.au'; 'matt.benson@mp.wa.gov.au'; 'geraldton@mp.wa.gov.au'; 'john.bowler@mp.wa.gov.au'; 'ian.britza@mp.wa.gov.au'; 'helen.bullock@mp.wa.gov.au'; 'troy.buswell@mp.wa.gov.au'; 'adele.carles@mp.wa.gov.au'; 'Minister.Castrilli@dpc.wa.gov.au'; 'john.castrilli@mp.wa.gov.au'; 'vincent.catania@mp.wa.gov.au'; 'robin.chapple@mp.wa.gov.au'; 'jim.chown@mp.wa.gov.au'; 'Minister.Collier@dpc.wa.gov.au'; 'Minister.Constable@dpc.wa.gov.au'; 'elizabeth.constable@mp.wa.gov.au'; 'kwinana@mp.wa.gov.au'; 'murray.cowper@mp.wa.gov.au'; 'mia.davies@mp.wa.gov.au'; 'Minister.Day@dpc.wa.gov.au'; 'john.day@mp.wa.gov.au'; 'ed.dermer@mp.wa.gov.au'; 'kate.doust@mp.wa.gov.au'; 'wendy.duncan@mp.wa.gov.au'; 'sue.ellery@mp.wa.gov.au'; 'brian.ellis@mp.wa.gov.au'; 'Minister.Faragher@dpc.wa.gov.au'; 'adele.farina@mp.wa.gov.au'; 'shaz.fungclarke@mp.wa.gov.au'; 'nikki.day@mp.wa.gov.au'; 'joe.francis@mp.wa.gov.au'; 'nollamara@mp.wa.gov.au'; 'nick.goiran@mp.wa.gov.au'; 'Minister.Grylls@dpc.wa.gov.au'; 'brendon.grylls@mp.wa.gov.au'; 'philippa.reid@mp.wa.gov.au'; 'kim.hames@mp.wa.gov.au'; 'liza.harvey@mp.wa.gov.au'; 'alyssa.hayden@mp.wa.gov.au'; 'colin.holt@mp.wa.gov.au'; 'lcoogan@parliament.wa.gov.au'; 'barry.house@mp.wa.gov.au'; 'john.hyde@mp.wa.gov.au'; 'albert.jacob@mp.wa.gov.au'; 'Minister.Jacobs@dpc.wa.gov.au'; 'graham.jacobs@mp.wa.gov.au'; 'Minister.Johnson@dpc.wa.gov.au'; 'rob.johnson@mp.wa.gov.au'; 'cannington@mp.wa.gov.au'; 'john.kobelke@mp.wa.gov.au'; 'carine@mp.wa.gov.au'; 'fran.logan@mp.wa.gov.au'; 'lynn.maclaren@mp.wa.gov.au'; 'armadale@mp.wa.gov.au'; 'Minister.Marmion@dpc.wa.gov.au'; 'bill.marmion@mp.wa.gov.au'; 'carol.martin@mp.wa.gov.au'; 'mark.mcgowan@mp.wa.gov.au'; 'john.mcgrath@mp.wa.gov.au'; 'Minister.McSweeney@dpc.wa.gov.au'; 'sandra.scott@mp.wa.gov.au'; 'wanneroo@mp.wa.gov.au'; 'michael.mischin@mp.wa.gov.au'; 'andrea.mitchell@mp.wa.gov.au'; 'Minister.Moore@dpc.wa.gov.au'; 'norman.moore@mp.wa.gov.au'; 'helen.morton@mp.wa.gov.au'; 'mick.murray@mp.wa.gov.au'; 'mike.nahan@mp.wa.gov.au'; 'Minister.OBrien@dpc.wa.gov.au'; 'simon.obrien@mp.wa.gov.au'; 'joondalup@mp.wa.gov.au'; 'paul.papalia@mp.wa.gov.au'; 'Minister.Porter@dpc.wa.gov.au'; 'christian.porter@mp.wa.gov.au'; 'john.quigley@mp.wa.gov.au'; 'girrawheen@mp.wa.gov.au'; 'melanie.archer@mp.wa.gov.au'; 'Minister.Redman@dpc.wa.gov.au'; 'terry.redman@mp.wa.gov.au'; 'leader@loop.wa.gov.au'; 'midland@mp.wa.gov.au'; 'westswan@mp.wa.gov.au'; 'linda.savage@mp.wa.gov.au'; 'darlingrange@mp.wa.gov.au'; 'tom.stephens@mp.wa.gov.au'; 'michael.sutherland@mp.wa.gov.au'; 'sally.talbot@mp.wa.gov.au'; 'chris.tallentire@mp.wa.gov.au'; 'david.templeman@mp.wa.gov.au'; 'willagee@mp.wa.gov.au'; 'ken.travers@mp.wa.gov.au'; 'max.trenorden@mp.wa.gov.au'; 'andrew.waddell@mp.wa.gov.au'; 'Minister.Waldron@dpc.wa.gov.au'; 'twaldron@mp.wa.gov.au'; 'giz.watson@mp.wa.gov.au'; 'peter.watson@mp.wa.gov.au'; 'martin.whitely@mp.wa.gov.au'; 'grant.woodhams@mp.wa.gov.au'; 'janet.woollard@mp.wa.gov.au'; 'victoriapark@mp.wa.gov.au'; 'alison.xamon@mp.wa.gov.au'; 'alison.xamon@mp.wa.gov.au'
Cc: 'Eddie Hwang'; 'eddieh@westnet.com.au'
Subject: THE JUSTICE SYSTEM IN WA IS CEASING TO FUNCTION IN WA : See my Blogspot: http://nicholasnchin.blogspot.com/
To All Members of Parliament of Western Australia:
Below is a copy of my letter to the State Administrative Tribunal of Western Australia and to the Legal Profession Complaints Committee of Western Australia.
