WRITTEN SUBMISSIONS FOR CIV 1491 OF 2011 BEFORE A JUSTICE OF THE SUPREME COURT OF WA FOR PREROGATIVE WRITS OF CERTIORARI ORDERS NISI SCHEDULED FOR HEARING ON 11.5.2011.

In the Supreme Court CIV No.1491 of 2011
of Western Australia.

In the matter of the High Court Special Leave to Appeal in P50 of 2010 which had avoided a decision on the issue of whether Security Costs Order of Ken Martin J in Michelides No.2 was either properly or improperly imposed upon the Applicant – thus denying the Applicant natural justice.
And
In the matter of the Court of Appeal of the Supreme Court of Western Australia comprising of Newnes and Pullin JJA having similarly denied the Applicant his natural justice in CACV 75 of 2010, which is the subject of the P50 of 2010 Application to the High Court.
And
In the matter of an application to a Single Judge in Chambers of the Supreme Court of Western Australia pursuant to Order 67 r.5 of the Rules of Supreme Court. 1971, WA on the ground that this Application is not an abuse of process of court nor is it a frivolous or vexatious proceedings and should have been refused for filing by the Chief Registrar.
NICHOLAS NI KOK CHIN – EXPARTE APPLICANT

Date of Document: 2nd May, 2011.
Filed on behalf of: The Ex parte Applicant
Date of Filing: 2nd May, 2011.
Prepared by:
NICHOLAS NI KOK CHIN
387, ALEXANDER DRIVE
DIANELLA WA 6059
Phone: 08 92757440
Mobile: 0421642734
Email: nnchin1@gmail.com; nnchin@msn.com
Written Submissions by Applicant before Justice ………….. at 10.30 am on 11th day of May, 2011.
INDEX
CHRONOLOGY 2
PROPOSED CERTIORARI ORDERS NISI: 4
Number 1: 5
DISCRETIONARY FACTORS TO BE EXERCISED BY KEN MARTIN J: 5
FAILURE OF KEN MARTIN J TO ACCORD SUFFICIENY OF WEIGHT: 7
Number 2: 8
Number 3: 8
Number 4: 8
Number 5: 9
ORDERS SOUGHT: 9
REASON FOR THE GRANT OF THE PROPOSED CERTIORARI ORDERS NISI: 9
LIST OF AUTHORITIES 11
STATUTES: 11