I lament the death of our system of democratic government in Western Australia. As an Australian Citizen I am not being allowed to exercise my dissent at the way I have been treated by unfair administrative practices of the regulator of the legal profession in Western Australia. Now I have the whole system is now ganging up against me for whistle-blowing the fact that our government as the trustee of the people in Western Australia has to uphold the public interests to protect innocent members of the public from marauding members of the legal profession.
Those public interests concerns the fact that ordinary members of the public who are not well versed in the law must not be pillaged and plundered by erring members of the legal profession with impunity. To read more Google my name: nicholas n chin or see my website at: http://nicholasnchin.blogspot.com/
Or http://www.nicholasnchin.com/.
The contents of my letter are indicated below:
“My ref: VR87OF2009; Your ref: S232/09
The Chief Executive Officer
The State Administrative Tribunal Ground Floor, 12 St Georges Terrace Perth
Postal address: GPO Box U1991 Perth 6845
Telephone: (08) 9219 3111 1300 306 017 Fax: (08) 9325 5099 ATTEN: JUDGE PRITCHARD
Dear Sir FACSIMILE TRANSMISSION
VR 87 0F 2009: LPCC V CHIN
Thank you for your Notice of Directions Hearing scheduled for 4.5.2010 and the Orders of Her Honour Deputy President dated 28.4.2010. I would like to state the following:
a) A simple solution to my problem that seems not to have been heard by His Honour Justice EM Heenan in my Application for Certiorari Orders in CIV 1019 of 2010 that was delivered on 21.4.2010 and published today, would have been:
a.1. a determination on the live issue that was never litigated at all levels of proceedings so far, concerns the unlawful authority of the Pseudo Board which represents the LPB which did not act in good faith to impose a constraint on my independent legal practice for the secret agenda of protecting their cronies. Everyone is trying to avoid this issue and is refusing to face reality but is putting the blame only on me.
a.2. the res judicata issues of facts and law enveloped by the current action of the LPCC in VR 87 of 2009 that ought never to have been proceeded with because there is never going to be any FURTHER REMEDY of my non-existent professional misconduct on those res judicata issues as they are being proscribed by a common law principle of law, that has been accepted by the High Court of Australia.
b) Based on the above premise, it is pointless for any hearing scheduled on 18.5.2010 to be proceeded
with, regarding those res judicata issues as Justice Chaney is clearly wrong in his res judicata judgment delivered on 4.11.2009 and it would be a waste of governmental resources if SAT were to do so. Even so, the trial as scheduled would not be fair to me unless SAT takes the initiative of calling for all those papers filed in CIV1019 of 2010.
c) I apologize to Justice Heenan for saying this, but it is a fact that the learned Justice did not put his heart and soul into understanding and thereby deciding CIV11019 of 2010 equitably; this has caused me to lodge an Appeal Notice in the Court of Appeal of the Supreme Court of Western Australia in CACV41 of 2010 on the 22.4.2010.
d) I have also lodged documents with the Chief Registrar of the Supreme Court to take Mandamus Orders proceedings against the learned Justice Chaney and the learned Justice Heenan so as to compel them to do their duties in accordance with their oath of Office.
e) If I were to receive tremendous resistance in my pursuit of the truths and justice as I have been much maligned, I would just have to give it up and retire and never touch law again. All I am fighting for is for the public interests that lawyers NOT be allowed to plunder and pillage innocent members of the public and get away with it. If I am not allowed to do this by our government, then I would just resign and retire and let others fight these thankless tasks.
f) If you need further information, I will be constantly updating my blogspot, access to which, you can always obtain by Googling my name: nicholasnchin.
Yours faithfully
NICHOLAS N CHIN
The Principal Registrar
Mr. Keith Frederick Chapman
Supreme Court of WA Stirling Gardens, Barrack Street
PERTH WA 6000 Associate: Tel: 08 9421 5302 Fax: 08 92218350
The Legal Profession Complaints Committee
Atten: Legal Officer Ms. Caroline Brookes PO Box: Z5293, St. Georges Terrace, PERTH WA 6831
Facsimile: 9461 2265
I would appeal to all members of our government to use your conscience to allow a fellow human being to be accorded his human rights and not me to subject to torture and harassment in accordance with the provisions our the Declaration of Human Rights as follows:
All human beings are born free and equal in dignity and rights...
These opening words of Article 1 of the Universal Declaration of Human Rights, approved by the embryonic United Nations General Assembly on 10th December 1948, sought to capture a timeless truth to frame the protection of our rights. The language echoes the 1776 American Declaration of Independence and resonates still in 21st century calls to action, such as Amnesty International’s 2009 Demand Dignity campaign.
Article 2 translates the poetry of freedom into the solid principle of non-discrimination that protects disadvantaged groups in all international human rights law:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion...
The State of Western Australian must not inflict torture upon me by closing all avenues for me to appeal or to access the Crime Corruption Commission or to access the Parliamentary Inspector to redress my grievances contrary to the provisions of Torture, according to the United Nations Convention Against Torture, which is:
...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
—UN Convention Against Torture[1]
On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). Article 5 states, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[6] Since that time a number of other international treaties have been adopted to prevent the use of torture. Two of these are the United Nations Convention Against Torture and for international conflicts the Geneva Conventions III and IV.
The Government of Western Australia is obliged to take steps to prevent this unlawful torture as provided by Article II:
Article 2 of the United Nations Convention Against Torture provides:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Yours faithfully
NICHOLAS N CHIN
387, ALEXANDER DRIVE
DIANELLA WA 6059
Phone: +61892757440; Mobile: +61421642735
Emails: nnchin1@gmail.com; nnchin@msn.com; nnchin09@tpg.com.au
Friday, April 30, 2010
MY AFFIDAVIT IN SUPPORT OF MY APPLICATION FOR MANDAMUS ORDERS AS PER NOTICE OF ORIGINATING MOTION
THE SUPREME COURT OF WESTERN AUSTRALIA CIV NO:……. OF 2010
HELD AT PERTH
In the matter of an application for Mandamus Orders to compel the President of the State Administrative Tribunal of Western Australia (SAT) as the judge in the Applicant’s Application in VR107 of 2008 (the First Judgment) who refused to make the finding that the Pseudo Full Board exist by its very own admissive conduct and is found to be usurping the lawful functions of the real regulator of the Legal Profession in WA without the legal authority of the majority consent of the Legal Practice Board of Western Australia, to perform his duties as a judicial officer in good faith and in accordance with his Oath of Office.
And
In the matter of an application for Mandamus Orders to compel Justice EM Heenan in the Applicant’s Application for Certiorari Orders Nisi in CIV 1019 of 2010 to review and quash the First Judgment and the Second Judgment of Justice Chaney; the latter being his ambushed res judicata judgment delivered on 4.11.2010 in VR 87of 2009 for the common law-debarred Further Remedy of a Non-Existent Professional Misconduct; both the judges, to respond to their duties in the public interests in accordance with their respective Oath of Office as Justices of the Supreme Court of Western Australia.
EX PARTE: NICHOLAS NI KOK CHIN
----------------------------------------------------------------------------------------------------
Date of document: 29th April, 2010
Date of filing: 29th January, 2010.
Filed on behalf of: The Ex parte Applicant
Prepared by:
NICHOLAS NI KOK CHIN Phone: 08 92757440;
387, Alexander Drive, DIANELLA Mobile: 0421642735
WA 6059
Emails: nnchin@msn.com; nnchin09@tpg.com.au
AFFIDAVIT OF APPLICANT IN SUPPORT OF HIS EX-PARTE APPLICATION FOR MANDAMUS ORDERS WITH ANNEXURES
LIST OF ANNEXURES
No Label Date of Document Particulars of Document Page
I to V EXPARTE MANDAMUS ORDERS APPLICATION 29.4.2010 APPLICATION FOR MANDAMUS ORDERS AGAINST JUSTICE CHANEY AND JUSTICE HEENAN TO COMPEL THEM TO DO THEIR DUTIES IN ACCORDANCE WITH THEIR OATHS OF OFFICE i to v
1 NNC-1 31.3.2010 Email from Mr. Stephen Sommerville as the Associate to Justice Heenan requiring me to read from the Asterisked Case Law relevant extracts of the common law pertaining to my Application in CIV 1019 of 2010. 1
2 NNC-2-1 to NNC-2-4 2.4.2010 Email letter from Applicant to the Associate of Justice Heenan enclosing the Amended List of Authorities in 3 pages which contains the Asterisked Case law from which counsel is required to read the relevant extract for the trial judge in 4 pages. 2-5
3 NNC-3-1 to NNC-3-16 6.4.2010 Transcript of proceedings in CIV 1019 of 2010 which indicates that Justice Heenan decided to issue orders for the LPCC to respond to my claims in my Application for Certiorari Orders against the Legal Practice Board of Western Australia 6-21
4.
NNC-3A-1 to NNC-3A-2 7.4.2010 Orders of the Justice Heenan issued pursuant to the hearing of CIV 1019 of 2019 at 10.30 am on 6.4.2010 that the Applicant serve all documents filed with the Supreme Court for that case on the LPCC within 2 days and that the LPCC to respond to the Applicant’s claim within 10 days, i.e. by the latest 17.4.2010 which did not occur, in two pages. 22-24
5. NNC-3B 7.4.2010 Cover Letter to the LPCC duly receipted by the LPCC, copied to the Chief Executive Officer of SAT in VR 87 of 2009 and the Chief Registrar of the Supreme Court of Western Australia in CIV 1019 of 2010, indicating that the Applicant had complied with the Orders of Justice Heenan issued on 7.4.2010 as indicated in document 4 above. 25
6. NNC-3C 7.4.2010 Facscimile letter from Applicant to the Chief Executive Officer of SAT in VR 87 of 2009 copied to the Principal Registrar of the Supreme Court in CIV 1019 of 2019 and the LPCC keeping it up to date with the current state of affairs of the two cases: namely the malicious res judicata proceedings in SAT in VR 87 of 2009 and the Certiorari Orders Application in CIV 1019 of 2018 to quash and review Justice Chaney’s decision in VR 107 of 2008 and VR 87 of 2009. 26.