CHRONOLOGY
Nos. Date Events
1 06.06.2007 Letter from Applicant to Registrar Wilde in FR417 of 2007 copied to Associate of Templeman J of the Supreme Court in Mandate Exclusion Case (CIV 1112 of 2007) informing her that the Applicant and Paul Chin were under duress when they entered into the duress-vitiated Consent Order with Timothy Robin Thies (my due respect to my learned friend) (Refer to page 44 of the Affidavit of Applicant sworn filed and dated 28.6.2010 in CIV 1981 of 2010 – Barrister Scott Ellis (my due respect to my learned friend) misled the court before Ken Martin J – subject of Applicant’s complaint to LPCC dated 14.11.2010 and Crime Corruption Commission of WA dated 27.11.2010).
2 07.06.2007 Registrar Susan Wilde’s Duress-Vitiated Consent Order between Applicant and Thies precipitated at time when learned Registrar Wilde realized that the former was “importunating” the compromise under conditions of necessity, in order to enable Paul and his father to avoid the pressing circumstances then happening to Applicant’s son Paul, which is what a father would normally do for his son. This event that was sought to be avoided by the father was witnessed by independent witnesses from the Health Department.
3 24.07.2008 Applicant filed in Michelides No. 1 (CIV 1903 of 2008) for the s.36 Review.
4 07.11.2008 Hasluck J granted the s.36 Review Orders.
5 17.6.2009 Hasluck J in Michelides No.1 ordered Thies to file his Show Cause Affidavit in Michelides No. 2 (CIV 1903 OF 2008) within 21 days.
6 08.07.2009 Thies defaulted the order of Hasluck J in Michelides No.1 in that he failed to file the Show Cause Affidavit within the required time frame (which Order was made time being the essence for its compliance by Hasluck J).
7 06.10.2009 Thies finally did file his non-compliant Show Cause Affidavit out of time by nearly three months without an explanation for the delay. The non-compliance factor also has to do with the quality of the Show Cause Affidavit as required by Hasluck J. This disqualifies Thies from the due process of the Show Cause Order of Hasluck J. Ken Martin J’s duty was not to grant the s.36 Review Order anew but his was to decide whether there are justifying circumstances for that learned Judge to withhold that Review Order that was already granted by the Hasluck J in the first instance.
8 13.05.2010 Ken Martin J (with due respect to His Honour) unlawfully excluded the Applicant as a litigant in person in the case of Mandate Exclusion Case (Thies v Chin [2010] WASC 111) from protecting his second son Paul Chung Kiong Chin from being further exploited by Timothy Robin Thies in accordance with the mandate given to the Applicant by Hasluck J. (Just as Thies was made the First Defendant and Paul made the Second Defendant in the Michelides No.1 by Hasluck J, so the Applicant being the Plaintiff to the suit in Michelides No.2 should also, tit for tat, be allowed his reasonable request to be made the Second Defendant to the Mandate Exclusion Case where Paul is already the First Defendant by Ken Martin J and both cases be consolidated under Order 83 of the RSC. The common ground is that both cases arise from one event or transaction that emanated from the ZERO SUM CLAIM of Thies. The consolidation is for the purpose of quieting all claims arising from that same event or transaction, having regard to the fact that Thies used the Mandate Exclusion Case as his gun of duress in order to achieve the extortion of the sum of $11,500.00 from both the Applicant and his son Paul.)
9 20.5.2010 The judgment of Mandate Exclusion Case (Thies v Chin [2010] WASC 111) was published.
10 13.05.2010 Thies filed his Application for Security of Costs after and not before the s.36 Review Order has been granted by Hasluck J, contrary to the decision of the High Court in P50 of 2011 (the wisdom of the High Court in wording its judgment euphemistically).
11 17.6.2010 Ken Martin J was misled by Barrister Scott Ellis as counsel for Timothy Robin Thies at page 33 of the transcript of the proceedings, that there was no evidence before the Court that
Registrar Wilde was involuntary (caused by the duress of Timothy Robin Thies as she had received the letter dated 6.6.2007) prior to the day when the Involuntary Consent Judgment in FR417 of 2007 was entered into between the parties. (See Footnote 18 at page 51 and 52 of Applicant’s Affidavit of Notice of Originating Motion in CIV 1491 of 2011 sworn 18.3.2011 in Support of Notice of Originating Motion dated 24.3.2011. See Also page 44 of the transcript at page 44 of the Affidavit of Applicant sworn, filed and dated 28.6.2010 in support of his Application in CIV 1981 of 2010 for the Recusal of Ken Martin J).
12 08.07.2010 Ken Martin J delivered his judgment in Michelides No.2 which is an Order to stultify the Show Cause Proceedings of the s.36 Review after it was already granted by Hasluck J on two untenable grounds:
a) Order 25 r.2(g) of the RSC for the Applicant’s alleged default of payment of the void Commissioner Herron costs Orders as it based upon Registrar Wilde Void Consent Order in FR417 of 2007.
b) The Appellant’s allegedly inherently weak case contrary to Hasluck J’s findings.
13 23.11.2010 Applicant’s Application for Leave to Appeal to the Court of Appeal in CACV 75 of 2010 that was dismissed by Newnes and Pullin JJA.
14 07.12.2010 The judgment of CACV 75 of 2010 was published.
15 17.12.2010 The Applicant filed his Special Leave to Appeal the CACV75 of 2010 to the High Court of Australia in P50 of 2010.
16 11.03.2011 The High Court of Australia rarely allow Special Leave Applications but always shed light on how the matters that are the subject of its dismissal, as in the case P50 of 2010 is to be dealt with in the lower courts. Therefore, the refusal or dismissal of P50 of 2010 has no adverse ramifications upon the issues that have hitherto been shied away by the courts below, and consequently not barred by the principle of res judicata, ought to have been dealt with again by the courts below in future proceedings.
17 11.03.2011 The Applicant unsuccessfully requested Newnes JA to recuse himself from hearing the Applicant’s Appeal in CACV 41 of 2010 on the ground of conflicts of interests: the learned justice had failed to give proper reasons or had given deficient reasons when he dealt with CACV 75 of 2010, which case is a component of CACV 41 of 2010.
PROPOSED CERTIORARI ORDERS NISI:
Number 1:
1. Michelides No.2 be expunged from court records caused by – misconception and apprehended bias of trial judge - Ken Martin J (my due respect to him) based on following grounds:
1.1. Fundamental principle of law - I as Applicant has the right of a litigant to pursue and enforce my rights in the courts :
“The basic rule that a natural person who sues will not be ordered to give security for costs, however poor, is ancient and well established”: Pearson v Naydler [1977] 1 WLR 899 at 902.
“that poverty is no bar to a litigant”: Cowell v Taylor (1885) 31 Ch D 34 at 38. See generally Oshlack v Richmond River Council [1998] HCA 11.
1.2. Exercise of power by court by Ken Martin J - to order security for costs - a balancing process - doing of justice between the parties - to achieve balance between ensuring adequate and fair protection to Thies as defendant, and avoiding injustice to impecunious Plaintiff (Applicant) by not unnecessarily shutting it out or prejudicing it in the conduct of the proceedings: Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [47].
1.3. Power to order security for costs by His Honour is discretionary - not automatic: Idoport at [20], [56]–[57] and [60]–[62].
1.4. Discretion to be exercised by him must be done judicially - not “arbitrarily, capriciously or to frustrate the legislative intent”: Oshlack, in Idoport at [22].
1.5. His exercise of the power requires his consideration of particular facts of the case, which he did not do: Merribee Pastoral Industries v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502.
1.6. The factors – to be taken account of by him must be unrestricted as long as they are relevant: Morris v Hanley, above; Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1985) 1 NSWLR 114.
DISCRETIONARY FACTORS TO BE EXERCISED BY KEN MARTIN J:
2 He did not take into account the following factors:
2.1. That Thies did not comply with Hasluck J order to file his time of the essence Show Cause Affidavit on time.
2.2. That Thies did not comply with the quality of the Show Cause Affidavit as required by the Hasluck J Order in terms of its conciseness and preciseness – be limited as to why the ZERO SUM DEBT CLAIM of Thies can be escalating indefinitely, having regard to the fact that his retainer was terminated on 21.2.2005 by Paul and the Applicant.
2.3. His Duty as the judge of the s.36 Review Order was not to withdraw it but was to consider whether there are extenuating circumstances for him to withhold it from taking effect.
2.4. Whether the Applicant is bona fides, his motivations, or whether he is vexatious for making a claim against Thies vis a vis the bona-fides of the ZERO SUM DEBT CLAIM of Thies made vexatiously against the Applicant and his son Paul, resulting in the duress-vitiated compromise of Registrar Wilde in FR417 of 2007: See: Bhagat v Murphy[2000] NSWSC 892 at [20]–[21] or a vexatious claim (Bhagat at [26]).
2.5. Applicant’s prospects of success - important element of balancing justice between parties to be determined objectively. Care needs to be exercised - assessing proportionate strength of the cases of the parties at early stages of proceedings: Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564 at [39].
2.6. The issue of the public interest that the conduct of lawyer Thies should not be condoned for making false demands for the ZERO SUM DEBT CLAIM and escalating it for no conceivable reasons. This involves an area of law that requires clarification for the benefit of a wider group than the Applicant and his son Paul: Merribee Pastoral Industries, above, at 13; Soh v Commonwealth of Australia (2006) 231 ALR 425 at [26].
2.7. He should take into account particular factors peculiar to the circumstances of the proceedings: Equity Access Ltd v Westpac Banking Corp [1989] ATPR ¶40-972 i.e. looking into the reasons why the compromise was made under conditions of necessity and duress.
2.8. He failed to take into account that the likely order as to costs, even if successful for the Applicant, may not be in favour of the winning defendant due to the intervention of the Minor Cases Provisions of the Magistrates Court (Civil Proceedings) Act, 2004 which does not cause Thies to become entitled to any costs order for legal costs, except the minimum sum of out of pocket expenses necessarily incurred which the Applicant guarantees to the Court. See: Singer v Berghouse (1993) 114 ALR 521 at 522;
2.9. The proportionality of the costs (which is to vindicate the Plaintiff’s human right to be able to practice as an independent lawyer again, which right was taken away by the Legal Practice Board on account of a false premise that the Applicant was guilty of making false allegations against Thies which is the illegal findings of the Legal Practitioners Complaints Committee and is currently the subject of the Applicant’s Appeal in CACV 41 of 2010) to the activity or undertaking the subject of the claim against Thies which Ken Martin J thought is so minuscule as to impose an undue hardship on Thies . See Shackles & Daru Fish Supplies Pty Ltd v Broken Hill Proprietary Co Ltd, above, at 432;
2.10. The Applicant is not a vexatious litigant: Re Attorney General (Commonwealth); ex parte Skyring (1996) 70 ALJR 321 at 323
FAILURE OF KEN MARTIN J TO ACCORD SUFFICIENY OF WEIGHT:
3. Sufficiency of weight should be given to any circumstances, which will have to depend upon its own intrinsic persuasiveness and its own impact on other circumstances: See: Acohs Pty Ltd v Ucorp Pty Ltd (2006) 236 ALR 143 at [12].
3.1. The important consideration of whether the security order would stifle or end the Applicant as the Plaintiff’s claim particularly in light of the poverty rule: Fiduciary Ltd, above, at [72]; Staff Development & Training Centre Pty Ltd v Commonwealth of Australia [2005] FCA 1643 at [39].
3.2. The appropriate weight whether the Applicant as the impecunious Plaintiff is in reality the defendant and not the attacker in those proceedings: See: Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324 at 67–8.
3.3. The weight of looking behind the actual litigant Thies to see the means of Barrister Scott Ellis and others who stand to benefit from the litigation: Acohs, above, at [49]; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 1672 at [38.8].
3.4. The weight that the Applicant has a prima facie claim against Thies that is regular on its face as it discloses a cause of action. Absence of evidence to the contrary, he should have considered the Applicant is bona fide and has reasonable prospects of success: K P Cable Investments, above, at 197; Staff Development & Training Centre, above, at [12]–[13].
Number 2:
5. It enlivens Michelides No.1 and enables this court to begin anew as if Michelides No.2 never happens.
Number 3:
6. My proposed Certiorari Orders Nisi No.3 means that the Pullin and Newnes JJA decision in CACV 75 of 2008 never happened as the issue of Magistrate Musk Order was already decided in Michelides No.1 and this issue was never the subject of an appeal nor was it ever decided in Michelides No.2. Neither the Court of Appeal nor the High Court ever decide the issue of the legality of the Security Costs Order of Ken Martin J. So this issue is not barred by the principle of res judicata in these proceedings in CIV 1491 of 2011.
Number 4:
7. If my proposed Certiorari Order Nisi No.4 means that there is now longer any need for CIV 1981 of 2010 to be listed nor be heard as the learned Ken Martin J did not respond to my allegations that he was biased against me . The non-response is not even included in the reason of Judgment of the Mandate Exclusion Case of CIV 1112 of 2007 and Michelides No.2 of Ken Martin J. Therefore, the Latin maxim: Qui Non Negat, fatetur: he who does not deny, admits them, applies. This renders the voidable judgment in Michelides No.2 void ab initio. Therefore the Mandate Exclusion Case also needs to be set aside in the interest of justice.
Number 5:
8. My Proposed Certiorari Order Nisi No. 5 means that I am able to invoke the inherent jurisdiction of this Honourable Court to grant me the Certiorari Orders Nos. 1 to 5 for Review to be made absolute and returnable before a Court of Appeal judge on the ground that the High Court in its wisdom in its statement of reason stated euphemistically that the Application for Security Costs Order of my learned friend Thies (my due respect to him) did not exist in fact nor in law; if it ever exists at all, it was never made before the Review Order was granted by Hasluck J before the 7.11.2008 but it came into existence only on the 13th day of May, 2011 before the hearing of Ken Martin J in Michelides No.2 on 17.6.2010 at a time when the Review Order was already granted. At this time, Ken Martin J was there to decide whether he could withdraw the s.36 Review Order of Hasluck J. Therefore, Michelides No.2 is never a Review Order but merely a process of withholding the Review Order already granted by Hasluck J in Michelides No.1; that can only happen if there were justifiable circumstances for his doing so. The fact that the ancilliary orders of Hasluck J pertaining to the Review Order were never complied with by Thies, means there was never any such justifying circumstances .
ORDERS SOUGHT:
9. The Applicant therefore seeks the Orders of this Court in terms of the Orders he had already sought from the High Court of Australia in P50 of 2010 as in paragraphs 3.1 to 3.7 in pages 60 and 61 of his Affidavit sworn, filed and dated 24.3.2011.
REASON FOR THE GRANT OF THE PROPOSED CERTIORARI ORDERS NISI:
10. Michelides No.2 should have proceeded on a proper course for the Applicant to gain justice and Ken Martin J should not have erred by going on a frolic of his own.
11. The perversion of justice has caused detriment to both the Applicant and his son, Paul Chung Kiong Chin . His Honour had admitted to this perversion of justice by his conduct as he did order for the removal of the unlawful stranglehold caveat which Timothy Robin had illegally used to clog up the equity of the home property of Paul Chin since the end of 2006, knowing that the latter is a vulnerable person and an unwilling party to that solicitor client relationship which was exploited by Timothy Robin Thies.
12. The perversion of justice in Michelides 2 is caused by counsel Barrister Scott Ellis and Solicitor Timothy Robin Thies, both as officers of the court, misleading Ken Martin J to the effect that Registrar Wilde in FR417 of 2007 when she entered the duress-vitiated Consent Judgment which “legalized” the extortion of Timothy Robin Thies against both the Applicant and his son in the sum of $11,500.00 was never under duress herself nor was she aware of the duress exerted by Thies upon the Applicant and his son Paul.
13. Michelides No.2 was incorrectly premised on the allegedly “weak” case of the Appellant and the non-debt masquerading as a “debt” arising from Commission Herron Costs Order that was based on the duress-vitiated Wilde Consent Order, by Ken Martin J.
14. The non-compliance of Timothy Robin Thies with the Order of Michelides No.1 precipitated the Proposed Certiorari Orders No.1 to No.5.
15. Michelides No.2 is about Ken Martin J withholding the Review Order already granted by Hasluck J in Michelides No.1 only where there exist justifying circumstances for his doing so and it is not about how it should have been stultified by an improper security costs order based on incorrect grounds.
16. The Pullin and Newnes JJA decision introduced a red herring that complicates the case for the High Court but the High Court in its wisdom was able to euphemistically put the case back on an even keel by making the deliberate mistake to signify that Thies made an application for Security of Costs Order before the Review Order was granted by Hasluck J. As this is a non-existent situation, the High Court is indirectly telling Ken Martin J that Michelides No.2 should be expunged from the Court records.
17. The High Court by closing its doors to all avenues of appeal by the Applicant is facilitating the Applicant to invoke the inherent jurisdiction of the Supreme Court of Western Australia for Prerogative Orders of Review and Mandamus and Prohibition against Thies.
18. The Applicant is also seeking the Proposed Certiorari Orders Nos. 1 to 5 for the purpose of vindicating his claim to the Legal Practice Board that he has not made any false allegations against a fellow solicitor Timothy Robin Thies and therefore, the Applicant should be allowed into independent legal practice again as well as to regain his justice against Thies that was long overdue to him.
(Signed)
Applicant :NICHOLAS NI KOK CHIN in person
LIST OF AUTHORITIES
1. Acohs Pty Ltd v Ucorp Pty Ltd (2006) 236 ALR 143 at [12];[49];
2. Amalgamated Mining Services Pty Ltd v Warman International Ltd (1988) 19 FCR 324 at 67–8.
3. Bhagat v Murphy[2000] NSWSC 892 at [20]–[21];[26].
4. Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 1672 at [38.8].
5. Cowell v Taylor (1885) 31 Ch D 34 at 38.
6. Equity Access Ltd v Westpac Banking Corp [1989] ATPR ¶40-972
7. Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564 at [39];[72];
8. Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [47].
9. Idoport at [20], [56]–[57] and [60]–[62].
10. K P Cable Investments, above, at 197;
11. Merribee Pastoral Industries v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502; 13;
12. Oshlack v Richmond River Council [1998] HCA 11.
13. Pearson v Naydler [1977] 1 WLR 899 at 902
14. Re Attorney General (Commonwealth); ex parte Skyring (1996) 70 ALJR 321 at 323
15. RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE BRECKER [2007] WASC 151.
16. Shackles & Daru Fish Supplies Pty Ltd v Broken Hill Proprietary Co Ltd, above, at 432;
17. Singer v Berghouse (1993) 114 ALR 521 at 522;
18. Soh v Commonwealth of Australia (2006) 231 ALR 425 at [26].
19. Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1985) 1 NSWLR 114
20. Staff Development & Training Centre Pty Ltd v Commonwealth of Australia [2005] FCA 1643 at [39]; [12]–[13].
STATUTES:
Magistrates Court (Civil Proceedings) Act, 2004: Minor Cases Provisions.
Magistrates Court Act, 2004 s. 36.