7 NNC-4-1 to NNC-4-3 17.4.2010 Chronology of Events for hearing before Justice Heenan on 21.4.2010 detailing the history and tribulations which my Applicaion for Certiorari Orders in CIV 1019 of 2010 has to go through the process of court in three pages. 22-24
8 NNC-5-1 to NNC-5-11
21.4.2010 Justice Heenan did not allow me to read from the extracts of asterisked case law in my Amended List of Authorities and I resorted to provide him with a copy of those extracts in 11 pages. 25-35
9 NNC-5A-1 to NNC-5A- 21.4.2010 Copy of transcript of the proceedings in CIV 1019 of 2019 that transpired at 10.30 am which did not include the draft judgement or the extempore judgment delivered by His Honour at the same time, in 4 pages. 36-39
10 NNC-6-1 to NNC-6-2 23.4.2010 Facsimile letter from Applicant to the Legal Practice Board copied to LPCC, the Principal Registrar of the Supreme Court of WA, the Ombudsman of Western Australia and the Attorney General of Western Australia complaining about the perversion of the course of justice of the Legal Practice Board in contacting Justice Heenan secretly on 20.4.2010 thus influencing his about turn decision on 21.4.2010 thus comprising his independence as the trial judge in CIV 1019 of 2010 in 2 pages. 40-41
11
NNC-7-1 to NNC-7-2 23.4.2010 Facsimile letter from Applicant to the Crime Corruption Commissioner concerning the existence of the Pseudo Full Board, the President of SAT involvement in persecuting the Applicant for the common-law debarred Further Remedy of a non-existent professional misconduct and the falsifications of the Court Records by David Taylor Lawyers in CIV 1131 of 2006 which was misinterpreted by Justice Chaney, in 3 pages. 42-44
12 NNC-8 22.4.2010 Applicant’s appealed against the decision of Justice Heenan’s dismissal of the Applicant’s Application for Certiorari Orders to the Court of Appeal of the High Court of Western Australia in CACV 41 of 2010. 45
13 NNC-9-1 to NNC-9-3 26.4.2010 Email of the President of the Unity Party of Western Australia Mr. Eddie Hwang to the Crime Corruption Commissioner Len Roberts-Smith QC and to the Attorney General of WA Mr. Christian Porter regarding the secret communication of the Legal Practice Board which caused a reversal (on 21.4.2010) of the decision of Justice Heenan given on 6.4.2010, in 3 pages. 46-48
14 NNC-10-1 to NNC-10-3 27.4.2010 Email correspondence between the Associate of Justice Heenan and the Applicant regarding the Applicant’s request for the draft judgment (or extempore judgment) delivered by Justice Heenan in CIV 1019 of 2010 at 10.30 am on 21.4.2010 which is the about-turn decision caused by the perversion of justice of the Legal Practice Board referred to above, in 3 pages. These correspondence indicate that Justice Heenan had unreasonably refused to release the draft judgment but instead is preparing another reason judgment which is an after-the-event justification for his compromised draft judgment.
I, Nicholas Ni Kok Chin, Barrister & Solicitor, No. 387, Alexander Drive, Dianella WA 6059, having been duly sworn, say on oath the following:
1. I am filing this Affidavit in support of my NOTICE OF ORIGINATING MOTION dated the same day for the purpose of my making an Application before a Judge in Chambers and if rejected by the Registrar of the Supreme Court of WA for registration THEN in accordance with Order 67 r.5 (3) and (4) of the Rules of Supreme Court, 1971 (WA) which requires me to obtain leave from a Judge of Supreme Court in Chambers, which I now do, if it were necessary for me to do so.
2. The facts herein are true and correct, to the best of my knowledge, information and belief. Where I identify the source of facts stated as other than from my own personal knowledge, I believe such facts to be true and correct.
3. I firmly believe that this Notice of Originating Motion is not an abuse of process of court, nor is it a frivolous or vexatious proceedings in accordance with Order 67 r.1 of the Rules of Supreme Court, 1971 WA .2009, as follows:
“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”.
4. This Application for Mandamus Orders is neither frivolous nor vexatious as the evidence before this Honourable Court in CIV 1019 of 2010 and in this Application will show that this Application has a reasonable chance of succeeding, and it would not bring hardship on both Justice Chaney and Justice Heenan to defend my claim that the Pseudo Full Board of the Legal Practice Board of Western Australia is unreasonably curbing my independent legal practice as a lawyer for the purpose of protecting its cronies who are members of the legal profession who has been reasonably found to have been and are still ravaging, plundering and pillaging innocent members of the public by abusing their powers as legal professionals. This is a public interests issue which this Honourable Court should protect. The evidence for these issue has already been made available to this Honourable Court in the many cases, both decided and undecided e.g. CIV 1131 of 2006 and CACV 107 of 2008, CIV 1764 of 2009 and CIV 1903 of 2008 and the many cases of Dr. Kheng Su Chan.
5. I refer to Document No.1, 2, 8 and 9 in the table above which requires me to present my case orally by quoting the relevant extracts of the judgment which could advance my case. I was disallowed this by the learned Justice Heenan who refused me to hear me on them and therefore he denied me natural justice on the 21.4.2010 (See Annexed documents as indicated above). But for this remissness on the part of His Honour, my Application for Certiorari might not have been dismissed by him.
6. In document 9 which is a transcript of the proceedings on 21.4.2010 before Justice Heenan, you will find that there is a sudden about-turn in the attitude of that learned Justice. This is most likely to have come about as a result of the Legal Practice Board seeking to influence him and thereby compromised his independence as a member of the judiciary contrary to mandatory requirements of a Supreme Court Judge in accordance with his Oath of Office. This is a criminal offence by the Legal Practice Board in perverting the course of justice and the stake is very high here as the Pseudo Full Board is scrambling for cover as a result of my Application for Certiorari Orders in CIV 1019 of 2010.
7. If I were to contrast the attitude of Justice Heenan as exhibited by him in the transcript of proceedings in Document 3 and the Orders he issued in Document 4, you will find that the starkness of the change of attitude of Justice Heenan. This is the evidence of the about-turn decision of Justice Heenan which is exhibited in the transcript of the proceedings on 21.4.2010 in document 9.
8. If one were to look at document No. 5 one will find that the Applicant had duly complied with Justice Heenan’s Order issued on 6.4.2010 as indicated in document No.4.
9. Document 6 will show that the Applicant updated SAT and the LPCC with the proceedings for Certiorari Orders Nisi in CIV 1019 of 2010 but there is some resistance as to why Justice Chaney is refusing to provide the copies of the transcript of the proceedings before His Honour in the absence of the Applicant in VR 87 of 2006 on two separate occasions i.e on 4.11.2009 when the ambushed res judicata judgment was accomplished and on 16.2.2010 when the Applicant was away in Sydney and was not able to attend the directions hearing by phone from Sydney. There is a suspicion that things might have transpired in the absence of the Applicant which might provide evidence of a conspiracy between Justice Chaney and the LPCC. Justice Chaney in the evidentiary materials already provided and filed with CIV 1019 of 2010 is reasonably found to have descended in to the arena of conflict in VR 87 of 2009 and have taken the sides of the LPCC when there is no justifications for doing so and he has not responded to my letters to him dated the 15.3.2010 and 17.3.2010 containing 30 questions. His refusal to answer them gives rise to as rebuttable presumption in law that he has admitted them to be the truth.
10. In Document No.7, the Applicant describes in details the various tumultuous events that he had to stumble through in seeking to file his Application for Certiorari Orders that finally emerged as CIV 1019 of 2009 that came for hearing before Justice Heenan. There were many obstructions on the way that he had to contend with right from 30.11.2009 through 14.4.2010.
11. Document 10 indicates that the Applicant is incensed by the injustice before the learned Justice Heenan on the ground that the course of justice had been perverted by the Legal Practice Board ringing His Honour to communicate with him secretly but overtly on the pretext that the LPCC is not going to answer the Applicant’s claim on the live and pertinent and never res judicata issues concerning the indisputable existence of a Pseudo Full Board that was working against the public interests because they have cronies to protect and the best solution for them was to “put the Applicant down” so that he could no longer practice law to right the injustices that have been occurring in Western Australia. His letter and various other letters to both the LPCC and the Board including his letters to Justice Chaney dated 15.3.2010 and 17.3.2010 as indicated above have never been answered. Justice Heenan is refusing to accept the proposition that if the LPCC or the LPB refused to answer pertinent questions relating to the existence of the Pseudo Full Board, then there is a rebuttable presumption in law that the accusations leveled by the Applicant is true unless proven otherwise.
12. Document 11 is the letter written by the Applicant to the Crime Corruption Commission to right this wrong and they are looking into the issue of whether there is a criminal conspiracy between Justice Chaney and LPCC in allowing the frivolous and vexatious persecution of the Applicant in VR87 of 2009 the common-law debarred FURTHER REMEDY for non-existent professional misconduct of the Applicant.
13. Document 12 shows that the Applicant appealed the about-turn and compromised decision of the Justice Heenan delivered extempore on 21.4.2010 but His Honour refused to release a copy of that draft judgment to the Applicant upon his request. His Honour is preferring to prepare a new one to replace his draft judgment which is riddled with inconsistencies, which he intends to publish at a later date. These extraordinary efforts of the learned Justice Heenan is presumably an after-the-event thought by him to fit his revised judgment into the niche by replacing the draft judgment and converting it into a reasoned judgment but the picture that will emerge at a later date that the revised judgment is a “doctored” one produced to suit the particular purpose. Truth must be seen to prevail.
14. Document 13 documents the irate attitude of the President of the Unity Party of WA at the sad state of affairs of the legal system prevailing in this State. This document seeks an explanation from the relevant governmental authorities of this State.