WRITTEN SUBMISSIONS BEFORE THE THEN JUDGE CHANEY OF SAT ON 25.9.2008 IN VR 107 OF 2008

IN THE STATE ADMINISTRATIVE TRIBUNAL
VR 107 OF 2008

IN THE MATTER OF an application under the Legal Practice Act, 2003, section 44(b)

MR NI KOK (NICHOLAS) CHIN Applicant

And

WESTERN AUSTRALIA LEGAL PRACTICE BOARD Respondent

APPLICANT’S OUTLINE OF WRITTEN SUBMISSIONS FOR TRIAL BEFORE HIS HONOUR JUSTICE CHANEY ON 25.9.2008 AT 10.00 AM IN ROOM 8.06.
Date of filing: 22nd September, 2008
Date of document: 22nd September, 2008
Filed on behalf of: Applicant
Prepared by:
Nicholas N Chin- Barrister & Solicitor
387, Alexander Drive Phone & Fax: 08 92757440
DIANELLA WA 6059 Reference: NNC-SAT VR 107/2008

-----------------------------------

Your Honour:
The Applicant humbly submits in the following terms:
¬¬¬_____________TABLE OF CONTENTS Page Numbers
i. Value Judgment: The imposition of the impugn condition is based on a value judgment: 2
ii. Objectivism in the interpretation of the alleged facts that warrants the imposition of the impugned conditions 2
iii. Alleged Facts is unreal and false with regard to Applicant’s obligations and duties in the keeping of Trust Accounts: 4
iv. Standards of expression – poor understanding of communication with the courts etc., is unreal: 5
v. Respondent Blowing Hot and Cold 5
vi. The three pillars of the rule of law 6
vii. Information peculiarly with the knowledge of the Respondent: 6
viii. Responsibility of the Respondent as the regulator of the legal profession: 7
ix. Applicant should be punished only be punished within the law and for infraction of the law: 7
x. Mutual Rights and Obligations 7
xi. Correct Interpretation: s.39 and s.40 of the Legal Practice Act, 2003 be read together 8
xii. Mala fides or bad faith of the Respondent in the interpretation of the Statute: 8
xiii. Conclusion 9

Value Judgment: The imposition of the impugn condition is based on a value judgment:
1. “Value judgment” is defined as a judgment of the rightness or wrongedness of something, or of the usefulness of something, based on a personal view. It refers to a judgment based upon a particular set of values or on a particular value system. It is an expedient evaluation based upon limited information at hand, undertaken because a decision must be made . It can be used both in a positive sense, signifying that a judgment must be made taking a value system into account, or in a disparaging sense, signifying a judgment made by personal whim rather than rational, objective thought .”
2. “Some argue that true objectivity is impossible, that even the most rigorous rational analysis is founded on the set of values accepted in the course of analysis.……… Consequently, all conclusions are necessarily value judgments and therefore maybe suspect .”
3. It is “a judgment that assigns a value, as to an object or action or a subjective evaluation, a personal opinion about something based on an individual’s beliefs and not on facts which can be checked or proved. It is an assessment that reveals more about the values of the person making the assessment than about the reality of what is assessed.”

Objectivism in the interpretation of the alleged facts that warrants the imposition of the impugned conditions:
4. The Ayn Rand Institute which is the Centre of Advancement of Objectivism in California in the United States, in its website states that:
“Value is based on and derives from the facts of reality…. Reality, we hold—along with the decision to remain in it, i.e., to stay alive—dictates and demands an entire code of values. Unlike the lower species, man does not pursue the proper values automatically; he must discover and choose them; but this does not imply subjectivism. Every proper value-judgment is the identification of a fact: a given object or action advances man’s life (it is good): or it threatens man’s life (it is bad or an evil). The good, therefore, is a species of the true; it is a form of recognizing reality. The evil is a species of the false; it is a form of contradicting reality. Or: values are a type of facts; they are facts considered in relation to the choice to live.”
5. Therefore, the decision of the Inquiry Team of the Respondent to re-impose the impugned conditions on the practice certificate of the Applicant on the grounds of its alleged facts must be either true or false as they cannot be true and false at the same time. If they are true, they must be good, real and objective and therefore justify the public good and the public interest of the Respondent and thus enable the Applicant to live, but if they are false they must be subjective or evil and not be for the public good and is aimed at preventing the Applicant from continuing to live. The regulator of the legal profession in WA must be visibly upholding the public interest by advancing the truth and not be promoting falsehoods.
Frivolous and Vexatious:
6. The impugned conditions by the Respondent on the Applicant’s practice certificate should be removed on the ground that they are based on some frivolous and vexatious value judgment claims to the effect that the Applicant lacks appreciation and insight, inter alia, with regard to his keeping of trust account etc and they are therefore not sustainable in law.
7. “Frivolous” means “characterized by or causing vexation; annoying, troublesome, etc or an action instituted by the Respondent without real grounds, chiefly to cause annoyance to the defendant” An action is frivolous and vexatious if it is “so clearly untenable that it cannot possibly succeed or “foredoomed to fail” .
8. The frivolity and vexatiousness of the impugned conditions is caused by the systemic discrimination already absorbed into the institutions and structure of society in Western Australia and is of the nature of a complex of directly and/or indirectly discriminatory (or subordinating) practices which operates to produce general disadvantage for a particular group of individuals into which the Respondent is a member. It involves long-standing social and cultural mores carrying within them value assumptions that contribute to discrimination in ways that are substantially or entirely hidden and unconscious. It is based on assumptions and stereotypes about the appropriate role of the Applicant as a lawyer in the Western Australian society and it is aimed at the maintenance of an ideology of subordination of the Applicant. It is pervasive in nature and it is harmful because it reflects attitudes and prejudices towards him as a member of a particular group who are being discriminated against and this problem cannot be addressed solely through individual anti discrimination remedies.
Appreciation and Insight:
9. The Applicant cannot and should not be stigmatized with the value judgment label: “Lack of appreciation and insight” as it is not a label of universal application.
10. “Appreciation” is defined as “an awareness and understanding of a problem or difficulty; or a delicate perception” whereas “insight” is defined as “a penetrating understanding, as of a complex situation or problem or the ability to perceive clearly or deeply the inner nature of things”.
11. These epithets are value judgments and have no justifications in fact and if they do, every member of the legal profession who are currently certificated should be subject to these same “tests” and they are not.
12. The Applicant has been subjected to the policy of “Indirect Discrimination” by the facially neutral conditions of the impugned conditions that can be met by particular groups of lawyers only and it is irrelevant whether the effect or impact of that policy or action is intentional or unintentional. The impugned conditions do not merely manifest itself in obvious or direct ways but rather is disguised in policies and practices which appear to apply to all persons equally.

Indirect and Systemic Discrimination
13. The Applicant has proven indirect discrimination and systemic discrimination as is apparent from the facts of the case, in the following terms :
a) The Applicant was repeatedly required by the Respondent to comply with the requirements of the impugned conditions even after consent judgment was obtained in CACV 43 of 2007.
b) a substantially higher proportion of younger persons and/or persons of lesser-experienced in other professions and who are born as Australians are able to comply with the impugned conditions which the Applicant is not able to comply;
c) The personal circumstances of the Applicant renders it unreasonable for the Applicant to comply;
d) It is impossible for the Applicant to comply having regard to the antecedents of the Applicant with regard to his employment history as a teacher in WA.

Alleged Facts is unreal and false with regard to Applicant’s obligations and duties in the keeping of Trust Accounts:
14. The Applicant does not at all material times contravene Rule 54 of the Legal Practice Board Rules, 2004 as he complied with his client’s instructions to deal with the trust monies in accordance with the trust monies.
15. The Applicant also does not at all material times contravene s. 137. of the Legal Practice Act, 2003 when he dealt with the trust monies in accordance with the directions of his client Mr. Chang Ming Tang, by his due compliance with s.137(2) which states:
“Subsection (1) does not apply when a legal practitioner deals with the trust moneys as directed by the person from whom, or for whose use or benefit, the trust moneys are received.”

Standards of expression – poor understanding of communication with the courts etc., is unreal:
16. The “standards” referred to by the Respondent is a false allegation of facts, unreal and subjective and is not of universal applicability in nature as it not congruent with the standard meaning of that word:
“Standards” is defined as “something established by authority, custom, or general
consent as a model or example” .
17. The alleged facts that the Applicant is capable of rude and inflammatory and unfounded remarks are based on the false premise that those remarks are false or unreal or evil in nature. This is again a value judgment. The evidence before this tribunal is that those remarks are never intended to defame nor to make false allegations or to bear false witness against the Applicant’s neighbours.
18. It is a form of subconscious calumny for the Honourable Members of the Inquiry Team to name the Applicant as a person capable of making allegations of misconduct of other legal practitioners without proper foundations of facts or that he failed to appreciate positions of conflict of interests whenever he is faced with them. It is also an untruth for the Respondent to state that the Applicant needs supervision in all aspects of his practice when this statement is not one of universal applicability. It is as if the Respondent is quite capable of blowing hot and cold or “To change one’s mind constantly about the value of something” or “To change one’s opinion often on a matter; vacillate” at the same time when the Applicant has already been granted permission to practice on his own account. The facts of the case are before this tribunal.

Respondent Blowing Hot and Cold
19. In the case of Felix v. De Sousa, 1995 CanLII 347 (BC S.C.) Judge JUDGE OWEN-FLOOD at paragraph 36 cited the extract from the Canadian Encyclopedic Digest (Western), 3rd Ed. Title 57, Vol. 11B with regard to the topic of “Approbation and Reprobation”, said:

“A person is not allowed to blow hot and cold - to affirm at one time and deny at another - by making a claim on those whom he has deluded to their disadvantage and founding that claim on the very matters of the delusion. This principle has its basis in common sense and common justice: and whether it is called “estoppel” or by any other name, it is one which courts of law have in modern times most usefully adopted.”
20. The learned Judge at paragraph 37 of that case further state:

“The issue is whether the plaintiffs at bar have “blown hot and cold” within the meaning of the law enunciated by Hutcheon J., as he then was, in Enquist v. Hass et al (1979), 15 B.C.L.R. 139 (S.C.). I am satisfied that, indeed, Marie De Sousa did initially “blow hot and cold” but she is not one of the plaintiffs at bar.”

The three pillars of the rule of law
21. It is a value judgment for the Respondent to state that that the Applicant did not maintain the standards of communications with the courts to be observed by a reasonable legal practitioner because there are no circumstances which is available before this tribunal that the Applicant contravenes the three pillars of his duty to preserve the basic tenets of an independent judiciary i.e. the integrity, impartiality and independence founded on the principle of the rule of law .