15. Document 14 shows the email correspondence between the Associate of Justice Heenan and the Applicant who is keen to lay his hands on a copy of the draft or extempore judgment of His Honour. There is a final indication that the draft judgment as requested by the Applicant for the purpose of appealing his case in CIV 1019 of 2019 is not forthcoming. This shows that there is no transparency in the apparent perversion of Justice by the Legal Practice Board acting through the learned Justice Heenan who did not intend to do his duties in accordance with his Oath of Office.
SWORN by the Deponent at Perth ]
In the State of Western Australia ]
This 29th day of April, 2010 ]……………………………………………..
Before me:
…………………………………..
Justice of Peace/ Commissioner of the Supreme
Court for Taking Affidavit
HELD AT PERTH
In the matter of an application for Mandamus Orders to compel the President of the State Administrative Tribunal of Western Australia (SAT) as the judge in the Applicant’s Application in VR107 of 2008 (the First Judgment) who refused to make the finding that the Pseudo Full Board exist by its very own admissive conduct and is found to be usurping the lawful functions of the real regulator of the Legal Profession in WA without the legal authority of the majority consent of the Legal Practice Board of Western Australia, to perform his duties as a judicial officer in good faith and in accordance with his Oath of Office.
And
In the matter of an application for Mandamus Orders to compel Justice EM Heenan in the Applicant’s Application for Certiorari Orders Nisi in CIV 1019 of 2010 to review and quash the First Judgment and the Second Judgment of Justice Chaney; the latter being his ambushed res judicata judgment delivered on 4.11.2010 in VR 87of 2009 for the common law-debarred Further Remedy of a Non-Existent Professional Misconduct; both the judges, to respond to their duties in the public interests in accordance with their respective Oath of Office as Justices of the Supreme Court of Western Australia.
EX PARTE: NICHOLAS NI KOK CHIN
----------------------------------------------------------------------------------------------------
Date of document: 29th April, 2010
Date of filing: 29th January, 2010.
Filed on behalf of: The Ex parte Applicant
Prepared by:
NICHOLAS NI KOK CHIN Phone: 08 92757440;
387, Alexander Drive, DIANELLA Mobile: 0421642735
WA 6059
Emails: nnchin@msn.com; nnchin09@tpg.com.au
AFFIDAVIT OF APPLICANT IN SUPPORT OF HIS EX-PARTE APPLICATION FOR MANDAMUS ORDERS WITH ANNEXURES
LIST OF ANNEXURES
No Label Date of Document Particulars of Document Page
I to V EXPARTE MANDAMUS ORDERS APPLICATION 29.4.2010 APPLICATION FOR MANDAMUS ORDERS AGAINST JUSTICE CHANEY AND JUSTICE HEENAN TO COMPEL THEM TO DO THEIR DUTIES IN ACCORDANCE WITH THEIR OATHS OF OFFICE i to v
1 NNC-1 31.3.2010 Email from Mr. Stephen Sommerville as the Associate to Justice Heenan requiring me to read from the Asterisked Case Law relevant extracts of the common law pertaining to my Application in CIV 1019 of 2010. 1
2 NNC-2-1 to NNC-2-4 2.4.2010 Email letter from Applicant to the Associate of Justice Heenan enclosing the Amended List of Authorities in 3 pages which contains the Asterisked Case law from which counsel is required to read the relevant extract for the trial judge in 4 pages. 2-5
3 NNC-3-1 to NNC-3-16 6.4.2010 Transcript of proceedings in CIV 1019 of 2010 which indicates that Justice Heenan decided to issue orders for the LPCC to respond to my claims in my Application for Certiorari Orders against the Legal Practice Board of Western Australia 6-21
4.
NNC-3A-1 to NNC-3A-2 7.4.2010 Orders of the Justice Heenan issued pursuant to the hearing of CIV 1019 of 2019 at 10.30 am on 6.4.2010 that the Applicant serve all documents filed with the Supreme Court for that case on the LPCC within 2 days and that the LPCC to respond to the Applicant’s claim within 10 days, i.e. by the latest 17.4.2010 which did not occur, in two pages. 22-24
5. NNC-3B 7.4.2010 Cover Letter to the LPCC duly receipted by the LPCC, copied to the Chief Executive Officer of SAT in VR 87 of 2009 and the Chief Registrar of the Supreme Court of Western Australia in CIV 1019 of 2010, indicating that the Applicant had complied with the Orders of Justice Heenan issued on 7.4.2010 as indicated in document 4 above. 25
6. NNC-3C 7.4.2010 Facscimile letter from Applicant to the Chief Executive Officer of SAT in VR 87 of 2009 copied to the Principal Registrar of the Supreme Court in CIV 1019 of 2019 and the LPCC keeping it up to date with the current state of affairs of the two cases: namely the malicious res judicata proceedings in SAT in VR 87 of 2009 and the Certiorari Orders Application in CIV 1019 of 2018 to quash and review Justice Chaney’s decision in VR 107 of 2008 and VR 87 of 2009. 26.