Information peculiarly with the knowledge of the Respondent:
22.The Respondent through Ms. F. B. Walter has tainted itself with the role of prosecutor and judge and thereby rendering its original decision to impose the impugned conditions on the Applicant’s practice certificate tainted with gross bias. It should not therefore be seen to be repeating its mistake (that was admitted by it through the consent judgment given on 25.6.2007 before His Honour Justice Steytler) by acting again without the legal authority of properly authorized minutes of the Respondent Board as prescribed for by ss. 10 & 11 of the Legal Practice Act, 2003 (the Act).
23.The four member Inquiry Team of the Respondent who sat to make the current decision to re-impose the impugned conditions should not appoint themselves as the four members constituting the Respondent Board without the authorized minute of the Board for that purpose. In order to eliminate any doubt that the Inquiry Team might have been constituted by Members of the Board who might have some clandestine motives or who might have an act to grind so to say, they should have another four independent members to vet their appointment beforehand. The knowledge of the circumstances for the appointment of the Inquiry Team as well as those surrounding Ms. F.B. Walter lies peculiarly within the knowledge of the Respondent and it therefore for the Respondent to prove otherwise to this tribunal. Para..16 of Halsbury Laws of England, 4th Edition states as follows:

“Where the truth of a party’s allegation lies peculiarly within the knowledge of his opponent, the burden of disproving it often lies upon the latter , but there is no general rule of law to this effect. There is authority contrary to this exception, butit certainly exists and has frequently been applied by the courts .”
24. The rule of law is a principle of universal application and the Respondent should be bound by it as a decision maker. Persons unknown or peculiarly within the knowledge of the Respondent, however powerful or wealthy they may be who are in a position to influence opinion in the Respondent should be governed by the ordinary law and should be personally liable for anything done contrary to the law. The authority and power of the Respondent to impose the impugned conditions on the Applicant must find an ultimate source in the law. The applicability of the rule of law upon the Respondent safeguards the Applicant from the arbitrary exercise of power as the Respondent is subject to and should be constrained by the law.
Responsibility of the Respondent as the regulator of the legal profession:

25. The operations of the Respondent as the regulator of the legal profession in WA must see to its efficient and expeditious performance of its legal functions by means of the direct enforcement of rules and by the deterrent effects of the threatened or possible enforcement of those rules. The Respondent has the duty and obligations to ensure and safeguard the personal security of the Applicant and provide for the existence of a social order which enables people in WA to arrange their personal affairs and their relationships with associates, friends, family and neighbours on the assumption that basic standards of propriety are met and reasonable expectations are satisfied. The Respondent must ensure a high level of predictability in its decision making process so as to establish the requisite social order and restore the public confidence in its official role that enables the Applicant to act in accordance with reasonable beliefs as to his rights and obligations and that there be reasonable expectations that these will be met.

Applicant should be punished only be punished within the law and for infraction of the law:

26. The concept of “boundedness” associated with the rule of law means that the law is not all encompassing or that there is a substantial sphere of freedom of action for the Applicant. Citizens like the Applicant can only be constrained or punished for violation of the law and in accordance with the law. Where the law ends, so constraint ends. This tribunal and the persons appearing before it today are the boundary riders maintaining the integrity of the fences that divide legal constraint from the sphere of freedom of action. This tribunal must also observe the minimum content of the rule of law in that the rights and duties of persons in our society are being preserved, and the consequences of breach of any such rights and duties, must be capable of objective determination. It is only if this is the case that persons and groups in our society in Western Australia can interact with each other with confidence, in an environment of social order. The judicial independence of this tribunal then ensures that any such determination it is making is, in fact, objective.

Mutual Rights and Obligations

27. The Respondent must allow the laws affecting my rights to practice as a legal practitioner to be administered fairly, fairly, rationally, predictably, consistently and impartially.
Fairness requires a reasonable process of the consideration of the mutual rights and duties asserted by me as the Applicant for a practice certificate and those of the regulator of the legal profession. Rationality requires a reasoned relationship between those mutual rights and duties and the outcome of the decision of the Respondent and also of this tribunal affecting our mutual rights and obligations. Predictability of this tribunal and the Respondent as the decision maker requires a process by which the outcome is related to the original mutual rights and duties. Consistency requires the Respondent and this tribunal to treat similar cases similarly so that this fair treatment can lead to similar results. Impartiality requires the decision-maker and this tribunal to be indifferent to the outcome of this case. Any form of improper influence, incompetence, inefficiency or bias on the part of the Respondent or this tribunal as the decision maker is inconsistent with each of these objectives as indicated above. Without institutionalized judicial independence of these two decision makers, distortions are inevitable. Without a high level of competence, integrity and capacity for impartiality on the part of the decision makers, distortions are inevitable. There are therefore a wide range of judicial virtues which should be adopted by the decision makers: legal learning, trial experience, wisdom, compassion, clarity of thought and expression, robust independence, capacity for detachment, impartiality, attentiveness, diligence, common sense, strength of character and administrative skills. This is a diverse skill set of essentially incommensurable matters. There is no means of reducing them to a single metric.

Correct Interpretation: s.39 and s.40 of the Legal Practice Act, 2003 be read together
28. The Respondent need to find the Applicant guilty of unsatisfactory conduct before it is empowered by the relevant statute to close down his independent practice. Ss. 39 and 40 of the Legal Practice Act, 2003 should be read together to obtain the legislative intent of Parliament, otherwise the Respondent could be abusing its powers to invoke s. 40 so as to take away the common and civil right of the Applicant. See: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pars. 113-116; cf. Mitcham v. O’Toole ((1977) [1977] HCA 41; 137 CLR 150) which states thus:
“it is necessary to bear in mind the general principle that a statute will not be construed to take away a common law right unless the legislative intent to do so clearly emerges, whether by express words or by necessary implication.”
Mala fides or bad faith of the Respondent in the interpretation of the Statute:

29. The Respondent imposed the impugned condition on the Application for an ulterior purpose and had thereby acted in bad faith. In this context, the case of Jones v. Metropolitan Meat Industry Board [1925] HCA 54; (1925) 37 CLR 252, at pp 263-264 where His Honour, Isaacs J said:

“The good faith, which is the antithesis of fraud in this connection, is that which is required in the common law sense in relation to the legal exercise of statutory powers, and is not dependent on any doctrine of equity. It is wholly distinct from the notion of mistakenly pursuing a by-purpose. Such a pursuit may in this connection be honest or dishonest. The body pursuing it may genuinely avow it, thinking it permissible. There the action adopted may be ultra vires, but not mala fide. On the other hand there may be a pretended pursuit of a legitimate purpose that is mala fide.”

30. STEPHEN J. in the case of THE QUEEN v. TOOHEY; Ex parte NORTHERN LAND COUNCIL [1981] HCA 74; (1981) 151 CLR 170 at paragraph 31said the following:
“Again in Werribee Council v. Kerr [1928] HCA 41; (1928) 42 CLR 1, at pp 8- 9 his Honour emphasized the distinction between “honest error and dishonest design”, only the latter involving want of bona fides. At least to Isaacs J. “ mala fides” seems in Duncan v. Theodore to have signified actual dishonesty and not the mistaken pursuit of a by-purpose. (at p205).”
31. It is for this tribunal to make a finding that the Respondent has performed an improper purpose in closing down the practice of the Applicant and resort to impose the impugned condition on his practice certificate. In this regard, the Applicant would like to quote what His Honour AICKIN J. said in the above case of THE QUEEN v. TOOHEY; Ex parte NORTHERN LAND COUNCIL at paragraph 6 in terms of the following:
“I use the term “improper purpose” to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power. In the case of legislative powers it is not always possible to discern a purpose, as distinct from subject matter or content. A belief that the act done is being done for an authorized purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law. (at p233).”
Conclusion

32. The decision of this tribunal must be guided by the proposition that the above judicial virtues are required so that laws are administered fairly, rationally, predictably, consistently and impartially. These are requirements of the rule of law.
33.I therefore humbly pray for the Applicant to be compensated for his loss of income and his loss of reputation as a practitioner and that there be a complete restitution to his former position as if the wrong had not been perpetrated upon him.



Signature of Applicant: ………………………………………….
(Nicholas Ni Kok Chin)

LETTER TO LPCC DATED 17.3.2010 ALLEGING AS TO WHY A CONSPIRATORIAL LINK EXISTS BETWEEN THE LPCC AND SAT FOR THE PURPOSE OF PROTECTING THE CRONIES OF THE PSEUDO BOARD OF THE REGULATOR OF THE LEGAL PROFESSION OF WA

My ref: VR87 OF 2009
Your ref: S232/09
17th day of March, 2010.

The Legal Profession Complaints Committee
Atten: Legal Officer: Ms. Caroline Brookes
PO Box: Z5293, St. Georges Terrace, PERTH WA 6831 Fax: 08 9461 2265
Your ref: S232/09

Dear Sir

RES JUDICATA POINT JUDGMENT GIVEN BY THE PRESIDENT OF SAT
JUSTICE CHANEY ON 4.11.2009 IN VR 87 OF 2009

I acknowledge the receipt of your response dated 15th March, 2010 to my letter of the same date responding to your letter dated 11.3.2010. I would like to respond to it as follows:
a) If the LPCC were to respect the principle of the rule of law that I am entitled to my defence of res judicata, then it should not seek to mislead the tribunal any further.
b) The LPCC could just remedy the wrongs that were partly occasioned by its counsel Ms. Le Miere by way of omission when she was before the learned President at the stage before the pronouncement of the res judicata judgment by the tribunal through the learned President Justice Chaney.
c) The LPCC could remedy these wrongs by informing the tribunal that it is bound by the law in that it is not able to seek the “further remedy” of prosecuting me for professional misconduct when it had already persecuted me for the nebulous “deficiency in my professional knowledge” in the past.
d) The LPCC should also understand that my defence of res judicata and issues estoppel prevent the learned Deputy President Judge Pritchard for further hearing the res judicata proceedings. The reason is that there are no longer in existence, issues of facts and law, triable before the tribunal. These have already merged into the previous judgments, irrespective of whether I have unsuccessfully or successfully appealed them. Therefore, it is unnecessary for the LPCC to further persecute me with the fabricated evidence of Mrs. Mathias.
e) The LPCC should know that I have made an application in CIV 1019 of 2010 in the Supreme Court of WA invoking prerogative writ orders to prevent the abuse of powers of the tribunal and to stay the res judicata proceedings; this application is scheduled to be heard on 6.4.2010 at 10.00 am. It therefore operates as a stay of the res judicata proceedings and any further directions hearing by the tribunal in defiance of this stay is a wrong administrative decision by the tribunal through its learned President.
f) The LPCC should inquire together with me from the learned President for his written answers to my 21 questions as contained in my letter dated 15.3.2010, failing which the LPCC and the learned President is reasonably seen to be conspiring with each other for the purpose of persecuting me for an illegal purpose or for a secret agenda which the LPCC has an obligation to explain to members of the public as to why it is utilizing public funds and public amenities for a private purpose.
g) The LPCC should be prosecuting Mr. Timothy Robin Thies, Mr. David Taylor and Mr. Pino Monaco for professional misconduct and why it is not doing so in the interests of the public but is persecuting me to serve a secret agenda which it has secret knowledge of. Are the former Presidents of the Law Society of WA so powerful that they are invincible to any prosecution by the LPCC?
h) Why did the learned President condone the pillaging and plundering of legal professionals against innocent members of the public as in the case of Mr. Alessandro Bertini and Dr. Kheng Su Chan and my son Paul Chung Kiong Chin. These people are still seeking justice but justice is not being seen to be done. As a consequence, the onus of proof of this secret knowledge is therefore reversed.
i) Are there warlords in the justice system of Western Australia which a lawyer must pay obeisance to, in order to be able to practice the law without persecution?
Yours faithfully
NICHOLAS N CHIN

c.c.
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:
The Associate to the President of SAT: Ms. Toni Sherwood
The Associate to Deputy President of SAT: Ms. Alexandra Turner