7 NNC-4-1 to NNC-4-3 17.4.2010 Chronology of Events for hearing before Justice Heenan on 21.4.2010 detailing the history and tribulations which my Applicaion for Certiorari Orders in CIV 1019 of 2010 has to go through the process of court in three pages. 22-24
8 NNC-5-1 to NNC-5-11
21.4.2010 Justice Heenan did not allow me to read from the extracts of asterisked case law in my Amended List of Authorities and I resorted to provide him with a copy of those extracts in 11 pages. 25-35
9 NNC-5A-1 to NNC-5A- 21.4.2010 Copy of transcript of the proceedings in CIV 1019 of 2019 that transpired at 10.30 am which did not include the draft judgement or the extempore judgment delivered by His Honour at the same time, in 4 pages. 36-39
10 NNC-6-1 to NNC-6-2 23.4.2010 Facsimile letter from Applicant to the Legal Practice Board copied to LPCC, the Principal Registrar of the Supreme Court of WA, the Ombudsman of Western Australia and the Attorney General of Western Australia complaining about the perversion of the course of justice of the Legal Practice Board in contacting Justice Heenan secretly on 20.4.2010 thus influencing his about turn decision on 21.4.2010 thus comprising his independence as the trial judge in CIV 1019 of 2010 in 2 pages. 40-41
11
NNC-7-1 to NNC-7-2 23.4.2010 Facsimile letter from Applicant to the Crime Corruption Commissioner concerning the existence of the Pseudo Full Board, the President of SAT involvement in persecuting the Applicant for the common-law debarred Further Remedy of a non-existent professional misconduct and the falsifications of the Court Records by David Taylor Lawyers in CIV 1131 of 2006 which was misinterpreted by Justice Chaney, in 3 pages. 42-44
12 NNC-8 22.4.2010 Applicant’s appealed against the decision of Justice Heenan’s dismissal of the Applicant’s Application for Certiorari Orders to the Court of Appeal of the High Court of Western Australia in CACV 41 of 2010. 45
13 NNC-9-1 to NNC-9-3 26.4.2010 Email of the President of the Unity Party of Western Australia Mr. Eddie Hwang to the Crime Corruption Commissioner Len Roberts-Smith QC and to the Attorney General of WA Mr. Christian Porter regarding the secret communication of the Legal Practice Board which caused a reversal (on 21.4.2010) of the decision of Justice Heenan given on 6.4.2010, in 3 pages. 46-48
14 NNC-10-1 to NNC-10-3 27.4.2010 Email correspondence between the Associate of Justice Heenan and the Applicant regarding the Applicant’s request for the draft judgment (or extempore judgment) delivered by Justice Heenan in CIV 1019 of 2010 at 10.30 am on 21.4.2010 which is the about-turn decision caused by the perversion of justice of the Legal Practice Board referred to above, in 3 pages. These correspondence indicate that Justice Heenan had unreasonably refused to release the draft judgment but instead is preparing another reason judgment which is an after-the-event justification for his compromised draft judgment.
I, Nicholas Ni Kok Chin, Barrister & Solicitor, No. 387, Alexander Drive, Dianella WA 6059, having been duly sworn, say on oath the following:
1. I am filing this Affidavit in support of my NOTICE OF ORIGINATING MOTION dated the same day for the purpose of my making an Application before a Judge in Chambers and if rejected by the Registrar of the Supreme Court of WA for registration THEN in accordance with Order 67 r.5 (3) and (4) of the Rules of Supreme Court, 1971 (WA) which requires me to obtain leave from a Judge of Supreme Court in Chambers, which I now do, if it were necessary for me to do so.
2. The facts herein are true and correct, to the best of my knowledge, information and belief. Where I identify the source of facts stated as other than from my own personal knowledge, I believe such facts to be true and correct.
3. I firmly believe that this Notice of Originating Motion is not an abuse of process of court, nor is it a frivolous or vexatious proceedings in accordance with Order 67 r.1 of the Rules of Supreme Court, 1971 WA .2009, as follows:
“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”.
4. This Application for Mandamus Orders is neither frivolous nor vexatious as the evidence before this Honourable Court in CIV 1019 of 2010 and in this Application will show that this Application has a reasonable chance of succeeding, and it would not bring hardship on both Justice Chaney and Justice Heenan to defend my claim that the Pseudo Full Board of the Legal Practice Board of Western Australia is unreasonably curbing my independent legal practice as a lawyer for the purpose of protecting its cronies who are members of the legal profession who has been reasonably found to have been and are still ravaging, plundering and pillaging innocent members of the public by abusing their powers as legal professionals. This is a public interests issue which this Honourable Court should protect. The evidence for these issue has already been made available to this Honourable Court in the many cases, both decided and undecided e.g. CIV 1131 of 2006 and CACV 107 of 2008, CIV 1764 of 2009 and CIV 1903 of 2008 and the many cases of Dr. Kheng Su Chan.
5. I refer to Document No.1, 2, 8 and 9 in the table above which requires me to present my case orally by quoting the relevant extracts of the judgment which could advance my case. I was disallowed this by the learned Justice Heenan who refused me to hear me on them and therefore he denied me natural justice on the 21.4.2010 (See Annexed documents as indicated above). But for this remissness on the part of His Honour, my Application for Certiorari might not have been dismissed by him.