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
Your Ref: CIV 1019 of 2010: Ex-parte Nicholas N Chin

MY QUESTIONS TO THE LEARNED PRESIDENT OF SAT JUSTICE CHANEY'S HAVING ASSISTED THE LPCC TO PERSECUTE ME IN VR87 OF 2010 REMAINS UNANSWERED TILL TODAY

My ref: VR87OF2009
Your ref: S232/09
15th day of March, 2010.
The Legal Profession Complaints Committee
Atten: Legal Officer: Ms. Caroline Brookes
PO Box: Z5293, St. Georges Terrace, PERTH WA 6831 Fax: 08 9461 2265
Your ref: S232/09
Dear Sir
RES JUDICATA POINT JUDGMENT GIVEN BY THE PRESIDENT OF SAT
JUSTICE CHANEY ON 4.11.2009 IN VR 87 OF 2009
I refer to your letter dated 11.3.2010 requesting my consent for Mrs. Mathias evidence to be given in person in the week prior to the trial. I do not consent to this method of giving evidence as Mrs Matthias cannot then be cross-examined by me as my accuser should be confronting me. I have to summon all my trepidations in order to write this letter at my own peril although I am fearful of the repercussions. I also do not agree that the res judicata trial should proceed as it is already the subject of my Application for stay of execution and for review in CIV 1019 of 2010. The conduct of Justice Chaney in proceeding with the directions hearing on 16.2.2010 implies that he is aware, perhaps that the Supreme Court itself is already prejudging my Application for Certiorari Orders in CIV1019 of 2010. I do place my trust in the Supreme Court as I believe that there is still some vestige of fair justice left for me.
I fail to understand as to why the LPCC is continuing to persecute me or to witch-hunt me for no rhyme or reason. Why is the LPCC not catching those real people who are defrauding innocent people like Mr. Timothy Robin Thies and Mr. David Taylor who is causing court records to be falsified? What monies have I defrauded Mrs Mathias and what intentions do I have in defrauding her to warrant this persecution. Why is it chasing after shadows in order to protect the real wrong doers?
With due respect to the learned Justice Chaney, I would like to state that the res judicata proceedings in VR 87 of 2009 did not receive my consent to proceed as the orders of Justice Chaney is not in conformity with the law and they are null orders given without jurisdiction by His Honour in an “ambushed” trial; who had lost his independence, integrity and impartiality as a judge. This is despite the fact that I have a suppressed wish that if I had been prosecuted for professional misconduct instead of being persecuted for the nebulous “deficiency” of my professional knowledge, I would not have been “imprisoned” in the legal abyss that is not of my own making. Despite the admissive conduct of the pseudo Full Board which is usurping the lawful authority of the regulator of the legal profession of WA, Justice Chaney is avoiding that particular issue in his judgment in VR107 of 2008.
If at all there is a going to be trial, it is not I who is going on trial but the learned Judge himself. I would like to know why there is a conspiratorial link between the LPCC and the learned Justice Chaney by my asking him to respond to the following questions:
a) Why did Justice Chaney adopt a pre-judgmental attitude to the case of VR 107 of 2008 when compared with the stance adopted by the former President of SAT the learned Justice Barker, before the former took over that case from the latter?
b) Why does Justice Chaney twist the facts to suit his agenda and do not present the truth or lie in his judgment in VR 107 of 2008 and in his res judicata point judgment in VR 87 of 2009?
c) Why did Justice Chaney prejudged on 4.11.2009 before trial of VR87 of 2009, that I was guilty of professional misconduct in having allegedly acted in conflict of interests with regard to the vendors of the Centenary Lunch Bar; he ought to have accepted my argument that the vendors gave me a written voluntary informed consent for me to act for them?
d) Why does Justice Chaney prejudge the issue I did not treat Mr. Pino Monaco with fairness and courtesy on 4.1.2005 when he was guilty of plundering and pillaging Dr. Kheng Su Chan with impunity? Is it not a duty of a solicitor to act for his client faithfully?
e) Why does Justice Chaney prejudge the issues of facts and law of my having acting in conflict of interests for Mr. Tylor who is my client and his two companions who accompanied him to see me?
f) Why does Justice Chaney prejudge the issue that I made improper allegations against Mr. David Taylor when the facts are clear that the latter had falsified court records and committed perjury while doing so in collaboration with the learned Registrar Powell?
g) Why does Justice Chaney descend into the arena of conflict and was blinded by the dust of the affray when he denied me the defence of “issue estoppel” which he himself admits is a good defence for me in the res judicata proceedings?
h) Why does Justice Chaney refuse to accept the fact that there are no issues of facts or law before Her Honour Judge Pritchard for the proposed trial of the res judicata proceedings as they have already merged into the previous judgments[1]?
i) Why does Justice Chaney culpably maintain that it is okay to persecute me for professional misconduct this time again, as his contention is that I am never so persecuted on those issues of facts and law in the past; he ought to have known that the LPCC cannot have a “further remedies”[2] on a subsequent prosecution as such a “strategy” is barred by the defence of res judicata?
j) Why is Justice Chaney so eager to make wrongful administrative decision in “directions hearings” such that he could control the future of the res judicata proceedings which he knows ought not to be proceeded with as they are outside the jurisdiction of SAT?
k) Why does Justice Chaney prejudge the issues of facts and law regarding Mrs. Nalini Matthias when he ought to have known that I did not abuse my powers as her solicitor, did not exploit her vulnerabilities if any, but was exploited by her and did not defraud her of any monies?
l) Why did Justice Chaney prejudge the issues of facts and law with regard to my communication with Ms. Pryer who is the Associate of Justice Jenkins which was in turn expediently communicated to Mr. David Taylor, for the purpose of securing the rights of my client, the late Ms. Hall?
m) Why did Justice Chaney prejudge the issues of facts and law relating to “trust monies” when they were monies in transit acted upon by me in accordance with my client’s instructions?
n) Why does Justice Chaney prejudge the issues of facts and law with regard to the allegedly “scandalous” accusations in accordance with my client’s instructions in the Clohessy affair when they are true and relevant and therefore are never legally scandalous?
o) Why does Justice Chaney prejudge the issues of facts and law with regard to non-existent trust monies when legal fees were received by me from my clients after work had been completed for them?
p) Why does Justice Chaney order me to comply with his orders to respond to the res judicata Application of the LPCC which I did in protest, but he does not require it (the LPCC) to reply to my response as specifically ordered by him to do so, and as a result, he left me in a lurch?
q) Why does Justice Chaney after becoming aware as the judge in VR 107 of 2008 that the essential elements of professional misconduct are missing in the issues of facts and law that were before him, still insists that I be persecuted for the “further remedy” of the res judicata proceedings?
r) Why does Justice Chaney knowing that it is well-nigh impossible for him to convert his previous findings that I was not guilty of any professional misconduct now has a change of mind: his is the resolute will to impute dishonestly and unreasonably into very those self-same issues of facts and law he had found before, with the impossible qualities of my “substantial” and “consistent” failure to reach a standard of competence and diligence expected by members of a reasonable legal practitioner? He waves a magic wand and hey presto, the conversion is done according to his wishes?
s) Has Justice Chaney forgotten to do his duties as a duly appointed judicial officer to do fair justice?
t) Is Justice Chaney unaware as a judicial officer that he has abused the process of court in ordering for the abusive res judicata proceedings to be proceeded with?
u) Is Justice Chaney unaware that even SAT which is not a court has an inherent jurisdiction to stay the abused process of court because it sought to re-litigate issues that had already been disposed of by other proceedings[3]?
The High Court of Australia has refused my Application for Special Leave to Appeal in P36 of 2009 on 10.3.2010 upon the ground that the credibility of Justice Chaney remains un-impeached in VR 107 of 2008 but not in VR 87 of 2009[4]. Therefore it is logical for me to apply for a review in the High Court if necessary, later, to impeach the credibility of Justice Chaney in the High Court only if the learned Justice Chaney were to answer the questions enumerated from (a) to (u) above. If, however, those questions remain unanswered, it would be reasonably presumed that the expected answers to those questions are reasonably expected to be admitted by Justice Chaney.
As my final humble gesture of defiance of an order that is issued by SAT without jurisdiction, I respectfully quote Dean Alfange's Creed:

"I will not trade freedom for beneficence nor my dignity for a handout. I will never cower before any earthly master nor bend to any threat. It is my heritage to stand erect, proud and unafraid; to think and act for myself, enjoy the benefit of my creations and to face the world boldly and say - ‘This, with God’s help, I have done."

Yours faithfully
NICHOLAS N CHIN
c.c.
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:
The Associate to the President of SAT: Ms. Toni Sherwood
The Associate to Deputy President of SAT: Ms. Alexandra Turner
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
Your Ref: CIV 1019 of 2010: Ex-parte Nicholas N Chin
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




[1] It is well settled, so far as civil proceedings are concerned, that, if a "judicial determination directly involv(es) an issue of fact or of law ... that (issue) cannot afterwards be raised between the same parties or their privies" ((77) Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 per Dixon J See Hoysted v. Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 at 561 where Higgins J (dissenting) first used the term "issue- estoppel". With regard to the development of the doctrine in English law, see Thoday v. Thoday (1964) P 181 at 197-198 per Diplock L.J; Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630; Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No.2) (1967) 1 AC 853.). That rule, or "issue estoppel" as it is generally called, is different from "res judicata " or "cause of action estoppel" which occurs when a cause of action passes into judgment so that "it is merged and has no longer an independent existence" ((78) Blair v. Curran (1939) 62 CLR at 532.) and "no other proceedings can thereafter be maintained on (it)" ((79) Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. See also Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 at 597; Chamberlain v. Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 507.). The rule with respect to res judicata or cause of action estoppel is embodied in the Latin maxim transit in rem judicatam.
[2] See the "extended principle" in Henderson v. Henderson ((94) [1843] EngR 917; (1843) 3 Hare 100 at 115 [1843] Eng R 917; (67 ER 313 at 319).) which would allow that:
"(t)he plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the

time".
[3] In Walton v. Gardiner ((130) [1992] HCA 12; (1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said that the jurisdiction to stay proceedings that are an abuse of process:

"extends to all those cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". Their Honours gave three examples of such an abuse of process ((131) ibid.). One of them is the case where an estoppel cannot be established but the proceedings are unjustifiably oppressive because it is sought to litigate an issue which has already been disposed of by earlier proceedings ((132) See, for example, Reichel v. Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254 at 1361-1362.). Reichel v. Magrath ((133) (1889) 14 (133) (1889) 14 App Cas 665.) is the paradigm example of such a case.”
[4] SEE THE WEBSITE OF THE HIGH COURT OF AUSTRALIA HTTP://WWW.AUSTLII.EDU.AU/AU/CASES/CTH/HCASL/2010/4.HTML IN CHIN V LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA [2010] HCASL 4 (10 MARCH 2010) AT PARA: 2 WHICH STATES:
“The Tribunal rejected the applicant's submissions, including that the respondent did not have jurisdiction to impose the conditions without some finding of incapacity or unfitness or some disciplinary proceedings being successful against the practitioner and, alternatively, that the conditions were not necessary. The Tribunal concluded that the applicant did not have the proper appreciation of, and did not observe, the standards of conduct expected of legal practitioners.”
POSTED BY NICHOLAS N CHIN AT 8:34 PM

CRY MY BELOVED AUSTRALIAN SOUL; DOES THIS SOUND FAMILIAR IN AN AUSTRALIAN CONTEXT

FW: Cry my beloved.........Malaysia!
InboxX
Reply |.........
show details 12:11 AM (19 hours ago)

Subject: FW: Cry my beloved.........Malaysia!
Date: Sat, 29 Jan 2011 06:52:34 +0000
A gem of a Malay mind.9
There are right thinking Malays like the writer below. I believe he is from the Royal Military College. And Zaid Ibrahim, the Lawyer who left UNMO and joined PKR. God bless them. They are like the Nelson Mendela's, speaking out of the injustice they see in their homeland, also our homeland.
They see the problems of the Malay Mindset vs the non-Malays, and most importantly, vs the rest of the world as Malaysia in NOT Insular from neighbor competitiveness.
This writer likens the current Malay UNMO mindset and practice of NEP in Malaysia to apartheid. Think through what he has written below and you will find that he has a really good comparison here and some good insight on what THOSE in Power are doing to their countless countrymen; brainwashing them to ensure that they stay in power. Hence you can now understand when you see the bias of the uniformed services against the alternative Political Party, the PKR in Perak and other states.
================
Abu Bakar Sulaiman a true RMC product, a good friend, and this is his honest and sincere best!
==============================================
Cry my beloved Malay soul
AB Sulaiman |
When Alan Paton wrote 'Cry The Beloved Country' he was lamenting over the inhumanity of man over man, of how the whites can devise, construct and implement race- and colour-based social and economic injustices over the blacks in apartheid-era South Africa.

The whole world had condemned this practice; we were among the loudest screaming against it.

South Africa has moved on since then, and today it is one shining example of an emancipated, open and progressive country, enjoying a respectable place in the community of nations. It has thrown apartheid into the bins of its history.

Here in Malaysia, yes we condemn apartheid, and quite rightly so. But in the same breath we were and are still its major proponent our version of apartheid.

We do not call it apartheid; of course not. We call it instead 'Ketuanan Melayu' under the guise of 'championing Malay rights,' and implementing it under the New Economic Policy. It's smart, right? In none of them does the word 'apartheid' appear!


Yes, we are smart. We do not blatantly call it apartheid, we merely perfected the process of social separation. First of all we ensure the great majority of civil servants, the police, and the military are manned by Malays (the target benefactors). We give them good salaries, good perks and assured employment. We then devise rules and regulations, and even laws, to ensure the NEP's easy implementation.

We then brainwash our Malay brethren with the notion 'untuk agama bangsa dan negara' that there is a higher ideal beyond performing a duty with professionalism and dedication, and that is doing things in the name of religion and race.

We devise rules and regulations, and even laws, to ensure the NEP's easy implementation.

Then we design and implement social and economic policies like channeling lucrative government contracts, separate education streams, housing rebates, banking and financial support, in favour of, you guessed it, the Malays.

It does not stop there. We devise measures to prevent the people from raising too much objections to all these by introducing or continuing legislation and religiously implementing them.

The Sedition Act for example stops people from talking too much about language and religion. The Official Secrets Act prevents people from gaining access to government files.

Students and lecturers are not allowed to discuss and make public any subject that would appear to be critical to government (yes, government, not political) policies and philosophies.

All publications must, first of all, get operating licences. Newspapers must not only get a licence before publishing but it must be renewed every year.



Sacrifices conveniently forgotten

The king of all of the suppressive and oppressive laws is the Internal Security Act, when a citizen can be put under detention without the benefit of any charge!

All said and done, we sacrifice the rule of law in favour of rule by private individuals. To show that we are really smart, we pooh pooh the loyalty and patriotism of the non-Malay segment of the population.

We call them pendatang or immigrants bearing the stigma that they are social discard from their original country, similar to rogues, rascals, refugees, mercenaries and scoundrels. We just ignore their proven talent and ability in wealth creation and economic productivity, as well as to their demonstrated loyalty and patriotism.

Many of such pendatangs have made the ultimate sacrifices as military personnel defending its security, during the Emergency, the Confrontation period with Indonesia and as policemen while policing the social environment.

They have contributed and are continuing to, in sport and the arts. Their record as loyal and patriotic Malaysians is quite impeccable. But we do not really care.

The perplexing thing is that despite these attributes and positive records of the non-Malays, we are still going about championing and implement apartheid principles. In this new year, perhaps we can do with a little reflection: why are we doing all this?

We do this apparently to recover our lost soul. We perceive that we have been victims of colonization when the Portuguese, Dutch and British colonizers all but butchered the Malay entity, psychology and culture. In the process we perceive that we have lost our Malay identity.

With independence, we thought we could recapture the lost glory of Malay suzerainty by becoming masters of all facets of a nation, especially its commerce, and economy. We found out that the Chinese community had beaten us to it.


We felt the Chinese had capitalised on our weakness and captured the economic initiatives (and wealth) as well as the social characteristics of the country. We lost 'face'.

Now we want to regain the mertabat or dignity and pride of the Malay race!

Yes, we feel that we have to recover our soul and it is here that we are reminded of Paton's book title, but in this case suitably paraphrased to – cry my beloved Malay soul.

Our Malay soul needs to cry for doing the right thing for the wrong reason or the wrong thing for the right reason; even for the wrong thing for the wrong reason, but not for the right thing for the right reason.

To start with colonization is really not an excuse for our psychological malaise and ineptitude.

Colonization has been a feature of human history and felt all over the world. There are very few countries that have not been colonized in the world.

It is thus a neutral concept in human social and economic development. It is certainly not an impediment to social or economic progress as we are wont to portray it. We should dump this notion that we hold dear into the bin of history.


Rethinking our way of thinking

Just look at the records. The Koreans were once colonised by the Japanese, but today Korea is an industrial power house. Singapore was once colonized by the British and was indeed a part of us, and today we see this tiny country being a solid financial, trading and industrial entity.

Most pointedly of all, the US was once a British colony and today it is the mightiest nation in the world. Our second grouse - that the Chinese have cornered the economic sector of the country also needs re-looking into, on two counts.


First, the Chinese did not become successful based on any conscious and concerted economic programme to economically marginalise us.


We did this self-inflicted wound ourselves. As proof, we have to note that most of the Chinese came to our shores with only their feet, hands, guts and brains and perhaps a bundle of clothes, nothing more.

They become successful for their hard work, both physically and mentally and for the sacrifices they were prepared to make and had undertaken. They were successful for having the mental fortitude to seek opportunities, grab those that come along and worked extra hard to realize the potentials of these opportunities.

Secondly, we have been given a chance to be equal with them, both under numerous 'special privileges' enshrined in the Constitution, as well as under its NEP implementation programe.


The special privileges have always been in the constitution while the latter began in 1970. In short, we have been given the chance - the opportunity - many times over, to better our Malay polity.

Whereas the Chinese had to struggle just to find and identify the opportunities, in our case they were handed to us on a silver platter!

Thus far we have failed to capitalize adequately on them. It is rather shameful we missing out on these chances specially created for us in the first place.

Either way the root cause of our weaknesses and the strength of the Chinese lies in two words - positive thinking. Our thinking is mired with so many dos and don'ts, so many musts and musn'ts, so many cans and cannots, may and may nots, plenty enough to create and internalize doubts and fears in our minds.

So much so that we have doubt over what we can and what we can't do, what is allowed and what is not. We spend a lifetime looking for these highly complex cans and cannots, musts and must nots, that we have hardly any mental energy left to develop and self-confidence to get on and face the realities of life.


Let's refer to this case as the 'can't, don't and won't syndrome'. The Chinese by the way are not encumbered by such syndromes.

What appears to have happened is that this syndrome has affected our mental ability to conceptualise. We see things on the straight and narrow. We accept wisdoms handed down to us by our elders as the gospel truth.


Blinded by sentiment

We do not see that things can be seen and interpreted in many alternative ways. We feel we have the monopoly on truth; we therefore think that we are right all the time and other people are wrong all the time. Witness the way we see religion for example.

We think that we as Muslims are right and other people who profess other religions are wrong, all the time.

We need to cry for thinking that we can and have doctored the way the people think and do things. We have been intimidating the people with what they can read or write or think and do.

We seem to be saying "you can think anything, do anything, write anything so long as it does not criticise or condemn the government".

Soul-searching and resuscitating is not or should not be about pointing accusing fingers at some bogeys. That would be a most negative thing to do. It would be better for us to be open-minded and be able to identify our own strengths and weaknesses.

We improve upon our strengths and dump our weaknesses. Mainly we must be able to develop the awareness that we have both the strengths and weaknesses in the first place.

To illustrate, the NEP has proved many time over as a failed strategy for our socio-economic advancement. Let us be aware of this in the first place and move on seeking other ways with better chance of success.

How about secularizing the Malay mind? It might make for a good start for we can see many of the don'ts, can'ts, musn'ts dissipating into the wind.

In the meantime, here we are in the early days of a new year. We should begin by realising that whatever 'smart' moves we had undertaken all this while have not really been that smart after all.

The joke is on us. Everybody says so – the liberated Malays, the non-Malays, our neighbors and the rest of the international community. Only those of us basking in our closed mind and benefiting from the profits of the status quo say it's alright.

Happy New Year all the same and here's hoping this year we can get a good perspective as to what propagating a good mertabat really means. It's long overdue.

In the meantime, cry my beloved Malay soul.

Jean-Luc Godard - "To be or not to be. That's not really a question."
--
邱武福 9728
Boo Hock

TRANSCRIPT OF THE TAXATION PROCEEDINGS BEFORE MR. ANTHONY PRIME AND MR. MAURICE LAW BY REGISTRAR POWELL - IN THE ABSENCE OF NICHOLAS N CHIN WHO HAS GIVEN PRIOR NOTICE TO REGISTRAR POWELL THAT HE IS UNAVAILABLE

Copyright in this document is reserved to the State of Western Australia. Reproduction or dissemination of this document (or part thereof, in any format) except with the consent of the attorney-general is prohibited. Please note that under section 43 of the Copyright Act 1968 copyright is not infringed by anything reproduced for the purposes of a judicial proceeding or of a report of a judicial proceeding.