6. In document 9 which is a transcript of the proceedings on 21.4.2010 before Justice Heenan, you will find that there is a sudden about-turn in the attitude of that learned Justice. This is most likely to have come about as a result of the Legal Practice Board seeking to influence him and thereby compromised his independence as a member of the judiciary contrary to mandatory requirements of a Supreme Court Judge in accordance with his Oath of Office. This is a criminal offence by the Legal Practice Board in perverting the course of justice and the stake is very high here as the Pseudo Full Board is scrambling for cover as a result of my Application for Certiorari Orders in CIV 1019 of 2010.
7. If I were to contrast the attitude of Justice Heenan as exhibited by him in the transcript of proceedings in Document 3 and the Orders he issued in Document 4, you will find that the starkness of the change of attitude of Justice Heenan. This is the evidence of the about-turn decision of Justice Heenan which is exhibited in the transcript of the proceedings on 21.4.2010 in document 9.
8. If one were to look at document No. 5 one will find that the Applicant had duly complied with Justice Heenan’s Order issued on 6.4.2010 as indicated in document No.4.
9. Document 6 will show that the Applicant updated SAT and the LPCC with the proceedings for Certiorari Orders Nisi in CIV 1019 of 2010 but there is some resistance as to why Justice Chaney is refusing to provide the copies of the transcript of the proceedings before His Honour in the absence of the Applicant in VR 87 of 2006 on two separate occasions i.e on 4.11.2009 when the ambushed res judicata judgment was accomplished and on 16.2.2010 when the Applicant was away in Sydney and was not able to attend the directions hearing by phone from Sydney. There is a suspicion that things might have transpired in the absence of the Applicant which might provide evidence of a conspiracy between Justice Chaney and the LPCC. Justice Chaney in the evidentiary materials already provided and filed with CIV 1019 of 2010 is reasonably found to have descended in to the arena of conflict in VR 87 of 2009 and have taken the sides of the LPCC when there is no justifications for doing so and he has not responded to my letters to him dated the 15.3.2010 and 17.3.2010 containing 30 questions. His refusal to answer them gives rise to as rebuttable presumption in law that he has admitted them to be the truth.
10. In Document No.7, the Applicant describes in details the various tumultuous events that he had to stumble through in seeking to file his Application for Certiorari Orders that finally emerged as CIV 1019 of 2009 that came for hearing before Justice Heenan. There were many obstructions on the way that he had to contend with right from 30.11.2009 through 14.4.2010.
11. Document 10 indicates that the Applicant is incensed by the injustice before the learned Justice Heenan on the ground that the course of justice had been perverted by the Legal Practice Board ringing His Honour to communicate with him secretly but overtly on the pretext that the LPCC is not going to answer the Applicant’s claim on the live and pertinent and never res judicata issues concerning the indisputable existence of a Pseudo Full Board that was working against the public interests because they have cronies to protect and the best solution for them was to “put the Applicant down” so that he could no longer practice law to right the injustices that have been occurring in Western Australia. His letter and various other letters to both the LPCC and the Board including his letters to Justice Chaney dated 15.3.2010 and 17.3.2010 as indicated above have never been answered. Justice Heenan is refusing to accept the proposition that if the LPCC or the LPB refused to answer pertinent questions relating to the existence of the Pseudo Full Board, then there is a rebuttable presumption in law that the accusations leveled by the Applicant is true unless proven otherwise.
12. Document 11 is the letter written by the Applicant to the Crime Corruption Commission to right this wrong and they are looking into the issue of whether there is a criminal conspiracy between Justice Chaney and LPCC in allowing the frivolous and vexatious persecution of the Applicant in VR87 of 2009 the common-law debarred FURTHER REMEDY for non-existent professional misconduct of the Applicant.
13. Document 12 shows that the Applicant appealed the about-turn and compromised decision of the Justice Heenan delivered extempore on 21.4.2010 but His Honour refused to release a copy of that draft judgment to the Applicant upon his request. His Honour is preferring to prepare a new one to replace his draft judgment which is riddled with inconsistencies, which he intends to publish at a later date. These extraordinary efforts of the learned Justice Heenan is presumably an after-the-event thought by him to fit his revised judgment into the niche by replacing the draft judgment and converting it into a reasoned judgment but the picture that will emerge at a later date that the revised judgment is a “doctored” one produced to suit the particular purpose. Truth must be seen to prevail.
14. Document 13 documents the irate attitude of the President of the Unity Party of WA at the sad state of affairs of the legal system prevailing in this State. This document seeks an explanation from the relevant governmental authorities of this State.
15. Document 14 shows the email correspondence between the Associate of Justice Heenan and the Applicant who is keen to lay his hands on a copy of the draft or extempore judgment of His Honour. There is a final indication that the draft judgment as requested by the Applicant for the purpose of appealing his case in CIV 1019 of 2019 is not forthcoming. This shows that there is no transparency in the apparent perversion of Justice by the Legal Practice Board acting through the learned Justice Heenan who did not intend to do his duties in accordance with his Oath of Office.
SWORN by the Deponent at Perth ]
In the State of Western Australia ]
This 29th day of April, 2010 ]……………………………………………..
Before me:
…………………………………..
Justice of Peace/ Commissioner of the Supreme
Court for Taking Affidavit
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