THE SUPREME COURT OF
WESTERN AUSTRALIA
CIV:1775 of 2008
AUDREY FRANCIS HALL as executrix of the estate of KENNETH DUNCAN HALL
and
NICHOLAS NI KOK CHIN
and
SPUNTER PTY LTD
and
THE REGISTRAR OF TITLES
REGISTRAR POWELL
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON FRIDAY, 17 DECEMBER 2010, AT 10.03 AM
Continued from 3/11/10
MR A. PRIME appeared for the plaintiff.
The first defendant appeared in person via telephone.
17/12/10 35
(s&c)
THE REGISTRAR: Commence the reviews in the first instance in CIV 1775 of 2008, Hall v Chin and Spunter Pty Ltd and the Registrar of Titles. Yes, Mr Prime?
PRIME, MR: May it please, registrar, in that matter I appear for the plaintiff.
THE REGISTRAR: Thank you. Now, I note you are here, Mr Law. In what capacity are you here?
LAW, MR: I can say a witness. Mr Chin can't be here and although he mentioned there might be a phone hook-up, I just thought I would come in to see what was going on. These two matters don't directly refer to me.
THE REGISTRAR: They refer to the company.
LAW, MR: Yes.
THE REGISTRAR: But you seem to have flitted in and out without an appearance ever being filed on behalf of the company and notwithstanding that you're not a certified legal practitioner you have had things to say on behalf of Spunter of which you are now the sole director, I understand.
LAW, MR: Yes, sir. I have written a letter to the Supreme Court to ‑ ‑ ‑
THE REGISTRAR: No, I'm not interested in letters.
LAW, MR: Okay.
THE REGISTRAR: It's a review of taxation. Now, in CIV 1775 of 2008 the bill was taxed pursuant to an order of Master Sanderson dated 29 January and the cost provisions state the first and second defendants pay the plaintiff's costs of the action, including any reserved costs and the costs of the application to be taxed. The bill was taxed. Mr Chin filed objections. The order I made at the taxation was the allocatur would be signed on 10 November unless before that date. A request for review and objections were filed. So objections had to be filed before that date.
Now, there was a document received on 4 November. The second defendant's notice of objection to the plaintiff's bill of costs was prepared by Nicholas Chin but it's referred to as the second defendant's notice of objection. Now, I don't want to get embroiled in this hearing on the right or otherwise of Mr Chin to file objections on behalf of the - sorry, Mr Chin is the second defendant.
On 10 November which is late you, Mr Law, sent a letter to the court initially dated 29 October, then altered to 9 November and finally faxed on 10 November so
17/12/10 LAW, MR 36
it is out of time and it you say, "I'm seeking your permission to file my tax notice of objection dated 9 November." It was too late, but what you filed under your name - who prepared that document?
LAW, MR: Myself.
THE REGISTRAR: Mr Chin?
LAW, MR: Myself. I did receive some assistance from another gentleman.
THE REGISTRAR: Who was that gentleman?
LAW, MR: He lives in another suburb.
THE REGISTRAR: Could you name who it is?
LAW, MR: James Deane.
THE REGISTRAR: What is James Deane, a lawyer?
LAW, MR: No, a friend of mine.
THE REGISTRAR: That document seems to follow the wording of the second defendant's notice of objection.
LAW, MR: I probably took some points from it.
THE REGISTRAR: Is it identical?
LAW, MR: No.
THE REGISTRAR: Which parts aren't identical?
LAW, MR: I don't have the document in front of me. I don't have two documents.
THE REGISTRAR: In any event, firstly, that's out of time; secondly, it's not a notice of objection. At the hearing I stated you should identify those items to which you are objecting and the reasons for the objection. This seems to be a general description of the objections that Mr Chin took at the taxation. I will come back to that in a moment, but in my view this document was prepared by Mr Chin.
LAW, MR: The facts would be the same, wouldn't they?
THE REGISTRAR: You have got your copy now, have you?
LAW, MR: Yes, sir.
THE REGISTRAR: I will have a look at Mr Chin's copy of his objections. It starts off "Take notice", et cetera, "that I the second defendant am objecting to the taxation,"
17/12/10 LAW, MR 37
and it goes on (1) and then it has got, "53 - party dissatisfied with taxation may object," and then (1)(a) "A party who contends that the taxing officer has made an error." It's identical with the wording in the other one. Every time I see you you just add to the confusion, Mr Law. Nicholas Chin is the first defendant and Spunter is the second defendant.
LAW, MR: Yes.
THE REGISTRAR: Nicholas Chin has filed a notice of objection on behalf of the second defendant.
LAW, MR: We all make mistakes.
THE REGISTRAR: Okay. Don't worry about that.
LAW, MR: No.
THE REGISTRAR: So have you copied this document which was received by the court on 4 November and added your name and then referred to it as your objections?
LAW, MR: Well, the objections would be similar.
THE REGISTRAR: No; no, please answer the questions ‑ ‑ ‑
LAW, MR: No.
THE REGISTRAR: - - - otherwise we are going to have one of these things that go forever.
LAW, MR: Okay, sure.
THE REGISTRAR: You didn't copy it.
LAW, MR: No.
THE REGISTRAR: No, okay. Did you prepare this document or did someone prepare it for you?
LAW, MR: I prepared it.
THE REGISTRAR: When you say "prepared it", typed it up?
LAW, MR: Yes, it's on my computer.
THE REGISTRAR: Was it sent to your computer by Mr Chin?
LAW, MR: No.
THE REGISTRAR: As I say, one, it's out time, (b) it's not an objection to the taxation and (c) you make the same errors that Mr Chin made at the taxation. I'm trying to find the reference to the decision of Judge Sullivan which was towards the end of that document. After
17/12/10 LAW, MR 38
paragraph (j) or in paragraph (j) it commences:
Registrar Hewitt as the taxing master of another case which affects Mr Alesandro Bertini did on 22 June 2009 decide to overrule his Honour of the District Court Judge O'Sullivan improper costs order affecting the solicitor-litigant in claiming profit costs against Mr Bertini.
Now, we are at the taxing here. Mr Chin was referring to that judge as Judge Sullivan which I have never heard of before, but there is or there was a Judge O'Sullivan at the District Court, but that case has nothing to do with this one. That is to do with the costs of a solicitor as a litigant in person and it was put forward by Mr Chin on the basis that I had the power under this case quoted in here to overrule the decision of a judge. That is sheer nonsense.
LAW, MR: Yes.
THE REGISTRAR: The case that Mr Chin was referring to is in fact Dobree v Hoffman (1996)18 WAR 36. It's a dispute between partners in a legal firm and it has got nothing to do with this case here, but in any event I'm going to rule that that isn't an objection to taxation by you. Insofar as you're concerned (a) you're out of time and I see no reason to extend the time for you to file those objections so your objections have no weight here and you may leave if you so wish.
Now, so far as the objection of Mr Chin is concerned I explained to Mr Chin at taxation the procedures and it might be instructive to go to the transcript. From what I can see Mr Chin's objection is to the fact that I even commenced to tax the bill because the decision of the court was wrong in that it misinterpreted or I misled the court by a letter dated 11 June in CIV 1131 of 2006 concerning the date of when a writ was filed.
Now, Mr Chin says the Court of Appeal were misled in that they relied on my letter in the decision they made in Chin v Hall (2009) WASCA 216 and he referred me to paragraphs 54 and 55 of the judgment of Owen JA where Owen JA said:
I have reviewed the evidence which Mr Chin seeks to adduce and it does not prove his contention. The high point of Chin's evidence is a letter written to him by a registrar of this court dated 11 June.
That's the letter I have just referred to and the judge sets that out in full and the judge at paragraph 55 says:
17/12/10 LAW, MR 39
The letter does not establish that the action was not commenced on 10 February. It indicates the writ was filed on 10 February and, through an oversight, the filing fee paid was 20 cents of the proper amount. The underpayment was brought to Spunter's solicitor's attention and the correct amount was paid. This does not mean that the writ was not filed until the correct fee was paid.
Now, all his objections at that taxation were based on that and his error in principle is a decision of the court and the fact that I am taxing the bill. First of all I should say that the title to this action 1775 of 2008 is Hall as the plaintiff, Chin as the first defendant, Spunter as the second defendant and the Registrar of Titles is the third defendant and the confusion from time to time is the wrong description of the first and second defendants.
LAW, MR: Yes, I came across this a number of times. They even put me down as Hall.
THE REGISTRAR: When you say "they", who?
LAW, MR: Different solicitors.
THE REGISTRAR: So this objection by Nicholas Chin was said to be the second defendant's notice of objection but it's not the second defendant's notice of objection - sorry, it is the second defendant's notice of objection. It's Nicholas Chin. Now, I have previously referred to the objections by Maurice Law for Spunter and what he has done on those objections is make - sorry, this is the problem with this. Chin's objections are said to be on behalf of the second defendant. The second defendant is Spunter. However, in his objections he has reversed Spunter and Chin so that Spunter is shown as the first defendant and Chin is the second defendant, but let's not worry too much about that. The wording of that, of course, is the same as in the document produced by Mr Law, but once again it's not an objection to taxation. Now, I would like to read out ‑ ‑ ‑
THE ASSOCIATE: Registrar, sorry to cut across you, but I think he has either hung up or he has gone.
THE REGISTRAR: Has Mr Chin hung up?
THE ASSOCIATE: It sounds like it.
THE REGISTRAR: Not on that phone; try on another phone. That's still recording is it?
THE ASSOCIATE: It's off now.
THE REGISTRAR: No, I want it recording because I'm going to continue but I want you to ring on another phone whether he has hung up.
17/12/10 LAW, MR 40
THE ASSOCIATE: Yes.
LAW, MR: I don't know whether ‑ ‑ ‑
THE REGISTRAR: No, please, every time you speak you add to the confusion. Now, at page 2 of the transcript after introducing the case I raised the first question where Mr Chin objected to me taxing the bill and halfway down page 2 of the transcript he says:
I believe there is a technical slip of the Court of Appeal in its decision in CACV 107 of 2008. That technical slip happens at paragraphs 54 and 55 of that judgment. That judgment was by the Court of Appeal, three members.
Now, I have previously adverted to those paragraphs and I then went on to say, "Look, there has been a decision by the court and I'm taxing pursuant to that order," and Mr Chin persisted at the top of page 3. He says:
I have written a few letters of inquiry regarding the exact position as to why CIV 1131 of 2006 was not filed on 10 February but was filed on 16 February 2006.
I have read out the reasons of Owen JA which were quite clear. Then Chin says:
I have gone to the High Court and the High Court have decided that I had go to go back to the low court to make a legal determination whether it is my work, that is, the solicitor's work in CIV 1142.
Mr Prime interposed saying that the High Court decision was on a special leave application and I said:
This is an order dated 27 May and the High Court stated the application for special leave to appeal in this court for judgment be dismissed.
Chin said he understood that "but the reasons for the judgment says"- and I cut him off. I said, "That's the end of the matter as far as the High Court is concerned." Chin said, "It doesn't end there because there are issues that have not been decided by the High Court," and Chin went on, "It's not over because it's not res judicata." So then we go to page 6 and I said, "Unless you can show cause which says I must not tax the bill, I want to go ahead and tax it," and Mr Chin objected and I asked why. He said:
Because you wouldn't be involved in a dispute which have you been personally implicated because the Court of Appeal in coming to the decision made a technical slip at paragraphs 54 and 55 -
17/12/10 41
so he's coming back to those comments by Owen JA -
and that technical slip relied upon your letter of 11 June.
Then we went on and on about that and I asked was he suggesting that I was lying or was he suggesting that I was trying to mislead someone and then Chin went on at page 8, "Also would you like me to go on whether you have got the jurisdiction to tax this matter?" I said, "Yes." "All right. Your jurisdiction as a taxing officer is either to allow or disallow those items in the bill," and I said, "Yes." "Your jurisdiction in this is that you must not allow it because those services were never provided by Mr Anthony Prime to Mrs Hall," and I said, "The costs are allowed pursuant to the costs order. The bill is taxed pursuant to the costs order," and then Chin said, "But according to the rules" - and I asked, "Which rule?" and he said, "Rule 53(1)." Rule 53(1) has a reference to order 66. Rule 53(1):
A party who contends that the taxing officer has made an error in principle in allowing or disallowing any item in a bill of costs taxed by him may, at any time before a certificate of taxation dealing finally with that item is signed, deliver to the other party -
and it goes on with the method of seeking the review and filing objections, but that's after the taxation, not before it. Here we hadn't commenced taxation. It's highlighted by the fact that the Court of Appeal decision which then allowed the taxing in 1775 of 2008 to proceed was wrong in that it was based on a letter written by me which Mr Chin contends was either wrong, a lie, misleading and he's also referred to me trying to protect Mr Taylor.
I got to the first item at page 14 of the transcript at the bottom and at the beginning of page 15 I said, "You can reserve an appeal as to whether this taxation should proceed but as far as the taxing of the bill is concerned item 1 refers to a writ," and we commenced to tax, "Do you have any objection?" Chin: "Sir, rule 53 does not allow you to have jurisdiction to proceed with the taxation." In my view that's clearly wrong. It can only be right if his contention that the Court of Appeal were wrong in their decision and I'm not the body who can decide that question. I assumed that was the purpose of the application to the High Court which was dismissed. I make the point towards the bottom of page 15 in referring to this rule:
It's only where you're dissatisfied with my taxation but we haven't taxed it yet, so how can you be dissatisfied with my taxation? What you're dissatisfied about is my right to commence the taxation.
17/12/10 42
THE ASSOCIATE: He has gone again, registrar.
THE REGISTRAR: Yes. I will just adjourn it for a moment. Now, I will continue but I'm assuming that either Mr Chin has hung up or his phone has ceased to receive this call. Looking at the transcript from then onwards, you can see how the taxation proceeded at page 18 at the top of the page referring to the statement of claim. Mr Chin: "I object because it's not allowed." Registrar: "Why isn't it allowed?" Chin: "It isn't allowed because it's not recoverable because it's not the services that have been provided to Mrs Hall." I said:
The order provides that the first and second defendants pay the plaintiff's costs of the action, including any reserved costs and that's what I was taxing.
I said, "Do you want to object to the quantum?" Mr Chin: "I do not wish to participate in this, sir." I said, "I'm going to allow the item," and then we proceeded with the summary judgment application. At the top of page 20 I said, "Do you have any objection to the quantum being claimed?" Mr Chin: "Sir, the order of the court - the court's order against me is a void judgment and I've approached it" - and I interjected, "Decided by whom?" Chin: "By way of certiorari." "Who decided that?"
Chin: "I've approached it by certiorari and it will be decided." Registrar: "It's not decided by anyone at the moment. All of these are allegations by you." "It's not an allegation. It's a fact." Chin: "I don't want to waste my time taxing something which I'm not liable to pay," so the whole objection is that he's not liable to pay because of the faulty judgment of the court which was based either on a lie or being led astray by my letter.
THE ASSOCIATE: He's dropped out.
THE REGISTRAR: Is he dropping out or is he ‑ ‑ ‑
THE ASSOCIATE: Yes, I don't fully understand why it is.
CHIN, MR: Hello.
THE ASSOCIATE: This is Perth again, Mr Chin.
CHIN, MR: Hello.
THE REGISTRAR: Yes, we can hear you, Mr Chin. Then at page 21 there's a discussion on item 3 of the bill - sorry, item 4 of the bill which were costs fixed by a case manager. Mr Chin: "Is it a standard association or an indemnity assessment?" I replied:
17/12/10 43
It's costs fixed by the case manager. There was no taxation about it. The case manager fixed those costs and that can be seen by the order dated 18 August 2008. The costs of the day be in the cause fixed at $320.
Chin: "So is it a standard assessment, not an indemnity costs?" "That's the order. Forget what it is. It's fixed." "Sir, I wanted to know whether it's party and party costs that I'm to pay that is made?" "There is not suggestion this is anything other than party and party but it's been fixed by the judicial officer who made the order," and then we went on and taxation proceeded on that basis.
If I could digress a moment, at page 28 with respect to Mr Law I asked, "Has anyone granted you, Mr Law, leave to appear on behalf of Spunter in this or any other matters?" Mr Law: "Well, I have a solicitor - no, I was, I think - yes, I did. I applied, yes. I wrote to the court." "And what was the order?" Law: "I don't think I received a reply again." "Did you make an application?" "Not especially as a document from the court." The end effect is that no‑one is representing the company but I gave Mr Law leave to speak at the taxation with respect to the bill for that company.
LAW, MR: Sir, do I have to ask the court each time I come in on a matter whether I'm able to represent the company?
THE REGISTRAR: I'm not worried about that. What I'm worried about is this taxation. So any other matter you can take up with the judicial officer, but to my way of thinking this taxation will end this action so if you commence something further, you will have to ask. At page 3 we got on to a review of taxation. At the bottom of that page I said:
The easiest way is if you object to individual items in the bill. Now, if you have got some objection in some other form which has got nothing to do with taxing of the bill, that is a decision under which I'm taxing.
In other words, getting back to the order of the Full Court, "I'm taking no notice of that because I can't affect that. I'm taxing pursuant to the order," and that's because, if I could go back one, at page 31 at the end of the taxation I said, "I'm explaining to you that if I start it now, that's the equivalent of a judgment. If you have got objections as to principle or any other matter, I will delay signing the allocatur for seven days," and Chin asked me to do that and so did Mr Law.
Mr Chin: "The reason for my objection is it should not have been allowed because there is no recoverability."
17/12/10 44
"We touched on recoverability. The recoverability is not there." In other words, he's finding fault with the judgment of the court and I suggested that he should either seek legal advice or make use of his own knowledge, being formerly a lawyer, and that, "My review would be based on the taxation and I will restrict it to those matters in contention," and I said at the foot of page 32:
It will not include whether the judgment pursuant to which this bill is taxed is valid or not or whether it should be reversed on some sort of appeal. My review will be on the amounts allowed under the items of the bill.
I invited him to "do whatever you want in whatever sphere" but to do it before that date "but if it doesn't relate to the review of the taxation, being an error in principle on which the bill was taxed and the amounts allowed, I will be signing the allocatur". In my view that's what this document headed "Objections" is. It doesn't specify the items. It doesn't specify the amounts, but it reverts back to the commencement of the writ in 1131 of 2006.
CHIN, MR: Hello, is that (indistinct)
THE REGISTRAR: It says, "The two bills of costs are for judgments and are not enforceable in a court of law. These proceedings are void and have to be repaired by way of certiorari in CIV 1877 of 2010," and there's a reference to various cases.
CHIN, MR: Can I (indistinct)
THE REGISTRAR: So far as I'm concerned these objections are not objections as to the taxation. Now, whether you, Mr Chin, have a right to take this matter on the question of the judgment pursuant to which I'm taxing the bill to another jurisdiction is not for me to decide, but I don't believe these objections in any way cause me to change the amounts I taxed at taxation. Now, you want to say something, Mr Chin?
CHIN, MR: Yes.
THE REGISTRAR: Do you want to say anything?
CHIN, MR: I actually can't hear. What's your decision again, please?
THE REGISTRAR: Yes, what I'm saying is that this isn't objections to taxation. It's objections ‑ ‑ ‑
CHIN, MR: (indistinct)
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THE REGISTRAR: I'm going to allow the taxation - the amount allowed at taxation.
CHIN, MR: (indistinct) can you send me that email again because ‑ ‑ ‑
.........., MR: He's talking to someone else.
THE REGISTRAR: Which email?
.........., MR: He's talking to someone else at the same time, someone called Jackson.
CHIN, MR: Your Honour?
THE REGISTRAR: Are you talking to me, Mr Chin?
CHIN, MR: Your Honour - your Honour, can you hear me?
THE REGISTRAR: Yes.
CHIN, MR: I'm speaking to Jackson of the Supreme Court at this moment just a little - I have got a document I ask him to send to me and I will (indistinct). Is that okay?
THE REGISTRAR: No, I'm making my decision now because what you have filed are not objections to the taxation. I will just see what Mr Prime has to say.
CHIN, MR: (indistinct) I didn't hear the decision properly.
THE REGISTRAR: Okay. I just want to hear what Mr Prime has got to say. Do you have anything to say?
PRIME, MR: All I say, registrar, is that on the defendants' own document where they quote order 53 rule (1)(a) it says that an objection in writing must be ‑ ‑ ‑
CHIN, MR: (indistinct)
THE REGISTRAR: Can you keep your voice up for his purposes?
PRIME, MR: The objection must be a list in a short and concise form of the item ‑ ‑ ‑
THE REGISTRAR: Hold on, Mr Chin, please. Mr Prime is speaking now.
PRIME, MR: The objection needs to be a list in a short and concise form of the items or parts of items objected to and the grounds and reasons for the objections. This document doesn't do that. This document seeks to continue
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to argue the matter that has been put to rest by the Court of Appeal and by the High Court.
THE REGISTRAR: That is what I pointed out to Mr Chin ‑ ‑ ‑
PRIME, MR: Yes, at the original taxation.
THE REGISTRAR: - - - and to Mr Law at the original taxation.
PRIME, MR: That's right, and indeed to the extent that he refers to seeking prerogative relief the decision of Heenan J in that regard, although adjourned sine die, says, in effect, "Subject to any submissions from Mr Chin those applications are doomed to failure but I won't dismiss them at this stage." So all of those are issues that he could seek to take elsewhere. He has sought to do so and unsuccessfully. They do not impact upon your taxation and they're not bases upon which to seek a review of individual items.
THE REGISTRAR: So as a result of that I'm not going to sign the allocatur in the bills and that completes the hearing. Thank you.
AT 10.50 AM THE MATTER WAS ADJOURNED ACCORDINGLY
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